Karami v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT SPENDER J: 1 This is an appeal from a judgment given by a single judge of this court, Wilcox J, on 4 July 2001 in Perth where his Honour dismissed an appeal seeking review of a decision of the Refugee Review Tribunal (the Tribunal) which affirmed a decision of a delegate of the respondent minister not to grant to the appellant, Mr Karami, a protection visa. 2 On the hearing of the appeal, matters were raised by Mr Rynne, counsel for the appellant, directed at securing an adjournment for the purpose of obtaining evidence on which to challenge the correctness of a finding by the Tribunal in this case, that a document purporting to be a summons issued by the Tehran Islamic Republic Court to the appellant was not genuine. 3 That application for an adjournment was refused, for reasons which the Court then gave. In the result the only ground of appeal that was argued on behalf of the appellant was that the Tribunal, in concluding that the appellant was not a person to whom Australia had protection obligations under the Refugees Convention, erred in law, in breach of s 476(1)(b) and (c) of the Migration Act 1958 (Cth) (the Act). The particulars are that the Tribunal erred in finding that the summons was not genuine, the Tribunal acted on an assumption that was not sustained by logically probative evidence, and failed to take into account matters relevant to that finding. 4 The assumption about which the appellant complains is said to be an assumption by the Tribunal that the Iranian authorities would not act capriciously or arbitrarily in issuing a summons, and since it found that he was, in the country information language, a minor participant, the authorities would not have issued a summons to him in respect of that participation. The reasoning is that that assumption gives rise to a ground of review under 476(1)(b) or (c). 5 The position is explained by a Full Court of this Court, Sackville, Kiefel and Hely JJ, in a decision given on 5 November 2001: Soe v Minister for Immigration and Multicultural Affairs [2001] FCA 1575, particularly at paragraph 12 and following. The Court noted: "... even if the appellant's reading of the Tribunal's reasons were to be accepted, it is by no means clear that the reasoning would be characterised as illogical or as involving a non sequitur. The fact that another view might be taken about the significance of a political movement being secret rather than open does not demonstrate illogicality or that a particular conclusion cannot follow from the expressed reasoning." Paragraph 13: "Secondly, the authorities of which Minister for Immigration and Multicultural Affairs v Perera [2001] FCA 1212 is the latest, establish that a factual mistake or want of logic in reasoning does not mean that there has been an error of law giving rise to a ground of review under the Migration Act: see at [24], per curiam. It should be noted that Minister v Perera was decided after the High Court handed down its decision in Minister v Yusuf. Thirdly, on the assumption (contrary to our view) that the Tribunal's reasoning in the present case was illogical, we do not think that would demonstrate that the Tribunal had asked the wrong question. We are prepared to assume, without deciding, that illogicality of reasoning might, in a particular case, show that the Tribunal had failed to address the correct question. But in this case the Tribunal was concerned to assess whether the appellant's fear of persecution for her actual or imputed political beliefs was well founded …" 6 In the present case, the Tribunal addressed the question whether the summons was a genuine document. There is no room for any possibility that the Tribunal failed to address the correct question or that any other error of the kind described in Yusuf as "jurisdictional error" tainted the reasoning of the Tribunal in the present case. 7 Whether the conclusion about the genuineness of the summons was correct or not and whether the reasoning of the Tribunal in reaching that conclusion was logical or not does not provide a ground of review. There is nothing to suggest that the Tribunal misdirected itself in any way. 8 As counsel for the Minister made plain in the course of submissions on the application for an adjournment, if it be the case that further evidence may demonstrate indisputably that the Tribunal's factual conclusion about the genuineness of the summons was wrong, then an opportunity exists for an approach to the Minister pursuant to the provisions of the Act. 9 For those reasons, in my view, the appeal has to be dismissed, and with costs. MERKEL J: 10 I agree. ALLSOP J: 11 I agree.