21 Failure of the Tribunal to act "judicially" will necessarily stamp the review procedure as one which did not accord an applicant practical fairness or justice. To act "judicially" and according to law the Tribunal must carry out its decision-making function rationally and reasonably and not arbitrarily. (See: Bond per Deane J at 366-367). That is to say, the Tribunal cannot determine the matter by a "tossing a coin" or by making a "snap decision" or by acting on instinct, a "hunch" or a "gut-feeling".
22 The requirement that the review procedure be carried out according to law, is an irreducible duty arising out of s 75(v) of the Constitution. (See: Abebe v Commonwealth (1999) 197 CLR 510 per Gummow, Hayne JJ at [170]). Failure to observe that requirement will mean that the purported decision of the Tribunal has no "jurisdictional" foundation. (See: Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59per Gleeson CJ at [5]-[9]; McHugh, Gummow JJ at [34], [37]; Kirby J at [116], [127]-[128]). The Tribunal only 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 based on illogical or irrational findings or inferences of fact will be shown to be a decision not supported by reason and to have no better foundation than an arbitrary selection of a result. It is because it is based upon such findings that the determination is an unreasoned decision. Such findings or inferences of fact become part of, and are not distinguishable from, the decision subject to judicial review. (See: S20/2002 per McHugh, Gummow JJ at [54]; Bond per Mason CJ at 338, 359-360). A review culminating in such a decision would be a process lacking practical fairness or justice and would not be a process conducted according to law.
23 The Tribunal is instructed by the Act to determine whether a protection visa is to be granted to an applicant or refused. In effect the outcome of that adjudication depends upon whether the Tribunal is satisfied 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, Gummow JJ at 275‑276). The requirement that the Tribunal be so satisfied is a "jurisdictional fact" and not a state of mind formed at the Tribunal's discretion. The satisfaction, or lack thereof, must be determined reasonably, that is, properly, according to the principles set out above. (See: Eshetu per Gummow J at [134]-[146]).
24 The importance of the Tribunal's function and acknowledgement of the foregoing principles 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. (c.f. W157/00A v Minister for Immigration and Multicultural Affairs (2001) 190 ALR 55 at [47]-[52]).
25 In the instant matter it was not in issue that if events had occurred as claimed by the appellant, the appellant had a well-founded fear of persecution.
26 The Tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this Court, stating that the documents "do not overcome the problems I have with the applicant's evidence".
27 Such a circumstance may arise where an applicant's claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S20/2002 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant's claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant's claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant's credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]).
28 This appeal did not involve a case in which the credibility of the appellant had been destroyed by stark findings of untruthfulness. The Tribunal accepted that in her youth the appellant had distributed "MKO" newsletters at university and that her brother had engaged in similar activities and had been killed in unexplained circumstances. The Tribunal accepted that the appellant believed that the security forces had been responsible for the death of her brother.
29 The Tribunal said it did not accept that the appellant, a nurse, had assisted an injured "MKO" supporter to escape from the hospital at which she was employed after Iranian security forces had brought that person to the hospital for treatment for his injuries. The principal reason given by the Tribunal for not accepting the appellant's claims was the failure of the appellant to assert those claims at the "entry" interview on 11 October 2000. The same reason grounded the first decision of the Tribunal where the documents corroborating the appellant's account had remained untranslated.
30 In regard to the Tribunal's conclusion that the appellant's claims could be discarded because they had not been raised at the first opportunity, that approach, as the Tribunal was aware, was not to be taken lightly. In this realm there may be many reasons, apparent or latent, that may explain such a circumstance. As authorities and texts in this area of law have made clear, a Tribunal must exercise considerable care before following that course and, obviously, must consider any material that supports the appellant's case before determining that the failure to raise claims of a fear of persecution at the first opportunity led to a conclusion that the subsequent claims were invented. (See: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 558).
31 Not the least of the matters to be considered in respect of a person in the position of the appellant would be the possible impact of shock, humiliation and uncertainty that may follow being subjected to arbitrary authority and summary detention. Furthermore, in the case of the appellant there was the additional circumstance that she was severely ill when she was taken to the detention centre. According to the material before the Court the appellant had been on an intravenous drip and had been vomiting regularly throughout a period of eight or nine days immediately before the "entry" interview, notwithstanding that on the day of interview she may have displayed signs of improvement.
32 It was, of course, a matter for the Tribunal to decide if the failure of the appellant to state at the "entry" interview that she feared persecution if returned to Iran, undermined the credibility of such a claim made subsequently. However, in the absence of material which impeached the appellant's claims directly, the Tribunal could not make that determination without duly considering the weight to be given to material which tended to confirm the truth of her claims. In other words, if there was some material capable of supporting the claims and an absence of cogent material showing the appellant to have been untruthful in respect of those claims, it may be unsafe to regard the failure of the appellant to disclose the claims at the "entry" interview as sufficient to establish that the claims were invented and it would follow that material corroborating the claims would have to be considered.
33 In the reasons of the Tribunal a second ground relied upon by the Tribunal for its conclusion that the appellant's claim that she had assisted a person to escape from the custody of the Iranian security forces should not be accepted, was the view of the Tribunal that some aspects of the account given by the appellant in the hearing conducted by the Tribunal were "implausible". The aspects identified by the Tribunal did not involve circumstances that were inherently impossible, or beyond belief according to human experience, and instead the matters set out by the Tribunal reflected the Tribunal's view of the likelihood of the occurrence of the claimed events and not proved facts which showed the appellant's account to be false.
34 First, the Tribunal stated that it was unlikely that the appellant could have assisted the "prisoner" to escape because it was implausible that the hospital would allow a nurse to be alone with a person it regarded as "dangerous". That statement by the Tribunal did not reflect the appellant's account. The description of the patient as "dangerous" was introduced by the Tribunal. It was not the appellant's statement that the hospital so regarded the patient. Speculation by the Tribunal in that regard did not permit the Tribunal to describe the appellant's account as implausible. It may be noted that the reasons of the Tribunal accepted the evidence of another Iranian nurse, whose status as a refugee had been accepted in Australia, to the effect that from time to time doctors and nurses in Iran had the opportunity to assist "MKO" prisoners to escape from hospitals to which they were brought by security forces for treatment, and she and others had so acted.
35 Next, the Tribunal said that the appellant had given "internally inconsistent evidence" about the finishing time of her hospital shift, by stating first, that it was 8 pm and then stating later in the hearing that she had told the "prisoner" to escape at 7 pm, the time of shift "changeover". No doubt there would be an overlapping period in which outgoing nursing staff instructed incoming staff on the treatment administered to patients in the course of the preceding shift and although the Tribunal may not have found the statement by the appellant to be convincing, namely, that she had 8.00 pm in mind as the time of completion of the shift being the time she got home, the point of inconsistency raised by the Tribunal would not appear to have been of great moment.
36 Then the Tribunal stated that having regard to the short time available it was implausible that when the appellant returned to the hospital after making a telephone call to the guard to distract him from his duties, a colleague of the appellant at the hospital would have been able to inform the appellant that a patient under guard had escaped, had been shot by security forces in the hospital environs and had been taken to the emergency ward. The Tribunal may not have found this account to be persuasive but obviously it was not implausible that a hospital officer on the scene could have had knowledge of the events that had occurred. The appellant's account was that the public telephone at which she made the call was some seven to ten minutes away from the hospital, that she spent several minutes near the telephone before returning to the hospital and that it was several minutes after she heard shots that she arrived at the hospital.
37 The Tribunal's next example of implausibility was said to be the appellant's claim that the Iranian authorities went to the appellant's home after, and not before, she left Iran. The Tribunal's statement incorrectly recited the appellant's claim in that regard. The appellant told the Tribunal that when she got to Indonesia after fleeing Iran she had heard from a friend that authorities had gone to her home and her husband had been arrested. After the incident at the hospital the appellant had not returned to her home. She had contacted her husband by telephone and they decided that she and their daughters must leave Iran forthwith. She stated that with her daughters she took a flight to Tehran and left Iran within five days. When the Tribunal put to the appellant that it would have taken the authorities less than five days to connect the appellant with the hospital incident, and, therefore, to attend her home and arrest her husband, the appellant reminded the Tribunal that she had not said that the authorities had come to her home and arrested her husband after five days had passed. Again no conclusion of implausibility was available.
38 The Tribunal then noted that it was implausible that in the "entry" interview the appellant would have provided a telephone number for her husband if she believed "he had been arrested". The number referred to was the telephone number for the home in which she and her husband lived. It was provided by the appellant at the commencement of the "entry" interview and again later in the interview when the question was raised as to where her husband may be contacted. It is difficult to see how the provision of that telephone number could be said to be inconsistent with a disclosure made by the appellant subsequent to that interview that the appellant had received information whilst in Indonesia that her husband had been arrested some time earlier.
39 The Tribunal acknowledged that each of the foregoing "problems" in the appellant's evidence might not have been particularly significant but stated that when considered together, in conjunction with the failure of the appellant to disclose her fear of persecution at the "entry" interview, it led to the conclusion that her claim of such a fear should be taken to be not credible. It may be thought that a point of little significance does not become significant when considered with other matters of minor weight. Indeed the acknowledgement of the Tribunal suggests that it did not use the word implausible to describe a circumstance that was inherently unlikely or beyond belief but to denote something not shown to have been likely or probable and to indicate that the Tribunal doubted that certain events had occurred as claimed by the appellant. As discussed earlier, in such a state of non-persuasion the Tribunal remained bound to consider the corroborative material provided by the documents, before it could determine whether it was possible that those events had occurred as claimed.
40 A noted above matters the Tribunal described as implausible were not claims disproved by proved 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 it thought would have been a more likely course of events but it had no basis on which it could say that the events described by the appellant, and corroborated in the documents, could not have occurred. The Tribunal may not have been persuaded that the events had occurred but the Tribunal had no material on which it could convert such a doubt into a positive finding that the events had not taken place.
41 We return now to the manner in which the reasons of the Tribunal dealt with the foregoing documents.
42 At the outset it may be noted that it does not appear that any of the speculation recited by the Tribunal in its reasons in respect of the possible lack of authenticity in the documents was put to the appellant for comment, and nor was the appellant given the opportunity to address such concerns by presenting material confirming the provenance of documents. (See: WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 at [54]-[56]; Meadows v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 370, 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]).
43 In relation to the letter purportedly received from the sister, several observations can be made. The Tribunal speculated that it would have been a "straightforward" matter for the appellant to have written the letter herself, or for the appellant to have asked her sister to write it. Given that the appellant could write in Persian script it was, of course, possible for the appellant to write the letter. Similarly, as a matter of bare logic it was equally possible that it could have been written by the sister at the direction of the appellant. But the two possibilities would be based on factual assumptions that could not be reconciled. The former is based on the assumption that the writing is that of the appellant, the latter on the assumption that the writing is that of the sister. The Tribunal said nothing to indicate which, if either, assumption it preferred or why, or why either of those possibilities was to be selected ahead of other possibilities.
44 No objective basis was identified for suggesting that the appellant wrote the letter or directed her sister to do so. Such grounds might be provided by surrounding circumstances (opportunity, timing or the like) identified and explained by the Tribunal; or from some form of admission made by the appellant if the possibility that she wrote it, or that her sister wrote it at her direction, had been put to her; or from examination of the letter (it may be apparent, for example, that the writing in the letter, purportedly from the sister, is the same as or sufficiently similar to the writing of the appellant to raise a real doubt about whether the sister wrote the letter). The Tribunal, however, did not engage in such analysis of the material. There was no finding of fact made by the Tribunal that could ground a conclusion that the appellant wrote, or had arranged for the letter to be written. (See: WAGU v Minister For Immigration And Multicultural And Indigenous Affairs [2003] FCA 912 at [37]).
45 The Tribunal did not acknowledge or deal with the other obvious possibility, namely that the letter was written by the sister, was written without direction by the appellant, and recounted facts and events known to the sister which occurred after the events recounted by the appellant. It seems fairly clear that the Tribunal approached the letter on the basis that, presumptively, it should be viewed as not assisting the appellant if doubt about its provenance could be speculated upon.
46 Similar observations can be made about the notice of dismissal purportedly from the former employer. Obviously it was possible that the document could have been manufactured by someone who had access either to a blank hospital letterhead or by someone who had another letter containing the letterhead. But, merely raising those possibilities did not permit the Tribunal to move to conclude that such a circumstance had occurred without identifying some material pointing to that conclusion.
47 The Tribunal appeared to regard the authenticity of the notice from the former employer as impeached by, in its view, an inconsistency in the appellant's account as to how the notice came into the possession of her sister. One account was given at the hearing (the notice was on the hospital notice board and her sister had gone to the hospital office to obtain the notice) and the other was provided in submissions by the appellant's adviser after hearing (it was taken from the hospital notice board). If allowance was made for the possibility that the adviser did not precisely understand what he had been told by the appellant, the inconsistency (if it be one) is of little moment. Significantly, there is nothing in the Tribunal's reasons to suggest that it put this apparent inconsistency to the appellant for her to respond to and explain. They are accounts (even if inconsistent) being relayed by a person who was not involved in obtaining the document (on the appellant's account) and any inconsistency is just as much explicable (if not more so) by faulty recollection or confusion as it is by the document being the product of fraudulent collusion between the appellant and the sister (or someone else) or simply the fraudulent conduct of the appellant.
48 Again the Tribunal does not entertain and deal with the possibility that the notice was genuine and had been written by the appellant's former employer and was an important piece of objective evidence corroborative of a central feature of the appellant's claims.
49 Accordingly, the material set out in the documents had to be taken into account by the Tribunal in determining whether there was a chance that the appellant may suffer persecution in future if returned to Iran. As stated by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ inMinister 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.'
50 The foregoing passage was elaborated by Gleeson CJ, 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].'
51 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.'
52 The reasons provided by the Tribunal in relation to its rejection of the documents revealed that the Tribunal failed to act judicially in respect of that material. The Tribunal appears to have considered that it could disregard documents that it was otherwise bound to consider if it surmised that it was possible that the documents could have been fabricated. That was not a course open to a tribunal acting judicially. There was no material before the Tribunal that permitted it to so dispose of the documents, and, thus, of the tendency of the documents to corroborate the appellant's account.
53 It is a denial of a fair process to purport to dismiss documents from consideration where the material therein supports an applicant's case in substantive respects and no ground for such a course is provided by the documents on their face or by other facts.
54 It follows that the Tribunal did not accord to the appellant practical fairness and justice in the Tribunal's conduct of the review. Accordingly, the decision of the Tribunal involved jurisdictional error and was not a decision authorised by the Act. (See: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 per Gummow, Callinan JJ at [24], [32]). The appeal must be allowed and the application for relief by issue of prerogative or constitutional writs must be granted.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lee and Moore.