FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105

THE COURT ORDERS THAT:

1.    The appeal be allowed in part.

2.    Order 4 made by the Federal Circuit Court on 4 April 2014 be set aside and, in its place, order that the first respondent pay the applicant’s costs on the basis that she was self-represented.

3.    Otherwise the appeal be dismissed.

4.    The appellant pay the first respondent’s costs of and incidental to the appeal, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT

Introduction

1    On 24 September 2012 the Refugee Review Tribunal (the Tribunal) affirmed the decision of the Minister’s delegate not to grant the first respondent (the visa applicant) a Protection (Class XA) visa. This appeal is from orders made by the Federal Circuit Court on 4 April 2014 quashing that decision of the Tribunal and requiring the Tribunal to determine the matter according to law.

2    The visa applicant claims to be a citizen of Iran. She was born in 1953. She applied for a Protection (Class XA) visa on 9 February 2012. The delegate refused to grant the visa on 15 May 2012 and the visa applicant applied to the Tribunal for review of that decision on 1 June 2012.

The claim before the delegate

3    In her application for a Protection (Class XA) visa dated 9 February 2012 the visa applicant said that she arrived in Australia from Iran on 15 August 2011 to visit her daughter and son. She had a visitor visa issued by the Australian Embassy in Iran on 13 July 2011, valid to 15 February 2012. She had previously visited her children in Australia for three months in 2010. In April 2011, she had travelled for 10 days as a tourist from Iran to Malaysia and Singapore.

4    In a three page document dated 9 March 2012, the visa applicant set out her claims in narrative form. The essential parts were as follows:

… The reason that I have applied for this visa is because recently I have been convicted by the authorities in my country to imprisonment and I have the fear that as soon as enter in the territory of my country Iran, I will be arrested and get sent to the jail.

…

I am a 59 year old mother of 2 children who got divorced from my husband 27 years ago and I never got married with anyone else after that because I couldn’t trust any men to be my husband just because of the hard time and bad years that I spent with my ex-husband and the discrimination that he imposed to me. So, I never got married again and was living lonely just by myself and in some stages with my children.

After overcoming the consequences and issues of having a divorce and separation and struggling to survive and have a new life which took me at least 10 years and I don’t even like to remember those unpleasant years and days, with the helps and favours of my brothers and parents I got on a good track and I found a job and did a course to get a better job as an accountant which has been my job since 5 years ago and tried to have a happy life.

After being and living almost 25 years lonely, around one and a half years ago I got introduced to a man who was one of our clients and I felt that I can have a feeling to him. So we started to have some dates together for almost 3 months to get along with each other and finally we felt and believed that we can be good partners for each other. Hamid (my partner) proposed me to marry him but unfortunately as I’ve always been cynical to all the men since my unsuccessful marriage and also I had promised myself that I’m not going to marry anyone ever in my life, I refused his proposal, however we decided to live with each other in the same place but just not to be married as it would make it easier for us to get separated if I would want it which never happened and we were enjoying being with each other.

I was thinking the bad days are gone forever and I was nearly forgetting my bitter past with my ex-husband that an incident shook and destroyed all our happiness and welfare.

It was exactly on my last birthday that we had a party in our house with our friends to share our happiness that the police and agents of the police department of Iran invaded my house which I never found out how they spotted it.

After inspecting the house and mistreating everybody because they found some alcohol drinks in the place they arrested all of us and took us to the detention centre. After being interrogated they found out that the place was my and Hamid’s house and we have never been married to each other and just have been living with each other constantly. That was the point that since then they kept me in apprehension because they accused me to adultery and having illegal relationship with a man who is not my husband and it’s against the Islam religion. My only accusation was living a man who wasn’t my husband whereas I wasn’t even married to anyone else.

They kept me 3 weeks in the detention centre and interrogated me and tried to torture me physically and morally as well. All the accusation was going around this point that in Islam this kind of relationship is forbidden and when I told them that it’s a matter of privacy and being in such a relationship is a part of my personal and private life they accused me again of being a prostitute and even intimidated me to rape me, they told me if you can have relationship with a man who is not your husband so you can have it with us as well.

They didn’t want to let me out of the detention even with a bail but thank my God first and then my brothers that they hired one of the best lawyers in the town to facilitate get me out of detention with a massive bail which was my parents’ house and worth more than 100 thousands Australian dollars.

I came out of the jail and got told by my lawyer that we will have to attend the court sessions later to defend me, because according to Islamic rules this kind of relationship is prohibited and in some circumstances its’ punishment is being executed by stoning.

I got summoned to 2 hearing sessions in the court with my lawyer to defend myself and I had nothing to say but this is my private life and I haven’t done anything against the civil law or any harms to the society. My lawyer was very optimistic that because it was a matter of my privacy and they didn’t even catch us in a public place there shouldn’t be any serious consequence and punishment for that and he can rectify the matter and I shouldn’t be worried about it too much. My lawyer attended the 3rd hearing session without me.

After my second hearing session as I was so much under pressure and having a horrible time under arrest and interrogation after discussing with my daughter she suggested me to come to Australia to visit each other and having a relaxation as she was so anxious and stressed out about me too. So, I came to Australia to visit my daughter and we were having a good time together that a phone call destroyed my life again. My lawyer notified me that he has received the final verdict from the court which has convicted me to 20 years jail and 150 lashes for adultery and 12 years prohibition o[n] social services.

I had 2 choices: staying in this country and seeking protection from the Australian government as a democratic government against the discrimination and inhumanity incurred to me by Iran’s authorities and judicial system and bigot mullahs and the second choice was returning to Iran and going to the jail, being humiliated by them, being intimidated to get raped by them and spending 20 years of my life in the jail which I would never imagine to end this period alive and come out of the jail. And this all could happen to me just for having a relationship with someone who was not my husband and not married and I wasn’t married either which I believe is a part of my basic human rights and privacy and which is absolutely legal in most of the countries around the world especially the democratic countries such as Australia.

5    Returning to the visa applicant’s application for a Protection (Class XA) visa, she claimed to fear returning to Iran “[b]ecause the court in Iran has convicted me to 20 years imprisonment and 150 lashes, so if I go back to Iran they will arrest me and punish me for something which is absolutely a part of my private life and only my business and privacy.” She claimed “the authorities and Iran’s government and judicial system will harm me. They will send me to jail if I go back to Iran just because I was using my personal and basic human rights to have a relationship with someone in a way that in most of the free and democratic countries it is not a problem at all, but in my country this is something like a crime, that’s why they have sentenced me to lashes and 20 years jail.” The visa applicant said she had received a definite and final verdict from the court. The visa applicant said she received the assistance of her son in completing the application form. She indicated that she would be providing later the verdict and writ of summons of the Iranian court.

6    The visa applicant gave the name of a private company in Iran where she said she had been employed for five years as an accountant. She ticked a box saying she was currently unemployed and that she financially supported herself from her savings account.

7    Under the heading “character details” the visa applicant ticked the boxes “No” against the questions whether she had ever been convicted of a crime or offence in any country or been charged with any offence currently awaiting legal action.

8    The visa applicant provided to the delegate a number of documents, and English translations of some of them. One document, said to be a subpoena, was dated 31 March 2011 and specified the date of attendance as 4 April 2011. A further similar document was dated 6 July 2011, specifying the date of attendance as 21 July 2011. A third document was dated 8 January 2012 and contained the following:

The verdict

With regards to [the visa applicant], 59 years of age, occupation: accountant, graduated with Accounting diploma, divorced, residing in Esfahan, citizen of Iran, with advocacy of Mr. Rahim Afshari, accused of adultery and having illegitimate sexual relations against the Islamic rules , she is alleged and guilty in accordance to article 52 of Islamic penal rules and also in compliance with article 22 of Islamic penal rules and calculation of apprehension period, she is sentenced to 20 years imprisonment and 150 lashes, and according to virtue 7 of article 10 of civil and Islamic offences rules she is sentenced to 12 years prohibition of all the social services. This verdict is definite and final in compliance with article 43 of Islamic penal rules.

9    The visa applicant was interviewed, by telephone, on 12 April 2012, a Farsi (Persian) speaking interpreter being present. It appears that the interviewer asked the visa applicant to send to her the visa applicant’s passports (current and expired), a photo of Hamid (her partner) and her verdict and subpoenas which had been certified by the Australian Federal Police. According to the visa applicant she tried to contact her lawyer in Iran to send to her the first subpoena which was issued to her for her first court session but she could not find him. She had asked her brother in Iran to go to the lawyer’s office but he learnt that the lawyer had been arrested by the authorities. For that reason the visa applicant sent the verdict and one of the subpoenas and a photograph captioned “[t]his is a photo of Hamid, that I don’t know how he is now.”

10    There was an email from the case officer of the Department dated 18 April 2012 to the Country Information Service of the Department which included the following:

The sentences she received are different/heavier from the info I find on the Islamic penal code, and she couldn’t provide an explanation when put to her. The stamps on the documents (in Farsi and translation) appear unusual eg English stamp on Iranian document.

Client [sic] is unable to produce the originals, claiming that they were scanned & emailed to her by her lawyer in Iran. Her claims and my decision hinges on the the [sic] sentences she receive [sic], if indeed she received them. CICNET has information on fraudulently obtained documents but I couldn’t find any documents to compare.

Grateful for your adv as soon as possible, on the appearance of the documents, if they appear consistent with what court documents from Iran should look like, or point me in the right direction.

11    There is also an email, in reply, dated 19 April 2012 forwarding documents relating to: the range of sentences handed out to females charged with committing adultery; issues dealing with court documents, procedures etc; and the probability of exiting Iran while trial/sentencing is pending. The writer suggested that the case officer contact the Document Integrity Section concerning the authenticity of the visa applicant’s documents.

12    An email from the Document Examination Unit, dated 20 April 2012, contains the statements “what you have is a fair example of what we are seeing in relation to this type of Iranian legal document… Their appearance is pretty consistent with what I have seen here over a number of years and for legal documents they are very basic… The fact that these are non-original documents compounds any examination – alterations are difficult to detect, are the wet stamps genuine or prints, are the signatures actually written, etc.”

13    By email dated 24 April 2012 the case officer raised questions under the following topics and said that the visa applicant had seven calendar days in which to provide the information requested, most of the statements being followed by “I would like your comment/s on this”:

Relationship

“I am not convinced from your explanation, that you would choose to live with a man when you have the opportunity to marry him, knowing very well that it is against Islamic laws in Iran and the risk involved.”

…

“I am not convinced that if you were committed in this relationship and have lived with him for 12 months, you would not have:

•    Been introduced to his family, or spoken to them over a 12 months period;

•    Made every effort to find out what happened to him, especially when you stated yourself, that you suffered during detention;

•    Tried to help him

Therefore I do not believe your explanation on this relationship, Hamid or the incidence [sic] you described that occurred”

Court judgment

“You mentioned that your lawyer told you that the verdict you received is a final order and cannot be changed. Country information states that judgement in Iran can be appealed within 30 days, which contradicts your statement.”

Last departure from Iran

“… I find it difficult to believe that someone who has outstanding issue [sic] with the government, in your case a court case pending court judgement would be allowed an exit permit to leave the country, without being questioned or stopped at a major airport in Tehran, despite the bail. This is because it seems to me a serious crime under Islamic law judging by the sentence imposed.”

Court documents

“As explained during the interview, the sentences you received differed significantly from country information, and I have grounds to believe that they were not genuine court documents.…

You mentioned at interview [sic] when I requested the originals, that they were kept with your lawyer, who emailed them as scanned documents to you. I requested that you forward your lawyer’s email to me, and you subsequently provided Certified true copies of the Verdict and a Subpoena which differ significantly from corresponding documents on your file.

I would like your comment/s on 1) The original documents, where are they, and if with you, how you obtained them, and provide supporting evidence; 2) How the 2 sets of documents provided at different time [sic] are different.”

Arrest warrant

“Country information states that if sentenced, Arrest warrant [sic] would be served on the convicted, and if this is not possible, then it would be published on [sic] local papers.

Can you provide any evidence of the Arrest warrant?”

Declarations (Forms 866 & 80) - Employment, visa refusal and outstanding legal matters

“(When answering this question, please be reminded of the Declarations you made in your application form)

You were refused a Tourist visa application in 2010, and casenote [sic] from your application stated that you were ‘Unemployed” at the time.

1)    EMPLOYMENT

•    The information you provided in your Protection visa application and supporting statement stated that you had been employed as an accountant for 5 year - this contradicted the above;

2)    VISA REFUSAL IN 2010

•    Was not declared in Form 80

3)     OUTSTANDING COURT MATTER

•    Was not declared in your Protection Visa application and Form 80”

14    A four page single-spaced typed document dated 28 April 2012 was then provided by the visa applicant dealing with these matters.

15    As we have said, the visa application was refused. The decision record of the delegate is dated 15 May 2012. A covering letter, dated 17 May 2012, by the manager stated: “[a]fter careful consideration of all the information you have provided, I was not satisfied that you met the relevant criteria for the grant of this visa as set out in Australian migration law.”

16    The reasoning of the delegate was as follows.

17    The delegate accepted that although adultery continued to be treated as a serious crime in Iran, its categorisation and punishment varied depending on individual circumstance, and that the stated sentence for an unmarried person convicted of adultery is 100 lashes.

18    The delegate found implausible the visa applicant’s decision putting herself and Hamid at risk with the authorities given that the Iranian authorities had not in the past concealed the harsh penalties imposed on people convicted of adultery in Iran. The delegate found implausible the visa applicant’s decision to expose herself to the risk of being caught by the authorities rather than remain single and lose the financial benefits associated with her arrangement with Hamid. The delegate found the visa applicant’s decision to be involved with a man, married or not, contradicted her own words that she was “cynical to all men”. The delegate found the visa applicant’s claims and her behaviour contradictory, in having a party at their house involving a group of people “where those attending would find out about her relationship with Hamid, and that a party of this size might attract some undue attention.” The delegate found it unusual that the visa applicant did not appear to pursue all possible avenues to find out about Hamid considering her own treatment by the police during her detention. Since the visa applicant claimed Hamid was a client of her company, her company contacts presented another avenue to find out about Hamid, but this was never raised in her statements, nor was it mentioned at the interview. As to the visa applicant being allowed free entry and exit without questioning given her outstanding court case, the delegate did not accept as genuine the explanation that it was because of the bail put up by her family, the fact she was not yet convicted and that it was not a serious crime. Country information stated that adultery was considered a serious crime in Iran. The delegate said “I am satisfied that she did not encounter difficulties with the Iranian authorities at the airport because she was not blacklisted, as there was not [sic] outstanding court case against her.”

19    The delegate referred to the Islamic Penal Code of Iran (the Penal Code), article 88, providing that the punishment for an unmarried adulterer or adulteress shall be 100 lashes. While the delegate accepted that the visa applicant may have no knowledge of the laws in Iran, “in the absence of strong supporting evidence for the court documents she presented, I find it reasonable to accept the information from reliable sources in Country Information, therefore I have strong doubts on the genuineness of the court documents she presented.”

20    In relation to the court documents, the visa applicant claimed her lawyer emailed her the court documents and sent her two sets of documents by post. The delegate said the visa applicant provided contradictory information when questioned on the sentence she received and the court documents she presented. The delegate said: “[c]onsequently I do not find her explanation plausible as I do not believe an important event such as the way she received the court documents from her lawyer could have slipped her mind during the interview.” The delegate also said: “[t]he applicant has also failed to provide original court documents despite being requested to do so. I therefore do not accept that the court documents the applicant presented are genuine court documents from Iran.”

21    The delegate also said, in relation to the application forms, that the visa applicant had deliberately provided misleading and false information in order to achieve the outcomes she desired.

22    The delegate concluded that the applicant was not a credible witness to her claims. The delegate referred to her relationship with Hamid, her exit from Iran, that the court documents were not genuine and, in relation to the forms, that the applicant had deliberately provided misleading and false information. The delegate did not accept the visa applicant’s claims that she had been convicted in Iran for having an adulterous relationship and that she received the sentence she claimed.

23    As the delegate did not accept the applicant’s claims, the delegate was not satisfied that the visa applicant had a real chance of being persecuted for a Refugees Convention reason or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the visa applicant being removed from Australia to Iran, there was a real risk that she would suffer significant harm.

The application to the Tribunal

24    The visa applicant’s application to the Tribunal was made on 1 June 2012.

25    On 25 June 2012 the visa applicant sent to the Tribunal her statements setting out her disagreement with the Department’s decision, three statutory declarations, and a copy of “the law book in Iran”.

26    The statutory declarations were from the visa applicant’s daughter, son-in-law and son, each of whom was in Australia. The daughter’s statutory declaration said that she had spoken to both her mother and her partner Hamid via Skype numerous times while they were together. The visa applicant’s son also said he was aware of his mother’s relationship with Hamid and that he and Hamid had spoken over Skype “numerous times when he was with my mother and I always enjoyed our conversation which went on for hours.” The son-in-law said: “I have seen her with her partner (Hamid) and spoken to him. I was with [my mother-in law] when she received her Subpoena for the court session…”. The visa applicant’s son also made a further statutory declaration stating that he had filled in the Form 80 for his mother’s application and he forgot to mention her visa refusal in 2010 “due to the overwhelming pressure and high level of anxiety on me about my Mum’s bad and critical situation in Iran and her fate in Australia.”

27    It does not appear that there is a translated copy of the pages of the law book although, from the statement next referred to, it appears that the pages concerned bail and the power in a court to prohibit an accused person from exiting the country.

28    In her statement of some seven typed pages, the visa applicant: gave her explanation for why she did not want to marry again or marry Hamid; stated why she had not been able to use the company’s information to find Hamid; set out why she was allowed to leave Iran; as to the court sentence, stated that she had witnesses (in Iran) who were present in her court sessions who were happy to testify in front of any legal authorities or in the court or by writing any legal statements to attest and verify the visa applicant’s words. She said she had asked her brother in Iran to find out about the difference between her sentence and the sentence the delegate mentioned and he was told the difference derived from the discretion which the judge has depending on the situation and circumstances of the person and that it may differ from case to case. She wrote: “[a]bout the genuineness of my documents I don’t know why someone should doubt it as they are issued by the court but as I said I have witnesses who can attest it that my documents are genuine.” The visa applicant gave an explanation as to the different seals on the different copies of the documents. As to the documents themselves, the visa applicant said her lawyer sent her the documents by email in the first instance to let her know about the final verdict of the court and subsequently her lawyer sent two sets of documents to her by post. She said “[i]f I didn’t forward you that email, it was because that email was containing some other information about my brother in Iran … [who] asked me not to forward that to you containing information about him as he is really scared of the consequences of that for him and his family in Iran.” The visa applicant said that one set of the documents, which she sent first, was the original translation of the court documents and the second set was the certified copies of the original documents which she had had certified by the Australian Federal Police. The visa applicant then gave explanations as to the incorrect information in the departmental forms. The visa applicant went into some detail about her exit from Iran.

29    The visa applicant was sent an invitation dated 28 June 2012 to appear before the Tribunal, the hearing being on 4 September 2012. The pro forma “Information about Tribunal Hearings” stated that “[y]ou may request that the tribunal obtain oral evidence from another named person or persons. You may use the Response to Hearing Invitation form to nominate persons you wish the tribunal to take oral evidence from … You will need to arrange for any persons you nominate, who are not in immigration or criminal detention, to be available to give evidence.” In that form the visa applicant requested the Tribunal to take oral evidence from her son and her son-in-law, both of whom would attend the hearing with her.

30    The visa applicant appears to have been asked by the Tribunal at the hearing to provide certain documents. She forwarded to the Tribunal a two line medical certificate dated 4 September 2012. She also forwarded a paper copy of the email (or extract of an email) she had received from her lawyer containing the information about her final verdict, the email being in the Farsi language. She said she did not get the email translated as she was not asked to, but said that if the Tribunal needed it to be translated it should let her know, or if the Tribunal wanted the email to be sent to it electronically she wrote “please do not hesitate to advise me”. She also provided her lawyer’s telephone number as requested. She did not provide “the land title which has been put as assurance and bail for me to get out of the detention” as she did not have access to any documents in Iran and she did not have the land title document with her in Australia.

31    It appears that the Tribunal asked for a translation of the email from the visa applicant’s lawyer and that the visa applicant provided such a document: see [74] of the Tribunal’s decision. There is in the appeal book a translation by an accredited translator in the Australian Capital Territory. The translation is as follows:

“[Translation of email extract]

From:…

To:…

Sent: Tuesday, 10 January 2012 8:51 PM

Subject: hokme dadgah [court’s verdict]

Dear [visa applicant]

I hope you are well.

Yesterday, I received the final court ruling for your case and unfortunately, contrary to what I expected the verdict for your case is very severe and I should inform you about it. An image of the verdict is attached to this email and you can see it by opening the attached file. I recommend that if there is an opportunity for you ensure not to return to Iran, do take it, because if you return to Iran the verdict becomes binding and it will be executed.

Of course, I need to inform you about an important issue. Security forces have summoned your brother … and have told him that since you are currently overseas and have unlimited and free access to mass media, you may bring your case to the attention of human right organisations. Further, they have told him that if you do that, they will indirectly cause problems for him and his family. However, you may ask your brother yourself to find out exactly what they have told him and then make your decision. They even had threatened him that if this was to happen, they will disrupt his son’s … study at university and his own career will be at risk too.

I am deeply sorry that the court has handed you such an unjust verdict. However, be assured that I tried very hard and did everything I could. I hope you have better days ahead of you.

Respectfully yours,

Rahim Afshari

The Tribunal’s decision and reasons

32    On 24 September 2012, the Tribunal decided to affirm the decision not to grant the visa applicant a Protection (Class XA) visa.

33    In the decision, the Tribunal set out the visa applicant’s written statement of a little over two pages originally provided to the Department. The Tribunal also set out the visa applicant’s written submissions dated 8 June 2012.

34    The Tribunal first, at [34], put to one side the issue taken into account adversely to the visa applicant by the delegate, being the answers relating to her visa history and conviction in the Department’s Form 80.

35    At [50], the Tribunal said it referred the visa applicant to the two subpoenas she had provided to the Department, one from March 2011 and the other from July 2011. The Tribunal asked whether she personally received the subpoenas. The visa applicant stated that she did not know whether she was in Iran at the time. The subpoenas were put in her house. The Tribunal showed the visa applicant the Farsi version of the two subpoenas, and she identified that she had received the March subpoena. She stated that she was not there for the July subpoena. The Tribunal asked the visa applicant how she received the March subpoena. She stated that she could not recall. The visa applicant stated that she gave copies of the subpoenas to her lawyer. The Tribunal indicated that this suggested that she did receive the July subpoena.

36    The Tribunal noted that the only documentary evidence it had of her relationship was a photograph of her with a male, whom she had identified as Hamid. The Tribunal asked the visa applicant whether she was able to provide any other evidence that she was in a relationship with Hamid. She said that she and Hamid spoke to her son, daughter and son-in-law in Australia on Skype.

37    The Tribunal, at [60], recorded it had indicated to the visa applicant that it had doubts about whether she was sentenced to 150 lashes and 20 years imprisonment, when the penalty for adultery was 100 lashes. The Tribunal said that if it rejected the evidence in relation to her sentence, it might in turn reject her evidence that she was in a de facto relationship with Hamid.

38    The Tribunal, at [64], indicated it had put to the visa applicant that the evidence from her son and son-in-law might be tainted by their desire to help her remain in Australia and accordingly it might place less weight on the evidence. The applicant stated “alright”.

39    The son-in-law told the Tribunal that he spoke to the visa applicant and Hamid many times on Skype over a seven to eight month period. He said he was staying with the visa applicant in Iran in July 2011 when a court official came to her door and handed her one of the subpoenas. This apparent discrepancy between what the visa applicant had said and what the son-in-law said about how the July subpoena came to the visa applicant was put to her on the basis that “[t]he Tribunal would have expected her to recall if her son-in-law had been present at the time one of the subpoenas was served.” The Tribunal said that the evidence of her son-in-law contrasted with her earlier evidence that the subpoenas were left in her house and she did not recall receiving the July subpoena and “that no one was with her”. The Tribunal said this information was relevant to the review “as it cast doubt on her credibility which might form part of the basis for rejecting her claims.”

40    The visa applicant’s son told the Tribunal that he spoke to his mother and Hamid many times on Skype over a nine month period. He also said he was contacted by his mother’s lawyer about one and a half years before the Tribunal hearing when she was detained.

41    The Tribunal observed that it was really a matter for the visa applicant to request that it talk to her lawyer in Iran, Mr Afshari, and that she should consider whether she wished to request this.

42    The Tribunal said, at [75], it decided not to telephone Mr Afshari in Iran. It said “[t]here is some possibility that his telephone line would be monitored and the Tribunal does not wish to give rise to a sur place claim. Further, although the applicant provided Mr Afshari’s telephone number at the Tribunal’s request, at no stage did the applicant request the Tribunal to call Mr Afshari or any other specifically identified witness in Iran.”

43    The Tribunal set out article 88 of the Penal Code concerning the punishment for adultery and referred to an Amnesty International report indicating that the usual sentence for an unmarried person in an adulterous relationship would be 100 lashes. The Tribunal then, over seven paragraphs, considered exit procedures from Iran.

44    Under the heading “Findings and Reasons” the Tribunal said as follows:

86.     The applicant claims to be a citizen of Iran and entered Australia on a [sic] Iranian passport. For the purposes of this application, the Tribunal has assessed her claims against Iran as her country of nationality.

…

89.     The Tribunal finds that the 2 subpoenas and the verdict provided by the applicant are not genuine documents. The Tribunal does so for the following reasons.

90.     Firstly, the applicant’s sentence, as set out in the verdict, is for 150 lashes and 20 years of imprisonment as well as a 12 year prohibition on all social services. This sentence is significantly in excess of the penalty for an unmarried adulteress of 100 lashes set out in article 88 of the Iranian Penal Code. The Tribunal places considerable weight on this issue. While the applicant submitted that the sentence is dependent on the personal views of the judge and the situation, the only other sentence referred to by the applicant was 99 lashes. The applicant has not drawn the Tribunal’s attention to, nor has the Tribunal located, any references to sentences of unmarried adulteresses in excess of 100 lashes.

91.     Secondly, although there are references to attached files in the translated text of the email dated 10 January 2012 provided by the applicant, the print out of the email does not indicate that there were any attachments to the email. Customarily, a reference to the presence of attachments to the email is contained in printouts of emails. The Tribunal notes that the applicant’s email provider, yahoo.com, is a mainstream email provider. Accordingly, the Tribunal is unable to be satisfied that the documents provided by the applicant originated in Iran.

92.     Thirdly, the applicant and [her son-in-law] gave very different accounts relating to the service of the subpoena dated 6 July 2011. When shown the 2 subpoenas, the applicant only had a recollection of receiving the subpoena dated 31 March 2011. She had no recollection of how she was served with the July subpoena, and was unable to describe the circumstances in which she was served. On the other hand, [the son-in-law] gave evidence that he was present when the subpoena was served, and that it was served by a court official. The Tribunal has checked [the son-in-law]’s movement records, and he was not in Australia on 6 July 2011, which makes it possible that he was in Iran when the subpoena was served.

93.     However, the Tribunal would have expected the applicant to have recalled that [the son-in-law] was present when the subpoena was served if in fact he was. The fact that she was unable to recall this leads the Tribunal to find that the reason the applicant had no recollection of service of the subpoena is that it is not a genuine document and was never served on her. The Tribunal has not accepted that the applicant has memory problems, and does not consider that her explanation that she remembered the incident after hearing [the son-in-law]’s evidence to be credible. The Tribunal notes that [the son-in-law] attempted to prompt the applicant’s answer, which casts further doubt on the applicant’s explanation.

94.     Fourthly, there is no probative evidence that the applicant was ever in a de facto relationship with Hamid. The Tribunal places no weight on the evidence of [the son-in-law] and [the son], who as the applicant’s son-in-law and son have a strong motivation to give evidence to assist her case. The same comment applies to the statutory declaration of the applicant’s daughter, [name omitted]. The Tribunal also place [sic] no weight on the photograph purporting to be of the applicant and Hamid, noting that there is nothing on the face of the photograph to indicate that the man she was photographed with was in a de facto relationship with her. Although the applicant attempted to keep the relationship a secret, the Tribunal would have expected the applicant to have been able to provide some evidence that she resided with Hamid for a period of at least several months. The fact that the applicant has not been able to provide any probative evidence on this issue, beyond her own assertions, leads the Tribunal to conclude that she did not live in a de facto relationship with Hamid.

95.     Taken collectively, these reasons lead the Tribunal to conclude that the applicant was not the subject of court proceedings in Iran, was not charged with or sentenced in relation to offences concerning adultery or illegitimate sexual relations, and was not in a de facto relationship with Hamid. This leads the Tribunal to find that the applicant would not be punished by the authorities if she returned to Iran. Further, as the Tribunal has not accepted that the applicant lived in a de facto relationship in the past, the Tribunal is not satisfied that the applicant would live in a de facto relationship in the future if she returned to Iran.

96.     For completeness, the Tribunal notes that it has not placed any weight on the differences in the location of the stamps and signatures on the 2 versions of the subpoenas and verdict provided by the applicant…

97.     Similarly, the Tribunal also draws no adverse inferences from the fact that the applicant was able to leave Iran while on bail…

98.     The Tribunal has considered cumulatively the various aspects of the applicant’s claims…

…

45    The Tribunal’s decision and written statement must comply with s 430 of the Migration Act 1958 (Cth) (the Act), which provided:

430 Refugee Review Tribunal to record its decisions etc.

(1)    Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

    (a) sets out the decision of the Tribunal on the review; and

    (b) sets out the reasons for the decision; and

    (c) sets out the findings on any material questions of fact; and

(d) refers to the evidence or any other material on which the findings of fact were based.

…

It will be necessary to return to s 430 of the Act when considering the Tribunal’s decision.

Proceedings in the Federal Circuit Court

46    On 23 October 2012 the visa applicant applied for judicial review of the decision of the Tribunal. The grounds of her application were:

(i)    The Tribunal didn’t ask me to documents email [sic] which was needed;

(ii)    The Tribunal didn’t consider my medical conditions, even though I provided doctor certificate;

(iii)    I had witness present in my court who are ready to testify my words but the Tribunal never asked me to present them.

47    The primary judge said that in a lengthy, hand-written statement attached to the application, the visa applicant expanded upon the grounds of review and contended, in summary, that:

(a)    the visa applicant had witnesses available in Iran who could give evidence on her behalf but she did not know that calling them was possible;

(b)    in part because the Tribunal did not accept the visa applicant’s medical certificate, the Tribunal was biased against her because it had already made up its mind in relation to the visa applicant;

(c)    the Tribunal did not respond (properly or at all) to the visa applicant’s offer to ensure that the email from her lawyer in Iran, and its attachment, were translated and forwarded to the Tribunal, which led the Tribunal to form an inaccurate view of the visa applicant’s evidence/credibility;

(d)    the visa applicant feared for her safety if she returned to Iran because, as a woman, she contended that she is discriminated against by Mullahs in that country.

48    Early in the reasons, in relation to the evidence from the family members, the primary judge said the Tribunal did not undertake any evaluative assessment of their evidence, but rather dismissed all the family evidence out of hand because it could not (or would not) be reliable or accurate. In not undertaking that evaluative course, the process was necessarily flawed. True it was that the Tribunal heard from two members of the visa applicant’s family, which it noted at [65]–[70]. However, such references apart, the next reference was the finding or ruling, at [94], rejecting the evidence from family members for the reason there given of their “strong motivation to give evidence to assist her case.” Put in more conventional terms, the primary judge said, the failure properly to evaluate the evidence of the visa applicant’s family members, rather than to make (as it did) a blanket assertion that imputed necessary and fatal bias on their part in favour of the visa applicant, indicated that the Tribunal failed in its statutory task to review the evidence and relevantly come to a “state of satisfaction” in its conclusion. The primary judge, at [67], said in this respect that in his view the Tribunal did not undertake the proper evaluative task.

49    The primary judge said the first jurisdictional error of the Tribunal was its failure to consider the email from Mr Afshari, the visa applicant’s lawyer. Although noted and set out in full at [74], and noted again at [91], nowhere did the Tribunal consider or relevantly take account of the matters actually set out in Mr Afshari’s email to the visa applicant. Nowhere was there any evaluative task undertaken by the Tribunal of that letter, and the lawyer’s advice to the visa applicant to stay away from Iran because of the ‘very severe verdict’ entered against her. This corroborative piece of evidence was not weighed against any other evidence, and significantly, it was not considered by the Tribunal in the context of the “considerable weight” placed by the Tribunal, at [90], on the particulars of the Penal Code. Nor was the email letter of January 2012 considered in the light of the “independent information”, and in particular the information from the Amnesty International Report (set out at [76] and [78] of the Tribunal’s reasons) to the effect that the “usual sentence for an unmarried person in an adulterous relationship would be 100 lashes.”

50    This “independent information”, the primary judge said, was not addressed, or referred to, in the Tribunal’s “findings and reasons.” A reference in an earlier paragraph of its reasons did not indicate anything to do with the Tribunal’s “thought processes” and the proper consideration and evaluation of that information in the light of the visa applicant’s claims. Because it was not mentioned in the findings of the Tribunal, the primary judge said, it must be that in its assessment of the visa applicant’s credibility, that independent information was not part of the Tribunal’s evaluative process. Accordingly, the Court concluded that there was a constructive failure to exercise jurisdiction because the Tribunal had not considered relevant evidence (to which it had earlier referred) in reaching a relevant state of satisfaction required by the criterion in s 36(2)(a) of the Act.

51    The primary judge said the same conclusion might also properly be reached in relation to the Tribunal’s failure to make the obvious and straightforward inquiry of a telephone call to Mr Afshari in Iran (or even some other straightforward means of inquiry of him) to check out critical facts — for example, in relation to the emailed letter of January 2012, any relevant attachments to it, and the confirmation of the visa applicant’s “severe verdict”. All were critical matters before the Tribunal. And in deciding, after the event and without notice to the visa applicant, not to call her lawyer, the Tribunal deprived itself (and the visa applicant) of this critical information.

52    Regrettably too, the primary judge said, the Tribunal did not explain its relevant “thought processes” as to why (or how) the possibility of a telephone call being monitored might give rise to a sur place claim. The Court could not (and should not) speculate as to why the Tribunal thought such a call might pose such a risk.

53    The primary judge said there was a further jurisdictional error in the “findings and reasons” of the Tribunal. This error related to the finding, at [90], on which it placed “considerable weight”, of the applicant’s inability or failure to draw to the attention of the Tribunal “any references to sentences of unmarried adulteresses in excess of 100 lashes.” Such a conclusion must necessarily require that the applicant had, or was capable of obtaining, relevant knowledge of the Penal Code, particularly in relation to punishment for “unmarried adulteresses”, as well as being capable of obtaining knowledge of similar cases.

54    The orders made by the Federal Circuit Court were as follows:

(1)    The First Respondent be referred to as the “Minister for Immigration and Border Protection.”

(2)    A writ of cert[i]orari issue to remove into this Court the record of the Refugee Review Tribunal for the purpose of its decision dated 24 September 2012 being quashed.

(3)    A writ of mandamus issue whereby the matter be remitted to the Tribunal requiring it to determine it according to law.

(4)    The First Respondent pay the Applicant’s costs in the sum of $6646.00.

The notice of appeal to the Federal Court

55    The Minister’s notice of appeal, as amended, contained the following grounds:

1.    His Honour the primary judge erred in finding that the [Tribunal] failed to consider either:

a.     The email dated 10 January 2012 purporting to be from the [visa applicant's] lawyer in Iran (“email”); or

b.     The report entitled “Amnesty International 2008, Iran: End executions by stoning” (“AI report”)

2.     In the alternative, his Honour erred in finding that the failure by the Tribunal to consider the email and the AI report constituted jurisdictional error.

His Honour ought to have found that there was no error in the way the Tribunal dealt with the email and the AI report.

3.     His Honour erred in finding that the Tribunal’s decision was affected by illogicality or irrationality in that the Tribunal imposed a requirement on the applicant to produce to it relevant jurisprudence in relation to what the usual practice was in Iran regarding sentences of unmarried adulteresses.

4.     His Honour erred in finding that the failure by the Tribunal to telephone the applicant’s lawyer in Iran constituted jurisdictional error.

5.     His Honour erred in finding that the Tribunal fell into jurisdictional error by failing to reveal its thought processes as to why telephoning the applicant’s lawyer in Iran might give rise to a “sur place” claim.

6.    If his Honour found that the Tribunal committed jurisdictional error by giving no weight to the evidence of the [visa applicant’s] son, daughter and son-in-law, he erred in doing so.

7.    His Honour erred in awarding costs to the [visa applicant] as an unrepresented litigant.

The visa applicant did not oppose the amendments to ground 2 or the addition of ground 6 and, although opposing ground 7, the amendment was allowed on the basis that the visa applicant could address it subsequently if it became necessary. It did not become necessary. As will appear, the visa applicant also relied on a notice of contention.

The parties’ submissions

Ground 1

56    As to ground 1, and in relation to the question of the email, the Minister submitted that the primary judge was incorrect to have found that the Tribunal did not make any finding regarding the genuineness of the email. The Minister submitted that the Tribunal dealt expressly with the email (at [91]). It referred to the fact that the email provider was a mainstream email provider and found that, for this reason, it could not be satisfied that “the documents provided by the [visa applicant] originated in Iran.” The Minister submitted there were two reasons why this showed that the Tribunal dealt with the email. First, the inference drawn by the Tribunal from the identity of the email provider (Yahoo) was that the email itself could have come from anywhere in the world. Secondly, there was no reason in this paragraph to distinguish the email from the documents that the visa applicant claimed were attached to it. The Tribunal referred to “the documents provided by the [visa applicant]”. This stood in contrast to other paragraphs where the Tribunal referred only to the subpoenas and the verdict. The email was a document provided by the visa applicant just as much as the subpoenas and verdict were. For those reasons, the Minister submitted, the primary judge was wrong to find that the Tribunal did not consider the email.

57    The visa applicant submitted the primary judge was correct to find that the Tribunal did not determine the genuineness of the 10 January 2012 email. When paragraphs [89] to [96] were read as a whole, that was the fairest interpretation of the Tribunal’s reasons. The Tribunal commenced at [89] by identifying a series of reasons why “the 2 subpoenas and the verdict provided by the [visa applicant] are not genuine documents”. If the Tribunal considered that the email was also not genuine, there was no reason why the email would not also have been mentioned in this paragraph. After all, the email also contained information that was consistent with all of the visa applicant’s claims. Consistent with that interpretation, [91]–[94] were addressed only to the genuineness of the subpoenas and the verdict because: (a) [90] dealt with the verdict (that was clear both from its opening sentence and its contents); (b) [91] addressed the fact that the Tribunal could see no attachment to the email, which caused it to doubt that the subpoenas and verdict were sent with the email; (c) [93] was addressed solely to the subpoenas; and (d) [94] was addressed to the contents of the subpoenas and verdicts. Further, in [96], the Tribunal again addressed itself only to the question of the genuineness of the subpoenas and verdicts. Read as a whole, it was clear that the email itself was not the subject of any finding. Contrary to the Minister’s submissions, the Tribunal did not address the genuineness of the email at [91]. The significance of the mainstream “Yahoo” address was not that the email could have come from anywhere in the world, but rather that the email format would be likely to conform to the “custom” that a reference to the existence of any attachments would be present. The absence of such a reference led the Tribunal to conclude that there were no such attachments. The Tribunal then reasoned that the subpoenas and the verdict did not originate in Iran because they were not attached to the email. This reasoning was more consistent with the Tribunal’s language. And as the primary judge found, at [76]–[79], this reasoning did not impugn the origin of the email.

58    The visa applicant submitted the Minister’s interpretation of [91] raised another difficulty. If indeed the Tribunal did find that the email did not originate from Iran, then that finding was plainly to the effect that the document was bogus and concocted for the purposes of the proceedings. Procedural fairness would have required the Tribunal to give the visa applicant an opportunity to respond to the significance that the Tribunal placed upon the lack of any reference to an attachment: WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106; (2004) 204 ALR 624 (WAJR) at [51]–[59]; SZBJW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1356 at [39]–[44]. As the document was provided to the Tribunal after the hearing, s 422B did not place any limits on the rules of procedural fairness: WAJR at [58]. The obligation to put this issue to the visa applicant assumed especial importance in circumstances where the visa applicant had offered to provide to the Tribunal an electronic copy of the email, and had been told by the Tribunal that it would contact the Iranian lawyer itself. Either of these simple inquiries would have put the matter beyond doubt. The Minister thus faced a dilemma. Either the genuineness of the email was not considered, or the Tribunal breached the rules of procedural fairness. In either case, the Tribunal made a jurisdictional error.

59    The Minister accepted that [91] of the Tribunal’s reasons did not deal with the documents said to have been posted. However, those documents were dealt with by the other three reasons given by the Tribunal for rejecting the court documents: at [90], [92]–[94].

60    The visa applicant submitted that once the Minister so conceded, [91] made no sense. The fact that an email did not appear to the Tribunal to have any documents attached to it could not be a rational basis for concluding that documents sent by post did not originate in Iran. The conclusion was irrational, or alternatively failed to understand the visa applicant’s claims and evidence. The visa applicant submitted the flaw in [91] poisoned the Tribunal’s ultimate conclusion. As was made clear at [95], the reasoning at [91], when taken “collectively” with the other reasons, led to the Tribunal’s ultimate conclusion rejecting the visa applicant’s principal claims.

61    As to ground 1, in relation to the Amnesty International report, the Minister submitted the Tribunal noted that that report indicated that the types of punishment for adultery were set out in the Penal Code. Based on that report, the Tribunal looked at, and set out, the relevant part of the Penal Code, which was that punishment for an unmarried adulterer or adulteress shall be 100 lashes. The Tribunal then noted that the “report cited indicates that the usual sentence for an unmarried person in an adulterous relationship would be 100 lashes”. The judge found three difficulties with [90] of the Tribunal’s reasons. First, if there was such a thing as a “usual sentence” (something referred to in the Amnesty International report as recorded by the Tribunal), it was a logical inference that there can be sentences that are not “usual”, even, for example, 150 lashes. Secondly, it was logically inconsistent, and a flaw in the consideration of the evidence before the Tribunal, for the Tribunal to refer to the provisions of the Penal Code but not to the “usual sentence” and the necessary inference that there were sentences that were unusual. Thirdly, the Tribunal set up a standard of knowledge for the visa applicant that she was bound not to meet. In particular, she could not know about the Penal Code and the relevant sentences for adultery. The jurisdictional error was that the information about the “usual number of lashes meted out in Iran to unmarried adulteresses” did not feature in the Tribunal’s evaluative process (at [127]).

62    The Minister submitted the primary judge’s consideration of this information was entirely merits based and, even then, was wrong. There was no inconsistency at all between the sentence in the Penal Code (100 lashes) and the “usual sentence” of 100 lashes. The report had, after all, indicated that the sentences in Iran are set out in the Penal Code. The only reasonable inference that may be drawn from the second piece of information in the report (about the “usual sentence”) was that the maximum sentence was usually imposed. Conversely, it was not irrational to fail to consider the possibility that the maximum sentence might be exceeded, let alone exceeded by 50%. In any event, there was no evidence that anyone was ever imprisoned for 20 years and prohibited from social services for 12 years as well as being lashed. The report was not simply referring to “the usual number of lashes meted out” as found by the primary judge (at [127]) but went to the entire sentence for the crime of adultery. On any view of the evidence, the visa applicant’s claims were inconsistent to a very large degree with the sentence that might be imposed for adultery in Iran. There was no need for the Tribunal to evaluate the Amnesty International report any more than it did: that report was the foundation for, and was entirely consistent with, its findings about sentencing in Iran.

63    The visa applicant submitted the primary judge was correct to find, as he did at [127], that the Tribunal’s reasoning process did not disclose the necessary weighing process between pieces of contradictory evidence relating to sentencing for adultery in Iran. This was the critical finding. At [90], the Tribunal commenced its reasoning process by referring to “the penalty for an unmarried adulteress of 100 lashes set out in article 88 of the Iranian Penal Code”. The Tribunal noted, at [90], that the visa applicant had submitted that the sentence was based on the personal views of the judge. The Tribunal did not mention in [90] the position in the Amnesty International report that the sentence of 100 lashes was “usual”. It was clear that [90] contained the Tribunal’s reasoning process. When read fairly, it was evident that the Tribunal only gave consideration to what it considered to be “the penalty”. It failed to appreciate the significance of the Amnesty International report, correctly identified by the primary judge, that in fact there was a “usual penalty”. The failure to weigh all of the evidence was made still clearer when it was appreciated that the Tribunal also failed to weigh and analyse the visa applicant’s evidence about the advice her brother had obtained from an Iranian lawyer, and the existence of country information, which was before the Tribunal, to the effect that adultery could be punished under different provisions of the Penal Code, and to the effect that Iranian legal codes are “studded with inconsistencies and vagaries”. It was well-established that a failure by the Tribunal to evaluate and weigh the evidence or claims before it constituted a jurisdictional error. The cases showed that such a failure could be inferred from the absence of any reasoning process that evaluated the evidence. As the primary judge identified, the Tribunal’s reasoning in this case suffered from such an absence.

Ground 2

64    The Minister submitted that unlike Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 (SZSRS), Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT), and Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547 (MZYTS), this was not a case where the Tribunal overlooked a document or claim in the sense that it was not conscious of it or did not consider it at all. Indeed, consideration of the email and information gleaned from the Amnesty International report were a part of the Tribunal’s reasons for rejecting the visa applicant’s claims. In those circumstances, the primary judge’s reliance on SZRKT and SZSRS was misplaced. His Honour’s real concern was different from the errors found in those cases. It was that the Tribunal did not weigh the contents of the documents (which the primary judge thought corroborated the visa applicant’s claims) against the matters that the Tribunal relied on to reject the claims. In other words, the real concern was that the Tribunal did not give proper consideration to the email or the report. Once this was revealed as the primary judge’s true concern, two difficulties with his Honour’s reasons became apparent. First, the Tribunal gave its reasons for rejecting the visa applicant’s factual claims. The fact that the reasons did not include any evaluation of the email in the way the primary judge thought they should have did not mean that it was overlooked: s 430 did not require a line-by-line refutation of all the evidence: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 (Durairajasingham). Secondly, the concept of “proper” consideration, as with “proper, realistic and genuine” consideration could easily lead the court into a review of the merits of a decision: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 (SZJSS), citing Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]; Lawyers for Forests Inc v Minister for Environment, Heritage and the Arts [2009] FCA 330; (2009) 165 LGERA 203 at [37] per Tracey J. That, the Minister submitted, was the error into which the primary judge fell. This was not a case where the Tribunal ignored relevant information that corroborated a central part of the applicant’s case. There was no jurisdictional error and the primary judge was wrong to find otherwise.

65    The visa applicant submitted that the argument advanced in the Minister’s submissions must fail. The Minister sought to distinguish SZSRS at [55]–[56]; SZRKT at [113]; and MZYTS at [49]–[50] on the basis that, in those cases, the Tribunal overlooked a document or claim in the sense that it was not conscious of it or did not consider it at all. In this way, the Minister’s submissions set up a false dichotomy between whether evidence or a claim was “considered” or whether it was “overlooked”. That argument did not grapple with the ratio of the cases. The cases revealed that the proper inquiry was whether the evidence or claims were addressed in the Tribunal’s decision-making process. So, SZRKT spoke of a failure to “deal with” claims or evidence: at [111]. A Tribunal may be conscious of evidence or a submission but not “deal with” it. Likewise, in MZYTS, the Court focused upon whether the Tribunal had “miscarried” in its statutory “task”, namely to form for itself, on the material before it, the requisite state of satisfaction under s 65 of the Act: at [31]–[36]. Again, the focus was on the formation of the state of satisfaction. So too in SZSRS, the Court was also concerned with whether a claim or evidence had been “dealt with”: at [56]. The Court emphasised that the critical consideration is “the Tribunal’s decision making process”: at [56]. Importantly, that process could miscarry where important evidence was “ignored” in the course of the Tribunal's “decision-making”: at [54]. Properly understood, that was what occurred in this case. The Tribunal may have been conscious of the contents of the email and the Amnesty International report, but they were ignored in its decision-making process. The primary judge’s reasoning was consistent with these authorities. At [123], his Honour noted the absence of any evaluation of the contents of the email, and correctly emphasised its importance to the Tribunal’s decision-making task. Likewise, at [124], his Honour identified the absence of any evaluation of the Amnesty International report. The correctness of that reasoning was further strengthened by reason of the additional failures identified in the visa applicant’s submissions in relation to ground 1.

Ground 3

66    This ground related to the second reason for the judgment on appeal, namely, that no logical or rational decision-maker could expect a visa applicant to obtain information about the usual sentences imposed for adultery in Iran.

67    The Minister submitted the critical passage in the Tribunal’s reasons was [90]. The relevant part was the last sentence of that paragraph. The points made in the paragraph could be broken down as follows: (a) the visa applicant’s sentence was 150 lashes and 20 years imprisonment as well as a 12 year prohibition on social services; (b) the sentence in the Penal Code was 100 lashes, significantly less than the visa applicant’s sentence; (c) the visa applicant submitted that the sentence depended on the circumstances and the views of the judge; (d) the only other sentence referred to by the visa applicant was 99 lashes; (e) neither the visa applicant nor the Tribunal could find any evidence of sentences in excess of 100 lashes.

68    The primary judge appeared to have found that the Tribunal expected the visa applicant to know about the sentencing law in Iran and relied on her inability to provide evidence as proof that 100 lashes was the standard sentence. However, the Tribunal did no such thing. Rather, it compared the visa applicant’s claims to evidence accepted by it and not contradicted by anything the visa applicant said or any evidence she provided. That, the Minister submitted, was a standard, logical, approach to fact-finding. This was not a case, such as Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362, where a person’s religious beliefs were tested against a standard imposed by the Tribunal with no basis in the evidence. However, that appeared to be the type of error found by the primary judge. His Honour was wrong to do so because there was evidence to support the Tribunal’s view about the sentences imposed in Iran.

69    The Minister further submitted that the primary judge also appeared to have misunderstood the process of the Tribunal in that he appeared not to have appreciated that the Tribunal had given the visa applicant the opportunity to address the possibility that it would find against her on the basis that the sentence for adultery was 100 lashes at [43] and [60]. This was not done as part of any expectation that the visa applicant knew about the sentences imposed in Iran, but as a matter of fairness to give her the opportunity to find out. It appeared, in any event, that she took that opportunity by asking her brother who was still in Iran. For those reasons, there was no expectation imposed by the Tribunal on the visa applicant, only an opportunity to present evidence and to make arguments in support of her application for review. This was neither illogical nor irrational.

70    The visa applicant submitted the Minister’s submissions mischaracterised what the Tribunal did. At [43], the Tribunal recorded that it “asked whether the [visa applicant] was able to explain the discrepancy” between the sentence she claimed to have been given, and what the Tribunal considered to be “the punishment” under the Code. It repeated this view of “the penalty for adultery” at [60]. It was submitted that [90] must be understood against this background. So understood, it was clear that the Tribunal did indeed place “considerable weight” on the visa applicant’s inability to “explain the discrepancy”. That reasoning necessarily entailed a rejection of the visa applicant’s claim by reason of her lack of knowledge of Iranian sentencing law and practice. The primary judge was correct to find, at [129], that this reasoning process was irrational. It should also be noted that the primary judge’s consideration of irrationality was not limited to the question of the visa applicant’s knowledge of Iranian law. There were other matters that were also considered to give rise to the finding of illogicality or irrationality: at [133]–[135]. The primary judge’s reasoning in this regard should also be considered together with his Honour’s unchallenged finding at [57] that the Tribunal did not ensure that the visa applicant was put in a position to make effective choices about the conduct of her case. That failure was also part and parcel of the irrationality.

Ground 4

71    The Minister submitted that although there was no general duty to make inquiries, there was a power to make inquiries and it may be that the failure to exercise that power may constitute jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429 (SZIAI) at [25]. However, it was unnecessary in that case to explore those possibilities. That was because there were no useful inquiries that could have been made: to telephone the numbers provided would either have supported or undermined the truth of the relevant document and that was an outcome already available on the material. The same reasoning applied here. The critical facts were the sentence said to have been imposed on the visa applicant and the veracity of the documents relied on by her. If the Tribunal had telephoned the lawyer and the lawyer had told the Tribunal that the sentences were correct, it would have been no more than to repeat the contents of the documents. Conversely, if he had said otherwise, it would have been adverse to the visa applicant by supporting a rejection of her claims. Apart from being speculative, there were, as the Tribunal explained, good reasons not to make the telephone call. That meant that the inquiry was not so obvious and easy as to infect the decision with error.

72    The Minister also submitted that there had been no unreasonable failure to exercise the power within the principles in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li). That case made it clear that the Tribunal’s reasons for not exercising a particular power are relevant to the question of unreasonableness. Here, as noted already, the Tribunal had two distinct reasons for not calling the lawyer: first, such a call might give rise to a sur place claim; and secondly, the visa applicant never indicated that she wanted the Tribunal to call the lawyer: at [75]. The reference to a “sur place” claim here must have been to a claim that might arise because of the telephone call. This possibility was apparent because if the authorities in Iran had listened to, or discovered, the telephone call and the visa applicant was identified in it, it could have allowed the authorities to impute her with an anti-government opinion. That may have been because the telephone call originated from Australia in connection with a claim for asylum. Given that the protection visa regime in the Act was intended to act in aid of Australia’s obligations under the Refugees Convention, an act aimed at preventing Convention-related persecution cannot be inconsistent with the reasonable exercise of power under that Act: compare M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144. It was for that reason that the possibility of a sur place claim formed a sound reason not to telephone the lawyer. The second reason for not telephoning the lawyer was that the visa applicant had not asked the Tribunal to do so. The visa applicant was quite capable of contacting her lawyer: she had already done so, she had said, in order to obtain the court documents. It was no necessary part of the Tribunal’s review function to seek out evidence that the visa applicant did not want to put before it. Quite apart from the Tribunal’s reasons for not making the call, the visa applicant had said that she could not contact the lawyer because he was under arrest. In those circumstances, the decision not to make the call was not one that no reasonable person would have made.

73    The visa applicant submitted that the Minister’s submissions misstated the significance of the lawyer’s evidence. It was evident that had the Tribunal contacted the lawyer, whether by telephone or by some other means, that inquiry could have been extremely significant. Each of the four decisive issues that the Tribunal raised at [91]–[94] could have been addressed. As the Minister accepted, the Tribunal’s reasons for not making the telephone call were sparse. That was significant when addressing whether the Tribunal unreasonably failed to exercise a power. It was clear from [75] that the Tribunal actively addressed itself to this question. In deciding not to exercise the power, the Tribunal will commit a jurisdictional error if it does so in a way that is legally unreasonable: Li. The question of what is legally unreasonable requires a consideration of the purpose of the power. In the present case, the power was directed to enabling the Tribunal to reach a state of satisfaction, and also to enable the Tribunal to conduct a “review” in accordance with s 425 of the Act. This latter justification assumed importance in the present case. In order that there be a review, the review applicant must have a meaningful opportunity to present evidence to the Tribunal. Where a Tribunal informs a review applicant that it will make an inquiry, and then does not, the Tribunal tends to undermine the applicant’s ability to present evidence. That was because the applicant was likely to rely on the Tribunal’s statement and not seek out evidence from the person from whom the inquiry was to be made. In the present case, the visa applicant lost any chance of providing further evidence from the Iranian lawyer because she reasonably believed that the Tribunal would contact him. The Tribunal needed to consider this. It did not, and so exercised the power in a way that was legally unreasonable.

74    The Minister submitted the concern about the sur place claim arose in connection with the possibility of contacting the lawyer by telephone. He submitted there was no connection between that and the Tribunal’s findings about the email in [91]. Conversely, it was not implicit in the Tribunal’s comments about the sur place claim that it accepted the truth about anything in the email. It was open to the Tribunal to accept the premise that the Iranian authorities closely monitor overseas communications while not accepting the reasons for which the visa applicant claimed she would be harmed by those authorities.

75    The visa applicant submitted that if the Minister was correct that [91] included the lawyer’s email dated 10 January 2012, then that finding could not be reconciled with the Tribunal’s observations concerning the risk of a sur place claim arising if the lawyer was contacted by the Tribunal. A risk of a sur place claim could only arise if the visa applicant’s evidence was true. If her claims were untrue, and (for example) there was no lawyer in Iran to call, then that could easily be discovered without giving rise to a sur place claim. That was so even if the possibility was accepted that Iranian authorities might monitor a telephone call.

Ground 5

76    The Minister submitted that if the primary judge found error in respect of the possibility of a sur place claim, it was that the Tribunal did not properly explain its reasons (at [125] and [135]). The Minister accepted that may be so: the Tribunal could certainly have given more detail about what it meant by the sur place claim. However, once the concept of a sur place claim was properly understood, the basis for it was quite obvious and the court below was not in fact left to guess the elements of it. Further, there was no obligation on the Tribunal to give reasons in this respect at all: no claim had been made that required it to be determined and thus exposed in reasons, as required by s 430(1) of the Act. Rather, it was to avoid a possible claim that the Tribunal did not make a telephone call. Section 430(1) did not require reasons for every decision made by the Tribunal, but only its “decision on a review”. In light of that, there was no error in the shorthand approach taken by the Tribunal.

77    The visa applicant submitted the primary judge considered that the failure might amount to an unreasonable failure to make obvious and critical inquiries, in the manner identified in SZIAI at [25]. The primary judge was unable to determine the matter, however, because the Tribunal had failed to disclose its reasoning process: [86], [125]. That finding also entailed a finding of jurisdictional error: Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845; (2000) 98 FCR 469 at [48]. The Minister had made an attempt to interpolate what the Tribunal’s reasoning was. It was not appropriate, the visa applicant submitted, to engage in speculation on this point. Once it was accepted that the reasoning was inadequate, the inquiry was at an end. The explanation given by the Minister, moreover, certainly did not explain why other means of communication could not have been used.

Ground 6

78    In relation to the Tribunal giving no weight to the evidence of the visa applicant’s son, daughter and son-in-law, the Minister submitted, first, that the Tribunal clearly had some regard to the evidence: it expressly referred to some aspects of the son-in-law’s evidence in its findings and reasons at [92]–[93]. The second point was that, subject to manifest unreasonableness, it was a matter for the Tribunal to determine the weight to be given to material it considered: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41 per Mason J, Gibbs CJ and Dawson J agreeing at 30, 71; Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 (Abebe) at [197] per Gummow and Hayne JJ; SZJSS at [33]. Here, the Tribunal gave no weight to evidence because of the relationship of the witnesses to the visa applicant and their obvious interest in the result of the review. The possible influence of bias and interest on a person’s evidence is obvious and was, for a considerable time the reason for which certain witnesses with these traits were not competent to give evidence in court. The Minister submitted that although those rules had been abolished, they remained matters that affect the weight of the evidence: JD Heydon, LexisNexis, Cross on Evidence (at 1 August 2014) at [13015]. Against that background, it was legally permissible for the Tribunal to accord no weight to evidence on the basis of the close relationship of the witness to the applicant.

79    The visa applicant submitted that, as the primary judge found at [37]–[38], it was legally impermissible for the Tribunal to dismiss out of hand the evidence of the visa applicant’s relatives. The reasoning was “capricious” and “arbitrary” in the sense identified in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [130]. It was not a state of satisfaction that was mandated by the Act. The Tribunal’s decision amounted to an adverse credibility finding based on no more than a witness’ blood or marriage relationship with a party. The witnesses’ oaths were set at nought. Few decisions could be more capricious and inconsistent with the Tribunal’s statutory obligation to actually consider the evidence. As to the Minister’s appeal to history, the visa applicant submitted there were at least two reasons why that submission should be rejected. In the first place, not even the ancient common law went so far as to blacken a person’s credibility simply because they were a relative of a party (a fortiori an in-law). The rule about competence was limited to spouses, and the reason was not credibility. Secondly, the fact that an evidentiary rule or method of proof was once considered rational did not make it rational by modern standards. The defence of compurgation was an example, but many more could easily be identified. The method of reasoning employed by the Tribunal had no place in modern times.

Ground 7

80    As to the question of costs at first instance, the Minister submitted that the primary judge erred in ordering him to pay costs to an unrepresented litigant. So to order was inconsistent with Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 at 409.

The notice of contention

81    At the Court’s suggestion, the visa applicant filed a notice of contention during the hearing of the appeal. Reliance on it was not opposed by the Minister. The grounds in the notice of contention were in the following terms:

1.    The second respondent (Tribunal) made a jurisdictional error in the way that it treated the evidence of the [visa applicant]’s son, son-in-law, and daughter. It was capricious, arbitrary and irrational to give their evidence no weight by reason only of their relationship to the [visa applicant].

2.    The Tribunal made a jurisdictional error by failing to consider the [visa applicant]’s claims as to [the] nature of the verdict and sentence imposed upon her in Iran, and further by failing to evaluate the evidence on this question in the way it was required to by s 65 of the Migration Act 1958 (Cth).

Particulars

a)    The [visa applicant]’s evidence disclosed a claim that she had been tried and convicted of a composite or multiple offence, the sentence [for] which was calculated by reference to Art 22 of the Iranian penal code and by reference to an apprehension period. The Tribunal did not consider this claim.

b)    The Tribunal did not consider or evaluate the country information and evidence to the effect that sentencing practice in Iran is subject to variability.

3.    If the Tribunal did find that the email dated 10 January 2012 (email) was not genuine (contrary to the primary judge’s findings, and contrary to the [visa applicant]’s submissions) then the Tribunal committed a jurisdictional error by failing to give the [visa applicant] an opportunity to comment or provide further material. Procedural fairness required that it do so.

4.    The Tribunal made a jurisdictional error by unreasonably deciding not to exercise its power to make inquiries of the author of the email.

5.    The Tribunal made a jurisdictional error by failing to make an obvious and critical inquiry by not acceding to the [visa applicant]’s offer to provide an electronic copy of the email.

As may be seen, ground 1 of the notice of contention corresponds with ground 6 of the amended notice of appeal. The existence of ground 1 of the notice of contention makes it unnecessary to decide whether the primary judge did find that the Tribunal made a jurisdictional error in respect of the evidence of the visa applicant’s son, daughter and son-in-law. The parties’ submissions on the substance of this point have been set out under ground 6 of the notice of appeal and it is unnecessary to repeat them. Similarly, the parties’ submissions in relation to ground 3 of the notice of contention, being a procedural fairness ground in respect of the email from the visa applicant’s Iranian lawyer, have been set out under ground 1 of the notice of appeal. Ground 5 of the notice of contention is most conveniently considered under ground 1 of the notice of appeal, concerning the email from the visa applicant’s Iranian lawyer. Further the parties’ submissions in relation to ground 4 of the notice of contention are set out under ground 4 of the notice of appeal.

82    As to the balance of the notice of contention, ground 2, the parties submitted as follows.

Notice of contention ground 2

83    The Minister submitted there was never a claim that the Iranian court dealt with multiple offences. In her submission, dated 8 June 2005, the visa applicant sought to explain the difference in sentences between those in the verdict and the country information. She gave information said to have been obtained by her brother in Iran to the effect that the difference arose from the exercise of judicial discretion. At the Tribunal hearing, however, she said that she could not give any particular reason. In any event, the words “adultery and illegitimate sexual relations” were translations from Persian. The evidence before the Tribunal suggested that the offence of “zena” was often mistranslated as “adultery” whereas the correct translation was “illegitimate intercourse”. This suggested that the use of the two terms was an insufficient basis to draw any conclusion about the number of offences considered by the Iranian court. In those circumstances, there was no error in the failure by the Tribunal to consider that possibility: compare NABE v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263; (2005) 144 FCR 1; SZRKT.

84    The visa applicant submitted it was legally erroneous for the Tribunal not to consider whether the Iranian court dealt with multiple offences over a period of months in issuing the verdict. It was clear that the verdict stated that the visa applicant was convicted of “adultery and having illegitimate sexual relations” (emphasis added). That expression was plainly a description of a composite offence. The Minister’s submission, made without evidence, that this expression should be understood as a mistranslation of “zena” should not be accepted. That explanation did not explain the use of the word “and” emphasised above.

85    The visa applicant submitted a further matter arose from the verdict document in connection with the sentence that the visa applicant claimed to have received. The verdict referred to “article 22 of Islamic penal rules and calculation of apprehension period”. The Tribunal did not appear to have considered these words or their significance. The visa applicant submitted the Tribunal’s task was to consider her claims and evidence. Where a visa applicant was unrepresented, significant aspects of the claims were only likely to be revealed in the evidence or information put before the Tribunal by the visa applicant: SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24] (affirmed in SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 11). In the present case, the documentary material put forward by the visa applicant revealed a different claim to the one that the Tribunal considered. The documentary material revealed the claim that the visa applicant had been tried and convicted of a composite or multiple offence, and then received a sentence that was calculated by reference to an “apprehension period”. The Tribunal misunderstood this claim and did not consider it. That was most clearly revealed at [91], where the Tribunal spoke of “the penalty” for an “unmarried adulteress”. Properly understood, the claim was not so limited.

Consideration

The verdict

86    It will be recalled that, at [90], the Tribunal gave as one reason for finding that the two subpoenas and the verdict provided by the visa applicant were not genuine documents the discrepancy between the visa applicant’s sentence as set out in the verdict as against the penalty in article 88 of the Penal Code. The Tribunal placed considerable weight on this issue, it said.

87    The assumption made by the Tribunal involved, in our view, accepting provisionally that the verdict was not a forgery in order to take account of its contents and make a comparison with article 88 of the Penal Code, which the Tribunal had put to the visa applicant at [43].

88    However, on this assumption, the difficulty is that the Tribunal did not attempt to deal with what was said in the verdict, that is that the visa applicant was guilty in accordance with article 52 of the Islamic penal rules and also in compliance with article 22 of the Islamic penal rules and calculation of apprehension period and according to virtue 7 of article 10 of the civil and Islamic offences rules. The content of the verdict was an essential part of her claim and the difference between the sentence set out in it and the penalty stated in article 88 of the Penal Code was, as the Tribunal said, a matter of considerable weight in finding that the verdict was a forgery. It must be assumed that the reasoning in [90] discloses the Tribunal’s entire reasoning process on this issue as the Tribunal has an obligation to give its reasons: s 430 of the Act. It is one thing to reason from a comparison of the substance of the sentences and to say that no examples had been found of a punishment of above 100 lashes under article 88 of the Islamic penal rules (compare Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (Yusuf) at [91]) but there is a missing step which is to form a view, one way or the other, about the three articles of the rules on which the visa applicant relied. This shows, in our opinion, that the Tribunal did not review this distinctive aspect of the visa applicant’s claim and thereby constructively failed to exercise its jurisdiction. We say this not as a matter of a review of the merits but by virtue of a failure of the process by which the Tribunal arrived at its conclusion: see Abebe at [195] per Gummow and Hayne JJ; SZJSS at [36].

89    In reaching this conclusion we place no weight on the use of the word “adultery” in the translated verdict, in relation to the visa applicant who was then unmarried, or on the use of the word “and” in the expression “[a]dultery and having illegitimate sexual relations” in the same document. The difficulties of translation do not permit weight to be given to these differences of language so as to establish a failure to evaluate a claim to have been convicted of a composite or multiple offence. In that respect, we note that the Amnesty International report is said to indicate the usual sentence for an unmarried person in an adulterous relationship, suggesting that the Farsi word or words may apply both to married and unmarried people. The same conclusion about the Farsi word ‘zena’ is supported by the Country Information research response which was before the Tribunal.

The documents said by the visa applicant to have been sent by post

90    The Minister accepted that the Tribunal’s consideration at [91] did not extend to the visa applicant’s claim also to have received the court documents by post from her lawyer in Iran. We accept the visa applicant’s submission that once that concession is made the fact that an email did not appear to the Tribunal to have any attachments cannot be a rational basis for concluding that the documents sent by post did not originate in Iran. The Tribunal has not taken that material into account in reaching its conclusion in [91]. It is not to the point that [90], and the conclusions in it, might extend to the court documents claimed by the visa applicant to have been sent by post since the conclusion at [91] is one of the conclusions which, “taken collectively” at [95], led the Tribunal to reject the entirety of the visa applicant’s claims.

Giving no weight to the evidence of the visa applicant’s son, daughter and son-in-law

91    It will be recalled that at [94] the Tribunal said it placed no weight on the evidence of the visa applicant’s son, daughter and son-in-law for the reason that, because of their relationship with the visa applicant, they “have a strong motivation to give evidence to assist her case”. In turn that conclusion informed the Tribunal’s later conclusion at [94] that the visa applicant was unable to provide any probative evidence about her relationship with Hamid beyond her own assertions, thus leading the Tribunal to conclude that the visa applicant did not live in a de facto relationship with Hamid.

92    The daughter, son and son-in-law had each sworn statutory declarations and the son and son-in-law had also given oral evidence. In our opinion, so to deal with this evidence, that is, without any evaluation of its content, is not to review the visa applicant’s claim. This corroborative evidence was an essential part of her claim and the dismissing of it by reason of the witnesses’ relationships with the visa applicant was, as the Tribunal said, a central matter in the finding of the Tribunal that the visa applicant did not live in a de facto relationship with Hamid. In turn, this was a reason of substance in the Tribunal finding that the two subpoenas and the verdict provided by the visa applicant to the Tribunal were not genuine documents. The Tribunal did not deal on the merits with the evidence that these people spoke to the visa applicant and Hamid together many times and for lengthy periods on Skype or with the evidence that the son was contacted by the visa applicant’s Iranian lawyer, whose name he gave, when the visa applicant was detained some one and a half years before.

93    As we have said, the Minister relied on JD Heydon, LexisNexis, Cross on Evidence (at 1 August 2014) at [13015] which, of course, is concerned with the rules of evidence. Chapter 7 is concerned with the competence and compellability of witnesses. The paragraph is found in the historical introduction and after dealing with non-Christians and convicts the following appears:

C – INTERESTED PERSONS

Until the nineteenth century, those who had a pecuniary or proprietary interest in the outcome of the proceedings were incompetent to act as witnesses in them. In the middle of the nineteenth century the legislature abolished incompetence through interest except in the case of the parties and their spouses. Interest is now something which only affects the weight of a person’s evidence.

(Footnotes omitted)

The footnote to the final sentence states relevantly that the fact that a witness has a motive for falsifying evidence may provide a reason for a judge, as a matter of prudence, seeking corroboration or warning the jury to scrutinise the evidence with care. There is a reference to [15160] in a chapter entitled “Corroboration” and dealing in that context with disputed confessions, which includes the following:

The inflexibility of the old rules and the change in attitude demonstrated by the judges and legislatures of the last decades have caused the courts to approach the question of unreliability of witnesses on an individual basis and by requiring a warning to the jury which is tailored to the particular evidence in question and directed to the care with which it must be approached by the jury. …

94    Although the rules of evidence do not apply to the Tribunal, it appears that, ironically, the Tribunal has applied an old rule of inflexibility, which the rules of evidence have discarded, with the consequence that the Tribunal has not approached the question of the unreliability of the statements of the visa applicant’s son, daughter and son-in-law on an individual basis or by reference to the differing evidence which the visa applicant proffered through them in relation to the existence of Hamid. In short, the Tribunal has not evaluated this material given by statutory declaration by the daughter, the son and the son-in-law and orally by the son and the son-in-law going to the question of the relationship of the visa applicant and Hamid, important to the visa applicant’s case and to the Tribunal’s rejection of that case, by considering it on its merits. Instead, the Tribunal has rejected this material at the threshold by virtue only of the oath givers’ family relationship to the visa applicant.

95    We reject the contention, put in oral submissions on behalf of the Minister, that there is any relevant analogy between the reasoning of the Tribunal in this respect and bias, or a reasonable apprehension of bias, on the part of a judicial officer where a son or daughter was appearing in the matter before the judge. We also reject the related submission that it is an answer to the way the Tribunal dealt with this aspect of the evidence that a familial connection could give rise to a reasonable apprehension that the family member may give false evidence in an important matter such as this.

96    In our opinion, this approach on the part of the Tribunal was both arbitrary and also meant that the Tribunal had not completed its task. For that reason there was a jurisdictional error in this respect.

97    The finding by the Tribunal had an important role in the Tribunal finding that the visa applicant was not arrested and imprisoned by reason of her de facto relationship and the Tribunal did not therefore have a basis to consider her claims of ill-treatment while so arrested and imprisoned.

The Iranian lawyer’s email about the verdict

98    There is a dispute as to whether or not [91] of the Tribunal’s reasons refers to the visa applicant’s lawyer’s email about the verdict. It will be recalled that this issue founded one of the jurisdictional errors identified by the Federal Circuit Court.

99    We see no error in the Federal Circuit Court holding that the conclusion, in [91], that the Tribunal was unable to be satisfied that the documents provided by the visa applicant originated in Iran, applies only to the two subpoenas and the verdict. In our opinion, that is the natural meaning of “the documents provided by the applicant” in the context in which the words appear in the last sentence in [91].

100    A further point in this respect is the Minister’s submission that the primary judge erred in drawing an inference that the email was not considered on the basis that there was no specific finding about it. While it is true to say that the Tribunal was aware of the email, and indeed set out the translation of it at [74] and referred to it in [91], it did not assess its genuineness or take into account its contents in arriving at the important finding that it was unable to be satisfied that the two subpoenas and the verdict originated in Iran. This finding was closely related to the critical finding that the verdict document was not a genuine document. This finding in turn informed the Tribunal’s conclusion that the visa applicant was not the subject of court proceedings and that she was therefore not a person to whom Australia had protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act.

101    We do not accept the submission on behalf of the Minister that the finding that the verdict was not a genuine document necessarily implied that the email was not genuine. This is not a case where the finding as to the verdict is at a higher level of generality and thus explains why a specific finding was not made as to the email. Neither, given what the Tribunal said at [91], do we accept that the finding in that paragraph as to the court documents can only logically also be about the email.

102    This submission of the Minister suggests what is missing from the Tribunal’s reasoning. The Tribunal could not permissibly reach the conclusion it did without taking into account the email which had been put forward by the visa applicant as corroborative of her claim as evidenced by the verdict document. The Tribunal either had to reach a conclusion that the email was not genuine or, if it found the email genuine, consider why it did not support the visa applicant’s claim. Not only was the email important corroborative material from the visa applicant’s perspective but also its genuineness, or otherwise, or its contents were on the critical path to the conclusion reached by the Tribunal. In our opinion, this demonstrates serious error amounting to a failure on the part of the Tribunal to perform its statutory task. Again this is a matter of the process by which the Tribunal arrived at its conclusion. Our conclusion does not involve any disagreement with the factual findings or merits of the decision: compare SZJSS at [36]. This is because the Tribunal has not made the relevant choice or choices and that fact-finding remains to be done by that body. This is not a case of illogicality or irrationality as considered in SZMDS at [129]–[130]. We accept, as explained in Durairajasingham at [65], that s 430 of the Act does not require a line-by-line refutation of all the evidence but, as McHugh J there explained, whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. In addition, in our opinion, in light of its reasoning, it could not be said that the Tribunal was of the opinion that the genuineness and contents of the email were not material to its decision: compare Yusuf at [89].

103    In the alternative, on the assumption contended for by the Minister that the email was considered by the Tribunal at [91], there is a procedural fairness error in the way the Tribunal dealt with the translated text of the email. The Tribunal requested a translation of the email and this was provided after the hearing. The background is set out at [39]–[40] of the Tribunal’s reasons. But the Tribunal concluded that the email was a forgery without giving the visa applicant an opportunity to respond to the potential significance of the lack of any indication of a field for an attachment and without taking up the visa applicant’s offer, when forwarding the untranslated text of the email, to send the email to the Tribunal electronically: see WAJR at [56].

104    As to the second of these points, as was made clear by the translation of the email provided to the Tribunal at its request, the translation was only of an email extract. This also implies that the Farsi original the translator was given was an extract also, as it appears to be. Neither document, as extracted, indicated a field for an attachment. The response to a request by the Tribunal to the visa applicant to forward the electronic version of the email, if complied with, would have shown whether or not the email existed and whether there were any attachments to it, the lack of attachments being the reason, on the Minister’s submission, that the email was found by the Tribunal to be a forgery. Since the electronic version of the email was offered, it was procedurally unfair for the Tribunal to make the findings it did about the absence of attachments to the email without requesting the electronic version of the email.

Not contacting the Iranian lawyer

105    In our opinion, [71] of the Tribunal’s reasons, which we must assume to be an accurate statement of what occurred in the course of the hearing before it, shows that the Tribunal said to the visa applicant that it was really a matter for her to request that the Tribunal talk to the visa applicant’s lawyer in Iran, Mr Afshari, and it was left on the basis that she would consider whether she wished the Tribunal so to do. The visa applicant did not so request. In those circumstances, we are not persuaded there was any lack of procedural fairness in the Tribunal deciding not to contact Mr Afshari.

106    Neither are we persuaded that the other reason the Tribunal gave at [75] for not telephoning Mr Afshari in Iran discloses jurisdictional error. The Tribunal referred to “some possibility” that the lawyer’s telephone line would be monitored. That finding appears to us to be one for the Tribunal as the visa applicant had said Mr Afshari was a human rights activist and she had heard that he had recently been arrested. In those circumstances, a telephone call to the lawyer by or on behalf of the Tribunal in Australia could give rise to a sur place claim: see the second example given in Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; (2009) 238 CLR 642 at [40]. There was no additional obligation on the Tribunal to reveal its thought processes: [75] was no more than a statement by the Tribunal of a step it had decided not to take and, if it was necessary for it to do so, it set out its reasons for not taking that step.

The Amnesty International report

107    In our opinion, no separate point arises from the Amnesty International report. The Court was not taken to the report so that the only context is the statement by the Tribunal that article 88 of the Penal Code provides that the punishment for an unmarried adulterer or adulteress shall be 100 lashes. In that context, the statement that the usual sentence for an unmarried person in an adulterous relationship would be 100 lashes does not mean that a sentence may be 150 lashes and 20 years imprisonment.

The requirement on the visa applicant to produce relevant jurisprudence on sentencing

108    In our opinion, no error is disclosed in the Tribunal’s reasoning, at [90], in stating that the visa applicant had not drawn to the Tribunal’s attention, nor had the Tribunal located, any references to sentences of unmarried adulteresses in excess of 100 lashes. The Tribunal was not requiring that the visa applicant had relevant knowledge of the Penal Code or was capable of obtaining that knowledge or knowledge of similar cases.

Consequence of findings

109    A question arises as to whether our findings have the consequence that the decision of the Tribunal should be set aside and, to that extent, the appeal to this Court dismissed. In our opinion, given the interrelationship between the conclusion of the Tribunal and the jurisdictional errors we have found, as set out above, the decision of the Tribunal should be set aside. For example, the conclusion of the Tribunal that the visa applicant was not in a de facto relationship with Hamid is obviously affected by the error in relation to [94], giving no weight, by reason only of their relationship to the visa applicant, to the statutory declarations of the visa applicant’s daughter, son and son-in-law and to the evidence of the visa applicant’s son and son-in-law. That conclusion of the Tribunal may well have had a bearing on the Tribunal’s conclusions in relation to the question of the court proceedings in Iran and the conclusions of the Tribunal on the issues of the visa applicant being charged with or sentenced in relation to offences concerning adultery or illegitimate sexual relations flowing from its findings in relation to the two subpoenas and the verdict documents. Put differently, it is not sufficiently clear that the Tribunal’s decision would have been the same if it had been based solely on the third reason the Tribunal gave for finding that the two subpoenas and the verdict provided by the visa applicant were not genuine documents, that third reason being, at [92]–[93], that the July subpoena was not a genuine document and was never served on her. The Minister, while accepting that each case depends on its own facts and circumstances, referred in oral submissions to Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222, but that was a different case turning on the meaning of the word “based” in s 476(4)(b) of the Act in relation to the no evidence ground in s 476(1)(g). In that case, the fact that the Full Court of the Federal Court had found error in two of eight factors did not mean that the decision-maker based the decision on the existence of a particular fact which did not exist. In our opinion the present case is closer to FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 88 ALJR 754.

The costs order

110    Consistently with Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 at 409, the primary judge was in error in awarding an amount with respect to professional costs to the self-represented visa applicant. It may be that she was entitled to some amount with respect to her court costs or other expenses. Order 4 made on 4 April 2014 should be set aside and the following order is substituted: “The First Respondent pay the Applicant’s costs on the basis that she was self-represented.”

Orders

111    For these reasons, we would allow the appeal but only so far as necessary to correct the costs order made by the Federal Circuit Court. In those circumstances, as accepted by the Minister, the appellant should pay the costs of the appeal of the first respondent, the visa applicant.

Associate:

Dated:    22 August 2014