Consideration
12 Before this Court the appellant again contended that the Tribunal denied the appellant procedural fairness, but no longer placed reliance, in the alternative, on a failure to comply with the requirements of s 424A of the Act. The reason for not relying on s 424A is explained below at [18].
13 The appellant's submission must be considered in light of the process of reasoning which led the Tribunal to its conclusions. Having detailed the two matters said to indicate significant alterations in the appellant's evidence, and the other "good reasons for not accepting that the [appellant] is telling the truth", the Tribunal went on to say:
"I do not accept that the [appellant] was engaged to be married or married to a woman whose father was a Mullah or an Akhound, a teacher at a mosque or a prayer-leader at a mosque, or one of the heads of the Ettelaat. As indicated above, I do not accept that a person of this character would have agreed to his daughter marrying a person like the [appellant], who by his own evidence does not consider it important to go to the mosque and is opposed to the concept of the Supreme Leader. As I put to the [appellant], I consider that he has altered his evidence with regard to whether he was married or merely engaged to be married to fit in with the document he produced, purporting to require him to attend the Family Court in Tehran. Since I do not accept that the [appellant] was married, as he now claims, I consider that this document is a fabrication, procured in an attempt to provide corroboration for the [appellant's] narrative."
14 In my opinion, there are two major criticisms to be made about this passage in the Tribunal's reasons which led to the conclusion that the document marked "A" is a fabrication. First, I do not think the conclusion that the appellant significantly altered his evidence about his marital status is soundly based on the evidence. Secondly, the reasoning that led to the conclusion of fabrication is illogical.
15 As to the first criticism, whilst the appellant is recorded in his initial interview, and in his original visa application as saying that he was engaged, the document and interview as a whole raises a serious doubt whether the appellant understood the ordinary English meaning of the notion of "engaged". For example, in relation to his original interview, whilst he said in relation to question sixteen concerning his marital status that he was never married but was engaged, in the next question, he gave particulars of his "spouse". In the course of his interview he frequently spoke of his "father-in-law". The important feature of his evidence was that he had a relationship with a woman whose father had the characteristics which he described. It does not appear material to his claims whether, strictly speaking, the relationship was one of engagement or marriage. When the Tribunal in the s 424A letter expressed its concern about the description of the appellant's marital status, the migration agent representing him responded by informing the Tribunal:
"Our client has consistently claimed that, in the eyes of the law, he is, in fact, married. What is at issue is the cultural interpretation of what constitutes a legal and binding marriage and what is only a betrothal … Our client explained to his Adviser … that he had, in fact, married and had engaged in the ceremony and process known as Aqd Nama. Such a process means that our client was indeed legally married. However, culturally the marriage is not fully sanctioned by the respective families, as well as other relatives and local community, until, what we would term in the West, a reception has taken place."
In light of this explanation, and other information given about the nature of the betrothal ceremony, I think there was no sound basis for making the criticisms which the Tribunal did about this aspect of his evidence.
16 As to the second criticism, illogical reasoning exists in two respects. First, the reasoning is circular. The Tribunal considered that the appellant had altered his evidence so as to fit in with the document which purported to summons the appellant to the Family Court. This reasoning assumes the validity of the document, or at least the relevant statement in it which asserted that he is legally married. The Tribunal then reasons that this change (in conjunction with the other matters) indicated a preparedness to tailor his evidence. Therefore his evidence could not be accepted. Therefore the appellant was not married and document "A" must be fabricated. Moreover, if the summons was fabricated, why would the appellant propound a false document that did not accord with his evidence?
17 This Court, however, on an application for judicial review is not empowered to correct erroneous findings of fact reached by a process of illogical reasoning: Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543. Counsel for the appellant acknowledged this jurisdictional limitation, and did not seek to rely upon the illogicality of the Tribunal's reasoning process as the ground for seeking review. Nevertheless, it is necessary to appreciate the process of reasoning of the Tribunal, to understand the significance of the denial of procedural fairness upon which the appellant challenges the Tribunal's decision.
18 At the conclusion of the hearing before the Tribunal at which the appellant gave oral evidence, the Tribunal wrote the s 424A letter to the appellant saying that the Tribunal had information that would, subject to any comments which the appellant might make in answer, be the reason or part of the reason for deciding that the appellant is not entitled to a protection visa. The information put to the appellant comprises his allegedly inconsistent statements about his marriage status, about his lack of realisation about the occupancy by the Ettelaat of the building to which he was sent by his father-in-law, and about the timing of the last "fight" with his father-in-law. The information thus given to the appellant was information already known to him - indeed it consisted of statements made by him. The concerns of the Tribunal had already been made known to the appellant in the course of the oral hearing. In these circumstances the provision of the letter appears to have been a matter of exhaustive precaution, not strictly required by s 424A of the Migration Act: see s 424A(3)(b). Counsel for the appellant, in the course of his submissions, recognised that the nature of the information which the letter conveyed to the appellant was of a kind that probably did not attract the need to give notice under s 424A, and for that reason did not press the argument that there had been a failure to comply with that section. As the appellant no longer relies on an alleged breach of s 424A, there is no need to consider the submissions made by counsel for the respondent that the section does not lay down inviolable conditions that must be fulfilled before a decision to which the section has application is one made "under this Act" within the definition of "privative clause decision" in s 474(2) of the Act.
19 However, the s 424A letter is of importance in these proceedings for two reasons. First, it is contended that the Federal Magistrates Court erred in finding that sufficient notice was given by the s 424A letter that the genuineness of the document marked "A" was in question. Secondly, counsel for the appellant has argued that the following paragraph which appeared in the s 424A letter not only fails to give notice to the appellant that the genuineness of the document marked "A" was in question, but is positively misleading in that it implies that the genuineness of the document is accepted. Counsel points out that it is therefore understandable that the migration agent in responding to the s 424A letter dealt with the apparent inconsistencies in the appellant's evidence, and did not at all address the genuineness of the document marked "A". The relevant paragraph in the letter reads:
"At the hearing before the Tribunal you said that you were in fact married. You said that in Iran, when a couple were engaged they went to the Registry Office. All that was left was to have the wedding reception or party. You have produced what purports to be a document requiring you to attend the Family Court in Tehran and referring to a claim or complaint by your spouse. The inconsistency in your evidence with regard to whether you claim to have been married or merely engaged to be married casts doubt on whether you are telling the truth. As the Member constituting the Tribunal put to you in the course of the hearing on 21 January 2002, it raises the question whether you have altered your evidence to fit in with the document you have produced (which suggests that you are married, not merely engaged, as you had said previously)." (emphasis added)
20 In my opinion the appellant's contentions should be accepted. I do not consider that the above passage conveys notice that the genuineness of the document marked "A" was in doubt, and it is not suggested that the appellant was otherwise made aware of that fact. It is also my opinion that the words emphasised in the above passage convey that the Tribunal accepts that the document is genuine and that the document is properly to be used as a reference point against which to test the appellant's oral evidence.
21 It is now established that the Minister, and on review the Tribunal, are obliged to extend procedural fairness to visa applicants: Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 179 ALR 238; Re Minister for Immigration and Multicultural Affairs; ex parte "A" (2001) 185 ALR 489; and Plaintiff S157/2002. It may be open to doubt whether in the context of the Act the obligation to extend procedural fairness descends to the level of requiring that in every case the visa applicant be informed whenever the decision-maker questions the veracity of a document or other material proffered by the applicant. But in this case, the appellant was informed that the veracity of his claims was under question and he was invited to respond. The requirement of procedural fairness must be assessed in light of the information that he was given. The misleading inference in the s 424A letter that the document marked "A" was being treated as genuine is likely to have had the effect which the appellant asserts, namely that he did not put forward many other documents to support the conclusion that the document marked "A" was genuine. In the result I consider procedural fairness did not occur.
22 In this case, unlike the situation in Re Minister for Immigration and Multicultural Affairs; ex parte "A" (2001) 185 ALR 489, the appellant has by affidavit filed in the Federal Magistrates Court, established that there was material which he could have placed before the Tribunal, had he known that there was reason to do so. There was unfairness in a practical sense as the appellant has demonstrated the loss of an opportunity to put forward further information to the decision maker: see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 at [36] - [37], [106], [112], [149] - [151].
23 Moreover, in the circumstances of this case I consider that the additional material, had it been placed before the Tribunal, might well have resulted in a different outcome. The adverse credibility finding was the consequence of the cumulative effect of the five problems with the appellant's evidence. Two of those problems were thought to be indicative of deliberate alterations in the appellant's evidence to bolster his case. As I understand the Tribunal's reasons, these two problems were treated as of more importance than the others. The additional material would have strongly indicated that the appellant was married, as he said in evidence, and that the document marked "A" was not fabricated. Had the Tribunal so concluded the adverse finding as to credit that led to the rejection of his claims might well have been different. In short, I consider the failure to extend procedural fairness in this case was material to the outcome of the appellant's application, and constituted a manifest jurisdictional error: Plaintiff S157/2002 at [12] - [13] and [160].
24 In my opinion the Federal Magistrates Court erred in holding that the obligation to extend procedural fairness, assuming such an obligation existed and however it arose, was complied with by the s 424A letter.
25 The failure to extend procedural fairness constitutes a jurisdictional error, and accordingly the decision of the Tribunal was not a decision made under the Act within the meaning of the definition of "privative clause decision" contained in s 474(2) of the Act: Plaintiff S157/2002, [38] and [83]. As the decision is not a privative clause decision, it is not protected from challenge by s 474(1).
26 For these reasons I consider the appeal should be allowed. The judgment and orders of the Federal Magistrates Court should be set aside and in lieu thereof it should be ordered that the decision of the Tribunal made on 25 February 2002 be set aside, and the matter be remitted to the Tribunal for determination according to law. The respondent should pay the costs of this appeal, and of the application for review before the Federal Magistrates Court.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa .