Reasoning
23 It will be seen that at the heart of the applicant's submissions was his contention that the RRT had failed to address, or address adequately, critical aspects of his claims, in particular that he was a member of the Ba'ath Party and had left Iraq illegally. It was this failure, so Ms Sharp argued, which showed that the RRT had committed the various errors identified in the applicant's submissions.
24 To some extent the applicant's submissions, in my opinion, were misplaced. Assuming the RRT's reasoning to have been defective in the manner identified by the applicant, the result would not necessarily be that the RRT had erred in law in the manner identified by Ms Sharp. For example, it is clear that the RRT was bound to assess whether the applicant had a well-founded fear of persecution for a Convention reason by reference to circumstances prevailing at the time of the RRT's decision, not at some earlier time: Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288 (FC), at 293. But a failure by the RRT to take into account the applicant's alleged membership of the Ba'ath Party (whatever other grounds of review might thereby be enlivened) would not of itself mean that the RRT had considered the application otherwise than by reference to circumstances prevailing at the date of the decision. Similarly, a failure by the RRT to address a particular factual claim made by the applicant would not demonstrate that the RRT had misapplied the so-called "real chance" test laid down in Chan.
25 In my opinion, the RRT in the present case did not err either by failing to address circumstances in existence at the date of its decision or by misapplying the Chan test. The RRT's reasons show that it understood it had to take account of current circumstances in assessing the applicant's claim to satisfy the Convention definition of refugee. If it overlooked aspects of the applicant's case (a matter to which I shall return) it was not because it failed to appreciate the temporal aspects of its duties. So, too, the RRT correctly identified the criteria for determining whether an applicant has a "well-founded fear of persecution" for a Convention reason. Furthermore, having rejected the applicant's principal factual claims, the RRT specifically considered whether he faced "a real chance of harm for leaving [Iraq] illegally or for any other reason". It answered this question in the negative. There is nothing to suggest that the RRT misunderstood or misapplied the tests laid down in Chan or Guo.
26 The core of the applicant's complaint was that the RRT had failed to address critical aspects of his claims and had therefore failed to make findings on all material questions of fact, as required by s 430(1)(c) of the Migration Act. There is a stream of Full Court authority to the effect that a contravention of s 430(1) gives rise to a ground of review under s 476(1)(a) of the Migration Act, since there is a failure to observe procedures required "in connection with the making of the decision". That line of authority has recently been re-affirmed by a Full Court in Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 (Heerey, Merkel and Goldberg JJ).
27 A difficulty has been placed in the applicant's path by an even more recent decision of a Full Court in which two members of the Court (Whitlam and Gyles JJ, RD Nicholson J not deciding) have held, notwithstanding uniform earlier authority, that a failure by the RRT to comply with s 430(1) of the Migration Act does not constitute a ground of review under s 476(1)(a): Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741.
28 Mr Elliott, on behalf of the Minister, submitted that I should follow Xu in preference to Yusuf. That submission presents a number of questions. One is whether the reasoning of the majority in Xu can be regarded as part of the ratio decidendi, bearing in mind that their Honours' agreed with the reasoning and conclusion of RD Nicholson J, who decided the case on other grounds. Another question is how a single Judge should deal with conflicting Full Court decisions, the last of which is inconsistent with an otherwise unbroken line of authority and ultimately turns on a narrow construction of a particular statutory phrase. Fortunately, I do not need to resolve these and other questions in the present case. I am content to adopt the approach most favourable to the applicant, namely that Yusuf correctly states the law.
29 In De Silva v Minister for Immigration and Multicultural Affairs [1999] FCA 1074, at [46] I summarised the principles applicable to the requirement laid down by s 430(1)(c) of the Migration Act as follows:
"(i) A failure by the RRT to comply with the requirement in s 430(1)(c) activates the ground of review provided for in s 476(1)(a) of the Migration Act: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 (FC), at 414-415, per Sackville J; Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 (FC), at 37, per Lindgren J; at 63, per Merkel J; Logenthiran v Minister for Immigration and Multicultural Affairs (Full Court, 21 December 1998, unreported), at 13.
(ii) Section 430(1)(c) does not require the RRT to make findings about every factual matter raised by the applicant. Findings need only be stated in relation to questions material to the ultimate decision: that is, in relation to substantial issues on which the application turns: Paramananthan, at 27, per Wilcox J; Muralidharan, at 414.
(iii) The reasoning and findings of the RRT are to be given a beneficial construction and are not to be scrutinised in an overly critical manner: Minister v Wu Shan Liang (1996), at 271-272. The RRT's reasons, read as a whole, may suggest that, although findings have not been made on a particular issue, they have nevertheless been made implicitly: A v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545 (FC), at 557.
(iv) The purposes underlying provisions such as s 430(1)(c) include ensuring that the RRT's reasoning process is disclosed and that an unsuccessful applicant understands why he or she failed: Muralidharan, at 414-415, Paramananthan, at 27."
30 The reference in the second principle to the "substantial issues on which the application turns" makes it clear that what is material in a given case will depend on the claims advanced by an applicant. This is reinforced by the observation of the Full Court in Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182, at [37], that s 430 requires the RRT to "make findings on the questions which are central to the case raised on the material and evidence before it". It is therefore necessary to consider the nature of the claims made by the applicant to the RRT in support of his application for a protection visa.
31 The applicant claimed that he had been detained on a number of occasions and severely ill-treated. On his account, he had been forced to join the Ba'ath Party in 1990 following his failure to attend the symposium held at the University. He had been detained for three days and forced to sign an undertaking to attend all activities of the Party. One of the forms he claimed to have signed in order to gain his release accepted that he would be considered a traitor if he violated the conditions of the undertaking and would thus be exposed to imprisonment or death. According to the applicant, it was his signing of the undertaking that made him "the captive of the Party". Similarly, the applicant said that he had signed a second undertaking to the Party in 1994 in order to gain his release from a further period of detention and torture brought about by his breach of Party requirements.
32 The applicant's claim to the RRT that he feared imprisonment or death on his return to Iraq must be understood in this context. This expressed fear was based on what he said was the likelihood that the Ba'ath Party would regard him as a traitor because of his contravention of the undertakings he had given. His case was never that he had joined the Ba'ath Party voluntarily, or that he was at risk simply by reason of such a voluntary association with the Party.
33 The fundamental difficulty facing the applicant is that the RRT addressed the specific claims made by him and rejected them. In particular, it refused to accept that the applicant had been detained in 1990 or 1994. Indeed, the RRT was not satisfied that the applicant had ever attended Baghdad University. Whether or not the RRT was correct in forming such an unfavourable view of the applicant's evidence is not for this Court to decide. The point is that the RRT's findings effectively destroyed the very foundations of the applicant's claims that he had been forced both to join the Ba'ath Party and to give undertakings breach of which would have exposed him to being treated as a traitor. The case is similar to Abebe v Commonwealth (1999) 162 ALR 1, where the RRT's finding that the applicant had never been arrested made her further claims of detention and rape "logically irrelevant": at [85], per Gleeson CJ and McHugh J. If the applicant had neither attended Baghdad University nor been detained as he had claimed, he could hardly have joined the Ba'ath Party or given undertakings, in the circumstances he described. In other words, it was implicit in the RRT's findings that it rejected the applicant's account that he had joined the Ba'ath Party and had given undertakings to be faithful to the Party's tasks and missions.
34 In essence, the applicant's submissions in this Court involved recasting his claims, so as to suggest that he had joined the Ba'ath Party in some manner other than the way he described. But that was not the case the applicant presented to the RRT. The RRT was not required to make any further findings concerning the applicant's membership of the Ba'ath Party other than those made by it. The findings made by the RRT necessarily implied that it rejected the applicant's claim, as presented by him, to be a member of the Ba'ath Party. The RRT therefore did not contravene s 430(1)(c) of the Migration Act by failing to make findings concerning his membership of the Ba'ath Party and the consequences of that membership.
35 Similar considerations answer the applicant's contention that the RRT had failed to consider whether he might qualify as a refugee sur place by reference to the cumulative effect of his membership of the Ba'ath Party, his illegal departure from Iraq and his having to apply for a passport to return to Iraq. As I have already said, the RRT applied the correct test to determine whether the applicant had a well-founded fear of persecution for a Convention reason. It was not bound to consider the applicant's membership of the Ba'ath Party since it had rejected his claims on that score. The RRT assessed the chances that the applicant would experience harm on his return to Iraq, having regard to his illegal departure from the country. It rejected the claim that the applicant was at risk because of his Christian beliefs and was not satisfied that the applicant was of interest to the Iraqi authorities. It found that he did not face a real chance of harm for leaving Iraq illegally or for any other reason. The RRT addressed the question it was required to consider.
36 There is no substance to the applicant's complaint that the RRT failed to make findings about the fact that the applicant had come to the attention of Saddam Hussein's son by reason of his talent as a soccer player. The RRT addressed this issue and found that no harm had come to the applicant in consequence of that fact. The RRT was plainly aware of the claim and did not think that the incident exposed the applicant to any risk of harm.
37 Despite these conclusions, I must confess to a sense of unease about the RRT's findings, particularly having regard to the independent evidence concerning the lack of protection for human rights in Iraq and the apparent scope for the infliction of arbitrary punishment for a variety of reasons, including the return of someone who has left the country illegally. But the High Court has repeatedly made it clear that the role of a court exercising the power of judicial review of administrative action is not to set aside a decision merely because of misgivings about the decision-maker's assessment of the facts. To take this course in the present case would be to transcend the boundaries of judicial review.
38 Ms Sharp advanced some further arguments which can be dealt with briefly. She submitted that the RRT had erred by failing to explain why it rejected apparently probative evidence from witnesses called by the applicant which supported his claim to have been imprisoned and to have attended Baghdad University. That evidence was given by two friends of the applicant. The RRT expressly referred to this evidence, the effect of which was that they had heard that the applicant had had difficulties with the authorities at the University and that he had been imprisoned. The RRT, after recounting their evidence, observed that neither witness could provide any details of the nature of the difficulties to which he referred.
39 The authorities disagree as to whether a failure by the RRT to give reasons for rejecting evidence inconsistent with the findings made constitute non-compliance with s 430(1). The preponderance of recent authority is to the effect that s 430(1) merely obliges the RRT to refer to evidence on which findings of fact are based, not to evidence inconsistent with its findings: Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811 (FC); Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 (FC); Sivaram v Minister for Immigration and Multicultural Affairs [1999] FCA 1740 (FC): cf Direse v Minister for Immigration and Multicultural Affairs [1999] FCA 1626 (Hely J), at [48]. If those authorities are to be applied to the present case, the applicant's contention must fail.
40 In any event, this is not a case where the RRT failed to refer to evidence apparently supporting the applicant's account. It did so, in terms which make it clear enough that the RRT did not consider the evidence sufficiently detailed or cogent to warrant acceptance. In other words, the RRT explained, albeit briefly, why it did not accept the evidence of the two witnesses. In my opinion, if the correct construction of s 430(1)(d) of the Migration Act is that the RRT must refer to evidence inconsistent with its findings, the RRT in this case complied with that obligation.
41 Ms Sharp also invoked the ground of review in s 476(1)(g) of the Migration Act. She pointed out that the RRT had found that the applicant's claim to have been imprisoned in 1994 was a "recent invention", when (as Mr Elliott conceded) he had in fact made this claim in his application to the Australian Embassy in Athens. According to Ms Sharp, this finding was a "link in the chain of reasoning" which was critical to the RRT's ultimate decision: cf Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 (FC), at 221 (per Black CJ). It followed that the RRT's decision was based on the existence of a "particular fact" (that is, the applicant's claim was a recent invention) for the purposes of s 476(4)(b) of the Migration Act.
42 I am inclined to think that this submission reads too much into the word "recent". The RRT placed particular weight on the applicant's failure to refer to a period of four months detention in his protection visa application lodged in Sydney. The RRT pointed out that the record of interview in the file showed that the applicant had expressly been given an opportunity to make corrections or additions and he had given no indication of wanting to correct the omission (even though, on his account, he had previously discussed the omission with his adviser). The RRT did not suggest that the applicant had not made the claim in Greece; nor did it rely on any such omission to support its conclusion. Its point was that the applicant, despite having ample opportunity to advance the claim in Australia, had not done so. Given the need to accord the RRT's reasons a beneficial construction, I would not interpret the RRT as intending to say that the applicant had never previously made the claim, but merely that he invented the claim after his departure from Iraq.
43 In any event, s 476(1)(g) is not satisfied unless the applicant establishes that there is no evidence or other material to justify the making of the decision. Section 476(4)(b) is merely a "gateway" through which an applicant must pass before it is permissible for the Court to hold that s 476(1)(g) is satisfied: Pat Tai Choi v Minister for Immigration and Multicultural Affairs (Lindgren J, 2 December 1998, unreported), at 9. There was clearly evidence or other material on which the RRT based its decision, over and above any mistaken belief on its part that the applicant had failed to make the claims in his application to the Australian Embassy. The RRT relied not merely on its assessment of the applicant's credit, but on his failure to make the factual claim in the application for a protection visa lodged in Australia. The terms of s 476(1)(g) of the Migration Act are not satisfied.
44 Ms Sharp submitted that other findings of the RRT were made without any evidence to support them. But these submissions were basically criticisms of the findings and fell well short of establishing that there was no evidence to support them.
45 Ms Sharp sought to read an affidavit which was said to cast doubt on the RRT's finding that the certificate of graduation produced by the applicant was a forgery. The affidavit was to the effect that the copy certificate produced to the RRT had originated from a fax machine in Iraq, rather than from a source in Australia. But the RRT did not say that the copy certificate had not been sent from Iraq. It based its finding on the evidence that all forms of Iraqi documentation can be fraudulently produced and obtained. The RRT also considered it implausible that the applicant could have obtained a genuine certificate within five days of the RRT sending its letter of 28 July 1999 (in which it gave the applicant an opportunity to respond to concerns about his credibility). In my view the affidavit should not be admitted into evidence, if only because it does not establish that the copy certificate produced by the applicant was genuine.