The finding as to the rape of the appellant in prison
49 This finding raises different considerations. The material the appellant placed before the Tribunal, with respect to the treatment of her in prison in July 2000, made it clear that the rape had a political dimension. If her two accounts of the circumstances of the rape were accepted, it was clear that the motivation for the rape was that she was regarded as someone politically active in opposition to the Iranian regime. The Tribunal described the rape as "a deeply unfortunate but ad hoc, opportunistic act by the person in question, not indicative of how her participation in the demonstration was regarded." Despite the use of the ambiguous Latin phrase ad hoc, the meaning of the Tribunal's finding seems clear enough. As the Macquarie Dictionary shows, ad hoc can mean either "for this (special purpose)", or "impromptu". In context, it is clear that the Tribunal was using it in the latter sense. Its use of the word "opportunistic", although perhaps tautological, suggests so. More importantly, the description of the rape as not indicative of how the appellant's participation in the demonstration was regarded is directly contrary to the appellant's own evidence. The effect of her evidence is that she was selected to be among those raped because she was seen to be politically active in opposition to the regime and was therefore liable to be killed.
50 The Tribunal could only have described the rape in the terms it used if it ignored or rejected the evidence of the appellant about its circumstances. To ignore or reject that evidence was inconsistent with the clear statement of the Tribunal to the appellant at the hearing that, if the Tribunal had any concerns it would write to her and give her an opportunity to respond in writing, but it was prepared to accept that what she said happened had happened.
51 Giving to the appellant that indication in the course of the hearing, the Tribunal may well have given the appellant to understand that everything she had said in her two written statements about the rape would be accepted, unless she were advised to the contrary and given an opportunity to respond in writing to the Tribunal's concerns. The migration agent assisting the appellant appears to have had such an understanding. In a written submission dated 6 December 2001, after the hearing, the agent said:
"We note that at Hearing the Member indicated he was minded to accept that the applicant had been raped in detention and would advise us in writing if he had any credibility concerns about this claim. As we have not received any such notice we assume that the Tribunal does accept this claim."
Significantly, that passage appears in the written submission under the heading "Political opinion". In the circumstances, to reject the appellant's evidence without providing her with a further opportunity to make her case on that point might amount to a denial of natural justice.
52 There is ample authority that a denial of natural justice on the part of the Tribunal, affecting the decision in the sense that it deprives the applicant for review by the Tribunal of the opportunity of success, amounts to a jurisdictional error. See Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82, Muin v Refugee Review Tribunal [2002] HCA 30 (2002) 190 ALR 601 and Plaintiff S157. In Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6 (2003) 77 ALJR 699, the High Court clarified the circumstances in which the failure to carry out a previously expressed intention, possibly involving the provision of a further opportunity to provide information or make submissions, can give rise to such a denial of natural justice. It is clear that the failure of an administrative decision-maker to adhere to a statement of intention as to the procedure to be followed may result in unfairness and will justify judicial intervention to quash the decision in some, but not all, circumstances. See per Gleeson CJ at [25] and [103] - [106] per McHugh and Gummow JJ. In that case, a citizen of Vietnam failed to establish a denial of natural justice affecting a decision to deport him, simply because of an indication that the decision-maker intended to contact other persons, an intention not carried out. The citizen of Vietnam failed to prove that he would have taken any course other than the course he took, in placing material before the decision-maker, had he known that the action indicated would not be carried out.
53 In the present case, the circumstances are different. There may not have been factual material, other than the appellant's own account of the rape, that could have been placed before the Tribunal (which already had general material about rape of political dissidents in detention). The Tribunal, however, deprived the appellant of the opportunity of giving oral evidence about the full circumstances of the rape, and thereby deprived her of the opportunity to place her case fully before it. The appellant might have made submissions, designed to focus the mind of the Tribunal on the political aspects of the rape. As the written submissions on behalf of the appellant noted, if the Tribunal had indicated that it had any concerns as to the appellant's credibility about the circumstances surrounding the rape, further submissions could have been made. The Tribunal did not give such an indication. It therefore gave no opportunity for further submissions. In effect, it misled the appellant as to what she was required to do, although it appears not to have done so intentionally. As a result, its failure to carry out its previously expressed intention denied the appellant procedural fairness. Its finding about the circumstances of the rape, inconsistent with the appellant's evidence, therefore involved a denial of natural justice.
54 It is then necessary to determine whether that finding was of such importance to the Tribunal's reasoning that it amounted to jurisdictional error. It is true, as counsel for the Minister submitted, that the Tribunal found: that the appellant was raped while in detention; that the rape was serious enough to amount to persecution; that the rape was for a Convention reason (that the appellant was a woman, and therefore a member of a particular social group of women in Iran); but that there was not a real chance that the circumstances which gave rise to it would recur in the future. It is the juxtaposition of these findings in the Tribunal's reasoning that gives rise to concern. In the course of discussing whether the appellant had a well-founded fear of persecution by reason of her political opinion, the Tribunal simply made the finding that it accepted that she was sexually assaulted while in detention and that this would be serious enough to constitute persecution. After the Tribunal had completed its discussion in its reasons for decision about the question of political opinion (and about the question of religion), the Tribunal turned to the issue of membership of a particular social group. It was in that context that, after referring to its previous finding that the appellant would not be politically active against the regime, the Tribunal expressed its views about the nature of the rape and about the future prospects of its repetition.
55 It is clear from the Tribunal's reasoning that it had no regard to the appellant's claims as to the political circumstances of the rape either in relation to the ground of political opinion or in relation to the ground of membership of a particular social group. If it had accepted the appellant's full account of the rape, in accordance with the indication it gave to her, the Tribunal would have made a finding that the rape was politically motivated. It would have found that the appellant was raped while in detention, not simply because she was a woman, but because she was regarded as politically active in opposition to the Iranian regime, as likely to be killed for this reason, and therefore as a suitable candidate for destruction of her supposed virginity, in order to save her from damnation. For the Tribunal to have accepted this might have led it to a different conclusion in relation to the appellant's future prospects of persecution on the ground of her political opinion. The fact that the appellant had in the past been persecuted on this ground was at least some indication that her fear of being persecuted on that ground in the future had some foundation. Acceptance of the appellant's evidence about the rape might therefore have caused the Tribunal to take a different view about that aspect of her case. In turn, such a different view would have caused the Tribunal to take a different view about the appellant's case based on membership of a particular social group. It appears to have taken the view that, although the rape occurred because she was a woman, and therefore a member of a particular social group of women in Iran, she would be unlikely to be raped again because she would be unlikely to do anything that would cause her to be detained for political reasons. If it had reached a different conclusion about the likelihood of future detention for political reasons, the Tribunal may well have reached a different conclusion about the likelihood of a repetition of the rape.
56 For these reasons, the Tribunal's denial of natural justice to the appellant affected the Tribunal's decision in a relevant sense. It deprived the appellant of an opportunity to make submissions that might have caused the Tribunal to reach a different conclusion on a fundamental aspect of her case. It thereby deprived her of the opportunity of success. This means that it amounted to jurisdictional error.