11 Before the Tribunal were documents the applicant had brought with him, or had obtained from Jordan. The documents referred to charges against the applicant under Jordanian law, and Sharia law, that arose out of circumstances relating to his first marriage.
12 The review of the Minister's decision by the Tribunal included a hearing by video‑transmission in which the Tribunal, and an interpreter, were in the Sydney offices of the Tribunal and the applicant was at the Immigration Reception and Processing Centre at Port Hedland. The adviser to the applicant was not present at the hearing.
13 Unfortunately the limitations of such a hearing procedure resulted in a misunderstanding arising between the Tribunal, the applicant, and his adviser on an issue important to the due consideration of the applicant's claims. The applicant told the Tribunal in the hearing that he was being treated by Jordanian authorities as a renouncer of Islam, or an apostate. In its written statement the Tribunal said that in the course of the hearing:
"…the applicant told the Tribunal that in March 2001 he had sent his advisers copies of birth certificates for his children from his second marriage showing how they had to, or had, converted to Islam. The Tribunal asked for these from the adviser but was informed that that all the documents that the advisers had, had been submitted to the Tribunal with the pre-hearing submission. A second letter from the advisers dated 23 May 2001 conveyed the news that the applicant had left his children's 'original birth certificates' in Jordan and could get these for the Tribunal. The Tribunal replied on 24 May, 2001 that the applicant had apparently claimed to have had in his possession since March 2001 certificates showing that his children had been forced to convert, rather than the children's original birth certificates which would not show any change. On 30 May, 2001 the Tribunal faxed the advisers to state that the decision would be finalised the next day in the absence of any more information from the applicant as to his claimed certificates."
14 The Tribunal then proceeded to make the following finding on the credit of the applicant, a finding upon which the Tribunal relied in making the decision that a visa not be granted to the applicant:
"Given that I am not satisfied that the applicant had converted to Islam, I find a lack of credibility in his claim to be facing persecution as an apostate. I also find that the applicant, to boost his claims, has exaggerated the penalties a convert from Islam might face in Jordan with his talk of shedding blood: the US State Department survey, Country Reports on Human Rights Practices, 2000, Jordan, states merely that apostates may be denied property and other rights and that even this principle 'is not applied' (s.2c).
Given that the applicant and his current wife are Christian, I find a lack of credibility in his claim that the children of that marriage are being forced to convert to Islam under sharia law. There is no evidence before me that sharia law enforces the conversion to Islam of children born to Christian parents, and there is no independent evidence that Christians in general are forced to convert to Islam in Jordan. It is not the case, contrary to the applicant's claim, that the sharia courts have declared him to be a Muslim: his documents show that it was, in fact, the sharia court that pointed out to the Jordanian civil authorities that the applicant had never been a Muslim. I note the applicant's insistence that he has documents substantiating his claim of forced conversion of his children. I have received no such documents, and I am not satisfied that they exist. I note that the applicant has changed his evidence on this matter, having first said that he had documents showing the forced conversions of his children, then indicating that all he had were the children's original birth certificates [which would not show forced conversion] and that he had left these behind in Jordan. It appears that the applicant has fabricated evidence of possessing documents demonstrating forced conversion of his children."
15 To understand how the Tribunal made the foregoing finding on credibility it is necessary to refer to events that occurred after the hearing on 14 May 2001. By reason of the hearing not being conducted in the presence of the applicant, the applicant was unable to hand up to the Tribunal the documents to which he had referred. The Tribunal told the applicant that it would ask the applicant's adviser to supply the documents.
By a letter apparently forwarded to the adviser on the day of the hearing, the Tribunal stated as follows:
"The Member reviewing your case has asked me to adviser [sic] you as follows.
Your client,[name deleted], said at his hearing today that he has birth certificates for children by his second marriage which apparently show that the children are being forced to re-convert to Islam. He said that the documents had arrived around 15 March 2001, and are in Arabic, and are in your keeping. I told him that they would need to be translated into English and that I would be writing to ask you for them.
Could you please arrange to send me the documents and English translations of them by Monday, 21 May 2001."
On 15 May 2001 the adviser responded as follows:
"We advise that the only documents received by our office were the faxed copies with English translations that were forwarded to the Tribunal on 4th May 2001 with our submission.
We further advise that we do not hold any original documents on our client's file and we will write to our client for the originals.
We will advise you as soon as we receive a response.
Should you have any queries please do not hesitate to contact us." [Emphasis added].
The documents with English translations that the adviser had forwarded to the Tribunal on 4 May 2001 did not include any birth certificates. It is unknown whether the adviser had received the untranslated birth certificates to which the applicant referred in the hearing before the Tribunal. The applicant told the Court he forwarded the certificates to the adviser by facsimile transmission on 26 March 2001.
16 By a letter dated 23 May 2001 the adviser reported to the Tribunal on the matter of the "original" certificates that the adviser had said would be sought from the applicant:
"We refer to the above matter and advise that our client informs us that his children's original birth certificates are with the family in Jordan. He has requested that it be posted to us.
Our client also informs that he is not able to provide any other original documents because they are with the Court in Amman, Jordan. He informs that his family are being harassed and questioned about his whereabouts. His family have had their phone number changed."
17 At that point it became clear that the adviser had misunderstood the Tribunal's request. The Tribunal had not asked for "original" certificates, in either sense in which the word may be used, namely, the original not a copy certificate, or the original not an amended certificate.
18 By a letter dated 24 May 2001 the Tribunal informed the adviser that it was not the "original" certificates the Tribunal sought but the copy certificates the applicant said he held. The Tribunal's letter read as follows:
"The Tribunal is not interested in viewing the applicant's children's 'original birth certificates' as it does not appear that these would add substance to his claims of the children having been subsequently converted to Islam. It may be that the Tribunal misapprehended the applicant's meaning at the hearing: the applicant appeared to say that he had birth certificates showing that the children had been made to convert.
If it is that the Tribunal misunderstood the applicant, please let us know as soon as possible."
19 The Tribunal received no response to that letter. By a facsimile transmission to the adviser on 30 May 2001, the Tribunal said as follows:
"The Tribunal intends to finalise this case tomorrow, 31 May 2001, proceeding in the belief that no further information is due from your client following your letter of 23 May 2001 and our reply of 24 May 2001.
Thank you for your assistance."
20 That communication brought no response.
21 When the application for review came on for hearing in this Court the applicant appeared in person assisted by an interpreter present with the applicant in Court. The applicant tendered copies of birth certificates which, he said, were the documents about which he had spoken to the Tribunal on 14 May 2001.
22 The documents were facsimile-transmitted certificates forwarded to the applicant from Jordan on 25 March 2001. The documents were in Arabic. The applicant handed up English translations of the documents which, it was said, had been prepared at the Port Hedland detention centre. It was not contended by the Minister that the translations were other than accurate. As translated, the certificates recorded details of the birth of the five children of the applicant. The certificates had been issued in Jordan on 13 and 15 March 2001. On each certificate the religion of the applicant, as father, was shown as "Islam". Save for one certificate, where no religion was recorded, the religion of each child was shown as "Christian".
23 At that point, at the applicant's request, the hearing of the application for review was adjourned to allow the applicant to obtain from Jordan the birth certificates for his children as they had been first issued in which, he said, it was shown that his religion as father of the children, had been recorded as "Christian". On resumption of the hearing the applicant produced, with certified translations, birth certificates that had been issued in Amman between 1985 and 1998, each of which showed the religion of the applicant as father of each child as "Christian".
24 The foregoing demonstrated that at the time of the hearing conducted by the Tribunal the applicant had in his possession documents received from Jordan which showed that his religion, as recorded on the certificates of birth of his children issued by Jordanian authorities in March 2001, had been altered from "Christian" to "Islam". It was not a matter on which the Tribunal made a finding, but it may have been the consequence in Sharia law, as contended by the applicant, that the religion of all five infant children was now regarded as Islam under Sharia law, notwithstanding that upon registration of their births, the children had been recorded as Christians.
25 The Tribunal erred in finding that the applicant had "fabricated evidence of possessing documents". The applicant did possess the documents of which he spoke to the Tribunal on 14 May 2001. The Tribunal erred in finding that the applicant "changed his evidence on this matter" by indicating after the hearing "that all he had were the children's original birth certificates". As shown above, the applicant made no statement to that effect and did not "change his evidence".
26 The issue for the Tribunal was not whether the children of the applicant had in fact been born into the Islam religion but whether the applicant was regarded under Sharia law as an Islamist who had renounced his faith and was subject to the severe sanctions which the Sharia courts may impose upon an apostate.
27 The Tribunal did not address this issue because it concluded that at all times the applicant had been, and continued to be, regarded under Sharia law as a Christian. In passing, the Tribunal referred to a United States State Department Country Report on Jordan which said that in Jordan apostates may be denied property and other rights but "that even this principle 'is not applied' ". However, the same report went on to say that in Jordan Sharia law prescribes a punishment of death for "conversion".
28 The foregoing misapprehension of the applicant's case by the Tribunal became the foundation for the adverse finding by the Tribunal on the applicant's credibility and led to the Tribunal misunderstanding other important elements of the applicant's case. It is necessary to set out in some detail the content of the applicant's case before the Tribunal to explain how this occurred.
29 The documents presented by the applicant at the time he made the application for a visa consisted of certified translations of a number of documents. The first in time was an internal letter, or memorandum, from the Department of Civil Status and Passport in Amman dated 14 October 1997 which recorded that the mother of the applicant's first wife had sought registration of her granddaughter "in the Civil Registration and grant [of] a national number and an identity card". It was said that the child had been born in Amman on 21 August 1981, and that the applicant and his first wife were the parents. Given that it appeared from other documents that the birth of the child had been registered at the time of birth, it is not clear why the mother of the applicant's first wife found it necessary to make the further application referred to, unless the child had been registered as a Christian at birth.
30 The applicant's former mother-in-law represented to the Department of Civil Status and Passport, by documents or by statements, that the applicant had "declared himself" a Moslem for the purpose of marrying her daughter, a Moslem. Such a marriage was said to have occurred in Lebanon in 1977 and it was said that a deed of matrimony was issued by the Sharia court in Lebanon. It was said that the "divorce between both of them" took place in Jordan in 1982 and a deed of divorce issued by the Sharia court in Amman.
31 The former mother-in-law also presented a letter from the Public Mufti dated 22 March 1992 which stated, apparently, that the child of the applicant and his first wife had been born to "Moslem parents" and was Moslem by birth, and that such a circumstance would not have been affected if the applicant "had renounced Islam".
32 The memorandum sought authority from the Director General of the Department of Civil Status and Passport to summon the applicant to "verify the authenticity of his religion" and to "refer him to the [Sharia court] to look into the case of his renouncing Islam".
33 The next document was a communication dated 15 October 1997 from the Director General of the Department of Civil Status and Passport to the Supreme Judge of the Sharia court of Amman stating that the Director General believed the applicant had "declared himself a Moslem" to marry a Jordanian Moslem in 1977. The letter said that the parties to that union had been divorced in 1982 and that examination of the records of the Department of Civil Status and Passport showed that the applicant had married "another Christian woman in 1983 [sic]" and that the children of that union had been registered as Christians. The Director General stated that the documents in the applicant's file "show that he renounced Islam". The letter stated that it enclosed "one copy of the marriage and divorce instruments". The material before the Tribunal did not include a copy of either document. The Tribunal did have a marriage certificate issued by the Civil Registration Department in Amman in February 1985 which showed that the applicant and his present wife, both Christians, married in the "Latin Church/Al-Misdar" on 19 October 1984, and that the marriage contract had been registered in the Civil Registration Office.
34 By letter dated 15 November 1997 the Sharia court referred the applicant to the Public Prosecutor of Amman "to question him and punish him according to the rules of the law". The letter stated that the applicant had been "found" in the Sharia court to have concluded a deed of matrimony before that court on 28 January 1982 on the "pretence" that he was a Moslem and had divorced his wife on 24 October 1982 "under the same preten[c]e". The letter then said that the applicant had applied to the Department of Civil Status and Passport to "renew his family book under the preten[c]e of being a Christian". The letter stated that when questioned by the Sharia court the applicant "confessed" that at no time had he converted to Islam. The Public Prosecutor was asked to summon and interrogate the first wife and refer her to the Sharia court for any further action that may be appropriate under Sharia law. The letter enclosed, inter alia, documents described as a "Marriage Contract issued in Beirut" and a "Marriage Contract".
35 The next document was a Bill of Indictment ("the Indictment") presented to the Amman Criminal Court by the General Prosecutor dated 20 November 1997, which stated that the applicant, then in detention, was charged with two counts of forgery and one count of performing an illegal marriage ceremony.
36 The remaining documents accompanying the applicant's application for a visa were, first, a certificate of marriage under the seal of the Bishopric of Greek Melchice Catholic of Beirut and Jubail (Lebanon) confirming that the applicant and his first wife had been married in a Church of the Bishopric in Beirut on 11 August 1980. The date of issue endorsed on the certificate was 20 November 1997 which suggested that perhaps the document produced by the applicant was a copy of a document obtained by the Public Prosecutor to support the Indictment. The second certificate was a "Certificate of Birth and Baptism" issued under the seal of the above Bishopric, which recorded that on 9 August 1980 the first wife of the applicant, then aged 21, had been baptised in the church in which her marriage to the applicant was conducted on 11 August 1980 and the baptism entered on the baptism registry of that church.
37 The applicant told the Tribunal that he had not married his first wife in a Moslem ceremony in 1977. He said they had married in a Christian ceremony in Beirut in August 1980 and that before the ceremony his wife had converted from Moslem to Christian.
38 When interviewed by an immigration officer at Port Hedland detention centre on 10 March 2000, the applicant said that his first wife and her mother had taken all the furniture and left the matrimonial home in 1981. In a further statement made on 14 April 2000 in support of the application for a visa, the applicant said that after his wife left him in 1981 he went to her family and had been told that she would not return to the matrimonial home. The applicant stated at the interview conducted on 10 March 2000 that he was surprised to learn in 1997 that he and his first wife had a daughter. It is to be assumed that the applicant was saying that the rupture of the marriage occurred well before 21 August 1981, the date on which the child of that marriage was born.
39 In that interview and in the statement in support of his application for a visa, the applicant said that he had been arrested and taken to the Sharia court in Amman on two occasions in 1982. He said that on the first occasion his first wife had been present. He had been required to sign papers but had not been informed of the content of the papers he signed. On the second occasion he had been required to sign divorce papers.
40 The applicant said that he had been arrested again in 1997, held for four days and then brought before the Sharia court. After that he was taken to prison where he was held for 25 days on charges brought against him in the criminal court which alleged "forgery" of a marriage contract in respect of the first marriage, said to have been conducted in a Christian church in Lebanon, and "forgery" of the baptism certificate issued by that church in respect of the baptism of his first wife.
41 The facts set out in the Indictment as particulars of the alleged offences read as follows:
"At the year 1977, the suspect met the witness [deleted] as he was Christian at that time and made an agreement with the said witness to marry him [sic] under the preten[c]e that he declared himself a Moslem. Both the defendant and witness [deleted] went to Lebanon where a marriage contract was concluded between them according to the Islamic Sharia practices and they obtained an official marriage contract signed by both on the assumption that he is a Moslem. His wife [deleted] born from him a daughter on1981 named [deleted]. The defendant thereafter divorced his wife [deleted] and reclaimed his religion as a Christian i.e [renounced] Islam, and married another woman who is the witness here [deleted] according to the Christian canonical practices. During his stay in Lebanon, he accompanied his divorced wife, while is [sic] stillunder his custody, to one of the houses there and forced her under thereat [sic] to sign in a register was in the house where there was only a man and a woman and appeared to be neither a church or archbishopry. He also forged a marriage contract and a baptism certificate for his ex-wife, exhibit [M1, M2], who denied to have signed on a marriage contract according to the Christian canonical practices, or entered into any church for this purpose, upon which the defendant was found guilty."
42 It appears that the allegations made against the applicant were that he had forged "a marriage contract", being the marriage contract in respect of the applicant and his first wife said to have been recorded in Beirut by the Bishopric of Greek Melchice Catholic on 11 August 1980, and a "baptism certificate" said to have been issued in Beirut by the same Bishopric in respect of the baptism of the applicant's first wife as a Christian on 9 August 1980.
43 Particulars of the allegation that the applicant "performed an illegal marriage ceremony" were not set out in the Indictment. The only marriage said to have occurred in Jordan was the re-marriage of the applicant to his present wife "according to the Christian canonical practices". If it were alleged that under Sharia law the applicant could not renounce Islam, having converted to that religion for the purpose of marrying his first wife, then the allegation against the applicant would be that the second marriage in Jordan was an "illegal marriage ceremony". The "legal opinion" of the Public Mufti presented by the former mother-in-law in support of the application to the Department of Civil Status and Passport, forwarded to the Sharia court by that department, and to the Public Prosecutor by the Sharia court, was to the effect that the child of the applicant's first marriage was born to "Moslem parents" and that that child was a Moslem from birth. The applicant stated in April 2000, in support of his application for a visa, that the allegation against him in the Sharia court was that he had blasphemed Islam by purporting to re-marry as a Christian and that it was asserted by that court that his purported re-marriage was "obsolete".
44 Alternatively, if it were alleged that the applicant and his first wife married in Lebanon "according to Christian canonical practices" and that the marriage was an "illegal marriage ceremony" because it had been conducted after a marriage performed in Lebanon according to "Islamic Sharia practices", the relevant facts recited in the Indictment, namely, the denial by the first wife that she had entered any church in Lebanon for that purpose, or had signed a "marriage contract according to the Christian canonical practices" did not support that allegation.
45 The third possibility was that it was alleged that the marriage said to have taken place in Lebanon "according to the Islamic Sharia practices" was an "illegal marriage ceremony". Given that under the Sharia law, as apparently declared by the Public Mufti, the applicant was a Moslem at relevant times, that alternative is unlikely.
46 In any event, in its terms the Indictment requested the Amman Criminal Court to proceed to trial only on the charges of forgery. Again, the basis for those allegations is not made clear by the Indictment. The charges seem to rely on an allegation by the first wife that she did not sign "a marriage contract according to Christian canonical practices" and that she had not "entered into any church for this purpose". It was not alleged that the Bishopric of Greek Melchice Catholic in Beirut had repudiated either certificate bearing the Bishopric seal. To the contrary, as noted earlier, the Marriage Certificate under the seal of the Bishopric bears the date of the Indictment, 20 November 1997.
47 There is further inconsistency between the alleged facts relied upon in the Indictment and the facts set out by the Sharia court in the letter dated 15 November 1997 which referred the applicant to the Public Prosecutor. The Sharia court stated that the applicant had concluded a deed of matrimony with his first wife under Sharia law before the Sharia court in Amman on 28 January 1982 and had been divorced by that court on 24 October 1982. Presumably these events were matters of record in the Sharia court of Amman. They were consistent with the applicant's account that he was taken in custody to the Sharia court on two occasions in 1982 and that on the first occasion his first wife had been present at the court. Why a "deed of matrimony" should be executed in the Sharia court after the first wife had, on the applicant's account, deserted the applicant is a matter for speculation. It does not appear to have been contended by anyone that the marriage between the applicant and his first wife commenced in January 1982. According to the letter from the Sharia court to the Public Prosecutor, the Sharia court forwarded to the Public Prosecutor a "Marriage Contract issued in Beirut" which may be taken to be the record of marriage of the applicant and his first wife in a Christian ceremony certified by the Bishopric in Beirut to have occurred in Beirut on 11 August 1980. It would seem that it was that marriage contract that the Indictment alleged the Sharia court considered to be forged. That may explain why in its letter to the Public Prosecutor the Sharia court requested the Public Prosecutor to interrogate and punish the first wife and thereafter refer her to the Sharia court for further action by that court. On the material recited in the documents it may be thought that such a course could only be appropriate if it were contended by the Sharia court that the first wife, as a Moslem, had improperly purported to renounce Islam and participate in a Christian marriage in a Beirut church in 1980 and had failed to disclose that conduct before obtaining the deed of matrimony in the Sharia court in Iran on 28 January 1982. That is, the purported Christian marriage in Beirut in 1980 was not recognised by the Sharia court and the "marriage contract" in respect of that marriage was said to be a "forgery".
48 Perhaps the charges against the applicant under the Indictment rested on an allegation by the first wife that she and the applicant had gone to Lebanon in 1977 and entered a marriage contract according to Sharia law, but if that is so it leaves the marriage contract made before the Sharia court of Amman on 28 January 1982 unexplained. According to the internal memorandum to the Director General of the Department of Civil Status and Passport, dated 14 October 1997, the applicant's former mother-in-law alleged that a "deed of matrimony" had been issued by the Sharia court in Lebanon in 1977. The memo does not refer to a "deed of matrimony" made before the Sharia court of Amman on 28 January 1982. Neither the letter dated 15 November 1997 from the Sharia court to the Public Prosecutor, nor the Indictment, refers to a deed of matrimony made before the Sharia court in Lebanon. Indeed, if such a marriage had occurred, a deed of marriage made before the Sharia court of Amman on 28 January 1982 would be inexplicable and no liability of the first wife to punishment under civil, or Sharia, law would seem to arise.
49 It is at this point that the statement of the applicant to the Tribunal and the material he sought to put before the Tribunal to support it, namely, that he was now shown in the registration records of his children in Amman to be of the Islam religion becomes important in that it supports the applicant's claim that in Jordan he has been regarded as a convert to Islam who has purported to renounce Islam and revert to the Christian religion, and that he is an apostate.
50 How did the Tribunal deal with the difficulties presented by the foregoing material? The Tribunal member stated that she examined the "applicant's evidence", aware that lingual or cultural differences may present barriers to an applicant being able to present "a lucid and plausible plea for protection", and then said:
"The above evidence does not indicate that the applicant is a victim of persecution for a Convention reason. It appears to show, on the contrary, that he had pretended to marry a woman and later cast her off and left her in the unfortunate position of having a child by a man to whom she had never been legally married. In doing so, the applicant appears to have not only harmed the woman but to have committed the criminal offences of contracting an illegal marriage and forging documents."
51 It may be thought that the above passage suggested a disposition to form conclusions based on speculation. For example, the statement by the Tribunal that the applicant "cast…off" the first wife; that the applicant and his first wife "had never been legally married"; and that by so acting the applicant had "harmed the woman" were not conclusions able to be said to be properly, or reasonably, based on the material presented to the Tribunal.
52 With regard to the applicant's essential claim that he was at risk of being treated as an apostate, the Tribunal said as follows:
"I find, in any event, a complete lack of credibility in the applicant's claim that he had unknowingly converted to Islam by signing a paper. Islamic conversion, like conversion in the world's other major religions, requires religious ritual such as affirmation, recitation, etc. Esposito, John L., ed: (The Oxford Encyclopaedia of the Modern Islamic World, OUP 1995, Vol. 1, pp. 319-321, Vol. 4 pp. 41-42). I do not accept that the applicant would have converted simply by signing a piece of paper, or, particularly given the references to circumcision in the encyclopaedia, that he would have been in ignorance of his conversion. I am not satisfied that any such act would have happened in a sharia court: such courts uphold Islamic law, and I do not consider that sharia judges/clergy would allow a person to convert in ignorance and without correct ritual. The applicant's claim of having unknowingly converted to Islam in 1982 is also not supported by his own documentation which states that he had falsely passed himself off as a Muslim to 'marry' a Muslim woman in 1977."
53 Apart from the disadvantage from which the Tribunal suffered by reason of the Tribunal not having the documents the applicant had sought to present to the Tribunal, the foregoing passage shows that, in fundamental respects, the Tribunal misunderstood the material before it and purported to resolve false issues.
54 The case of the applicant was that in 1982 he had been taken before the Sharia court in Amman in custody and had been required to sign papers without being made aware of the content thereof. The applicant did not say that on that occasion he had converted to Islam. The Tribunal's reference to the process of conversion requiring religious ritual, and the further oblique reference to circumcision, were irrelevant considerations in assessing the applicant's case. If, as it said it was doing, the Tribunal accepted the documents which set out the acts carried out by the Sharia court in Amman in 1982, then the Sharia court accepted the applicant was a Moslem as at 28 January 1982 and provided a deed of matrimony between the applicant and his first wife. As discussed above, how or why that came about is unclear but it was not contended by anyone that at that time the applicant engaged in a ritual of conversion. Either the applicant had pretended to be a Moslem or, acting upon assertions made to the Sharia court by the first wife, the Sharia court accepted that the applicant was a Moslem. The same court divorced the pair under Sharia law on 24 October 1982. The applicant said he was taken into custody for the divorce. That he was regarded as an Islamist by the Sharia court at that time does not appear to be in issue. It is to be noted that the opinion of the Public Mufti in 1992, obtained by the family of the first wife, was to the effect that the child of the marriage of the applicant and his first wife had been born to Moslem parents. The letter to the Sharia court from the Department of Civil Status and Passport alleged that the applicant had renounced Islam. The Indictment recited as an alleged fact that after the divorce of the applicant and his first wife, the applicant "reclaimed his religion as a Christian i.e. [renounced] Islam".
55 The case the Tribunal had to examine was whether, as an apostate, there was a real risk that the applicant might face persecution for reason of religion, such persecution being constituted by arrest and punishment; restriction or loss of rights relating to his person or property; or the suffering of such discrimination as to make the applicant's life in Jordan intolerable. If the charges made against the applicant in the Indictment did not proceed because they were quashed by a general pardon issued by the late King Hussein of Jordan, that circumstance did not dispose of any liability to punishment or discrimination under Sharia law as administered by Islamic clerics that the applicant may have faced in Jordan as an alleged apostate.
56 In that regard the Tribunal misunderstood the applicant's case. The Tribunal said as follows:
"Given that I am not satisfied that the applicant had converted to Islam, I find a lack of credibility in his claim to be facing persecution as an apostate."
57 The applicant did not contend that he had converted to Islam. His case was that he was regarded by authorities in Jordan as a person who had converted to Islam and had renounced that faith. The Tribunal did not consider this case.
58 The Tribunal had to consider the individual circumstances of the applicant and could not refrain from doing so by stating it to be a general principle that no apostate in Jordan faced a risk of persecution. Only after the Tribunal had considered the case put by the applicant could it determine whether there were circumstances, particular to him, that raised the possibility that the applicant faced some risk of persecution. That would require the Tribunal to consider why the birth certificates of the applicant's children had been altered by the Jordanian authorities to show the religion of the applicant to be Islam and not Christian, and whether a Sharia court in Jordan may find the conduct of the applicant so offensive to Islam as to merit punishment. Given that Sharia law prescribed the punishment of death for apostasy, the Tribunal had to consider whether the Sharia court may find severe punishment of the applicant to be warranted for what that court may perceive to be acts of blasphemy if it considered that conduct of the applicant involved serious insult to Islam in the applicant falsely pretending to be a follower of Islam or, alternatively, in the applicant publicly renouncing Islam by participating in a marriage in a Christian ceremony after the applicant had been accepted by the Sharia court as a person entitled to be married and divorced according to the rites of Islam. The material before the Tribunal did not show Jordan to be a country where infliction of punishment under Sharia law for the offence of apostasy could not occur, and the Tribunal had to proceed to examine the case of the applicant accordingly.
59 In consequence of the misunderstanding that arose between the Tribunal and the applicant's adviser as to the nature of further material the applicant had asked the Tribunal to receive, an administrative error arose pursuant to which the Tribunal continued the review proceeding on the erroneous assumption that the applicant had no further material to produce. As a result the Tribunal failed to consider the case the applicant sought to put to the Tribunal when the Tribunal purported to decide that the applicant not be granted a visa, and the Tribunal did not perform the function required of it by the Act. (See: Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 187 ALR 117 per Gleeson CJ at [14], Gaudron, Gummow JJ at [43], McHugh J at [63], Hayne J at [149],Callinan J at [163].)
60 Furthermore, and apart from the foregoing error of law, the Tribunal so misunderstood the case of the applicant on the material before it that it failed to duly assess the applicant's claims as required by the Act. Although the Tribunal purported to express findings on credibility in strong terms, those findings were infected by the fundamental misunderstanding of the Tribunal of the case the applicant had sought to submit. The process in which those findings were made miscarried by reason of the Tribunal considering irrelevant material, failing to consider relevant material, addressing the wrong question or by failing to address the correct question, thereby providing ground for review under s 476(1)(b) (absence of jurisdiction), s 476(1)(c) (absence of authority), 476(1)(e) (error of law by misinterpreting the relevant law, or by failing to apply the relevant law correctly). (See: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 per Gleeson CJ at [10], McHugh, Gummow, Hayne JJ at [76]‑[85]).
61 Having found the applicant to be entitled to an order for review under the Act, it is unnecessary to determine whether ground for review also arose under s 476(1)(g) ("no evidence or other material to justify the making of the decision"). The following comments may be made, however.
62 The decision made by the Tribunal under the Act was that the applicant not be granted a visa. That decision was based on the particular fact that the Tribunal was not satisfied that the applicant was a person to whom Australia had "protection obligations". It may be thought that such a fact, the state of mind of the Tribunal, was not a fact capable of being disproved. Cases that have considered the operation of ss 476(1)(g), 476(4)(b) and analogous provisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ss 5(1)(h), 5(3)(b)) show, however, that they operate to provide a statutory ground for review in administrative decisions that is consonant with a ground of review recognized at law and explained in Secretary of State v Tameside [1977] AC 1014. (See: Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147 per Wilcox J at 155‑156).
63 I adopt, with respect, the following comments made by Mansfield J in Kamal v Minister for Immigration & Multicultural Affairs [2002] FCA 818 at [41]:
"In [Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321] Mason [C]J, at 357-358 said that s 5(3) of the ADJR Act severely limited the area of operation of the ground of review in s 5(1)(h) of the ADJR Act, but his Honour rejected the view that s 5(3) of the ADJR Act constitutes the 'no evidence' ground of review. His Honour said at 358:
'The better view, one which seeks to harmonise the two grounds of review, is to treat "error of law" in s 5(1)(f) as embracing the 'no evidence' ground as it was accepted and applied in Australia before the enactment of the A.D.(J.R..) Act and to treat the 'no evidence' ground in s 5(1)(h), as elucidated in s 5(3), as expanding that ground of review in the applications for which pars (a) and (b) of s 5(3) make provision.'
The analogue of s 5(1)(f) of the ADJR in the Act [sic] is s 476(1)(e). Although not part of the ratio decidendi of the case, I think that his Honour's comments lend support to the view taken in [Minister for Immigration & Multicultural Affairs v Rajamanikkam (2000) 179 ALR 495] that a case which falls within either of the two subclauses of s 476(4) will then fall within s 476(1)(g). Mason [C]J said at 358 that the interpretation of the two grounds of review:
'… enables one to say that s 5(1)(h) and (3)(a) have the effect of overcoming to a limited extent and in a limited area the restrictions on the traditional 'no evidence' ground …' "
64 In Tameside the Secretary of State was empowered by the relevant enactment to exercise a discretion to issue a direction to a local authority where the Secretary was satisfied that the local authority was acting unreasonably. The Secretary was so satisfied and issued a direction to the local authority. The Secretary reached that state of satisfaction, and based the decision to issue a direction upon, inter alia, a finding of fact that the acts of the local authority imposed "considerable difficulties" upon parents of schoolchildren. The House of Lords held that there was no evidence for a finding of fact that the local authority had acted unreasonably and the consequence in law was that the Secretary had misdirected himself as to the existence of facts relevant to the formation of the required state of mind, or had taken irrelevant matters into consideration, or the formation of judgment by the secretary had miscarried. In truth the "no evidence" ground as explicated in Tameside described how the jurisdiction, or authority, provided to the Secretary by Parliament had not been engaged by the act of the Secretary.
65 Under ss 476(1)(g), 476(4)(b) of the Act, a decision may be said to be "based…on the existence of a particular fact" where that fact is material to the formation of a conclusion which empowers or authorises the decision-maker to make a particular decision under the Act. (See: Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 per Black CJ at 219‑223). In Curragh the words "critical to" are used as a synonym for the expression "based…on", by which the Act required reliance by the decision-maker upon the existence of a fact proved not to exist. That is to say, the finding of a particular fact by the decision‑maker is to be shown to be a building block in the construction of the ultimate conclusion or decision. As noted above, under s 65 of the Act the ultimate conclusion of fact is the state of mind reached by the Minister (or delegate or Tribunal). If, as a matter of fact, the Tribunal is satisfied, or not satisfied, that Australia has protection obligations to an applicant then the Act directs the decision that is to be made in consequence of the established fact represented by the state of mind of the Tribunal. However, for the Tribunal to be satisfied, or not satisfied, that Australia has protection obligations the Tribunal must be satisfied, or not satisfied, that there is a real risk that the applicant may suffer persecution if returned to his or her country of nationality. For the purposes of ss 476(1)(g), 476(4)(b) of the Act, the decision of the Tribunal is not the decision prescribed by statute but the determination by the Tribunal that it is, or is not, satisfied that there is a real risk that an applicant may suffer persecution if returned to his or her country of nationality. It follows that it cannot be contended that s 476(1)(g) does not apply to a decision to refuse to give a visa. (See: Minister for Immigration & Multicultural Affairs v Applicant C [2001] FCA 1332 (Full Court) per Stone J at [67]-[75]). If a particular finding of fact by the Tribunal is material to resolution of the question whether the Tribunal is satisfied, or is not satisfied, as required by s 65, that finding of fact will be a fact to which s 476(4)(b) refers, the decision of the Tribunal being able to be said to be based on it. (See: Aala v Minister for Immigration & Multicultural Affairs [2002] FCAFC 204 at [35]).
66 It was submitted by counsel for the Minister that s 476(1)(g) could not be satisfied if the particular finding of fact was only part of a matrix of material from which other material inferences may have been drawn capable of "justifying" a decision made by the Tribunal.
67 The requirements for the operation of ss 476(1)(g), 476(4)(b) were set out by Stone J in Applicant C at [81] as follows:
" An applicant seeking to establish a ground of review based on s 476(1)(g) read with s 476(4)(b) must:
(a) identify a 'particular fact' on which the decision being challenged was based;
(b) establish, by admissible evidence, that the particular fact did not exist; and
(c) show that, on the evidence before the decision-maker, it was not open to him or her to find that the particular fact did exist."
68 Determination of the applicant's case, and in particular the material the Tribunal considered, turned on the finding of the Tribunal on the credibility of the applicant. In the instant case the particular facts determined by the Tribunal not only led to the Tribunal's finding on credibility, but also deflected the Tribunal from examination of the case the applicant sought to put before the Tribunal. It follows that the particular circumstances of this case made the ground of review under ss 476(1)(g), 476(4)(b) available. (See: Applicant C per Stone J at [85]-[87]; Rajamanikkam at [21]-[24], [50]). It should be noted that an appeal from the latter decision has been heard by the High Court and judgment reserved.
69 In the instant case the determination by the Tribunal that it was not satisfied that the applicant was a person to whom Australia has protection obligations was a decision "based…on" particular findings of fact, namely, that the applicant had fabricated the assertion that he held documents that were material to the question whether he was regarded as an apostate under Sharia law in Jordan, and that the asserted documents did not exist. The applicant has demonstrated, as required by s 476(4)(b) of the Act, that the particular facts relied upon by the Tribunal did not exist by showing that the applicant did possess the documents when he appeared before the Tribunal and by showing that the documents were in the terms described by the applicant. The applicant has also shown that there was no material before the Tribunal to permit it to make the findings it made.
70 It was further submitted by counsel for the Minister that s 476(4)(b) does not apply to a finding by the Tribunal that a fact does not exist. That submission, however, does not deal with the totality of the facts found by the Tribunal. In the present case the Tribunal found that it was a fact that the applicant did not possess particular documents on the day of the hearing before the Tribunal. The applicant has shown that fact did not exist by showing he did possess such documents. The Tribunal found that it was a fact that the applicant had "fabricated evidence" that he possessed those documents. The applicant has shown that such a fact did not exist by showing the absence of fabrication. The Tribunal found that it was a fact that the applicant "changed his evidence on this matter". The evidence shows that fact did not exist. The Tribunal considered it to be a fact that no documents existed that showed that the religion of the applicant, as recorded in the register of the births of his children, had been altered from Christian to Islam. The applicant has shown that such documents do exist and, therefore, that the fact found by the Tribunal did not exist. The applicant has also demonstrated that on the material before the Tribunal it was not open to the Tribunal to make such findings of fact.
71 It is contrary to logic to suggest that a finding of fact by the Tribunal which contradicts an assertion of fact made by an applicant does not involve a finding of fact that may be disproved by showing circumstances to have been as asserted by the applicant. Of particular moment in the instant case is that the findings of fact discussed above went not only to a finding on the credit of the applicant but to justify the decision that the applicant faced no real risk of persecution in Jordan because he was not regarded in Jordan as an apostate. Accordingly, the negation of particular facts relied upon by the Tribunal to justify its decision may attract the operation of ss 476(1)(g), 476(4)(b).
72 It may be thought that to distinguish a finding that an asserted state of affairs did not exist, or that an asserted past fact did not occur, from a finding that a state of affairs did exist or that a past fact did occur, involves a distinction without a difference. (See: Kheirollahpoor v Minister for Immigration & Multicultural Affairs [2000] FCA 1350 per Carr J at [38]).
73 The point is addressed and elucidated by Finkelstein J in Jegatheeswaran v Minister for Immigration & Multicultural Affairs [2001] FCA 865 (Full Court) at [52]:
"To understand what is encompassed by the 'no evidence' ground of review it is convenient to consider what is meant by a finding of 'fact'. In common law jurisdictions important issues depend upon the distinction between law and fact. The law relating to appeals and judicial review often raises a distinction between a finding or conclusion of law and a finding of fact. It is in that context that we must decide what is meant by a 'fact'. In dealing with this issue, I will not attempt a complete definition; often it is easier to use a term correctly than to give a correct definition of it. In simple terms a fact is a quality or an event which has happened or existed, including not only a physical fact but also state of mind: F H Bohlen, 'Mixed Questions of Law and Fact' 72 Univ of Pennsylvania Law Review (1924) 111, 112, quoted inPaton & Derham, Jurisprudence 1972 at p.204. Stated more broadly, a 'fact' is an act, an action of a person, a state of affairs, a condition (including a state of mind) or an event. It is not limited to things tangible. Usually a 'fact' is something which exists. But it need not be, for a 'fact' may be positive or negative. That is, the non-existence of an act, action, condition, state of affairs or event can be a 'fact', but a negative one: J Bentham, Rationale of Judicial Evidence (1827) BK 1 at p.49-50. Further, a fact is not confined to the existence or non-existence of an act etc. A 'fact' may be an act etc which will exist in the future: L Jaffe, Judicial Control of Administrative Action 1965 at p.548; de Smith, Judicial Review of Administrative Action 5th ed. 1995 at p.277."
74 In Jegatheeswaran the Full Court accepted that a finding by the Tribunal that it was not a "fact" that a Tamil from the north of Sri Lanka faced a risk of persecution unless he or she had a "political profile" above other Tamils, was a finding of particular fact to which ss 476(1)(g), 476(4)(b) applied. (See: Emmett J at [25]-[26], Finkelstein J at [51]). A similar approach to the proper construction of ss 476(1)(g), 476(4)(b) was also adopted by the Full Court in Guden v Minister for Immigration & Multicultural Affairs (2000) 58 ALD 352 at [19]-[20]. Counsel for the Minister referred to several decisions by single Judges of this Court (Sarancharkh v Minister for Immigration & Multicultural Affairs [2001] FCA 1461; Abila v Minister for Immigration & Multicultural Affairs (2001) FCA 1186; N258/00A v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 478) which concluded that as a matter of construction ss 476(1)(g), 476(4)(b) did not extend to a finding as to the non-existence of a particular fact and submitted that those decisions should be followed. Insofar as the construction of ss 476(1)(g), 476(4)(b) applied in the cases referred to by counsel departs from the construction applied by Full Courts in Guden and Jegatheeswaran, the latter decisions direct the construction that must be applied in the instant case.
75 The application for review must be granted, the decision of the Tribunal set aside, and the matter remitted to the Tribunal for re-determination.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.