WAHP v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT LEE J: 1 This is an appeal from a judgment of the Federal Magistrates Court dismissing an application to that court under s 483A of the Migration Act 1958 (Cth) ("the Act") for the issue of prerogative or constitutional writs to set aside a decision of the Refugee Review Tribunal ("the Tribunal") that affirmed a decision of a delegate of the respondent ("the Minister") that the grant of a protection visa to the appellant under the Act be refused. 2 The principal criterion for the grant of a protection visa under the Act is that the applicant have a well-founded fear of persecution for reason of race, religion, nationality, membership of a particular social group or political opinion. A fear of persecution is a well-founded fear if it is shown by the nature of past events, and/or the prospect that such events may occur in future, that there is a risk that the applicant may suffer persecution if returned to the country of nationality. The risk so described is one that is real and not fanciful. It is not a requirement that the degree of risk be measurable in degree of likelihood or probability. (See: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per McHugh J at 417). 3 The role of the Tribunal in conducting a review under the Act is to assess whether the material presented indicates that it could be possible that if the applicant were returned to the country of nationality events involving the applicant may occur which would constitute persecution of the applicant. If so, the Tribunal will be satisfied that the applicant qualifies for the grant of a visa and, pursuant to s 65(1) of the Act, must grant the visa applied for. If the material does not show that such a risk exists the visa must be refused. 4 In carrying out that assessment, involving as it does a determination of great importance to an applicant, the Tribunal must act "judicially" and according to law. In so acting the Tribunal does not exercise judicial power, but by reason of the importance of its task, the Tribunal must observe the "practical requirements of fairness" appropriate for the exercise of judicial power. As Sedley J stated in R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 WLR 242 at 258: 'In the modern state the decisions of administrative bodies can have a more immediate and profound impact on people's lives than the decisions of courts, and public law has since Ridge v Baldwin [1963] 2 All ER 66, [1964] AC 40 been alive to that fact. While the judicial character of a function may elevate the practical requirements of fairness above what they would otherwise be, for example by requiring contentious evidence to be given and tested orally, what makes it "judicial" in this sense is principally the nature of the issue it has to determine, not the formal status of the deciding body.' 5 Failure of the Tribunal to act "judicially" will necessarily stamp a review procedure as one which has not accorded practical fairness or justice to an applicant. To act "judicially" and according to law the Tribunal must carry out its decision-making function rationally and reasonably and not arbitrarily. (See: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Deane J at 366-368; Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 190 ALR 402 per Gleeson CJ at [25]-[26], Kirby J at [100]). 6 The requirement that the review procedure be carried out according to law is an irreducible duty enforceable by exercise of the judicial power of the Commonwealth invested in federal courts by s 71 of the Constitution. That is to say the separation of judicial, executive and legislative power, by the Constitution is in itself a Constitutional embodiment of the rule of law. (See: Abebe v Commonwealth (1999) 197 CLR 510 per Gummow, Hayne JJ at [168]-[169]; Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 195 ALR 502 per McHugh, Gummow JJ at [72]; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 per Gleeson CJ at [5]-[6], Gaudron, McHugh, Gummow, Kirby, Hayne JJ at [104]). Insofar as s 75(v) of the Constitution provides the High Court with original jurisdiction in respect of any unlawful exercise of, or refusal to exercise, Commonwealth executive authority that court may grant relief accordingly. For other federal courts it may be said that although the judicial power of the Commonwealth vested by the Constitution cannot be confined by the legislature, the matters in resolution of which that power may be exercised can be limited by the terms of the jurisdiction conferred on those courts by the Parliament. (See: Abebe supra). There is, of course, no issue that in respect of the matter in this appeal the jurisdiction conferred on this Court enables it to exercise the judicial power vested in it. 7 The Tribunal obtains power to make a determination under the Act where the determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds. (See: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [145]; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 per Gleeson CJ, Gummow, Kirby and Hayne JJ at [34]; Hill v Green (1999) 48 NSWLR 161 per Spigelman CJ at [72]). A determination that is based on illogical or irrational findings or inferences of fact may be shown to have no better foundation than an arbitrary decision and accordingly the review process will be unfair and will not have been conducted according to law. Here, of course, the words "irrational" or "illogical" are used with their proper meaning of devoid of, or contrary to, logic; or ignorant or negligent of, and not in conformity with, the laws of correct reasoning (see: The Oxford English Dictionary 2nd ed 1989, The Macquarie Dictionary 2nd ed. 1991), and are analogues of arbitrary or perverse. They are not used with a lesser colloquial meaning that may be applied where the words are introduced in debate to emphasise the degree of dissent from a disputed conclusion or point of view. (See: Eshetu per Gleeson CJ, McHugh J at [40]; Lam per Gleeson CJ at [9]). Illogical or irrational findings or inferences of fact upon which a determination is based become examinable as part of the matter that is subject to judicial review pursuant to the application for a prerogative or constitutional writ. (See: Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59per McHugh, Gummow JJ at [54]-[59]; Bond per Mason CJ at 338, 359-360). 8 It follows from the foregoing that if the Tribunal fails to conduct a review according to law, the purported decision of the Tribunal will have no "jurisdictional" foundation. (See: S20/2002 per Gleeson CJ at [5]-[9]; McHugh, Gummow JJ at [34]-[37]; Kirby J at [116], [127]-[128], [138]). 9 The Tribunal is instructed by the Act to determine whether a protection visa is to be granted to an applicant or refused. The outcome of that adjudication depends upon whether the Tribunal is satisfied, in effect, that the applicant is a refugee within the meaning of that term as used in the Convention. (See: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 275‑276). The requirement that the Tribunal be so satisfied is a "jurisdictional fact" and not a determination made by the Tribunal as a matter of a discretion. The satisfaction, or lack thereof, must be determined reasonably, that is to say, properly, according to the principles set out above. (See: Eshetu per Gummow J at [134]-[146]). 10 The importance of the Tribunal's function is recognised by s 430 of the Act which requires the Tribunal to explain its decision by providing a written statement that sets out the findings made by the Tribunal on material questions of fact, the evidence or material relied upon for those findings, and the reasons of the Tribunal. (See: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327 per Gleeson CJ, Gummow, McHugh JJ at [43]; W157/00A v Minister for Immigration and Multicultural Affairs (2001) 190 ALR 55 at [47]-[52]). 11 At the time the application for judicial review was determined by the learned Magistrate, his Honour was bound by the decision of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298 which treated the scope of judicial review as limited to the grounds that may be raised in respect of a "privative clause decision" under s 474 of the Act. On the hearing of the appeal it was conceded that the subsequent decision of the High Court in S157/2002, which overruled NAAV, made it clear that his Honour had erred in so determining the application for review and that a decision based on "jurisdictional error" was not a decision to which s 474 applied. Counsel for the Minister submitted, however, that the appellant could not show that "jurisdictional error" had occurred in the proceeding before the Tribunal and, therefore the appeal, should be dismissed. 12 Counsel for the appellant, acting pro bono publico pursuant to an appointment made by the Court under O 80 of the Rules of the Federal Court, submitted that the review conducted by the Tribunal involved procedural unfairness in that material germane to the appellant's case had been disregarded by the Tribunal and in that the Tribunal had found, in the absence of any probative material to that effect, that a letter presented to the Tribunal by the appellant had been "fabricated", a proposition not put to the appellant by the Tribunal for comment. 13 According to the material before the Tribunal the following summary may be extracted. 14 The appellant is a national of Afghanistan of Tajik ethnicity and is a Sunni Muslim. He left Afghanistan on about 4 December 2000, then aged 29. He entered the Australian "migration zone" on 6 January 2001 as one of a group on a small vessel. At that time he was not the a holder of a visa issued under the Act. Pursuant to ss 13 and 14 of the Act he was deemed to be an "unlawful non‑citizen". Sections 189 and 196 of the Act required that he be placed in "immigration detention". He has been kept in detention ever since. The appellant could not speak English and at all times has required the assistance of a Dari speaking interpreter. 15 He was interviewed by an officer of the Minister's Department on 14 January 2001. He applied for a protection visa on 27 January 2001. He was interviewed again by another departmental officer, presumably the delegate of the Minister, on 28 January 2001. On 14 March 2001 the delegate determined that a visa not be granted to the appellant. The appellant applied to the Tribunal for review of that decision. On 6 June 2001 the Tribunal affirmed the decision of the delegate. An application by the appellant to this Court for judicial review of the Tribunal's decision was allowed on 10 April 2002 and an order made that the Tribunal conduct a review according to law. On 13 June 2002 the Tribunal made the further decision that became the subject of the application to the Federal Magistrates Court for judicial review and of the appeal to this Court. 16 The relevant facts relating to the appellant's claims are as set out below. 17 The appellant, from about the age of 17, rendered military service in the Afghan army between January 1988 and March 1991. At that time Afghanistan was controlled by a regime, led by President Najibullah, adhering to a communist ideology. It appears that in the period of control of that regime the appellant's father had been a Colonel in the Afghan army. In April 1992 the government led by Najibullah was overthrown by an alliance of militia described as the Mujahideen. In about May 1992 the appellant's family moved from a home outside Kabul into the city of Kabul where the appellant, and his two elder brothers, joined the Jamiat-e-Islami party which was part of the Mujahideen militia coalition. Thereafter the appellant worked as a bodyguard, or a security guard, for a militia commander, or "warlord", in that movement, Mahmoor Faqir. Faqir had responsibility for security in part of Kabul where the Commander's militia acted as a type of police force. 18 The leader of Jamiat-e-Islami, Burhanuddin Rabbani, represented the interests of the Tajik minority in Afghanistan. Rabbani was elected President of Afghanistan in June 1992. In January 1994 the Mujahideen alliance fell apart and the forces of Rabbani and his military strategist, General Massoud, came under attack from a coalition of militia led by General Dostam and Gulbuddin Hekmatyar. Later in 1994 the Taliban emerged as a military force which swiftly captured the southern and western areas of Afghanistan. Dostam and Hekmatyar joined forces with the Taliban and mounted an assault on Kabul. The appellant's father was a number of civilians in Kabul who were killed by a rocket attack on the city carried out by Taliban forces in 1996. In October 1996 the Taliban took over Kabul and overthrew the Rabbani government. The appellant left Kabul on the day the Taliban entered the city and fled to Bamiyan province, an area he thought would be safe for him, being a region under the control of Bas Mohammad, a supporter of Jamiat-e-Islami, and an area in which a number of Tajiks lived. His mother and two brothers remained in Kabul. "Country information" before the Tribunal stated that upon the Taliban assuming control of Kabul young Tajik men of a military age were kept under close surveillance, particularly when entering or leaving the city. In 1997 about 2,000 Tajik and Hazarah men in Kabul were "rounded-up" and imprisoned by the Taliban on suspicion of "5th column activities", as part of a continuing campaign of arrest and harassment by the Taliban. The appellant's brothers were arrested and tortured on several occasions after the Taliban took over Kabul. In 1998 in Kabul sixty young men of Tajik and Hazarah origin were imprisoned, tortured and killed by the Taliban. In the same year the appellant's elder brother was beaten by the Taliban, suffering severe injuries. 19 Late in 1998, along with a number of other commanders who had supported Rabbani, Bas Mohammad switched allegiance to the Taliban and thereafter the Bamiyan province was treated as being under Taliban control. Shortly after that date the appellant became aware of inquiries being made by Taliban officials as to his whereabouts. The appellant was known to the Taliban as a person who had been a bodyguard for a militia leader in Kabul before the Taliban took control of the city. 20 In October 1999 the appellant's other brother was beaten to death by the Taliban in Kabul. The appellant went to Kabul for the funeral. Taliban gunmen appeared at the gathering and shot at the appellant who was wounded in the leg. The appellant was taken back to Bamiyan province by the person who had driven him to Kabul. 21 Whilst recuperating from his injury, which took six to seven months, the appellant became aware of the Taliban exerting a greater presence in the area where he had taken refuge and he began to fear that the risk of harm at the hands of the Taliban had increased. After some months his uncle was able to organise for him to leave Afghanistan in December 2000. 22 When, in June 2002, the Tribunal undertook once more the review of the delegate's decision, the circumstances in Afghanistan had undergone significant change. The Taliban had been ousted as the government of Afghanistan by an international coalition and reduced to a guerrilla force operating in parts of Afghanistan. Militia commanders or warlords had been returned to control of certain regional areas of Afghanistan. Neither the interim central governing council nor the International Security Assistance Force assisting it, was able to provide security for Afghan citizens throughout Afghanistan, or indeed beyond the confines of Kabul. 23 At the time of the review the grounds of the appellant's claimed fear of persecution rested on the contents of a letter the appellant had received from his mother in Kabul. The letter had been transmitted by facsimile to an office in the Curtin detention centre occupied by the migration agent appointed to advise the appellant. The advisor arranged for the letter to be translated and forwarded a copy of the letter, and of the translation, to the Tribunal in June 2002. In that letter the appellant's mother stated as follows: 'My dear son [...], I hope you are all right. I know that this letter doesn't contain a happy message but I have to let you know about he (sic) latest events. When the Northern Alliance entered Kabul, the same Commander that you used to work with during the Rabbani government, came to our house. Your brother spoke with him. The commander asked about you. Although your brother explained to the commander that he did not know where [...] was, the commander warned your brother that he was holding him accountable for finding [...]. The commander mentioned that he was looking for[...] because [...] had given the commander's car, which was with [...], to the Taliban. The commander also stated he believed that [...] was collaborating with the Taliban because when everyone escaped to the north, [...] abstained from accompanying them and stayed behind. The commander further accused or family of cooperating with the communist regime during Najib's power. The commander finally called us kaafers, infidels, and mentioned that we did not deserve his assistance because we had let him down. After searching the entire house, the commander and his militiamen took your brother, [...], away. My uncle and I looked everywhere but couldn't find him. About 20 days ago, they dumped [...] corpse in the market yard in front of the mosque. People who attended the prayer services, discovered his body and brought it to our house. Please be warned not to return to Afghanistan because your life will definitely be in danger. Stay wherever you are now and live there. Take care of yourself and God be with you! Your Mother (May 11,2002) If you want to contact us in the future, please ring your uncle's home [...]'. 24 In the reasons for decision provided by the Tribunal pursuant to s 430 of the Act the Tribunal stated as follows: 'The Tribunal accepts that the applicant is an ethnic Tajik and a Sunni Muslim, and that his family home is in Kabul. The Tribunal accepts that the applicant was a member of the Jamiat-I-Islami Party [sic] and that he worked as a bodyguard for a Jamiat-I-Islami Commander from July 1991 to October 1996 as he has claimed. The Tribunal accepts that the applicant fled Kabul when it was taken over by the Taliban in 1996 and that he stayed in Bamiyan province until he left Afghanistan in December 2000. The Tribunal accepts that the applicant's father was killed by a rocket in the battle for Kabul in 1996 and that the Taliban killed his brother in 1999 and that they severely injured his other brother in 1998. The Tribunal accepts that the Taliban destroyed the family's house in Chilsutoon. The Tribunal accepts that the applicant was shot by the Taliban when he attended his brother's funeral in 1999. The Tribunal accepts that the applicant suffered this harm because of his race and is political opinion, and that the harm he suffered was of such severity as to constitute persecution.' 25 Plainly, unless the account provided by the appellant's mother was untrue or the document purporting to be a letter from her had been concocted by others by arrangement with the appellant, the circumstances described in the letter provided reasonable grounds for the appellant to fear persecution at the hands of the warlord he had formerly served. The material in the letter grounded a belief that the militia leader regarded the appellant as untrustworthy and a person to be dealt with accordingly. If the appellant's brother had died at the hands of that party that event would provide ample evidence of the degree of risk of harm facing the appellant. 26 The Tribunal dealt with the foregoing issue as follows. 'The Tribunal does not accept that the Commander for whom the applicant formerly worked has acted in the way the applicant has claimed. As discussed with the applicant at the hearing, it is implausible that the Commander would not accuse the applicant's family of supporting Communism when this was not raised as an issue during the five years that the applicant worked for the Commander. The Tribunal does not accept that the Commander would accuse the applicant of remaining behind to collaborate with the Taliban when the applicant had spent two years living in Bamiyan Province in a area under the control of Jamiat-i-Islami. The Tribunal does not accept that the Commander would not have been able to ascertain the applicant's whereabouts if he had wished to do so or that he would accuse the applicant of having collaborated with the Taliban when clearly he did not. The Tribunal does not accept that the fact that the applicant did not accompany the Commander when he left Kabul provides sufficient motivation for the Commander to persecute the applicant or any member of his family. The Tribunal does not accept that after six years the whereabouts of a car would be a matter of concern to the Commander. The applicant has described his family as known and active supporters of Jamiat-i-Islami who were persecuted by the Taliban for their ethnicity and their political opinion. In view of the political profile of the applicant's family, the Tribunal does not accept that the Commander would kill the applicant's brother, who had been paralysed as a result of injuries inflicted on him by the Taliban, simply because he was unable to locate the applicant. The Tribunal finds that the letter purportedly from the applicant's mother has been fabricated to provide the applicant with claims for refugee status in light of the changed situation in Afghanistan which would otherwise indicate that it was safe for him to return there. The Tribunal gives no weight to the letter from the applicant's relative in the United States, who makes it clear that he has no first hand knowledge of the situation in Afghanistan and is simply repeating information which was told to him about he situation of the applicant and his family. The Tribunal finds that the applicant's claims to have been imputed with an adverse political opinion by the Jamiat-i-Islami Commander for whom he formerly worked are untrue. The Tribunal notes that the applicant has claimed that he didn't like working for the Commander and he did so only because his father told him to. However, as discussed with the applicant at the hearing, he worked for the Commander for five years, apparently without any difficulty, and was a member of the Jamiat-i-Islami Party along with other members of his family. The Tribunal does not accept that the applicant held a political opinion adverse to the Jamiat-i-Islami or that any member of the Party thought that he held such an opinion. Taking into account the above, the Tribunal finds that there is not a real chance that the applicant would be persecuted for reason of his political opinion or a political opinion or a political opinion imputed to him if he were to return to Afghanistan now or in the reasonably foreseeable future.' 27 The first point to note is that this was not a case where the credibility of the applicant had been destroyed by comprehensive findings of untruthfulness that permitted the Tribunal to attach no weight to any purportedly corroborative material that person may have sought to rely upon. (See: S20/2002 per McHugh, Gummow JJ at [49]). Indeed the Tribunal accepted the appellant's evidence. The issue in the present case was whether the apprehension of the appellant, grounded on the contents of the letter said to have come from his mother, was based on material that could be shown to be false, therefore providing no reasonable ground for the appellant's fear. Only if the letter were able to be dismissed from the Tribunal's consideration could the Tribunal find that if returned to Afghanistan the appellant faced no real risk of persecution on grounds set out in the letter. The letter was central to the appellant's claim that he may suffer harm at the hands of the Commander by reason of imputed political opinion if he were returned to Afghanistan. 28 On the hearing of the appeal extracts from a transcript of the Tribunal hearing, made by a student who had listened to audio tapes of the hearing and who was assisting counsel for the appellant, were handed up to the Court as an aid to counsel's submissions, not, of course, as fresh evidence. Whilst that material indicated that the Tribunal had made some comments to the appellant on its understanding of the state of affairs in Afghanistan and the difficulty it had in understanding why the Commander should have acted as described by the mother, the Tribunal did not deal with the matter in any depth and at no point did the Tribunal put to the appellant that the letter presented by him had been "fabricated". The appellant's response to the Tribunal's comments was that the Tribunal could make inquiries from officials in Afghanistan to ascertain how his brother had been killed. Given the importance of the issue perhaps that suggestion should have been given due consideration by the Tribunal before the letter was dismissed by the Tribunal as having been "fabricated". The letter provided details of the telephone number of the appellant's uncle who could be contacted in Kabul if further inquiry on the point was necessary. The Tribunal did not follow that course. It was not suggested that to make that inquiry, or to obtain information from other sources in Afghanistan, posed any difficulty for the Tribunal. Section 424 of the Act expressly empowers the Tribunal in its conduct of a review to obtain any information that it considers relevant and s 427(1)(d) permits the Tribunal to require the Secretary to the Minister's Department to make an investigation and report upon that investigation to the Tribunal. There would seem to be little doubt that if it chose so to act in a particular matter the Tribunal could require the Secretary to make an investigation, obliging the Secretary to cause enquiries to be made in another country, using official channels for that purpose if necessary, if the circumstances showed that course to be appropriate. If the Tribunal did not intend to make any further enquiry it should have informed the appellant that it considered the letter to have been "fabricated" and have given the appellant, or his advisor, the opportunity to present further material to the Tribunal to answer the impression formed by the Tribunal. 29 The reasons of the Tribunal implied, but did not state, that the appellant had arranged for a letter to be forwarded from Iran presenting false grounds for his "claims for refugee status in the light of the changed situation in Afghanistan which would otherwise indicate that it was safe for him to return there". That latent allegation was not supported by any material before the Tribunal and was not put to the appellant for comment. There was no antecedent finding that the appellant was dishonest that could, in some way, justify the Tribunal in concluding, without the benefit of any further material, that the appellant had engaged in such conduct. (See: WAGU v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCA 912 at [37]). 30 If the Tribunal thought a doubt was raised as to the authenticity of a document central to the appellant's claims it should have resolved that doubt before dismissing the document from its consideration. In the absence of any probative material it was not open to the Tribunal to assert that the letter had been "fabricated". Insofar as the Tribunal purported to justify the assertion by relying upon its view of the "implausibility" of the events referred to in the letter, none of the claimed events was shown to have been untrue and the course of events considered by the Tribunal to have been more likely, did not stand as self-evident truths on the material before the Tribunal. 31 The Tribunal was not in a position to say that events had not occurred as described in the letter. What the Tribunal was able to speculate upon did not dispose of the possibility that events had occurred as claimed in the mother's letter. The word "implausible" as used by the Tribunal would have to describe an event or circumstance that was inherently beyond belief. Obviously it was not implausible for the Commander to have suspected a change in the loyalty of a person who, in the Commander's view, deserted his service after the arrival of the Taliban. Changing allegiances appear to be a fact of life in Afghanistan. The claim that the warlord suspected that the appellant had collaborated with the Taliban was patently possible. Nor was it implausible that the warlord could have sought to have the appellant account for a motor vehicle and weapons that he had entrusted to the appellant's care when the Commander fled from the Taliban. Further, if at the time claimed in the letter, it were the fact that the appellant's brother had been killed in Kabul by persons unknown, then the further claim that the brother had been taken from his home by the Commander and his body dumped some days later in the market square would provide cogent grounds for the appellant's fear of persecution. The Tribunal made no finding on the death of the brother. It stated only that it "does not accept" that the Commander would kill the appellant's brother if unable to locate the appellant. That expressed state of non-persuasion is not a finding on probative grounds that the brother had not been killed, nor a finding that he had not been killed in the manner set out in the letter. 32 The matters the Tribunal described as implausible were not claims disproved by proven facts nor events so contradicted by commonsense as to be able to be dismissed as possible occurrences. The Tribunal engaged in speculation as to what a more likely course of events may have been but had no basis on which it could say that the events described in the letter could not have happened. The Tribunal may not have been persuaded that events occurred as recited in the letter but the Tribunal had no material on which it could convert such a doubt into a positive finding that the events had not occurred. Accordingly, the material set out in the letter had to be taken into account by the Tribunal in determining whether there was a chance that the appellant may suffer future persecution. As stated by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576: 'It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.' 33 The foregoing passage was elaborated by Gleeson CJ and McHugh J in Abebe at [83], where their Honours said that the fact that an applicant: '…might fail to make out an affirmative case in respect of one or more of the above steps did not necessarily mean that the claim for refugee status must fail. As Guo [at 575-576] makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution. The Tribunal "must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution" [Guo at 576].' 34 As Brooke LJ, with whom Robert Walker LJ concurred, said in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 at 469-470: 'For the reasons much more fully explained in the Australian cases, when considering whether there is a [real risk]of persecution for a convention reason if an asylum seeker is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur.' 35 In its treatment of the issue the Tribunal failed to act according to law. There was no material before the Tribunal on which it could make the finding that the letter from the mother had been "fabricated". The statement by the Tribunal that the letter had been "fabricated" was a bare assertion. The Tribunal did not identify whether the act of fabrication consisted of false statements made by the mother, or the presentation of a document purporting falsely to be a letter from the mother. 36 Furthermore, it was obvious in the circumstances that the Tribunal should have given an appellant to opportunity of comment upon, and deal with, the Tribunal's assertion that the letter had been "fabricated". (See: WACO v Minister for Immigration and Multicultural Affairs [2003] FCAFC 171 at [54]-[56]); Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370 at 382, 383, 388; WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188 at [52]-[55]; WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106 at [51]-[56]). 37 The Tribunal's treatment of the letter tainted the review process with fundamental unfairness to the appellant. There was nothing on the face of the document that raised any suspicion of forgery and nothing in the conduct of the appellant, or the appellant's advisor, to suggest that either had arranged for the transmission from Iran to Australia of a false document. 38 The decision of the Tribunal resulted from a proceeding that, in a significant respect, failed to accord the appellant a practical measure of fairness and, therefore, was not a determination made judicially and according to law. (See: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 per Gummow, Callinan JJ at [24], [32]). The Tribunal had no "jurisdictional" foundation for the decision it purported to make. (See: Re: Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at [5]; Gaudron, Gummow JJ at [59]; Kirby J at [131]; Hayne J at [170]; Callinan J at [216]; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]). The appeal should be allowed, the orders of the Federal Magistrates Court set aside and in lieu thereof orders made that prerogative writs issue to quash the decision of the Tribunal and to direct the Tribunal to make a determination according to law. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

OUR reasoning 52 The short question in the appeal is whether the Tribunal, in finding that the Letter was a fabrication, denied the appellant procedural fairness to the extent that its decision was not within jurisdiction and thus was not made under the Act. 53 In our view, the Tribunal did not fall into that error. We can state our reasons very briefly. 54 At p 12 of its reasons the Tribunal referred to the Letter and summarised its contents. At pp 13 and 14 the Tribunal informed the appellant that it was having difficulty accepting his recent claim that he would be persecuted by his former commander if he returned to Afghanistan. It put to him each of the matters which had been the subject of factual statements in the Letter. A sentence in the middle of p 17 of the Tribunal's reasons confirms that letter as the source of the matters put by it to the appellant. In its reasons the Tribunal described the course which it took in that regard as follows: 'The Tribunal informed the applicant that it was having difficulty accepting his recent claim that he would be persecuted by his former Commander if he returned to Afghanistan. The applicant had given a detailed description of the support his family had given Jamiat-i-Islami and the persecution they had suffered under the Taliban because of their support for Jamiat-i-Islami. Suddenly, his former Commander, who had been a friend of his father, was concerned about a vehicle which had disappeared six years previously when the Mujahideen fled Kabul, he had killed the applicant's brother who had been paralysed by injuries inflicted on him by the Taliban, he had accused the applicant of staying behind when other members of Jamiat-i-Islami fled north, even though the applicant had been in Jamiat-i-Islami controlled territory for two years, and he had accused the applicant of cooperating with the Communists even though this did not seem to have been a problem for the Commander when the applicant had worked for him for a period of five years before the Taliban came. The applicant responded that after he had served his military obligation, his father had told him that he should work for the Mujahideen. The Tribunal noted that he had worked for an important Mujahideen Commander for five years. The applicant agreed, but said that he hadn't liked it, and his father had made him work for the Commander. The Tribunal commented that whatever his reasons for taking the job, he had worked for this person without incident for five years, and now that the Jamiat-i-Islami was in a strong position in the government of Afghanistan, it was difficult for the Tribunal to understand why the applicant could not safely return. The applicant said that the Commander had told his mother that he wanted to know why the applicant had not come with him when he left Kabul. The Tribunal asked the applicant why he had not gone with the Commander. The applicant responded that the Commander's way was different from his. The Tribunal repeated that if the Commander had been concerned about the applicant's whereabouts he could have found out where he was soon after Kabul fell. The applicant said that the Commander had not known where he was, and the applicant had not wanted to join him again. The Tribunal commented that the fact that the applicant had not gone with the Commander six years ago did not appear to the Tribunal to give the Commander cause to persecute him now.' 55 We were provided with a transcript of the hearing before the Tribunal. We think it is useful to set out the following excerpts from that transcript: 'TRIBUNAL: Well Mr [blank] I think its only fair that I have difficulty accepting this latest set of claims you have send to me quite recently. You have drawn a really strong picture of how you supported Jamiat, you were a bodyguard for a friend of your fathers, your brother supported Jamiat and worked for the party and the Taliban that persecuted you and your family. And suddenly this commander who was a friend of your fathers, who you worked for, for five years, appears and demands to know where you are, kills your paralysed brother and accuses you of being a communist even though you worked for him for five years, and he didn't seem to care if you were a communist then. Now do you want to explain to me why I should believe this? [The appellant responded] … TRIBUNAL: And you were safe for five years, you had a good job with Jamiat and now Jamiat is back in power, they enjoy a number of positions in the current administration, and I think it unlikely that they would not have power after the new administration. It seems to me you are very well placed and I simply don't understand this latest set of claims. APPELLANT: Just last week I contacted my mother for fifteen minutes, for ten minutes I cried and my mother cried and she said I don't know what happened. She said the Taliban persecuted us badly … I haven't any camera or film to show you, but you could probably contact you (sic) the foreign minister over there and ask how they killed my brother because my mother, she told me that they killed my brother and that there is a bad situation that will happen to you too, that's why what I am saying to you my mother said to me …[shortly afterwards the Tribunal spoke to the appellant's adviser]. TRIBUNAL: It is just that he has painted a very strong picture of past support for Jamiat by him or his family and persecution by the Taliban by reason of the support, and then suddenly there is this letter from his mother saying "Guess what now the Jamiat commander is after us". It just doesn't add up.' 56 In our opinion, in those circumstances, the Tribunal can be seen to have raised with the appellant the critical issues which were contained in the Letter and to have given him an opportunity to respond. That is, as the respondent submits, the Tribunal raised with the appellant its difficulty in accepting the claims made in the Letter. 57 The Tribunal said this in relation to the Letter: 'The Tribunal does not accept that the Commander for whom the applicant formerly worked has acted in the way the applicant has claimed. As discussed with the applicant at the hearing, it is implausible that the Commander would now accuse the applicant's family of supporting Communism when this was not raised as an issue during the five years that the applicant worked for the Commander. The Tribunal does not accept that the Commander would accuse the applicant of remaining behind to collaborate with the Taliban when the applicant had spent two years living in Bamiyan Province in an area under the control of Jamiat-i-Islami. The Tribunal does not accept that the Commander would not have been able to ascertain the applicant's whereabouts if he had wished to do so or that he would accuse the applicant of having collaborated with the Taliban when clearly he did not. The Tribunal does not accept that the fact that the applicant did not accompany the Commander when he left Kabul provides sufficient motivation for the Commander to persecute the applicant or any member of his family. The Tribunal does not accept that after six years the whereabouts of a car would be a matter of concern to the Commander. The applicant has described his family as known and active supporters of Jamiat-i-Islami who were persecuted by the Taliban for their ethnicity and their political opinion. In view of the political profile of the applicant's family, the Tribunal does not accept that the Commander would kill the applicant's brother, who had been paralysed as a result of injuries inflicted on him by the Taliban, simply because he was unable to locate the applicant. The Tribunal finds that the letter purportedly from the applicant's mother has been fabricated to provide the applicant with claims for refugee status in light of the changed situation in Afghanistan which would other wise indicate that it was safe for him to return there.' 58 The Tribunal can be seen to have assessed the likelihood that the events described in the Letter had taken place. It made an assessment, based on the other evidence before it, that those events simply did not take place. In effect, it was assessing a piece of evidence. It decided that the Letter contained a series of untruths. That is, the piece of evidence was not to be relied upon. 59 Having made that assessment, it was in our view, a logical conclusion on the Tribunal's part that the Letter was a fabrication. Mr Howard submitted that to say that the Letter had been fabricated could mean either that the Letter was not from the appellant's mother i.e. that it was forged by someone else, or that its contents had been made up but the Letter was written by his mother. In our view, what sort of fabrication the Tribunal meant was not to the point. The question for the Tribunal was to assess whether the events recited in the Letter occurred. In our opinion, in the light of the other evidence before it, it was open to the Tribunal to reject the contents of the Letter. We do not see its conclusion as involving a credibility finding against the appellant. The events purportedly described in the Letter all occurred after he had left Afghanistan. The Tribunal put to the appellant its concerns about the claims made in the Letter and gave him an opportunity to respond. It must have been obvious from that exchange that there was a prospect that the Tribunal was not going to believe what was in the Letter. We do not see any relevant difference between a finding that the Letter was full of lies and the finding that it was a fabrication. The essential question, which the Tribunal understood and answered, was whether the appellant faced a real chance of persecution if returned to Afghanistan. 60 The appellant relied upon four Full Court decisions, namely, Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370 at 376-377; WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 at [38]-[58] especially at [54], WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188 at [28]-[41] and WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912. In our opinion, each of those decisions is distinguishable on the facts from the present matter. 61 In Meadows the Tribunal's finding that the appellants had participated in the fabrication of the relevant letters was of critical importance in its credibility finding against them (see pp 376-377 and 383). But during the Tribunal hearing, when those letters were being discussed, the Tribunal said "I am not accusing you of anything". Both such circumstances were basic to the conclusion by the Full Court that there had been reviewable error on the Tribunal's part. Neither such circumstance occurred in this matter. 62 In WACO the Tribunal rejected letters, which had been submitted after the hearing before it, as not being genuine. Those letters had been forwarded to it following the Tribunal's invitation to provide additional information about a religious association which it had told the appellant it would be unlikely to accept on the evidence then before it. The letters were central to the appellant's claim - see par [38]. In this matter the Letter was already in evidence before the Tribunal. The Tribunal made it clear to the appellant that it had difficulty accepting the factual claims made in the Letter. Where procedural fairness is in issue the precise factual circumstances are, of course, of critical importance. In our view, the factual distinction to which we have referred makes this case relevantly different to the circumstances in WACO. The appellant in this matter was not, in our opinion, denied procedural fairness. 63 WAEJ is, in our view, distinguishable as being a case where country information was relied upon by the Tribunal in rejecting the appellant's claims without advising him that it intended to rely on that material and without offering him an opportunity to comment upon it - see paragraph [34]. 64 WAGU was also a different sort of case. In that case the Tribunal found that the appellant had been involved in a conspiracy with a person or persons in Iran to fabricate information about his connection with a political organisation in that country, a proposition which was not supported by any evidence before the Tribunal and which it had never put to the appellant - see paragraph [37]. 65 In the present matter there was no unfairness in the manner in which the Tribunal dealt with the appellant's recent claims. 66 Although the Federal Magistrate was led into error by the Full Court decision in NAAV, we do not think thatthe interests of justice require us to remit this matter to him for reconsideration. As the Tribunal's decision is not shown to be affected by jurisdictional error, the appeal, in our view, should be dismissed with costs.

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