WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2002-12-20|Before: French J, Nicholson JJ

REASONS FOR JUDGMENT LEE and RD NICHOLSON JJ: 1 This is an appeal from a decision of a primary judge (French J) made on 18 April 2002 in which he dismissed an application for review brought by the appellant. The application sought review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 5 July 2000 affirming a decision of a delegate of the respondent made on 21 March 2001 not to grant to the appellant a protection (class XA) visa. 2 The application for review was filed on 19 July 2001. It therefore fell for determination in accordance with the provisions of the Migration Act 1958 (Cth) ("the Act") as they stood prior to amendment on and from 2 October 2001. Judicial review was open in the terms of s 476 of that Act. 3 The relevant provisions of the Act by which the appellant's application for a protection visa was required to be resolved were as follows. Section 65 of the Act provided that if the Minister is satisfied that, inter alia, the criteria prescribed for a visa by the Act or the regulations have been satisfied, the Minister is to grant a visa but if the Minister is not so satisfied the grant of a visa is to be refused. At material times, s 36(2) of the Act provided the following criterion in respect of a protection visa: "A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." 4 In s 5 of the Act, "Refugees Convention" and "Refugees Protocol" (together referred to hereafter as "the Convention") are defined respectively as "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and "the Protocol relating to the Status of Refugees done at New York on 31 January 1967". The term "protection obligations" is not defined in the Act and is not a term used in the Convention. 5 The Convention is an international treaty under which the "Contracting States" have agreed to apply the provisions of the Convention to "refugees". Sub-Article 1(A) of the Convention defines a "refugee" as follows: "For the purposes of the present Convention, the term 'refugee' shall apply to any person who: …(2) …owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …"

Arrival interview 6 On the occasion of his interview upon arrival in Australia on 30 September 2000 the appellant claimed to be a citizen of Iran, born on 21 January 1960. In his written record of interview, which took place on 5 October 2000, the following answer is recorded to the question "why did you leave your country of nationality?" "Because of the atmosphere in Iran. I was being harassed about the style of haircut - it was a Western style haircut. Being harrassed [sic] by Komieteh, Amaken - part of the security/disciplinary forces. This group surveys all businesses - they said don't do this kind of haircut. I had to close the shop & then I re-opened it. About a year later I worked in another area as a hairdresser and again I was harassed by Basiji." When asked "why did you choose Australia as your destination?" the appellant's response included the statement that he "wanted freedom to do his job". In response to the question "do you have any reasons for not wishing to return to your country of nationality (residence)?" he responded: "Can't cut hair in Iran to the style requested by customers. Without customers I have no work." When asked to give details of any offence or spent time in prison or outstanding charges his response was that Komieteh Amaken: "summoned to go to their premises. I attended. Wanted to know why I did Western haircuts, cut the hair of young girls and played Western music. I received forty lashes and my shop was closed for three months (approx September 1997) I was also fined - $10,000 toman."

Visa application 7 The appellant completed his application for the visa which was filed on 1 March 2001. In his application papers he was described as "beauty salon owner". Annexed to the application was the appellant's answer to the question "why did you leave that country?". His response touched a number of factors. 8 The first factor reflected the first public impact on his business and was stated in the following terms: "In 1998 I was summoned by a Law Enforcement guard to the Public Places Committee. There I was treated very badly and reprimanded for cutting girls' hair and make western hairstyle. I told them that girls were just kids and under ten years and about the hairstyle, I cut the customers' hair as they wanted and it was not my choice. They did not accept my reasons and sentenced me to 40 lashbeats and paying financial penalty. They closed my shop for three months as well. The social pressure on me was so severe that after three months I had to sell that shop and be unemployed for a period of time." 9 The second factor arose from impact on the appellant when he restarted his business and involved reference to a beating which he received at the hands of the Ettela'at guard. It was described in the following terms: "After a while I rented another shop and started working again. Just a while after I started the new job, a discussion erupted between two of the customers about Vellayat-e-Faiqih, which led to physical contact. Suddenly one of them pulled a gunbelt against the other and took him outside the shop (it was clear that the man was an Ettela'at guard). The next day the same man who pulled the gun came to the shop again and took me into a car whose windscreens were curtained in a way that was impossible for me to see the outside. They took me to a place that was unknown to me. When we got to the place, they blindfolded me. When they opened my eyes, I saw myself in a dim, fearful room. I was told that the person who was arrested in my shop the day before had confessed everything and had said that whenever he came to my shop he had discussions about political things and assaulted Vallayat-e-Faqih. They said it was better for me to give them the names of the people who came to my shop and started discussing about those issues. I answered that the guy who was beaten yesterday by your guard had come to my shop for the first time and his confessions were lies because I have done nothing wrong. They started beating me severely. I was helpless under their punches and kicks. They beat me to death. When I opened my eyes I found myself in a dirty prison cell. My family tried its best to help me. Finally their efforts were helpful and after being in the detention for a month, I was released by signing an undertaking." 10 The third factor recounted how the appellant had been invited by an old customer who was the chief editor of a newspaper called Nour-e-khozestan to write for the newspaper. His first article was about the parliament (Majles) members and their shortcomings. 11 The fourth factor concerned the severe burning of his brother in the year 2000 while the brother was working in the Zargan Power Station. The appellant claimed the burning was due to the negligence of authorities in allowing hot steam pipes to decay. The brother died from the accident in circumstances which the appellant considered public authorities were reprehensible in relation to. 12 The fifth factor was that the appellant kept writing about the accident and other things and publishing his articles in the newspaper. Additionally, he wrote an article on the Abadanian strike over water. He said that led to him being faced with harsh and frank harassment and threats by Ettela'at and that "they even threatened to take my life". 13 The sixth factor was that he had been alerted that two people had been searching for him at his place of work and in his home and so he decided to flee the country. 14 The appellant added that he had not mentioned the political side of his story upon first arrival because he had been warned not to mention anything about politics in Australia because it was on good terms with Iran. 15 He claimed to fear persecution because he would be interrogated, tortured and ultimately executed on return by the Iranian authorities and Ettela'at because of his actions in running away from Ettela'at and writing anti-regime articles.

Tribunal proceedings 16 By letter dated 17 April 2001 the appellant was advised that he was required to attend a tribunal hearing to give oral evidence and present arguments. The letter continued by stating "you are also entitled to ask the Tribunal to obtain oral evidence from another person or persons". The appellant was invited to complete the "Response to hearing invitation" form indicating whether he required a hearing. In relation to witnesses he was advised in the form: "If you want the Tribunal to take evidence from a witness or witnesses, please give their names, and brief details of what evidence you expect each witness to give at the hearing. The Tribunal will consider your wishes but it does not have to take evidence from any witness you name. A witness should give evidence to help show why you are a refugee and need a protection visa. Evidence about your good character does not help the Tribunal decide if you are a refugee." On 19 April 2001 the appellant responded nominating a witness by name. 17 A further response to the hearing invitation was filed by the appellant's advisor on 23 April 2001. It annexed a response which did not identify the name of a witness and simply stated "to be advised". The advisor supported the appellant before the Tribunal by written submissions received on 16 May 2001. 18 The Tribunal hearing took place on 24 May 2001. The appellant gave oral evidence at the hearing. 19 On 25 May 2001 the Tribunal wrote to the appellant inviting his comment on his original interview on arrival. The letter stated that the information he had given the Tribunal was not correct and was contrary to the independent information obtained by the Tribunal. The nature of the independent information so referred to was not identified in any particular. In a response dated 28 May 2001 the appellant's advisor reiterated that the appellant was afraid of being sent back to Iranian authorities when he first arrived at the detention centre and gave his interview. He had been influenced by people telling him not to mention anything about politics because Australia was on good terms with Iran. 20 In relation to his proposed witness, he explained the absence of earlier evidence from him as due to the fact that he had been reunited with the witness only after his interview with the primary decision-maker. This had been due to the fact that detainees are kept in isolation until they are interviewed by the primary decision-maker. He was therefore, at the time he prepared his statement, unaware that the proposed witness was in the detention centre. He requested the Tribunal to contact the DIMA office to verify this situation and to take the witness's evidence as reliable information in support of the appellant's refugee claims. 21 The appellant received tapes of his interview by the delegate and the hearing before the Tribunal.

Tribunal's reasons 22 In its reasons addressing the appellant's claims and evidence, the Tribunal recorded that he had said he had not encountered any problems with his business after September 1997. He had left Iran because of the newspaper articles he had written in relation to his brother's death, the problems with the water situation in Abadan and the state of the parliament. The Tribunal said that when asked by it why he did not tell the Department about these claims initially, he stated he was continuing to talk about this at the interview but was stopped by being told there was nothing to talk about further. 23 The Tribunal's reasons also record that the nominated witness gave evidence on behalf of the appellant. He testified he was a customer of the appellant and knew the appellant had written articles for the newspaper. He had read one or two of them, including the one concerning the Abadan water confrontation. One morning when the witness was going to work he saw a few officers in front of the appellant's shop and upon inquiry from a neighbouring shop ascertained they had come to pick up the appellant. Further inquiries told him that this was because of the concern of authorities in relation to the appellant's article on the Abadan water situation. 24 The reasons also record that the witness told the Tribunal he had not seen the appellant before the appellant gave his interview to the Department. 25 Turning to findings and reasons, the Tribunal was satisfied that the appellant was an Iranian national. 26 The Tribunal noted that the appellant's claims were not corroborated by documentary evidence although there was a witness who the appellant claimed did provide appropriate corroboration. 27 In relation to the difference between the content of the appellant's arrival interview and his subsequent claims, the Tribunal considered his failure to mention a distinct active political involvement at the time when he arrived in Australia was a factor going to his credibility. It said his journalistic endeavours as an opponent to the regime were the most crucial aspect of his flight but he had omitted reference to that in his arrival interview. The Tribunal placed weight on the omission. It formed the view that, after being in the detention centre some months, the appellant made additional claims to enhance his claim for refugee status when he realised his claims made at the initial interview would be an obstacle to him being granted a protection visa. 28 The Tribunal accepted the appellant's claim that he was punished for cutting hair contrary to the Iranian law on hairstyles by being fined, lashed and his salon shut for a period of time. It was noted that the appellant had agreed with the Tribunal that the law under which he was punished was a law of general application in Iran. The Tribunal also noted the appellant was able to continue his work as a hairdresser and there was no evidence he was treated in any discriminatory manner for breach of this law or that there was a Convention reason for his punishment. 29 The Tribunal did not go on to mention and deal with the appellant's claims in its second leg relating to the alleged beating at the hands of the Ettela'at guard. 30 The Tribunal did address the appellant's claim that he wrote articles in a newspaper and those articles so offended the Iranian authorities that they were searching for him to arrest him for those actions. It noted that the appellant's witness, a former detainee, gave evidence to the Tribunal supporting the appellant's claims. The Tribunal said it did not accept this witness as a witness of truth because "he did not provide this information to either the department or the Tribunal until the day of the hearing". It noted the witness's explanation for this was that he had not seen the appellant earlier and was not aware of the legal process. 31 The Tribunal then reasoned as follows in relation to the corroborative witness: "By submission after the hearing, dated 28 May 2001 the applicant explained that at the time of his interview with the department he was not aware his witness was in the detention centre. I note that the applicant arrived in Australia on 30 September 2000, was interviewed by the department a few days later on 5 October 2000. His written application of 27 February 2001 was lodged with the department by his then advisor on 2 March 2001 and the decision for rejection of his application was made on 21 March 2001. He applied to the Tribunal on 22 March 2001 and it was not until the day of the hearing, at the end of May 2001, that his witness provided corroborative evidence. I have read the Tribunal's decision N01/36726 in relation to the applicant's witness. I note he arrived in Australia on 3 November 2000. I accept he was not in Australia when the applicant made his initial statement to the department on 5 October 2000. On 25 November 2000 the witness lodged his application with the department. I am not aware as to when he was initially interviewed but as he lodged a written application on 25 November 2000 he was after that time in a position to communicate with the applicant. The applicant made no mention of this witness in his written application of 27 February 2001. The Tribunal decision in relation to the witness was made on 12 March 2001 (see: N01/36726). This indicates to me the applicant and the witness had time to provide the corroborative evidence at the time of the applicant's written submission to the department lodged 2 March 2001 and subsequently thereafter. The witness was at the detention centre until at least 12 March 2001. I reject the explanation of the witness he did not know legal procedures and so did not provide his information earlier. He was a detainee who himself had negotiated the legal processes. It is for the applicant to bring to the attention of the department or the Tribunal the location and evidence of a witness who can corroborate his claims. It is implausible in my view that a person, who is represented from 1 March 2001 by a migration advisor who prepared his submission to the department, would not have informed the department at the time of application about the person who could corroborate his claim. The department did not accept the applicant's claims regarding his journalistic endeavours. The applicant had the opportunity to mention his corroborative evidence when lodging his claim to the Tribunal on 22 March 2001. This corroborative evidence only surfaced at the hearing. I find that the applicant's witness fabricated his evidence in order to enhance the applicant's refugee claim." 32 Based on this reasoning the Tribunal concluded it did not accept the appellant as a witness of truth and did not accept he wrote articles for a newspaper. While it accepted that one of his brothers died in circumstances in which the appellant believed the authorities were to blame, it did not accept that he wrote articles about the incident. It did not accept that he left Iran because authorities were pursuing him for writing newspaper articles critical of the government and it was not satisfied his home had been searched by authorities. It was of the view that the appellant created these post first interview claims to provide a profile that he was a political activist and hence enhance his claim to refugee status. It was not satisfied, therefore, that the Iranian authorities had any adverse interest in the appellant at the time he left Iran or currently. It was therefore not satisfied that the appellant had a well-founded fear of being persecuted by reason of his political opinion if he returned to Iran now or in the reasonably foreseeable future. Accordingly, it affirmed the delegate's decision not to grant the protection visa which the appellant had sought.

Reasons of primary judge 33 Two grounds of review were relied upon in the application for review to the primary judge. The first was that there was no evidence or other material to justify the making of the decision. The second was that the decision involved an error of law. Neither of the grounds was particularised or explained in the application. 34 Two principal matters were raised on the hearing of the application. The first was that the Tribunal had failed to investigate, as he had requested, the tapes of his original interview upon entry. The primary judge dealt with this in the following way: "It was his contention that this would have demonstrated that he had been cut off in his explanation for his reasons for leaving Iran. This claim however, in my opinion, is not sustainable. On two occasions the applicant, through his adviser, had opportunities to explain the discrepancy between what he said in his original interview and his later claims. His original submission to the Tribunal and his reply to the Tribunal's letter of 25 May made no reference to any suggestion that he had been cut off by the original interviewer. He maintained the position that the reason he did not fully explain his claims was because he had been warned not to raise political matters by other detainees at the centre. In the circumstances, the Tribunal was under no duty to make any further inquiry in relation to the allegations he now raises." 35 The appellant's second complaint on the hearing of the application related to the Tribunal's treatment of the evidence of his witness and, in particular, its finding that the corroborative evidence from that witness only surfaced at the hearing. The primary judge said that the appellant had: "…pointed out that in his response to the hearing invitation he had named the witness and said the witness would prove his claims. It is clear, however, that the reference to the corroborative evidence made by the Tribunal was to the content of that evidence, which was not disclosed until the hearing. The Tribunal made a finding adverse to the credibility of his witness on that basis. In doing so it made a finding of fact which cannot be reviewed by this Court." 36 In his reasons the primary judge also stated that he had raised with counsel for the respondent the references made by the Tribunal to the opinions of the delegate on certain issues of credibility. However, having regard to the submissions in response and to his own reading of the reasons, he was satisfied that the references did not involve any adoption by the Tribunal of the delegate's views. 37 The primary judge also mentioned that the appellant had made reference to guidelines contained in the Handbook on procedures and criteria for determining Refugee Status ("the Handbook") of the United Nations High Commissioner for Refugees. However, they were not part of the law in Australia and did not provide grounds for legal review of the Tribunal's decision. 38 Accordingly, the primary judge dismissed the application.

Grounds of appeal 39 The appellant appeared on the hearing of the appeal unrepresented. His notice of appeal was not prepared with the advantage of legal advice. It simply sought to repeat before the Full Court the grounds on which he had approached the application for review. 40 It was therefore to the appellant's oral formulation of issues to which the Court was required to bring attention.

Appellant's contentions 41 The first matter raised by the appellant orally was that he had been cut off in his explanation for his reasons for leaving Iran. He invited the Court to listen to the tape of the interview. With the concurrence of the respondent that occurred. The appellant submitted the playing of the tape evidenced that he was still talking and explaining his position when the interview was stopped. 42 Secondly, the appellant raised the issue of the Tribunal's treatment of the evidence of his corroborative witness. He said by way of submission: "I didn't know anything about the presence of a witness. I give you a small explanation about the detention centre situation and all the different camps in there so you will understand what I mean, your Honours. When an asylum-seeker arrive at the Curtin camp or Curtin detention centre, to begin with they take the person to the Echo camp for the first interview. For the second interview which is with the delegate - minister's delegate - or case officer, they take the person to the Charlie camp. Then before the interview with the member of tribunal or before the tribunal hearing, they remove all the detainees and put them in an open camp. The first time I saw this witness and I asked him to witness for me during the hearing was after the interview with the case officer which was in Charlie camp and I was transferred to open camp. That's where I met this witness. So I never had any access to this witness before the case officer interview."

Reasoning 43 In relation to the appellant's claim that he was stopped in his interview, we accept the submission made for the respondent that it would not be open to this Court to make a finding, based on having heard the relevant portion of the tape, that the appellant was prevented from making further claims in relation to what had happened to him in Iran and his reasons for leaving Iran. Additionally, there are the other matters considered by the primary judge in his reasons on this issue to support the conclusion which he reached. 44 On the question whether the failure of the Tribunal to refer to the beating by the Ettela'at guard amounts to jurisdictional error, it is, of course, the case that a tribunal is not under obligation to address every piece of evidence: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [67]-[68], although failure to make a finding on a material question of fact may reveal an error of law by the Tribunal or the failure to take into account a relevant consideration providing ground for judicial review: Yusuf per Gleeson CJ at [4]; McHugh, Gummow and Hayne JJ at [78]. The Ettela'at incident was a major claim and involved allegations of maltreatment. However, the Tribunal did not accept the truth of the additional claims which were made in the protection visa application but not in the original interview. We consider the relevant finding of fact in this issue was encompassed in the view which the Tribunal took in disbelieving claims which were not made in the original interview. 45 The third point of contention raised before the primary judge concerned the Handbook and we agree with the views of his Honour in relation to that contention. 46 There remains the appellant's contention in relation to the corroborative witness. The witness's evidence was directed to whether the appellant was, as he claimed, a political writer. The Tribunal accepted that if the appellant were a political writer for a newspaper, he would have fears of returning to Iran. It follows that the claims of the appellant would have to have been upheld by the Tribunal if it had believed the corroborative witness. 47 The basis of the Tribunal's conclusion that the corroborative witness was not a witness of truth was that he did not provide his evidence to either the Department or the Tribunal until the day of the hearing and that, in response to the Tribunal's question why he had not done so earlier, he had stated he had not seen the witness earlier and was not aware of "the legal process". Later, the Tribunal rejected the witness's explanation that he did not know "legal procedures" because he was a detainee who had negotiated "the legal processes". The nature of these processes or procedures was not identified in the reasons of the Tribunal. 48 The Tribunal wrote to the appellant on 17 April 2001 advising him of his entitlement to obtain oral evidence from another person or persons and setting the date for the hearing as 24 May 2001. The appellant's "response to hearing invitation" of 19 April 2001 nominated and named the proposed witness and stated that the evidence to be given by the witness was "to prove my claims". That was in the context of the note on the response form inviting "brief details of what evidence you expect each witness to give at the hearing". The response given was indicative that the witness was a corroborative witness. There is no evidence of any lack of compliance by the appellant of legal process or procedure in these steps. 49 The Tribunal stated that "the [appellant] made no mention of this witness in his written application of 27 February 2001". However, there was no evidence that at that time the appellant could have known of the existence of the witness. It was only when the appellant was transferred to open camp following his interview with the case officer that the opportunity to meet the witness arose. The respondent accepted that was the correct position. The appellant's advisor asserted the same position to the Tribunal but it was not dealt with by the Tribunal. 50 On 12 March 2001 the corroborative witness was himself granted a protection visa. The interview with the appellant occurred on 2 March 2001 (the date when he received the tape recording of that interview) so that he would have been released into open camp on 2 or 3 March 2001 (that being accepted for the respondent). On the basis that the corroborative witness would have left the detention centre on or shortly after 12 March 2001, there would have been a period of only approximately ten days in which the appellant could have met the corroborative witness and ascertained the relevance of his evidence. 51 In rejecting the explanation of the witness that he did not know legal procedures and so did not provide his information earlier, the Tribunal had no foundation upon which to base a conclusion that the witness should not be believed on that ground. Counsel for the respondent was unable to inform the Court of any "legal procedures" or any provisions under the Act directing or facilitating a witness, whom an applicant required the Tribunal to hear, to "provide information". The evidence, previously referred to, was that the appellant had done all required of him by the forms issued by the Department to identify his witness and briefly state the evidence of that witness. Likewise there was no foundation for the Tribunal's reasoning in relation to the nature of the corroborative evidence being known at the time of the application, the meeting of the appellant and the corroborative witness not then having taken place. There was, therefore, no foundation upon which the Tribunal could have reached its crucial finding of disbelief in the corroborative witness. 52 For the respondent it was conceded that the Tribunal may have made an error in its assessment of the position of the witness. However, it was submitted that did not mean there was not material before the Tribunal upon which it could have concluded it did not believe the witness's evidence. In support, reference was made to the opportunity for the appellant to have raised the matter prior to the delegate's decision on 21 March 2001. Additionally, there was the fact that the appellant had not raised the claim of his involvement in political writing in his initial interview. 53 For the respondent it is contended that the claim by the appellant to be a political writer was not an independent claim. Rather it was to be viewed in respect of all of the other facts and the matrix of material which was before the Tribunal, including the very crucial fact that the appellant did not initially make any claims in relation to writing newspaper articles or fear persecution because of writing them. For the appellant it may be said, however, that if the single fact of the appellant's involvement in political writing had been established by the evidence of the corroborative witness, the findings of the Tribunal on other matters would have become irrelevant. The Tribunal's acceptance that the establishment of the fact of political writing by the appellant would lead to a finding of well-founded fear of persecution for a Convention reason shows that the Tribunal itself approached the matter on that basis. 54 The unwarranted assumptions of the Tribunal as to matters relevant to formation of a view on the credibility of the corroborative witness caused the Tribunal to disbelieve and disregard that evidence and constituted a failure by the Tribunal to duly consider the question raised by the material put before it: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at [4]. Although the remarks of the Chief Justice in Aala were directed to entitlement to review by constitutional writ on the ground of absence of authority for the Tribunal to make a decision that exercised the decision-making power in a manner that was not procedurally fair, his Honour's comments are equally pertinent to an unauthorised exercise of decision-making power that results from the Tribunal failing to take into account relevant material. In misunderstanding the material before it, the Tribunal thereby failed to have regard to relevant material, resulting in a decision for which the Tribunal had neither authority nor jurisdiction under the Act: Yusuf per McHugh, Gummow and Hayne JJ at [82]-[85]. It follows that grounds for review of the Tribunal's decision arise under s 476(1)(b) and (c) of the Act.

Conclusion 55 For these reasons we consider the appeal should be allowed and the matter remitted to the Tribunal for re-determination.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lee and RD Nicholson.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

introduction 56 I have had the opportunity to read in draft form the reasons for judgment of Lee and RD Nicholson JJ. I am grateful to them for sparing me the task of setting out the background of the appeal. 57 I agree with the orders proposed by Lee and RD Nicholson JJ and with all of their reasoning except, with respect, that contained in paragraph 44, in relation to the failure of the Tribunal to refer to the beating of the appellant by the Ettela'at guard. In my view, that circumstance gives rise to additional jurisdictional error on the Tribunal's part. I shall state my reasons for that conclusion very briefly. 58 The Ettela'at incident was recited by the Tribunal (at p 6 of its reasons) as part of the applicant's claims. 59 However, at p 11 of its reasons, when again summarising the applicant's claims, the Tribunal made no mention of the incident with the Ettela'at officer. This amounted to more than a mere omission because, after referring to the fact that the appellant's shop had previously been closed for a short period of time, the Tribunal said: "After that nothing appeared to have happened to him and some time later, he began writing articles for a newspaper." 60 The Ettela'at incident was a major one. In short, the appellant's evidence was that an argument about a political matter had erupted in his shop. One of the persons involved pulled out a gun (which indicated that he was an Ettela'at guard) and arrested the other person. The next day the appellant was arrested. While under arrest he was told of a confession, by the person previously arrested, to the effect that the appellant's shop had been the venue for discussions about political matters. The appellant's evidence was that he had then been very seriously beaten, imprisoned in a dirty cell and kept in detention for a month. 61 When the Tribunal, in considerable detail, drew in its reasoning (at p 15 of its reasons) again there was no mention whatsoever of the Ettela'at incident. In my view, this was yet a further indication that the Tribunal failed to take this incident into account. 62 When I put to counsel for the respondent that these circumstances might amount to jurisdictional error of the Yusuf type, his response was that the Tribunal could be seen to have found that, apart from the claims made in the initial interview, none of his claims were credible. 63 In my view, there was no such general finding to the effect that the Tribunal rejected all of the claims made by the appellant after his arrival interview. In fact the Tribunal can be seen to have dealt with the main claims specifically and in so doing to have overlooked the important Ettela'at claim. 64 In my respectful opinion, this failure on the Tribunal's part was so important as to amount to jurisdictional error of the type referred to in Yusuf. 65 I agree that the appeal should be allowed, the judgment should be set aside, the decision of the Tribunal should also be set aside and the application for review remitted to it for re-determination. I agree also that the respondent should pay the appellant's costs of the appeal.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

Solicitor for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 5, 36(2), 476, 476(1)(b)

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