NAYQ v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT WILCOX J: 1 This is a proceeding under s 39B of the Judiciary Act 1903 (Cth) challenging a decision of the Refugee Review Tribunal ('the Tribunal') given on 10 July 2002. The proceeding was commenced by an application filed in this Court nearly eighteen months later on 24 December 2003. 2 The applicant is a citizen of Iran who arrived in Australia in April 2000. He claimed to be a refugee, within the meaning of the Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967), and sought a protection visa. His application was refused by a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'). This decision was affirmed by the Tribunal. However, a Full Court of this Court set aside the Tribunal's decision and remitted the matter to the Tribunal for further hearing and determination. The matter was reheard by the Tribunal ('the rehearing'), constituted by a different member, Mr G Brewer. Mr Brewer also affirmed the delegate's decision. That affirmation is in contest in this proceeding. The claimed grounds of review 3 In his application, as amended on 18 February 2004, the applicant raised four grounds of review of the rehearing decision. The applicant claims that: (i) the Tribunal conducted the rehearing in such a manner as to be inconsistent with the requirements of ss 420 and 425 of the Migration Act1958 (Cth) ('the Act') or, alternatively, as to amount to a denial of natural justice; (ii) the Tribunal erred in law in failing to consider significant integers of the applicant's claims; (iii) the Tribunal's decision was so unreasonable that it amounted to a failure to exercise its jurisdiction; and (iv) the decision of the Tribunal was based on findings of fact that were unsupported by any evidence. Sections 420 and 425 and natural justice 4 Section 420(1) of the Act requires the Tribunal, in carrying out its functions under the Act, 'to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick'. Subsection (2)(b) requires the Tribunal to 'act according to substantial justice and the merits of the case'. However, failure to comply with s 420 does not give rise to a ground of review: see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611. 5 Section 425(1) of the Act requires the Tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. It is common ground that the Tribunal did this. However, counsel for the applicant argues that the hearing was vitiated by the Tribunal's failure, in all of the circumstances, to accord natural justice to the applicant. 6 I do not find it necessary to determine the circumstances (if any) under which defects in the quality of a hearing will amount to a failure by the Tribunal to comply with s 425(1) of the Act. It is now clear that failure by the Tribunal to provide procedural fairness (natural justice) to an applicant for review of a delegate's decision may constitute jurisdictional error in respect of which a court of competent jurisdiction may grant prerogative relief: see Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; 204 CLR 81 and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476 ('Plaintiff S157'). Therefore, it is convenient to proceed immediately to that issue. 7 At the date of the rehearing, 21 June 2002, the applicant was being held at the Port Hedland Detention Centre ('the Detention Centre'), run on behalf of the Department of Immigration and Multicultural and Indigenous Affairs ('DIMIA'). The rehearing was held at the Detention Centre. There were communication difficulties. In his reasons for decision, the Tribunal member explained the position. He said at page 4: 'The applicant was assisted at the hearing by an interpreter in the Farsi language. In giving a limited amount of oral evidence at the hearing the applicant demonstrated considerable difficulty in articulating his claims. He apparently found it impossible to utter responses to a range of questions, although in general he was readily able to provide a series of "yes" or "no" answers and to discuss insubstantial matters without difficulty. In view of the apparent difficulty the applicant encountered at the hearing in responding verbally to various questions of substance about his claims the Tribunal eventually put certain concerns about his evidence to him and then provided an opportunity for him to write responses that were then sent to the Tribunal by facsimile during a lengthy hearing adjournment. That written material was then interpreted from Farsi by the interpreter and simultaneously read on to the hearing tape in English. No further material has been received since the hearing.' 8 Counsel for the applicant, Mr P C Charman, read an affidavit by a solicitor, Fiona Inglis, to which was annexed two faxes from Liz Koeigers, a mental health nurse employed at the Detention Centre. Both these faxes were dated long after the rehearing. Neither was verified by evidence from Ms Koeigers. However, counsel for the Minister, Mr J Smith, did not object to my treating the faxes as evidence in the proceeding. 9 The earliest fax was dated 25 August 2003. It was addressed to two other employees of the company that then managed the Detention Centre. In this fax, Ms Koeigers stated that she had seen the applicant 'over the past few years for counselling, related to stress management and issues related to long term detention'. After referring to the rehearing, and its result, Ms Koeigers said: '[The applicant] has a well documented speech impediment, which becomes extreme when nervous, stressed or traumatised. It was agreed with the AMC Centre Manager and the Acting DIMIA Manager, at that time - Gerry Heyen, that the Mental Health Nurse would be immediately available, should [the applicant] begin having difficulty communicating or felt he could not properly express himself, at the RRT hearing. Two days before the hearing, the Mental Health Nurse unexpectedly went to Perth, as a close family member had suddenly passed away. [The applicant] and the Acting DIMIA Manager Gerry HEYEN had apparently requested the Hearing be postponed until the return of the Mental Health Nurse, but were informed that the hearing date would not be changed. It was communicated to me, on my return from leave that the hearing was held, and that [the applicant] was unable to continue the hearing properly. At one stage he was taken outside as an attempt for him to regain his composure and nerve. This was apparently unsuccessful. [The applicant] was returned to the hearing in a distressed state, unable to communicate appropriately. The hearing ran its course, with no satisfactory input from [the applicant], who could well understand the proceedings, but unable [sic] to speak due to his extreme stuttering speech impediment. He expressed to me great frustration and believes he did not answer the questions correctly, and that the questions were formulated to give yes/no answers, which could not address the reasons the Federal Court sent his case back to the RRT process. He could only respond with a shake or nod of the head. He was so frustrated that he could no longer focus properly on the simplistic questions. As he is now very anxious over his immediate future and feels a deep sense of injustice, I am requesting on his behalf that this matter be looked in to, and perhaps be re-dressed.' (Original emphasis) 10 The second fax, dated 1 October 2003, dealt with the applicant's current physical and mental health. It repeated some observations about the rehearing but provided no additional information about it. 11 Mr Charman submitted that the Tribunal was 'always on notice that the Applicant had psychological difficulties that affected his capacity to give evidence and for that reason required his mental health nurse to be there at the hearing'. Mr Charman asserted that the applicant, through the acting DIMIA manager, 'requested an adjournment when the mental health nurse was unable to attend', a request which was refused. He said there was no basis for the refusal and called it 'an arbitrary and capricious decision'. 12 Mr Charman said it is apparent from the transcript of the rehearing that the applicant 'suffered significant difficulties such that the hearing became nothing more than a hollow shell of a hearing'. The difficulties were exacerbated by the absence of the mental health nurse and the fact that a male interpreter was provided whereas the applicant had requested a female interpreter. 13 Finally, in relation to this ground, Mr Charman submitted that the applicant was given insufficient notice of the hearing date. He noted that the effect of s 425A of the Act and reg 4.35D(a) of the Migration Regulations 1994 (Cth) is to require seven clear days' notice. Mr Charman asserted that the invitation to attend the hearing, which was dated 12 June 2002, was not received by the applicant until 14 June 2002; consequently, there was not seven clear days' notice. 14 This last submission may be disposed of immediately. As Mr Smith says, there is no evidence that the applicant did not receive the invitation until 14 June 2002. The invitation was responded to on 14 June 2002 by Michael Thornton, an immigration adviser associated with Macpherson + Kelley Solicitors. There is no reason to assume the invitation was received only that day. Mr Thornton made no complaint about the length of the notice. He completed the response form in such a way as to indicate that the applicant needed a Farsi interpreter. In a covering letter to the Registrar of the Tribunal, Mr Thornton said: 'We refer to the above matter and enclose for your attention, copy Appointment of Authorised Recipient Form, duly completed and signed by our client in order that we may now receive communication on behalf of our client. We enclose copy letter from our client in regard to his need to have an interpreter with him for his hearing and advise that our client has requested that the interpreter provided at his hearing be female. We further advise that our client has requested to have Ms Liz Koeijers, ACM Mental Nurse from Port Hedland IRPC attend the hearing as a witness on his behalf and has further requested that the Tribunal contact his family in Iran to give evidence in support of his claims. We advise that the contact details for our client's family are: 0011 982 1828 2183.' 15 Mr Charman's earlier submissions require reference to the transcript of proceedings of the rehearing. The transcript is in evidence. It reveals there was a male interpreter, Mr Akbari. Mr Brewer commenced the rehearing by telling the applicant that 'in considering your claims afresh' he needed to give the applicant 'a chance to talk about [them] in their entirety rather than just on the basis on which the matter has come back to this Tribunal'. He said he understood the applicant's claim 'stems from various activities at university and particularly arising out of what you said was the participation of [sic] a demonstration'. Mr Brewer then noticed that the applicant had some paper in front of him. He asked what it was. The answer was given by a person referred to in the transcript as 'unidentified speaker'. The person said the applicant 'has a speech problem'. Mr Brewer said he understood that; he had read the file. The unidentified person then said the paper was 'just a pad'. Mr Brewer responded: 'Well, can you make him answer each time? You can take your time in answering the questions. If it is a blank page you can leave that there and write notes if you wish to. What problems did you have in Iran that you wanted to tell me about?' 16 The applicant, through the interpreter, said that in Iran 'they accused me of belonging to a group of university students'. Mr Brewer said that, according to the file, the group is called Feshar. The applicant confirmed this was correct. Mr Brewer then asked the applicant to tell him about the group. He told the applicant to 'take your time in gathering your thoughts and answering'. 17 The applicant replied, through the interpreter: 'I'm sorry, I have previously told you'. The transcript goes on: 'MR BREWER: I don't think you previously told someone the details of the group. What I am interested in is what its structure is, who its leaders are, how it meets, what its policies are, those sorts of matters. One of the reasons I'm interested in --- THE APPLICANT: Can I write this in my own language and fax it to you because I cannot talk properly? Is there any possibility that an interpreter could sit next to me so I could write the answer on a piece of paper, then he could translate it to you? MR BREWER: That hasn't been possible, and I notice that, albeit with some difficulty, that you have been interviewed by the Department of Immigration before, and another Tribunal member, so I think we should see how far he can go using the assistance of Mr Akbari who is very skilled as an interpreter and experienced in this jurisdiction. One of the reasons I'm interested in you telling me about the details of the group is that I can't find, in any of the literature I've read, any reference to such a group. You can take your time I'm not in a hurry. THE APPLICANT: How can I explain it? I can't say anything. All this time I am here. MR BREWER: Is there anything you can tell me about Feshar? THE APPLICANT: Yes, there are some things. MR BREWER: Go ahead then. THE APPLICANT: Can I have a 5 minute break to go out and come back? MR BREWER: Yes, if you wish. We will wait here and we won't communicate in your absence but we will leave the tape running. THE APPLICANT: Thank you.' 18 After the break, the applicant did not immediately reappear. There was an exchange between the unidentified speaker and Mr Brewer as follows: 'UNIDENTIFIED SPEAKER: Mr Member, he's just spoken to the 2IC at the centre and explained that if gets [sic] nervous he actually can't speak very well at all, he can't even put sentences together and that's why he wanted an interpreter in the centre to speak for him rather than - and - but he looked like he was going to pass out there at one stage. So I don't know whether he is coming back in or not. I'll just go and find out. MR BREWER: Well, if you can do that. I mean, I understand there are significant difficulties and I anticipate that and as I indicated to him he has had another hearing with another Member and an interview with a departmental person so there is a record of being able to cope albeit with difficulty.' 19 Apparently the unidentified speaker made some inquiries and the applicant returned to the hearing with Gerry Heyen, the acting DIMIA manager. Mr Heyen introduced himself and told Mr Brewer about his contact with the applicant. He said: 'I have been dealing a lot in his case and I've found in all my meetings with him he suffers from what you'd have to say is a severe stammer speech impediment, if you like, he does get quite nervous and literally cannot even begin a sentence sometimes.' 20 The following exchange then occurred: 'MR BREWER: It does seem to me not such a stammer as a difficulty in getting the language out in the first place. MR HEYEN: Yes. MR BREWER: Just one moment. So have you discussed with the applicant whether he would like you to stay for the remainder of the hearing. MR HEYEN: I have done that. What he has asked me is if another resident in the centre can appear here with him and [the applicant] then will be able to write something down and the other resident could speak to you in English. MR BREWER: It's not a course I want to take …because I'll need to be able to rely utterly on what evidence he's giving to me and realistically I can't utterly rely on evidence given in that way. If we need to and it's written by you and then later interpreted and read onto the record or translated then I can rely on that. I can't rely on evidence communicated through a third party who is neither an officially credited interpreter, nor someone independent of the process. So what I want to do is just see how far we can go today and it might be that you will need to add something in writing later. There are two other people in the room with you at the moment. Would you like them to remain while you give your evidence? THE APPLICANT: It doesn't make any difference. MR BREWER: Well, it's up to you. If you would prefer they stay and my understanding is that they will, if you would prefer that they leave then that's for you to say. THE APPLICANT: It doesn't make any difference but I think if they stay it will be better. MR BREWER: Am I right that that's okay with each of you? MR HEYEN: That's fine with me, that's fine. MR BREWER: I think in view of the difficulties that have been encountered I will proceed in this fashion. What I will do is go over the claims as I understand them to have been made in the past and you can indicate whether that is an accurate reflection of your claims, or not. Then I will ask you some questions about some of those particular issues.' 21 Mr Brewer then stated his understanding of the applicant's claims. He stated them one by one. Through the interpreter, the applicant affirmed the correctness of Mr Brewer's understanding of each claim. However, towards the end of this process, Mr Brewer asked the applicant about escaping Iran 'using a false French passport'. The applicant replied 'No, no'. He said he crossed the border between Iran and Pakistan without any documentation. Apparently he used a false French passport to move from Pakistan to Malaysia, where he lost the French passport. However, 'from Malaysia we did not have to use any passport because we came … by boat'. 22 After Mr Brewer obtained confirmation of one other element of the applicant's claims, he asked the applicant whether there was anything else he wanted to say about his claims. Through the interpreter, the applicant replied: 'Whatever you said was correct. I don't have anything, only what - I don't have anything to say'. 23 Mr Brewer told the applicant he wished to give him a chance to comment on some of the issues he would need to consider. There was discussion about the dates of various events in Iran. The applicant apparently followed this discussion. He corrected one date suggested to him by Mr Brewer. After another question, the unidentified speaker made the suggestion that the applicant write down the questions Mr Brewer was asking and fax the answers after the hearing. Mr Brewer said: 'I would prefer to have oral evidence if it can be elicited but if not then we will do that'. He put some other questions. Apparently, the applicant gave one oral answer but wrote down other answers. After inquiring about the interpreter's availability, Mr Brewer said: 'What I will do I will say some questions and the reasons I'm asking them and I'll provide some time for you to write answers which can be faxed to me. Then what I propose is that Mr Akbari read the questions that you've faxed back on to the tape.' 24 Through the interpreter, the applicant thanked Mr Brewer. 25 Mr Brewer then orally stated a number of matters about which he needed further information from the applicant. At the end of that process, he adjourned the hearing with a request that the answers be written down and he be advised when this was done. 26 After an unstated interval, the hearing resumed. Mr Brewer said he had received a covering page plus five other pages of faxed material, apparently in Farsi, which he would place on the file. He asked Mr Akbari to read this material onto the tape in English. This was done. At the end of this process, Mr Brewer said he would take all the information into account. 27 There is no evidence before me that an application was ever made to the Tribunal to adjourn the hearing. The transcript does not reveal any such application. At the rehearing, no reference was made to the absence of Ms Koeigers; indeed, she was not mentioned at all. As was noted above, Mr Thornton had suggested she might be a witness for the applicant, not that her presence was necessary for him adequately to present his case. Given the nature of the issue confronting the Tribunal, it is not easy to see what evidence she might usefully have given. She could have spoken about the applicant's psychological condition and speech problems, but Mr Brewer was at least aware of the speech problems. Having that awareness, he conducted the proceeding in a manner that was designed to assist the applicant in the giving of his evidence. On many occasions, Mr Brewer invited the applicant to take his time in responding, including in compiling his written answers to the matters listed by Mr Brewer towards the end of the hearing. The applicant then prepared a document, in his own language, that responded to the concerns expressed by Mr Brewer. I see no basis for the suggestion that the Tribunal denied the applicant procedural fairness. There is nothing in the material before me that suggests the applicant's ability to communicate his case to the Tribunal was impeded by the absence of Ms Koeigers or the fact that the supplied interpreter was male rather than female. Failure to consider significant integers of the applicant's claims 28 Although this ground was raised in the applicant's amended application, Mr Charman did not put a developed submission to the Court in support of it. Particulars of the ground, given in the amended application, stated: 'a) The Tribunal failed to consider the imputed political belief of the Applicant in that it only dealt with his involvement with the student demonstrations [which it accepted] on the basis of him actually being a member of Feshar which he at all times denied. b) The Tribunal failed to deal the [sic] general imputed political belief that the Applicant was an anti government demonstrator.' 29 The particularised matters really come down to one point: that the Tribunal considered the applicant's claimed fear of persecution only in the context of him being a member of Feshar. However, this is not a fair criticism of the Tribunal's reasoning process. Under the heading 'Discussion of Evidence and Findings', the Tribunal member said, in his reasons for decision at pages 5-6: 'The Tribunal accepts that the applicant participated in student political demonstrations held in mid-1999 and that his activities in that regard came to the attention of the authorities.' 30 After quoting information received from the Department of Foreign Affairs and Trade ('DFAT'), about the mid-1999 demonstrations and their aftermath, the Tribunal member said at page 7: 'Most of those who were arrested in aforementioned demonstrations were quickly released. The interest of the authorities in demonstrators who escaped initial arrest was apparently largely confined to those with a high profile. Even on his own claims the applicant does not have anything like the profile of a leader or organiser. He was not charged or convicted of any offence. The Tribunal accepts that the applicant came to the attention of the authorities on or about 12 July 1999. In light of his profile it does not accept that he was ever of serious interest to the authorities due to his support of, or participation in, demonstrations at that time. It accepts his evidence that he evaded the authorities when they sought to arrest some people at those demonstrations. Aforementioned information indicates the implausibility of the applicant being pursued or persecuted nowadays as a consequence of involvement in political rallies three years ago, and given increasing political liberalization.' 31 It will be noted that these conclusions are related to participation in the demonstrations, not membership of Feshar. Immediately after the passage I have just set out, the Tribunal member turned to the applicant's claimed fear of persecution on account of membership of Feshar. He treated that as a separate issue. 32 Mr Charman also contended that the Tribunal failed to deal with the applicant's claim that he left Iran under a French passport. However, the applicant did not make such a claim. He said in oral evidence that he left Iran by crossing the Iran-Pakistan border without documentation. Presumably, he bypassed border checkpoints or persuaded an official to overlook his lack of travel documents. Manifest unreasonableness and no evidence 33 Mr Charman dealt with these grounds together. I am content to do the same. 34 Mr Charman's first point is that the 'Tribunal found that it was not possible that the applicant left illegally because of the exit procedures but this is contrary to its own evidence that there were reports of people trafficking'. 35 In dealing with the applicant's departure from Iran, the Tribunal member said at page 8 of his reasons: 'In reaching its conclusion that the applicant was not wanted by the authorities the Tribunal also notes and gives weight to commentary from DFAT in its country information report 327/99 of 19 March 1999.' 36 The DFAT information concerned procedures adopted at Iranian airports and border checkpoints. The Tribunal member commented: 'Aforementioned information regarding exit procedures indicates the existence of an extensive and computerized blacklist'. He went on at page 10 of his reasons: 'In view of the applicant's general credibility and aforementioned information indicating the existence of tight controls in Iran on exit and entry procedures; the existence of a computerized blacklist; and the interest of the authorities in monitoring Iranian citizens, including in particular those who are regarded as political offenders, the Tribunal is not satisfied that the applicant left Iran illegally through a land border. Even if the applicant were to have left Iran illegally, and were to face a penalty as a consequence, such an outcome does not disclose a Convention nexus. There is nothing in the applicant's evidence to satisfy the Tribunal that any penalty for any illegal departure would be other than in accordance with laws of general application regarding the movement of citizens. In reaching that conclusion the Tribunal has considered the applicant's participation in demonstrations in 1999 and knowledge of that by some members of the police or security forces. In view of the lack of action against the applicant subsequently, the passage of time and aforementioned country information indicating the lack of official interest in persons with the profile of the applicant, the Tribunal concludes that if any penalty were to apply to him for any legal departure there is not a real chance it would be differentially applied due to any Convention ground.' 37 I have a difficulty about one point noted in the first paragraph of the passage just set out. I cannot see the relevance of the existence of a computerized blacklist at Iranian airports and border checkpoints to a claim that a person left Iran without travel documents. If the person bypassed border checkpoints or persuaded an official at a border checkpoint to turn a blind eye to the fact that he had no travel documents, it is unlikely anyone would have searched the computer blacklist. 38 However, this is not a case where the decision-maker has used an illogical finding of fact or observation to determine his or her final decision. The case stands in contrast to the situation described by Black CJ, with whom Spender and Gummow JJ agreed, in Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 220-221: '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. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion. If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact.' 39 In the present case, the decision-maker addressed the situation that would arise if the conclusion he expressed at page 10 of his reasons, quoted at para 36 above, was incorrect. He considered the consequences, for the applicant, of illegal departure if he returned to Iran. Importantly, and in contrast to many Tribunal decisions, the Tribunal member did not use a conclusion that the relevant applicant had legally left his country of nationality as a reason for disbelieving elements of his claims. The Tribunal member had some difficulty with the applicant's general credibility, but this difficulty did not arise out of his method of leaving Iran. Consequently, the curious reference in the reasons to the existence of a computerized blacklist had no consequences in terms of the Tribunal's final decision. 40 A more significant criticism of the Tribunal's reasoning is its reference to 'increasing political liberalization': see para 30 above. This reference was made in the context of a discussion about the likely fate of the applicant if he was returned to Iran. That was, of course, the critical matter for the Tribunal to determine. 41 The only material that was cited by the Tribunal, in support of its claim of increasing political liberalization, was a report of the United States of America Department of State called Iran - Country Reports on Human Rights Practices - 2001. That document is included in the Court Book. Mr Charman claimed that it contained nothing to support a view but there was increasing political liberalization in Iran and plenty of material indicating the contrary. The report is lengthy. There is no advantage in my making extensive reference to it. It is sufficient to note a few passages. In an opening section, the report says: 'The influence of conservative government clerics, which pervades the judiciary, often prevents citizens from receiving due process or fair trials. The Government uses the judiciary to stifle dissent and obstruct progress on human rights. The Government infringes on citizens' privacy rights, and restricts freedom of speech, press, assembly, and association. Over the last 2 years, the Government has closed nearly all reform-oriented publications, and brought charges against prominent political figures and members of the clergy for expressing ideas viewed as contrary to the ruling orthodoxy. The Ministry of Culture and Islamic Guidance continued to issue licenses for the establishment of newspapers and magazines, some of which eventually challenged government policies, but those, too, were shut down. The Government restricts freedom of religion. Religious minorities, particularly Baha'is - who are viewed not as a religious group, but as a heretical group and a subversive political organization - continued to suffer repression by conservative elements of the judiciary and security establishment. In July 2000, 10 Iranian Jews were tried and convicted on charges of having illegal contact with Israel, and sentenced to between 2 and 13 years in prison. Three others were acquitted. The trial procedures were unfair, and violated numerous internationally recognized standards of due process. Their appeal to the Supreme Court was rejected in January. One was released at the conclusion of his 2-year sentence in March, but the other nine remain in prison. The Government controls the selection of candidates for elections. An intense political struggle continued during the year between a broad popular movement that favored greater liberalization in government policies, particularly in the area of human rights, and certain hard-line elements in the government and society, which view such reforms as a threat to the survival of the Islamic republic. In many cases, this struggle was played out within the Government itself, with reformists and hard-liners squaring off in divisive internal debates. During the year, reformist members of Parliament were harassed, and for the first time, prosecuted and jailed for statements made under cover of parliamentary immunity. Khatami's June reelection does not appear to have resulted in meaningful reform. To the contrary, the repression of reformers, including parliamentarians, continued, and according to some reports, intensified.' 42 The report noted recent reports of torture, increased public floggings, imprisonment of journalists, a deterioration in prison conditions and an increase in the total prison population. Reference was made to the July 1999 demonstrations in which the applicant claims to have participated. The report noted that as many as 1,500 students were detained after the protests, many of whom remained in prison at the end of 1999. The report said: 'In September 1999, the head of the Tehran Revolutionary Court, Hojatoleslam Gholamhossein Rahbarpour, was quoted as saying that 1,500 students were arrested during the riots, 500 were released immediately after questioning, 800 were released later, and formal investigations were undertaken against the remaining 200. He also announced that four student leaders were sentenced to death by a Revolutionary Court for their role in the demonstrations. The death sentences reportedly were commuted to prison terms in 2000. The UNSR's 2000 report stated that about two-thirds of the students who initially were arrested subsequently were released, but noted that there has been no formal accounting of all the persons arrested in connection with the July 1999 demonstrations.' 43 The report also commented on freedom of expression. It said: 'The Government's record regarding freedom of expression, which has worsened during the past few years, continued to deteriorate. It remained a central issue in the struggle between hardliners and political reformers. The Government continued its policy of issuing licenses for new publications, some of which engaged in open criticism of certain government policies. However, the Government issues such licenses at a much slower rate than in past years. Beginning in late April 2000, the Press Court closed virtually all remaining newspapers associated with the reform-oriented press. Over the course of a few days, the 14 most prominent reform newspapers were ordered closed, without hearings. By the end of 2000, more than 30 independent newspapers and journals were closed. A few mildly proreform newspapers continued to publish, but with restrictions. Hamshahri, a daily newspaper published by the Tehran municipality, was ordered to restrict its circulation to the Tehran city limits. Others continued to publish, but only with heavy self-censorship.' 44 Deterioration in observance of some human rights might theoretically be accompanied by improvements in other areas, perhaps justifying a claim that there has been overall liberalization. With this in mind, I asked Mr Smith to refer me to any passage in the report that suggested an improvement in human rights observance, or increasing political liberalization, in recent years. Mr Smith was not able to do so. Having now had the opportunity to read the whole report, I understand why; there is no such passage. In other words, the report provides no foundation for the Tribunal's reference to 'increasing political liberalization' in Iraq; it suggests the contrary. 45 In Luu v Renevier (1989) 91 ALR 39 at 47-48, a Full Court, of which I was a member along with Davies and Pincus JJ, said: 'The effect of a finding of fact by a decision-maker which is unsupported by the evidence must depend upon the significance of that finding. If the finding relates only to a matter of peripheral importance, the validity of the decision may remain unaffected. But where the finding is critical to the ultimate decision, it is impossible to sustain the decision. A number of suggestions have been made as to the way in which the resultant situation may be expressed: failure to take a relevant consideration into account, error of law, denial of natural justice, unreasonableness or taking into account an irrelevant consideration.' 46 Burchett J cited part of those observations in Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 at 529. In that case, his Honour expressed concern at an assessment of the facts on which the decision-maker acted. He said at 528: 'That assessment is so at variance with the material before the delegate as to fall within the rare category of cases to which the principle of Wednesbury unreasonableness applies. It is not a question of mere error in findings of fact, a form of error that would not disclose any legal defect in the decision. Here, no reasonable person could have come to such conclusions.' 47 A similar position arises in the present case. The question of the likely treatment of the applicant if he returned to Iran was not a matter of peripheral importance; it was the critical matter for the Tribunal to decide. The Tribunal accepted that the applicant had participated in the July 1999 demonstrations. It had before it a country report, whose reliability it accepted, that indicated many of the people who were involved in those demonstrations were still in custody at the date of the report. The report gave no support for the view that Iran was enjoying 'increasing political liberalization'. Rather, it suggested the opposite. Although I appreciate that the Tribunal has access to many sources of information, the Tribunal did not suggest that it was relying on any other material in coming to its conclusion. In that situation, it was manifestly unreasonable for the Tribunal to act on the basis that there was increasing political liberalization. 48 I have considered whether this unreasonable conclusion affected the outcome of the review. I bear in mind that, in the preceding paragraph, the Tribunal indicated it did not accept that the applicant 'was ever of serious interest to the authorities' due to his participation in the demonstrations. However, the Tribunal did accept that the applicant came to the attention of the authorities on or about 12 July 1999. The Tribunal also seems to have accepted that the applicant felt himself to be in such peril that it was necessary for him to evade the authorities. Having regard to those circumstances, it seems to me that the applicant was entitled to have the Tribunal assess the likely risk to him, if he returned to Iran, free of a false assumption about 'increasing political liberalization'. 49 Mr Charman also submitted that the Tribunal's conclusion about the applicant not being 'of serious interest to the authorities' is irreconcilable with a report, quoted by the Tribunal in its reasons, provided by DFAT in September 1999. Speaking of the July 1999 demonstrations, DFAT said: 'We understand that investigations continue and that further arrests have been or are being made in connection with the case. On 12 September, the head of Tehran's hardline revolutionary court said in a press interview that out of 1,500 individuals arrested during the unrest, 500 had been released immediately after questioning and 800 were later released on bail, while further investigations were being conducted against the 200 individuals who remained in detention. Although there appears to be continuing interest in the leaders/organisers of the unrest, this seems to be less so in the case of other, more minor participants. Nonetheless, we would consider that the possibility of new arrests in connection with the unrest continues to exist, although this would likely depend on the alleged level of involvement. … It would appear plausible that pressure could be exerted against the family of someone who had played an active role in the riots or who had otherwise attracted the attention of the authorities during the unrest, although less so in the case of minor participants.' 50 I agree that this passage in the DFAT report does not necessarily support the view that only 'high-profile' participants in the demonstrations would be of continuing interest to the authorities. However, I do not regard there to be such a clear-cut conflict between material available to the Tribunal and the Tribunal's conclusion on this point as to render that conclusion unreasonable. 51 Mr Charman raised some other matters in support of his contention of unreasonableness. However, it seems to me that none of them is an example of manifest unreasonableness. The effect of a conclusion of unreasonableness 52 The next question is whether manifest unreasonableness is an example of jurisdictional error giving rise to an entitlement, subject to discretionary considerations, to prerogative relief. That question was answered by a Full Court (Mansfield, Selway and Bennett JJ) in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231. At paras 18-19, the Full Court said: 'That argument was that the Tribunal had made a jurisdictional error in making a finding that the appellant was not at real risk of persecution. The basis of the alleged jurisdictional error was put on various interrelated bases: that the Tribunal did not correctly identify the proper legal test for persecution or, if it did, then it reached a factual conclusion unsupported by any evidence; or that it failed to consider other relevant evidence that was before it; or that its conclusion on the evidence was 'Wednesbury unreasonable'. But the essence of the argument was that there was no information before the Tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason. This argument, if it were made out, would be sufficient to establish that the Tribunal had made a 'jurisdictional error' so as to found jurisdiction in this Court to intervene. If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357. If the decision of the Tribunal was 'Wednesbury' unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 62, 67, 76, 90-91.' Discretionary considerations 53 I previously drew attention to the long delay in instituting this proceeding. Section 477 of the Act imposes a 28 day time limit on the making of an application under s 39B of the Judiciary Act for a writ of mandamus, prohibition or certiorari 'in respect of a privative clause decision' in relation to which the Federal Court's jurisdiction is not excluded by s 476 of the Act. However, a decision is a 'privative clause decision' only if it is free of jurisdictional error: see Plaintiff S157. As was pointed out by a Full Court (Carr, Merkel and Hely JJ) in Ngu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 54 at para 8, it must follow that an objection to competency, based on a failure to comply with s 477, cannot be upheld in relation to a decision affected by jurisdictional error. Mr Smith did not argue to the contrary. 54 Prerogative relief is a discretionary remedy, in relation to which the Court may take into account any delay in instituting the proceeding. In the present case there is no explanation for the delay. However, it is legitimate for me to take into account the fact that, at the time of the Tribunal's decision, the applicant was being held in detention in a remote part of Australia. Judging by the content of Ms Koeigers' faxes, he was still being held in the Detention Centre as late as 1 October 2003, less than three months before institution of this proceeding. There would have been difficulty in the applicant obtaining competent legal advice, particularly as he is apparently not fluent in the English language. I do not think relief should be withheld on discretionary grounds; indeed, Mr Smith did not make such a submission. Disposition 55 I propose to order the issue of a writ of certiorari, quashing the Tribunal's decision of 10 July 2002, and the issue of a writ of mandamus, directing the Tribunal to rehear and determine, according to law, the applicant's application for a review of the delegate's decision. The Minister must pay the applicant's costs of this proceeding. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.