REASONS FOR JUDGMENT
FRENCH AND HILL JJ:
Introduction
1 The respondent is a citizen of Iran. He arrived in Australia without lawful authority on 22 December 2000. He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 8 January 2001. That application was refused by a delegate of the Minister for Immigration and Multicultural Affairs on 28 February 2001. On 2 March 2001, the appellant applied to the Refugee Review Tribunal ('the Tribunal') for review of that decision. The Tribunal affirmed the decision not to grant a protection visa on 30 June 2001.
2 On 17 July 2001, the respondent filed an application in the Federal Court for an order of review. The application was successful before the learned primary judge who made orders on 6 August 2002 setting aside the decision of the Tribunal and remitting the matter to the Tribunal for redetermination. The Minister has subsequently appealed against the decision of the learned primary judge. Central to this appeal is whether the learned primary judge was right to regard the way in which the Tribunal dealt with the respondent's claims and evidence as a failure to discharge its statutory function of review to have regard to material it was required to consider.
Claims, Materials and Evidence before the Tribunal
3 The papers before the Tribunal included a departmental record of an 'Unauthorised Arrivals Interview' conducted with the respondent at the Curtin Detention Centre on 30 December 2000. The record of the interview indicated that it was conducted with the assistance of an interpreter in the Farsi language. Part C of the record comprised a number of standard questions with answers recorded by the interviewing officer. Among those questions and the recorded answers were the following:
'2. Why did you leave your country of nationality (country of residence)?
Where I was working I had been sacked and they wanted to persecuted (sic) me. I worked for the government and I had information in relation to corruption and I passed on the information. The information was then published in the newspaper. Newspaper called Resalat. I received a letter from the company saying that I was sacked due to breaching the dress code. (They never mention about the corruption) A friend in the company gave me the letter. I then fleed Iran.
Q: What would have happened in you didn't flee? (sic)
A: I would have been arrested and I would have been taken away (probably killed).
3. When did you begin to plan leaving your country of nationality?
When I received the letter from work. I know what happens to people who receive this letter.
4. Why did you choose Australia as your destination?
Australia was the only option for me to travel to. (sic)
5. Do you have any reasons for not wishing to return to your country of nationality (residence)?
As mentioned in Q3. If I return to Iran I may lose my life.'
Part D of the record of interview recorded that the respondent disclaimed any association or involvement in activities against any government or political group. Asked to give details of any contact with the police or security or intelligence organisations, the respondent said that the only problem was that stated in Part C of the record of interview.
4 The respondent's application for a protection visa was supported by a typed statement taken from him at the Curtin Detention Centre on 8 January 2001 and set out under the letterhead of his migration advisers, Macpherson & Kelley. In that submission he said he had started working at the Ahvaz Sugar Cane Company in 1996 as a public relations officer. He had discovered corruption in the management while working there. The managers of the company were said to have been embezzling company funds. In 1999 he had gathered proof of this corruption and sent the information to a relative who was a student at Ahvaz University. The submission then went on:
'This information was then published in a student newsletter criticising government policies.'
The respondent said that in October 2000 a male friend who was the secretary of one of the managers in the company told him that the manager who was also a Colonel of the Sepah was aware of his actions. He delivered to the respondent a copy of a letter addressed to the respondent which stated that he was being dismissed as he had not 'upheld the Islamic values and rules'. The respondent said that fearing for his life he then went into hiding in a village where his uncle lived and stayed with his uncle for about 15 days. His brother tried to raise funds for him to leave the country and to bribe someone at the airport to ensure he had a safe passage. After his brother had arranged everything he went to Tehran, stayed there for a few days and then fled the country. He travelled to Indonesia. He spoke with his mother from Indonesia and was informed that their house had been searched on two different occasions by security agents who were looking for him. The respondent said in his statement that he feared that if he went back to Iran he would be arrested, interrogated and accused of being part of an opposition group in order to justify his execution. He considered that the Etellat would harm him if he returned. In further explanation of his belief that he would be harmed or mistreated if returned, he said:
'As I exposed the corruption in a company which is related to the Mullas (sic). The company is known as Sepah as all of the managers have served in the Sepah. By exposing such a company I am accused of being anti-government and having links to opposition groups which the penalty is death.'
5 The reasons for decision of the delegate refusing the application for a protection visa referred, among other things, to an interview with the respondent and said:
'The applicant said he accessed documents from top Managers rooms when they stayed at a guest house at the sugar Cane company. The applicant said he copied the documents and then faxed them to his relative at the university where the documents where (sic) published in a university newsletter.'
6 In support of the respondent's application for review before the Tribunal, the migration adviser then acting for him made a written submission on 11 April 2001. In that submission reference was made to the passage from the decision of the delegate quoted above where the respondent said he had faxed copies of relevant documents to a relative at the university, where they were published in a university newsletter. The submission then went on:
'The applicant stated the above in his both interviews. (sic) He also maintained in his interviews that his motivation for his action was that he felt the responsibility to make his people aware of the existing corruption amongst the managers who were also unofficial affiliates of the government's suppressive machine. The applicant by passing information to the student group wanted to divulge (sic) the Islamic government. He believed it was his responsibility towards his fellow countrymen. His above act led to a series of investigations, which resulted in the resignation of Dr Isa Kalantari who was the Minister for Agriculture.'
The submission added:
'The applicant believed that by passing this information to a student group, had a role in his country's future political progress.'(sic)
7 The Tribunal conducted a hearing on 20 April 2001. There was discussion at that hearing about the respondent's discovery and use of incriminating documents from the Ahvaz Sugar Cane Company. The Tribunal member asked the respondent why he had sent the documents he discovered to a friend in the university. The respondent answered that he didn't belong to any particular political group but felt he had to do something for his people and his country. The Tribunal member put to the respondent that there could have been places where, if he had evidence of corruption he could have taken that evidence. The Tribunal member expressed surprise that the respondent just sent the documents off to a friend at the university. He invited comment. The answer was not directly responsive but referred to the incidence of executions in Iran and said that they had increased in spite of the advent of the reformist President Khatami in 1997. He was then asked again about the possibility that there were other people to whom he could have given the documents. His response, according to the transcript, was:
'If you look, if you look at it has always been the students and the universities that have been active at the regime that has been frightened from them. Always tried to avoid - not with them - avoid from them.' (sic)
He said that the reason he gave the documents to a student was:
'… because I knew the unions - unity and that they are organising and they are in contact and in connection with each other and they would be the best ones to expose the hand and the crimes of - these deeds and what they are doing. And I knew that it would be the students that are active all over the country.'
The respondent offered an example of a newspaper called 'The Students Message'.
8 The hearing moved on to the respondent's evidence about persons whom the documents showed to be involved in corruption. Then the respondent referred to a building collapse which had resulted from the use of an inexperienced building company. People had been killed in the collapse. He was asked by the Tribunal member whether this was ever in any newspaper. He said he didn't remember. The Tribunal member then put to him:
'Okay. Now, I understand that the documents that you sent, the details of those documents were published in a newspaper - I'm just turning, interpreter, to the name of the newspaper. I will spell it for you, R-e-s-a-l-a-t.'
The respondent then said:
'Yeh, its probably … The information what might be used on the students, both … and bits of the informations were reported in Rasalat. That's R-a-s-a-l-a-t.'
The respondent described this to the Tribunal as a newspaper that could be obtained anywhere in Iran.
9 The Tribunal questioned the respondent about the contention in his agent's submission that the publishing of 'that story led to a series of investigations and that resulted in the resignation of Dr Isa Kalamatari who was the Minister for Agriculture'.
10 The Tribunal member summarised the respondent's evidence in relation to the resignation thus:
'So there was no Government investigation, there was no actual official investigation, it was just the students exposure, is that what you're telling me?'
11 The Tribunal member and/or the respondent appeared, in the course of the hearing to have confused, or to have spoken at cross purposes about, the student newspaper and the newspaper called Rasalat. The Tribunal asked the respondent when the story was put in Rasalat. The respondent said it was put in about March or April 2000 or earlier. The Tribunal then said:
'Well that would be very hard because at the beginning of the hearing you told me that you obtained the documents in the year 1379 in April or May. Okay, roughly how long after you sent them to the University did it take before the story was published?'
The respondent replied that it was about September or October of 2000 that the documents were published in the student newspaper. The Tribunal member then asked him whether the student newspaper was called Rasalat. The respondent said:
'No. The students' newspaper is different to the Rasalat newspaper.'
He was asked then how long after the article appeared in the students' newspaper it went to Rasalat. The transcribed response is:
'It was - there were actually different - they would publish things in the - in Rasalat and in the student's newspaper. They would sort of directly take their - the project and - and the company under question and they would … disagreement very freely with the student paper but in Rasalat they would sort of just pick on the fact and part that you know, wasn't so good about the project and it was about, I think, a few months before that.'
The respondent went on to say the information published in the Rasalat newspaper was just saying that certain planned projects were not very good for the economy of the country. It is reasonably clear at this point that the respondent was drawing a distinction between allegations of corruption made in the student newspaper and criticism of the economic viability of certain projects in the Rasalat newspaper. The Tribunal recognised this much.
12 The Tribunal member then put to the respondent that, from the way he had described it, the Rasalat article did not indicate that that newspaper had secret documents provided by the respondent. The respondent and the Tribunal appear to have been talking at cross purposes in this way on more than one occasion. The respondent said that the building collapse reported in Rasalat in respect of a project which that newspaper criticised was not widely known. That happened in the desert not in the city. The Tribunal member then again said:
'My point was that the way that you had described Rasalat's article today, it wouldn't indicate that they had secret information from a worker at the sugar cane company?'
The respondent said:
'Yes they are different. Rasalat tells … this plan has just been - this is not a good plan. They didn't have any documents or any proof or anything, it was just different.'
13 The Tribunal member then put to the respondent that he had told the departmental officer who conducted the initial interview with him on 30 December 2000 that the relevant information was published in a newspaper called Rasalat. The respondent said:
'No. It was the student newspaper that published information. I - the Rasalat newspaper had just criticised the plan and I … said that it - that it just points about the criticism of the plan and it had nothing to do with the workers (sic) condition. The Rasalat just had nothing to do with the information. I never gave the information to Rasalat newspaper, I gave it to the students' newspaper.'
14 After a short adjournment to give the interpreter a break, the Tribunal again questioned the respondent about the newspaper to which he had given the incriminating documents about corruption in the Ahvaz Sugar Cane Company. He asked the respondent the name of the paper. The respondent said the students had named the paper 'Miqazemac'. This was a newspaper published at Ahvaz University.
15 As the interview went on the Tribunal member at one point asked the respondent whether he had felt threatened by the Tribunal member at any time or whether he thought there was any time when the Tribunal member had not been prepared to listen to him. The respondent disclaimed any such suggestion. The Tribunal member explained to the respondent that the reason he asked the question was that he wanted to make sure, before making a decision, that '… a person has had every opportunity to tell me their story so it is as clear as it can be in my mind before I make a decision'.
16 The respondent told the Tribunal that in conversation with his mother by telephone from the Detention Centre in Australia, he had been told that his brother had been arrested and accused of being a spy.
17 Towards the end of the interview, the Tribunal member offered to make copies of the tape of the hearing available to the respondent's migration consultant and to give her a further two weeks to put in any further submissions. She had only recently come into the case.
18 The respondent's adviser made a further submission on 7 May 2001 contending that his claim for protection was based on political opinion. He had conveyed incriminating material about the Islamic Republic Government to a student group in order to prove to his countrymen that the Iranian government was a corrupt government. She submitted that from the point of view of the Iranian authorities, the respondent would be regarded as a traitor who had cooperated with the opposition in providing information to them.
19 On the same day the Tribunal wrote to the respondent, reportedly under s 424A of the Act and referred to his initial interview of 30 December 2000 and said:
'In that interview you claimed that your concerns were partly based on an article in a Newspaper called "Resalat" and the article was based on material you provided to university students. However at the Tribunal hearing you stated, after some time, that the material in "Resalat" was not related to the material you claim to have provided and you claimed that material was published by students in the University newsletter.
This information is relevant because Since (sic) you have claimed that the publishing of this media article was the basis for the interest you claim the authorities have in you then the Tribunal is of the opinion that you would have referred to the actual newspaper which carried the article rather than one which did not rely on the material you claim to have provided.
This could lead the Tribunal to conclude that you have fabricated this account.'
20 A response was received on 14 May 2001 from the respondent's immigration consultant. That response quoted a statement by the respondent himself referring to the circumstances of the initial interview conducted on 30 December 2000 and saying:
'With all the anxiety, fear and intimidation that I deeply felt at that time, I was unable to explain myself clearly in the first interview. However, in the Tribunal hearing under the oath of Koran, I explained the whole reality and to the best of my knowledge. I therefore, request the Tribunal by considering all the above and by applying "benefit of the doubt" to consider my explanation in the Tribunal hearing as the whole truth. I also wish to mention that the information I provided to the student group might have triggered the attention of the editors of Resalat. Although, Resalat newspaper made some critics (sic) of the Cane Sugar project, its critics were not very important.'
The Tribunal's Findings
21 The Tribunal reviewed the claims and evidence proffered by the respondent. Its reasons included extensive reference to the questions and answers in the course of the hearing on 20 April 2001.
22 In the Findings and Reasons section of its reasons for decision, the Tribunal characterised the respondent's case as centring upon his claim to have exposed corrupt officials in his workplace. It then set out what it called 'two issues of concern in this regard'. They were:
'1. … the manner in which that claim has been made and the areas of inconsistency in that claim beg the question as to whether or not it is genuine.
2. … the question arises as to whether or not any adverse consequences of his exposure of the corruption bring his case within the ambit of the Convention.'
23 Turning to a consideration of the respondent's claim to have exposed corruption, the Tribunal said:
'If this claim was genuine and it was the sole basis for his departing Iran I would have expected him to have the details, such as where it was exposed, when he collected the documents and when the articles were published, clear in his mind since he claimed that it all occurred within a few months of his interview for a protection visa on 13 January 2001.'
The Tribunal referred to what it called 'significant inconsistencies' in the respondent's account. The first of these related to the newspaper which, the respondent claimed, had printed the exposure of the corruption. The Tribunal referred to the initial interview in which the respondent had named the publication. The Tribunal then said:
'At the Tribunal hearing this was the publication that was referred to many times throughout the hearing and which he confirmed was the paper which carried the details he released. At one time I put to him that I believed the publication was "Resalat" and he confirmed that it was.
It was only when I checked again very late in the hearing that the Applicant said that it was not the article in "Resalat" that was of concern.'
The Tribunal member then said that he had listened to the tape of the hearing again to ensure that there had been no misunderstanding on his part and put the matter to the respondent again under the terms of s 424A. He said that even if the respondent had been tired and stressed at the first interview with a departmental officer this did not explain why he would continue to identify "Resalat" as the publication of concern throughout the hearing. He was satisfied that there was no misunderstanding and that the respondent acknowledged that the paper was 'Resalat' up until the relevant point of the hearing. The Tribunal could not determine why the respondent had made reference to 'Resalat' rather than the student newsletter Moqagemat. He said:
'However, I find that if there was an issue of concern and the exposure which caused the problems to the Applicant was in one or other of these papers he would have a clear and unambiguous recollection of which one it was.
I find that this inconsistency, together with the inconsistencies and other matters discussed below indicates that the account has been fabricated.
In any event, even if I did accept his amended account it would indicate that the exposure was not in a public newspaper but was limited to a student newsletter in one university.'
24 The Tribunal then went on to consider inconsistencies with respect to the acquisition of the incriminating documents, their transmission to the university and the date of their publication. It found inconsistencies and vagueness in the respondent's account which, with issues further discussed in the reasons for decision, indicated that he had fabricated the account and was unable to provide accurate details because such details did not exist. The Tribunal found the respondent's account in relation to his dismissal to be implausible. It found it implausible that he would have been dismissed from his job by corrupt officials on the basis that he had breached the dress code and thereby been alarmed into flight if the same officials intended to have him arrested at a later stage.
25 The Tribunal found there was no evidence that the respondent's dismissal was a precursor to more serious actions of detaining and executing him. This amounted to no more than fanciful speculation.
26 The claimed resignation of the Minister for Agriculture following upon the alleged exposure of corruption was characterised by the Tribunal as an eleventh hour claim. The respondent's account in relation to the Minister's links to the corruption was held to be vague and unconvincing. The Tribunal did accept it as plausible that this claim was not made earlier as the respondent had only found out that the Minister resigned sometime after he arrived in Australia. There was nothing to support the hypothesis advanced by the respondent that the Minister's resignation had something to do with the respondent's exposure of corruption in the Sugar Cane Company. Whether the article exposing the corruption was published in March or April 2000 or September/October 2000 it was, in either event, several months before the resignation and, as claimed, was limited to a university student newsletter. The Tribunal found it implausible that the Minister for Agriculture would resign as a consequence of a single article in a student newsletter published several months previously. It concluded that the respondent had added that claim to support a fabricated account. The Tribunal found that the Minister did not resign as a result of corruption exposed by the respondent but for reasons unrelated to the respondent.
27 The Tribunal then went on to discuss the respondent's claim that his brother had been arrested following his departure. The Tribunal rejected this account as implausible. It also rejected his claim that he had left Iran by virtue of bribing an airport official. The Tribunal found he was able to depart from Iran using his own passport and to travel in his own name because he was not of adverse concern to the authorities.
28 The Tribunal did not accept that the respondent had publicly exposed corruption by his employers but even if it had accepted that contention, the action against the respondent had been limited to a dismissal by his employers and was not for a Convention reason.
29 The Tribunal also rejected the contention that the respondent would be at risk as a returned failed asylum seeker.
The Reasons for Judgment of the Learned Primary Judge
30 The learned primary judge, after referring to the relevant statutory framework, gave consideration to the Tribunal's reasons for decision. His Honour referred to a submission by counsel for the respondent that the Tribunal had wholly misunderstood significant aspects of the respondent's case and formed its judgment by taking into account irrelevant considerations or by failing to have regard to relevant considerations. His Honour examined the transcript of the hearing in some detail to deal with that submission. He observed at the outset that the content of the transcript suggested that in the course of the hearing the translation into English of the respondent's statement was less than adequate on numerous occasions and that it might be presumed that a like problem existed in the translation into Farsi of interrogatories or comments of the Tribunal. Certainly some of what appears in the transcript does indicate a difficulty of translation of the respondent's answers.
31 His Honour then said:
'The Tribunal reached the conclusion that the applicant's account was a fabrication, not because the applicant appeared to the Tribunal to be a liar and a dissembler but because the account he gave was, in the opinion of the Tribunal, "implausible". In the context of the Tribunal's reasons that word was used in the sense of lacking likelihood or probability. The ultimate finding of the Tribunal, that the applicant did not have a well-founded fear of persecution, depended entirely upon the Tribunal's opinion as to the "plausibility" of the claims of the applicant and not upon a finding, based on probative material, that the applicant was dishonest. Therefore, it was fundamental to the due performance by the Tribunal of its function that the Tribunal not misunderstand the claims made by the applicant, nor fail to consider relevant material in reaching an opinion as to the "plausibility of those claims".'
32 His Honour then quoted at length from the Tribunal's reasons. He characterised the entry interview as providing a brief and ambiguous account of the respondent's statements in that interview as to what had occurred in Iran with the information he had gathered. His Honour noted the reference to the provision of documents to a student newsletter in the statement made by the respondent in support of his protection visa application and again in his interview with the departmental delegate as recorded in the delegate's reasons for decision. His Honour then said:
'It was clear that at the time the Tribunal conducted its hearing that the applicant had stated consistently that he had forwarded to a university student the information on corruption that he had gathered, and that the information had been published in a student, or university, newsletter. The notes of the entry interview were not inconsistent with that account.'
33 His Honour set out passages from the transcript of the hearing before the Tribunal. He commented in so doing that, although the Tribunal had confirmed with the respondent that Rasalat was a national newspaper and therefore not a local student or university publication, it subsequently put to the respondent again the misapprehension that Rasalat was the student newsletter, a matter on which it was corrected by the respondent.
34 His Honour referred to the letter from the Tribunal following the hearing asking for the respondent's further comment in relation to Rasalat. He regarded it as significant that in that letter the Tribunal referred to several statements said to have been made by the respondent in the entry interview, namely that his concerns were based partly on an article published in Rasalat and that the newspaper article was based on material he provided to university students. These statements however were not recorded in the notes made by the interviewing officer. His Honour raised the possibility that the Tribunal had referred to the tape recording of the entry interview or a transcript. He observed that the further statements referred to by the Tribunal tended to support the respondent's case and resolved any ambiguity latent in the written notes of the entry interview recorded by the interviewing officer. His Honour then turned to the part of the Tribunal's reasons in which it claimed that the respondent had not said until late in the hearing that it was not the article in Rasalat that was of concern. His Honour characterised the assertions of the Tribunal in the relevant passage of its reasons as '… not supported by the transcript' and said that they distorted the respondent's claims. His Honour then said:
'At all times the applicant stated that he supplied to a student the information he obtained and that the information had been published in a student, or university, newsletter. At no time did the applicant say that the student or university publication was the newspaper "Rasalat". To the extent that the notes recorded at the entry interview referred to the publication of information in "Rasalat", that statement was not inconsistent with the applicant's claims at the Tribunal hearing that an article, albeit one only mildly critical of circumstances that concerned parties he sought to expose, had appeared in that newspaper. On the applicant's account that article was but one part of the circumstances the applicant claimed gave him cause to fear he had become an object for persecution.'
35 The various assertions made by the Tribunal on this point were said to have involved error. His Honour found that the transcript showed that, contrary to the Tribunal's finding, the publication Rasalat was not 'referred to many times throughout the hearing'. The first mention of a publication was on page 13 (of 31) of the transcript and the entire discussion was part of a discrete segment at pages 13-17. His Honour then went on to the Tribunal's observation that at one time it had put to the respondent that it believed the publication was Rasalat and that he had confirmed it was. His Honour characterised that assertion by the Tribunal as 'plainly wrong'. It was apparent that the respondent was saying that different publications were made by the students and by Rasalat. He appeared to be saying that there was information about the matter in both the student newsletter and in Rasalat.
36 His Honour characterised as 'an inaccurate account of what occurred' the Tribunal's contention that it was only when it checked very late in the hearing that the respondent had said it was not the article in Rasalat that was of concern. He observed that the Tribunal had discussed 'Rasalat' with the respondent and received answers to its questions in a discrete segment of the hearing as set out earlier at pages 13 to 17 of the transcript. It did not return to the issue. When it stated its misunderstanding that the student newsletter was called 'Rasalat' it was promptly corrected by the respondent. His Honour said:
'What the applicant stated at the hearing was consistent with the statement he provided with his application for a visa, with his interview with the delegate, and with the April submission.'
37 His Honour also rejected the Tribunal's contention that it had put its concern to the respondent that it was odd he would name Rasalat when he arrived and then towards the end of the hearing say it was of no concern and fail to name the actual publication which was the one he claimed was of concern. In no circumstance, on his Honour's view, could it be said that the respondent was providing a new 'account towards the end of the hearing'. There was no gap in the proceeding in the discussion of the matter nor was there a purported introduction of a revised account by the respondent at the 'end of the hearing'. His Honour then said:
'The transcript shows the Tribunal to have been confused and that such confusion carried through into the decision-making process carried out by the Tribunal. As submitted by counsel for the applicant, the applicant consistently described the publication which had published the information he had gathered as a student newsletter and the Tribunal, not the applicant, raised the name of the newspaper "Rasalat" in the course of the Tribunal hearing.'
His Honour attributed the confusion under which the Tribunal laboured partly to its incorrect assumptions and partly from the inadequate standard of interpreting in the proceeding. None of the confusing passages of translation was either clarified or questioned by the Tribunal. His Honour then said:
'It has been shown by the applicant that by reason of fundamental misunderstandings, the Tribunal was diverted from the due performance of the function vested in it under the Act and that the Tribunal did not consider material that it was bound to consider in determining the applicant's application. It follows that ground for review of the Tribunal's decision is established under s 476(1)(b) (absence of jurisdiction); s 476(1)(c) (absence of authority); s 476(1)(e) (error of law by misinterpreting the relevant law or by failing to apply the relevant law correctly). (See Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 per Gleeson CJ at [10], McHugh, Gummow, Hayne JJ at [76] - [85]).'
38 His Honour was of the view that if properly instructed on the matters it misunderstood and found to be implausible, the Tribunal 'may have found those matters to be true, or that it could not say that they were not true, and that may have caused the Tribunal to reach a different conclusion on other matters, in particular, on the substance of the [respondent's] claim that his fear of persecution was based on a real risk that persecution may occur.' His Honour found it unnecessary to deal with further submissions of counsel which contended that a ground for review arose under s 476(1)(g) of the Migration Act as it stood at the time of the Tribunal's decision ('no evidence or other material to justify the making of the decision').
The Grounds of Appeal
39 The grounds of appeal are set out in the appellant's notice of appeal and were as follows:
'2. The learned primary judge erred in concluding that the Refugee Review Tribunal (the Tribunal) was diverted from the due performance of its function by reason of "fundamental misunderstandings" in that:
(a) the standard of interpretation of the Tribunal proceedings was not a ground of review in the application below;
(b) such ambiguity as may appear from the transcript of the Tribunal proceedings cannot properly be ascribed to the poor quality of interpretation;
(c) the Tribunal did not misunderstand the respondent's evidence;
(d) such evidence as the Tribunal may have misunderstood was not fundamental, was merely error of fact, and could not give rise to a ground of review; and
(e) the Tribunal was entitled to reject elements of the respondent's claims due to his failure, at initial interview, to mention the name of the publication which contained the material critical to the claimed fear of persecution.
3. The learned primary judge erred in concluding that the decision of the Tribunal did not consider material that it was bound to consider in determining the application in that:
(a) the learned primary judge does not identify any evidence which the Tribunal could properly be said to have failed to consider; and
(b) the Tribunal did not fail to consider any evidence.
4. Further or alternatively to (2) and (3), the learned primary judge erred by substituting his opinion of the merits of the application for a protection visa in place of the satisfaction of the Tribunal in that:
(a) the Tribunal was entitled to reject the respondent's claims relating to his brother's arrest for the reasons given;
(b) the Tribunal was entitled to reject such parts of the respondent's claims as it considered "implausible" for the reasons given;
(c) the Tribunal was entitled to reject elements of the respondent's claims due to his failure, at initial interview, to mention the name of the publication which contained the material critical to the claimed fear of persecution; and
(d) the Tribunal was not obliged to attribute any particular weight to the circumstances that nothing contained in the initial interview as to the transmission and ultimate publication of material critical to the claimed fear of persecution was necessarily inconsistent with subsequent claims.'
Statutory Framework
40 The Tribunal's decision was given on 30 June 2001 which predated the amendments to the judicial review provisions of the Act in Pt 8 by virtue of the Migration Legislation (Judicial Review) Act 2001 (Cth) which came into effect in October 2001. The relevant criterion for the grant of a protection visa which had to be addressed by the Tribunal was that set out in s 36(2) of the Act as it then stood:
'36(2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.'
Upon considering a valid application for a visa the Minister, if satisfied that the various criteria (including that set out in s 36(2)) had been satisfied was to grant the visa (s 65(1)(a)). If not so satisfied, the Minister was to refuse to grant the visa (s 65(1)(b)).
41 The decision to refuse to grant a protection visa was defined as an 'RRT-reviewable decision' by s 411(1)(d) of the Act. The obligation of the Tribunal to review such decisions where a valid application for review was made, was set out in s 414. In s 415(1) it was provided:
'415(1) The Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.'
42 Judicial review in the Federal Court under the Migration Act was confined to the grounds of review set out in s 476 of the Act which relevantly provided:
'476(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or ore of the following grounds:
…
(b) that the person who purported to make the decision did not have jurisdiction to make the decision;
(c) that the decision was not authorised by this Act or the regulations;
…
(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
…
(g) that there was no evidence or other material to justify the making of the decision.'
The last mentioned ground in (g) was subject to the necessary conditions for its satisfaction set out in s 476(4). It is, however, not necessary to refer to those for present purposes.
Whether the Tribunal Was Diverted from the Due Performance of its Statutory Functions
43 The first two grounds of appeal focus upon the sentence in his Honour's judgment at [44] as follows:
'It has been shown by the [respondent] that by reason of fundamental misunderstandings, the Tribunal was diverted from the due performance of the function vested in it under the Act and that the Tribunal did not consider material that it was bound to consider in determining the applicant's application.'
The first ground of appeal then attacks the first part of that proposition going to whether the Tribunal had duly performed the function conferred upon it by the Act.
44 The Tribunal's function is to review the decision under challenge (s 414). The term 'review' does not have a settled legal meaning. 'It takes its meaning from the context in which it appears' - Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 261. In the context of the Migration Act the Tribunal must consider the application which is the subject of review in light of the evidence and arguments which are relevant to the application and which are provided to the Tribunal or which it obtains for itself. This is apparent from a reading of the provisions of the Act relating to the conduct of Tribunal reviews and particularly ss 423 to 426 inclusive - WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184.
45 In WAEE the Full Court considered the obligation of the Tribunal to deal with an applicant's contentions or claims. The Court said:
'45. In conducting its review the Tribunal must have regard to the criteria for the grant of a protection visa and in particular the criterion that the applicant for a visa is:
'… a non-citizen in Australia to whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;' (s 36(2)(a) read with s 415(1))
The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision.
46. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.'
In that case a failure by the Tribunal to deal with a particular contention independently supporting a claim for a protection visa was held to be a failure to consider an issue going directly to the question whether the criterion under s 36 of the Act was satisfied and so to amount to jurisdictional error.
46 Whether considered in the light of Pt 8 of the Migration Act as it stood prior to October 2001 or the Act as it stood after that date, there is a substantial divide between irrationality or want of logic in reasoning on the one hand and reviewable error on the other. The Full Court said in Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 at [34]; (2001) 65 ALD 141:
"A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place - Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6.'
This does not exclude the possibility that an error of logic, in the circumstances of a particular case, may point to an underlying error of law. However, as the judgment of the High Court in Re Minister for Immigration and Multicultural Affairs: Ex parte Applicant S20/2002 [2003] HCA 30 makes clear, arguments that a decision of the Tribunal lack logic so easily convert into merits review. Was there though, an error of logic on the part of the Tribunal?
47 Counsel for the appellant submitted in effect that the Tribunal's approach did not even reflect a want of logic. He referred to the initial interview in which the respondent was recorded quite unambiguously as saying that he had provided his evidence of corruption to a newspaper called 'Rasalat'. His Honour, it was said, had speculated that the Tribunal itself might have referred to tapes of that initial interview. But there was no evidence before him one way or the other on that point.
48 The respondent did not claim that anything he said in his initial interview was misrepresented in the written record. In any event, counsel made the point that in the letter to the Tribunal of 14 May 2001, the respondent's migration consultant quoted a statement by the respondent in which the inconsistency was, in effect, accepted and an explanation proffered (see [20] above). The respondent's later claims that he had sent the letters to a student and that they were published in a student or university newsletter could not necessarily be read as referring to an event other than that referred to in the initial interview. On this basis, it was said, the learned trial judge was wrong to conclude that, at the time the Tribunal conducted its hearing, the respondent had stated consistently that he had forwarded the incriminating information to a university student and that it had been published in a university newspaper or newsletter.
49 Counsel for the appellant also criticised his Honour's findings about the Tribunal's assertion that the respondent did not indicate that the relevant publication was in something other than Rasalat until late in the hearing. In his Honour's view the Tribunal, in this respect, distorted the respondent's claims and was not supported by the transcript. Counsel for the appellant accepted that it might be said that the Tribunal had overstated the extent to which Rasalat was depicted by the respondent as the subject of his concerns. This might be a matter of impression. But even if there were an error on the part of the Tribunal, it was an error of fact. In any event, it was submitted, the Tribunal's ultimate rejection of the respondent's whole claim did not turn upon how late in the Tribunal hearing the claim was said to be maintained but rather, the failure to mention the critical publication at initial interview.
50 The greater the weight to be placed upon the initial interview, the greater the concern that can legitimately be raised about the reliability of the Tribunal's reasoning process. The interview was conducted through an interpreter and the recorded answers are not necessarily a transcription of the interpreter's words. The possibility that important parts of responses to questions might be missed in such circumstances is always present. The interview may also be conducted in stressful circumstances which may need to be taken into account in a particular case.
51 The Tribunal's use of the inconsistencies which it detected in the respondent's story by reference to the initial interview must call into question the reliability of its findings of fact on an issue of critical importance. That criticism, while of very real concern does not support or imply a finding that the Tribunal has failed to carry out its statutory function of reviewing the respondent's application for a protection visa.
52 Counsel for the respondent characterised the learned primary judge's conclusion as a finding that the Tribunal had failed to consider the claim made by the respondent on the basis advanced, namely that he gave information to a student newspaper which used it to expose corruption. With respect, that characterisation of how the Tribunal went about its task cannot be sustained. Whatever faults there may have been in the Tribunal's logic those faults do not amount to a failure to perform its function of reviewing the application. His Honour went from that conclusion to his ultimate conclusion that the Tribunal had acted without jurisdiction within the meaning of s 476(1)(b) of the Act. In so doing he was in error and the first ground of appeal is made out.
Whether the Tribunal Failed to Consider Material it was Bound to Consider
53 The second ground of appeal related to his Honour's finding that the Tribunal did not consider material that it was bound to consider in determining the respondent's application. His Honour did not specify, at this point in his judgment, the material which the Tribunal had failed to consider. It seems however that this part of his reasoning was directed to the same inadequacies in logic which had led him to conclude that the Tribunal failed to perform its statutory function. There is no other basis for the conclusion expressed in his Honour's reasons. But such failures in logic or reasoning as may be attributed to the Tribunal did not amount to a failure to have regard to material which the Tribunal was bound to have regard to. So the second ground of appeal is made out on the same basis as the first ground.
Whether the Learned Primary Judge Engaged in Merits Review
54 The third ground of appeal contends that the learned primary judge simply substituted his own view of the merits of the application for that of the Tribunal. It is unnecessary separately to address this ground. It is sufficient that his Honour's decision was based upon an erroneous conclusion that certain grounds of review were made out.
The Respondent's Notice of Contention
55 The respondent sought to raise, in a notice of contention, a ground which had not been argued before the learned primary judge as a basis for reviewing the Tribunal's decision. He also sought the leave of the Court to amend the original application to raise that new ground.
56 The new ground was that the Tribunal's decision had involved error of law within the meaning of s 476(1)(e) and, alternatively, jurisdictional error under s 476(1)(b). The particulars as set out in the notice of contention were:
'i. The Tribunal's statement that "… even if the dismissal was because of his exposure of their corruption this motivation would not convert their action in dismissing him into persecution within the Convention, not even in part." (at AB163) shows that the Tribunal misunderstood the question it had to address.
ii. The said statement is an answer to the following question: can persecution under the Convention exist in circumstances where an employer, aware that exposure of corruption would not be tolerated by the State, acts to dismiss an employee so as to prevent him from exposing corruption or so as to limit any further exposure of allegations of corruption that have already been exposed?
iii. The question that had to be answered was whether the exposure of corruption of an organ of State ie a government organisation such as the company in this case, could be perceived by those exercising broad powers within it as a challenge to State authority and as an act inspired by political opinion.
iv. That question was a question of fact involving consideration of:
(1) the relationship between the employer (a government company - AB15) and Sepah Pasdaran (Islamic Revolutionary Guards Corps) (AB93 and AB168/9);
(2) the position of the managers of the government company in the hierarchy of State power and the degree of their immunity from scrutiny or control and the extent of their powers exercisable without accountability;
none of which matters were considered by the Tribunal.
v. This failure to correctly interpret the relevant law and to consider the respondent's evidence (at AB93) on these matters resulted in the Tribunal failing to determine according to law whether Australia has "protection obligations" to the respondent.'
57 The Tribunal found as a matter of fact that the respondent did not publicly expose the corrupt conduct of his employers. It was quite correct to say that, if contrary to that finding, he had exposed their conduct and been dismissed on that account that would not be dismissal for a Convention reason. Further, it was correct to say that dismissal could not amount to persecution for Convention purposes. The Tribunal was not required, on an hypothesis which it had unequivocally rejected, to go further and consider the question posed in the notice of contention. Having regard to the merits of the proposed ground, leave to amend the application should be refused.
Conclusion
58 For the preceding reasons the appeal should be allowed, the decision of the learned primary judge set aside and in lieu thereof an order made that the application before his Honour be dismissed. The costs should follow the event of both the appeal and of the application.
59 The Court is grateful to Mr G Rabe who appeared pro bono for the respondent in this matter and gave the Court the benefit of careful and considered submissions on behalf of the respondent.
I certify that the preceding fifty nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices French and Hill JJ.