Mohammed v Minister for Immigration & Multicultural Affairs

(a) must give the applicant an opportunity to appear before it to give evidence; and

(b) may obtain such other evidence as it considers necessary."

The appellant contended in his written submissions that the Tribunal had made four findings which it had not raised with him at the hearing so as to give him an opportunity to deal with them. The findings were in relation to:

· inconsistencies in his evidence concerning political activities;

· inconsistent evidence about his movements in and out of the Occupied Territories and his reason for the movements.

The written submissions asserted that the failure to raise these matters with the appellant meant that he had not been given an opportunity to give evidence for the purposes of par 425(1)(a). It was said that the opportunity must be a genuine one, and that not raising concerns as to the particular matters referred to robbed the opportunity of a genuine character because he was not alerted to the matters he should address. 7 These submissions had also been made before the primary judge, who rejected them. Her Honour said:

"In my view, there is no obligation, however desirable as a matter of natural justice imposed by the words of s 425, requiring the Tribunal to raise matters with the applicant which are concerning him or her. The opportunity to speak to the Tribunal directly is given to the applicant when an oral hearing is arranged. Only lack of such opportunity will amount to procedural error. It may be that a failure to raise the matters referred to in this case could amount to a breach of natural justice. However, consideration of this issue is beyond the jurisdiction of this Court, when such a matter arises under the Act."

8 On the hearing of the appeal, the appellant's counsel, whilst not abandoning the written submission, declined to elaborate upon it, other than in relation to the ground based upon par 476(1)(g). 9 The ambit of par 425(1)(a) was considered by a Full Court (Tamberlin, Sackville and Katz JJ) in Minister for Immigration and Multicultural Affairs v Cho (1999) 164 ALR 339. Sackville J, at 354-5, [66], said:

"Section 425(1)(a), as its language and context make clear, is directed to ensuring that the applicant has an opportunity to appear before the RRT to give evidence, in cases where the RRT cannot decide in favour of the applicant simply on the papers. It is not concerned with procedural irregularities at the hearing that do not deny the applicant the opportunity to appear to give evidence. Procedural irregularities of that kind, whatever other consequences they may have, do not constitute a breach of s 425(1)(a) and thus do not provide a ground of review under s 476(1)(a) of the Migration Act. As Tamberlin and Katz JJ have pointed out, the procedural entitlements of an applicant appearing before the RRT are carefully delineated by the Migration Act. They plainly do not include the full panoply of procedural protections that may be available in other forums."

The appellant had his opportunity to give evidence. What he said in his written submissions had been denied to him could at most have formed part of the "full panoply of procedural protections" referred to by Sackville J in Cho. There could have been a procedural irregularity at the hearing. However, for the reasons given in Abebe v The Commonwealth (1999) 162 ALR 1 at 51, [187] (Gummow and Hayne JJ), and at 76, [295] (Callinan J), the failure to put the four matters to the appellant at the hearing did not rise to the level of a procedural irregularity. We agree with the primary judge that the matter complained of did not constitute a failure by the Tribunal to give the appellant an opportunity to appear before it to give evidence within par 425(1)(a). Failure to give proper reasons: par 430(1)(b) 10 The case was conducted before the primary judge on the basis that a failure by the Tribunal to set out the reasons for its decision as required by par 430(1)(b) constitutes a failure to observe a procedure for the purposes of par 476(1)(a). Different views have been expressed as to whether this is so. Compare Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 (Heerey, Merkel and Goldberg JJ; unreported; 2 December 1999) with Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 (Whitlam, RD Nicholson and Gyles JJ; unreported; 17 December 1999). We will assume, without deciding, that it is. 11 The appellant contended in his written submissions that the Tribunal had not made clear what it meant when it referred to his "record". We agree with the primary judge that this complaint has no substance. On a number of occasions in the course of describing the appellant's claims and evidence, the Tribunal records his contentions about his "record". It places the word in inverted commas to indicate that it is the appellant's and not the Tribunal's word. On other occasions the Tribunal refers to the fact that the appellant had no "criminal record" and had a "record free of criminality". Sometimes it uses the word "record" in a context that makes clear what it means. Thus it notes evidence that the appellant "has no negative record with the Israeli or Palestinian authorities". In one place the Tribunal observes that the fact that the appellant had been delayed at a border crossing did not itself indicate that he had a "serious record with the Israeli authorities". Where the context in which the Tribunal uses the word "record" does not indicate a criminal record, it is clear that the Tribunal uses the word to refer to information held by the Israeli or Palestinian authorities which made him of interest to them as a security threat. 12 The appellant also complained that when the Tribunal referred to inconsistencies in his evidence it did not then and there identify the inconsistencies. This complaint is baseless. The Tribunal's careful and detailed reasons occupy twenty‑nine pages. In the course of recording the appellant's claims and his evidence, the Tribunal noted particular inconsistencies in them. When it came to make findings and give reasons, it referred back to those inconsistencies - "The Tribunal has shown that the Applicant himself gave widely differing and wholly inconsistent accounts as to his anti‑Israel activities …". The Tribunal was under no obligation at that stage to repeat its earlier account of the inconsistencies. No evidence: s 476(1)(g), (4) 13 The claim here is that the Tribunal made its decision based upon particular facts that did not exist. 14 The words "particular fact" in par 476(4)(b) do not require the identification of some single particular fact that may be said to be the foundation of the Tribunal's decision. A decision may be based upon the existence of many particular facts. It will be based upon the existence of each particular fact that is critical to the making of the decision. Compare Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220‑221 (Black CJ, Spender and Gumow JJ), a decision on the materially identical provision in the Administrative Decisions (Judicial Review) Act 1977 (Cth). And see Arudselvan v Minister for Immigration and Multicultural Affairs [1999] FCA 622 (Katz J, unreported; 9 August 1999), a decision of Katz J affirmed on appeal [1999] FCA 1726 (French, Heerey and Lindgren JJ; unreported; 12 November 1999) and Chopra v Minister for Immigration and Multicultural Affairs [1999] FCA 480 (unreported; 23 April 1999), a decision of a Full Court (Lee, Whitlam and Weinberg JJ), both on par 476(4)(b). 15 A "particular fact" is to be distinguished from a conclusion based upon a particular fact, although the particular fact upon which the conclusion is based may qualify under par 476(4)(b): Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34 (Moore, Mansfield and Emmett JJ; unreported; 3 February 1999). Observations or comments by the Tribunal about perceived inconsistencies in the evidence are not "particular facts" within par 476(4)(b): Fernando v Minister for Immigration and Multicultural Affairs [1999] FCA 962 (Heerey J; unreported; 16 July 1999). The appellant's submissions failed to pay sufficient regard to this distinction, but in view of the matters referred to in par 17 below, it is not necessary to pursue this matter further. Nor is it necessary to pursue the question whether the Tribunal's decision was "based upon" the "particular facts" upon which the appellant relies. 16 The particular facts that were said not to exist were identified as follows: (a) the appellant's claim to have been on a black list prior to 1991; (b) that the appellant did not state how he came to know that his friend had informed on him; (c) the appellant's claim to have a subjective fear of persecution throughout his entire stay in India; (d) the appellant's claim that he was detained because the authorities knew about his membership of a particular group or knew that he had a past role channelling arms to its political wing; (e) that the appellant's motivation to return to India in 1996 was to study. 17 As to (a), the Tribunal was entitled to infer from the appellant's initial statement accompanying his application for a protection visa that he was claiming that his name was on a black list before 1991. As to (b), the appellant mis‑states what the Tribunal said. The Tribunal was considering the appellant's initial statement, identified in the papers before the Tribunal as his "submission". The Tribunal correctly observed that he "did not state in his submission how he came to know this". As to (c), there was ample material from which the Tribunal could infer that the appellant claimed to have a subjective fear of persecution throughout his stay in India. For example, in his initial statement he said that while he was in India doing his pharmacology studies one of the members of his organisation was arrested and tortured. During the same period his father and brother were arrested by the security forces. Having his name on the black list made life very hard. His letters home from India were opened by the Israelis and the information in them was put in the security force's computers. He concluded - "So I didn't go back home for nearly five years". Point (d) mis‑states what the Tribunal said. It did not say that the appellant claimed to have been detained. It referred to his claim "about his being liable to arrest and detention merely for reasons of his known membership of the group, and for his past role in channelling arms to its military wing". As to (e), the Tribunal was considering depositions in support of his application from the appellant's father and a lawyer. The father stated that the appellant had finished his first degree in pharmacology in India in 1996. He then came back home. He intended to do a second degree in India but was not allowed to leave. The father saw a lawyer who secured permission for the appellant to leave. The lawyer's deposition confirmed this. In those circumstances, the Tribunal was entitled to say:

"The Tribunal observes from [those] two depositions that, having feared he would be arrested or held back by Israeli authorities in the event of returning home, the Applicant decided to depart the Occupied Territories again in 1996 motivated evidently not by fear of persecution but by a desire to return to India to resume study."

18 In oral submissions, counsel for the appellant submitted that the Minister was not entitled to resist a challenge to a decision based on par 476(1)(g) by referring to material which was before the Tribunal which might justify the making of the decision, unless the material in question had been referred to in the Tribunal's statement of findings and reasons under subs 430(1). It is for the Tribunal to state what material it relies upon; it is not for the Court to trawl through the papers to find material before the Tribunal which it might have been open to the Tribunal to accept and which, if accepted, would justify the making of the decision. 19 In our view, it would not be appropriate to construe par 476(1)(g) as if it contained the words which we have emphasised: "that there was no evidence or other material referred to by the Tribunal in its statement of findings and reasons under subsection 430(1) to justify the making of the decision" for the simple reason that the words are not there. It would be an odd result if a "no evidence" ground were made out when there was material before the Tribunal to justify the making of the decision, albeit not referred to in its subs 430(1) statement. Reference back to the Tribunal in those circumstances for a re-determination of the application would be inappropriate. 20 In any event, the issue before the Tribunal is whether there was material before the Tribunal to justify the making of the decision. The decision in question is negative in nature, namely, that the Tribunal is not satisfied that the appellant is a person to whom Australia has protection obligations under the Refugees Convention (subs 36(2) of the Act). The Tribunal is not required to have evidence that negates the appellant's status as a refugee. We do not need to consider the extent to which par 476(1)(g) has a role to play where the Tribunal's decision is that the appellant's claim is not made out to its satisfaction, as the matters referred to in the "Findings and Reasons" section of the Tribunal's statement provide an ample foundation for the conclusion which it reached. CONCLUSION 21 It has not been shown that the primary judge erred in holding that none of the grounds of review had been made out, and the appeal must be dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Respondent: Australian Government Solicitor