FEDERAL COURT OF AUSTRALIA

Mr A v Minister for Immigration & Multicultural Affairs [1999] FCA 1086

MIGRATION – refugees – decision of Refugee Review Tribunal that appellant not a person to whom Australia had protection obligations – whether Tribunal’s finding based on existence of a particular fact that did not exist – whether Tribunal erred in failing to observe procedures that were required to be observed by the Act – whether Tribunal’s reasons set out findings of fact that were not supported by logical grounds or by reference to probative material – whether Tribunal’s reasons were adequate for the purposes of the Act.

Federal Court of Australia Act 1976 (Cth) s 27

Migration Act 1958 (Cth) Pt 7 Div 3, Pt 8; ss 36(2), 57, 65, 65(1)(a)(ii), 414, 415, 417, 420, 420(2)(b), 424, 424A, 424B, 424C, 425, 425A, 425(1), 430, 430(1), 476, 476(1)(a), 476(1)(d), 476(1)(g), 476(2)(a), 476(4)(b)

Migration Legislation Amendment Act (No 1) 1998 (Cth)

Federal Court Rules O 52 r 36

Migration Regulations 1994 (Cth) reg 4.33(1), 4.33(2)

M Aronson, B Dyer, Judicial Review of Administrative Action (Sydney: LBC Information Services, 1996)

P Bayne, The Inadequacy of Reasons as an Error of Law (1992) 66 ALJ 302

P P Craig, Administrative Law (3^rd Ed), (London: Sweet & Maxwell, 1994)

de Smith, Woolf & Jowell, Judicial Review of Administrative Action (5^th Ed), (London: Sweet & Maxwell, 1995)

T Thawley, “An Adequate Statement of Reasons for an Administrative Decision”, Australian Journal of Administrative Law 3 (1996) 189

W Wade, Administrative Law (6^th Ed), (Oxford: Clarendon Press, 1988)

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 followed

Minister for Immigration and Multicultural Affairs v Amani [1999] FCA 1040 cited

Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 cited

Minister for Immigration and Multicultural Affairs v Cho [1999] FCA 946 cited

Chopra v Minister for Immigration and Multicultural Affairs [1999] FCA 480 cited

Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-Stock Corporation (1990) 96 ALR 153 cited

R v Connell; Ex parte The Hetton Bellbird Collieries Limited (No 2) (1994) 69 CLR 407 cited

Buck v Bavone (1976) 135 CLR 110 cited

Waterford v The Commonwealth of Australia (1987) 163 CLR 54 cited

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited

Puhlhofer v Hillingdon London Borough Council [1986] AC 484 cited

Dornan v Riordan (1990) 24 FCR 564 cited

Curtis v London Rent Assessment Committee [1997] 4 All ER 842 cited

Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 cited

Friends of Hinchinbrook Society Inc v Minister for Environment (No 2) (1997) 69 FCR 28 cited

Minister for Immigration and Multicultural Affairs v Hughes [1999] FCA 325 cited

Tyson v Brisbane Market Freight Brokers Pty Ltd (1994) 120 ALR 1 cited

MR A v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1289 OF 1998

LEE, MOORE AND KATZ JJ

12 AUGUST 1999

SYDNEY

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

The appeal is dismissed with costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

LEE J

1                     This is an appeal from a judgment of a Judge of this Court (Hely J) which dismissed an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal was not satisfied, as required by s 65(1)(a)(ii) of the Migration Act 1958 (Cth) (“the Act”), that the criterion prescribed by s 36(2) of the Act was satisfied, namely, that the appellant was a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together referred to as the Convention). Therefore, the Tribunal decided that the decision made by a delegate of the respondent (“the Minister”), that the appellant be refused the grant of a protection visa, be “affirmed”.

2                     The appellant, a citizen of Iran, arrived in Australia on 1 January 1998. He had travelled to Australia in 1992 and 1995, on visas issued for business purposes, and had resided in Australia for some months in 1992 and for six weeks in 1995.

3                     The appellant departed Iran by aircraft on 30 December 1997. The airline ticket produced on departure was a return ticket for Doha, Bahrain and Sydney. He arrived in Australia on 1 January 1998. He was able to travel to Australia by altering the date of the visa issued to him in 1995. On arrival he gave notice that he claimed refugee status and was placed in detention. He lodged an application for a “protection visa” shortly thereafter.

4                     The appellant has a degree in business management. He was thirty-eight when he arrived in Australia. He left his wife and two children, aged twelve and five, in Iran. The appellant appears to have some understanding of English but requires the services of an interpreter.

5                     On 28 February 1998 a delegate of the Minister considered the appellant’s application for a “protection visa”. The delegate was satisfied that the appellant was not a person to whom Australia has protection obligations under the Convention and refused the grant of a visa. The appellant applied to the Tribunal for review of that decision. On 14 July 1998 the Tribunal determined that it also was not satisfied that the appellant was a person to whom Australia has protection obligations and “affirmed” the decision of the delegate. An application, under s 476 of the Act, for judicial review of the Tribunal’s decision, was dismissed by his Honour on 24 November 1998.

6                     The case put to the Tribunal by the appellant was that between 1994 and 1997 he had carried out duties as a director of the Taxi-Van Cooperative (“the Cooperative”) in Teheran, an organisation of private carriers supervised by a department of the Iranian government. The appellant stated that there were three directors of the Cooperative and he was Deputy Chairman. As a university graduate, the appellant was obliged to render services to the government for five years and performance of his duties with the Cooperative was in discharge of that obligation. Operating in parallel with the Cooperative, and with the same membership, was the Taxi-Van Owners’ Union (“the Union”) in which the appellant was employed as a member of the Council of the Management Committee. One of the appellant’s responsibilities as a director of the Cooperative was to obtain spare parts for the vehicles of members of the Cooperative/Union. The supply of spare parts was controlled by the government, and due to government restraint on imports there were continuing problems with regard to the availability of parts. Dissatisfaction of members with that state of affairs was ventilated at a meeting organized by the appellant and attended by approximately 3,000 members. The appellant addressed the meeting and proposed that members protest outside the Iranian parliament to force the relevant Minister to discuss the matter with them. The proposal was adopted by the meeting. The next day the appellant was arrested at his home by security forces and interrogated. The other directors of the Cooperative were also arrested. The appellant was held in custody for forty days and informed that he had committed crimes against the government and religion of Iran. His family was not informed of his place of detention until two weeks after his arrest. His employment with the Union and his position with the Cooperative, together with those of the other directors, were terminated.

7                     He was released on bail for a period of twenty days to effect a transfer of his position at the Cooperative, to train replacements, and to do a stocktake. The appellant provided security for that bail by signing transfers to the title of his home and to the home of his late father.

8                     On the day after completing the “handover” the appellant left Iran. His wife had made arrangements for him to obtain an airline ticket and foreign currency. His departure from Iran was facilitated by the payment of bribes.

9                     When the review hearing was conducted by the Tribunal on 29 May 1998, the Tribunal informed the appellant that the Australian Embassy in Teheran had contacted the Cooperative/Union and discussed the appellant with the “Director of the Union of Taxi-Van Cooperative”. That person had informed an Australian official that the appellant had been on the Management Committee of the Union between 1984 and 1988 but had had no connection with the Union thereafter. When that material was put to the appellant by the Tribunal the appellant informed the Tribunal that the information provided was deliberately false and re-stated that he was a director and committee member between 1994 and 1997.

10                  At the hearing the appellant was represented by a solicitor. Two days after the hearing the appellant’s solicitor forwarded to the Tribunal a card said to identify the appellant as a member of the Management Committee of the Cooperative/Union. A passport-size photograph of the appellant, over-marked by an ink-stamp impression of the seal of the Cooperative/Union, was part of the card. Photocopies of other documents, untranslated but said to relate to the appellant holding, and being removed from, office in the Cooperative/Union, were sent with the card. Some days later the appellants forwarded translations of the documents. According to the translation of the contents of the card, part of the card read:

“This card is valid for one year after the date of issuance.

Signed up by: The Director of the Taxi-Van Owners Union”

11                  The photocopy documents presented by the appellant, as translated, purported to be a copy of a document under the seal of the Union dated 27 September 1994 confirming his appointment, with others, to the Management Committee; a copy of a document headed “The Islamic Republic of Iran Ministry of commerce”signed by the Director General of the Regional Co‑operative dated 14 September 1993 “(or 94 not legible)” instructing the applicant on his initial duties as a member of the Management Committee of the Union; a copy of a document headed “The Islamic Republic of Iran Ministry of commerce” signed by the Director General of the Regional Co-operative dated 21 November 1997 advising the applicant that by order of the Islamic Revolutionary Court (Trade Union Section) he was thereby dismissed from membership of the Management Committee of the Union and instructed to hand over all paperwork, documents, assets and funds of the Cooperative to the newly appointed Management Committee; a copy document headed “The Islamic Republic of Iran, Islamic Revolutionary Court” dated 7 November 1997 on which the name of the appellant was included with approximately seventy other names.

12                  After receiving the card the Tribunal instructed a forensic examiner to examine the card to provide an opinion on the age of the document and whether it had been altered. The examiner reported that she was unable to provide an opinion on the age of the document. The report stated that it was most probable that the same ink had been used for overwriting the third and fourth characters of a typewritten date; for overwriting all but the first and second characters of a handwritten date; for the writing of the handwritten date; and for the signature on the card. The report did not specify that the ink-overwriting of the typewritten date had altered that date but did set out, in Persian script, the characters of the typewritten date as revealed under infra-red radiation examination.

13                  The Tribunal sent the report to the appellant’s solicitor, with a letter which stated as follows:

“You will note that the document examiner is of the opinion that the dates on the card have been altered. It appears that the dates have been changed from a date in the 1360s (Persian calendar) to a date in 1373 (Persian calendar).”

14                  The appellant’s solicitor responded by letter that the typewritten date, 1360, had been inserted in error by the typist and altered to 1373 by the Chairman of the Cooperative/Union when he signed the card. It was said that 1360 in the Persian calendar was AD 1981, and 1373 was AD 1994. The translation of the card provided to the Tribunal by the appellant, recorded the typewritten date, as overwritten, and the handwritten date as “18.10.95”. No reason was offered by the appellant why the typist mistakenly inserted the date of issue of the card as 18 October 1981, instead of 18 October 1994. The letter stated that the appellant finished his military service in 1981. The appellant had asserted in his application for a visa that he had rendered compulsory military service between 1980 and 1981 and had attended Teheran University between 1984 and 1988.

15                  In the reasons for its decision the Tribunal stated that –

“The report indicates that the original typewritten date can be read in the Arabic numerals that translate to 1361 (1982 in the Gregorian calendar).”

16                  The report did not provide a translation of the Persian date and the Tribunal must have obtained that information from another source. His Honour noted that there appeared to be some confusion between “1360” and “1361” and “1994” and “1995” but it was submitted that anything turned on it.

17                  The reasons for decision of the Tribunal accepted that the appellant’s explanation for the alteration of the typewritten date was consistent with the document examiner’s report but stated that the appellant did not explain why the handwritten date beneath the signature had been “altered”. The report of the examiner did not state that an alteration had been effected by the overwriting of characters in the handwritten date. It was not put to the appellant that the handwritten date was other than the date as overwritten.

18                  The Tribunal, in its reasons, did not accept that the card was evidence that the appellant had been appointed to the Management Committee of the Union in 1994. It did accept that the appellant was “working for the Union in the 1980s”. The Tribunal stated that the report of the document examiner “corroborates” information provided to the Australian Embassy in Teheran that the appellant was “associated with the Taxi-Van Union in the 1980s”.

19                  It may be assumed that when the Tribunal states that the document examiner’s report “corroborates” the evidence described, the Tribunal has determined that the card was issued to the appellant by the Union on the date as typewritten on the card.

20                  That process of reasoning was not open on the evidence. First, the report of the document examiner stated that the ink used for the handwriting on the card was consistent wherever used on the card. That is, forensic testing had shown that the ink used to overwrite and alter the typewritten date; to write and overwrite the handwritten date; and to write the signature of the issuing officer was probably the one ink. If it was accepted that the card was issued by the Cooperative/Union to the appellant, attesting to his position on the Management Committee of the Union, the alteration to the typewritten date in the ink used for the signature required to be endorsed upon issue of the card, denies that the card was issued on the unaltered typewritten date as typed on the card. Second, in no evidence before the Tribunal was it suggested that the appellant was a member of the Management Committee of the Union in 1981 or 1982.

21                  It is apparent that the Tribunal was satisfied that the card had been issued by the Cooperative/Union as official identification of the appellant as a member of the Management Committee. The Tribunal did not find that the card originated from, or was created by, the appellant for a fraudulent purpose. It found that the appellant had forged an alteration to a genuine card to enable the appellant to use the card for such a purpose.

22                  A major hurdle stood in the way of that finding once it had been found that the card was genuine in origin. If, as accepted by the Tribunal, the card was issued by the Cooperative/Union, the date of issue and signature by “The Director of the Taxi-Van Owners’ Union” were part of the requirements for the issue of a genuine card. If, as suggested in the examiner’s report, the same ink was used for the signature, the handwritten date, the overwriting of part of the handwritten date, and the overwriting of the two characters in the typewritten date, the only conclusion available was that the alteration of the typewritten date of issue was an act authorized by the Cooperative/Union at the time of issue of the card and that the document produced by the appellant was the document of the Cooperative/Union.

23                  Furthermore, the Tribunal elided the material before it when it said that it accepted that the appellant worked for the Union “in the 1980s”. At the hearing the Tribunal had put to the appellant that the Director of the Union of the Taxi-Van Cooperative” had given “very specific information” that the appellant was a member of the Management Committee for a usual four year term between 1984 and 1988. The Tribunal asked the appellant that if the information provided by that person was false, why was it specific and why did that person not make a false statement in general terms instead, for example, denying that the appellant had any involvement with the Union at any time or by refusing to make any disclosure at all. If the hallmark of that information was that it was “very specific”, it could not be said that the typewritten date on the card “corroborates” that information.

24                  Having determined under the foregoing reasoning that the card had been issued by the Union either in 1981 or 1982, and not in 1994 or 1995 as contended by the appellant, the Tribunal determined that the card had been altered by the appellant for use in his claim to refugee status. Further, the Tribunal found that all other documents provided by him were not genuine and had been manufactured to support his claim. There was no separate assessment of the additional documents and they were found not to be genuine only by reason of the finding made in respect of the card.

25                  Those findings of the Tribunal were most serious. They expressed a conclusion that the appellant had engaged in an elaborate scheme of deception. At no time was it put to the appellant that he had forged the card by altering the contents thereof, nor was it put to the appellant that the photocopy documents he had supplied to support his application had been “manufactured” for that purpose.

26                  Under the Act as it now stands, but not as it stood at the time of the Tribunal’s decision, it is provided expressly, in s 425(1), that the Tribunal must invite an applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The card and photocopy documents went to the crucial issue whether the appellant’s claim of appointment to membership of the Management Committee of the Union in 1994 and dismissal from the position in November 1997 by court order, was wholly fraudulent. A contention that that card was a forgery and that the photocopy documents were not genuine and had been manufactured would be an issue arising in relation to the decision under review in respect of which, under s 425(1) as it now is, the appellant must be invited to appear before the Tribunal to give evidence and present arguments.

27                  The Migration Legislation Amendment Act (No 1) 1998 (Cth) amended Pt 7 Div 3 of the Act, dealing with the exercise of the Tribunal’s powers, by repealing ss 424 and 425 of the Act and inserting six new sections - ss 424, 424A, 424B, 424C, 425, 425A. They came into effect on 1 June 1999. The explanatory memorandum circulated by the Minister in respect of the relevant amendments indicated that the amendments provided a code of procedure for the Tribunal to follow in conducting reviews of decisions. The new sections, read together, may be regarded as a statutory expression of a procedure of review that is fair and just, part of the standard of review s 420 of the Act in Pt 7 Div 3 requires the Tribunal to provide. It may be said that by inserting the new sections parliament has defined the review procedure and that failure to observe the prescribed procedure would provide a ground for review of a decision of the Tribunal under s 476(1)(a) of the Act.

28                  Section 425, as it now stands, is a statutory expression of an obligation the common law may have imposed on the Tribunal under the concept of procedural fairness. Although s 476(2)(a) of the Act states that “a breach of the rules of natural justice” is not a ground for review of a decision of the Tribunal, that provision expresses a limitation on the right of review, not a limitation upon the obligation imposed on the Tribunal by s 420 of the Act, which, in its terms, does not exclude the requirement that the Tribunal conduct a review by fair procedures. The principles of the review process defined in s 420 may be described as “general exhortatory provisions” which do not amount to an enforceable requirement that the Tribunal observe a procedure in connection with the making of a particular decision (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 per Gummow J at 600 [108]) but they remain general instructions which guide the Tribunal in the performance of its task.

29                  What constitutes a mechanism of review that is fair, just, economical, informal and quick, and consistent with substantial justice and the merits of a case, will depend on the circumstances of each case and, in particular, upon due consideration of all of those criteria. The exclusion in s 476(2)(a) of a ground of review for breach of the rules of natural justice is part of the context in which the nature of the obligation imposed on the Tribunal by s 420 is construed, but, of course, the object of s 476(2)(a) is to define the jurisdiction conferred on this Court under Pt 8 of the Act, not to instruct the Tribunal how to perform the duties described in Pt 7 of the Act. (See:  Eshetu per Gleeson CJ and McHugh J at 588 – 599 [49 – 51].)

30                  That no means of enforcement is provided by the Act if the Tribunal fails to adhere to the requirements of s 420 of the Act in the manner in which a review is conducted, does not require a conclusion that the Tribunal has no duty imposed upon it by s 420 of the Act. The new provisions inserted in Pt 7, referred to above, confirm that construction of the Act.

31                  Under ss 414 and 415 of the Act, the duty of the Tribunal to review a decision is to be performed by exercising all the powers and discretions conferred on the Minister. The Tribunal “stands in the shoes” of the Minister and does again what was done by the Minister in order to arrive at the appropriate decision. A decision which varies, or sets aside and substitutes a new decision for, a decision of the Minister is taken to be a decision of the Minister. No doubt a decision which affirms the decision of the Minister remains a decision of the Minister. In respect of a decision that relates to a “prescribed matter”, the Tribunal may remit the matter for reconsideration by the Minister in accordance with such directions as are permitted by the Regulations. Under reg 4.33(1) of the Migration Regulations 1994, an application for a protection visa (Class AZ) is a prescribed matter. Regulation 4.33(2) provides that the Tribunal is permitted to remit such a matter for reconsideration with the direction that the applicant must be taken to have satisfied the criteria for the visa that are specified in the direction. (See:  Minister for Immigration and  Multicultural Affairs v Amani [1999] FCA 1040.)

32                  It may be thought from the foregoing, without there being express instruction to that effect in the Act before the Act was amended and despite the duty not being enforceable, that the Tribunal, in making its decision, was to provide the same level of procedural fairness as required of the Minister under s 57 of the Act, a provision intended to ensure that an applicant understands, and has a chance to deal with, the case against him or her. (See:  Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 per Wilcox and Madgwick JJ at [18]; cf Minister for Immigration and Multicultural Affairs v Cho [1999] FCA 946.) The obligation imposed on the Minister by s 57 is now directed to the Tribunal expressly in s 424A.

33                  When the appellant arrived in Australia the documents produced by him, and retained by the Minister’s officers, included the card. The application for a protection visa, completed by the appellant as a person in detention on 18 January 1998, referred to the card as a document that was “with authorities at airport”. At some time, thereafter, the card was returned to the appellant and retained with property of the appellant held by the Property Section of the detention centre.

34                  On the hearing of the appeal, counsel for the Minister conceded that the card had been produced to the Minister by the appellant, at least by 5 February 1998, but made no concession as to the contents of the document at the time it was produced. The material in the appeal papers is only consistent with a conclusion that the card was produced to the Minister on 1 January 1998 and that when produced to the Tribunal it was in the same form as it was when produced to the Minister.

35                  Counsel for the Minister conceded that copies of the photocopy documents produced to the Tribunal had been produced to the Minister in January 1998. The application for a visa dated 18 January 1998 identified those documents as further documents to be provided to support the application. It appears that at all material times the photocopy documents, and a photocopy of the card, were held on the file maintained by the Minister’s department, albeit untranslated, and were transmitted to the Tribunal as part of the material on which the review was to be conducted.

36                  After the Tribunal hearing on 29 May 1998, when the appellant had been first informed that his connection with the Cooperative/Union was in issue, the solicitors for the appellant wrote to the Tribunal on 31 May 1998 advising that the appellant had a card and photocopy documents that would support his case and that the documents would be forwarded when written translations of the documents had been completed. The card and photocopy documents, with translations, were forwarded to the Tribunal on 10 June 1998.

37                  At the appeal, the appellant sought leave to adduce further evidence under s 27 of the Federal Court of Australia Act 1976 (Cth) and O 52 r 36 of the Federal Court Rules. The additional evidence sought to be relied upon was in three affidavits. It was said that the additional evidence established that a fact relied on by the Tribunal did not exist, providing support for a ground of appeal under ss 476(1)(g) and 476(4)(b) of the Act, namely, that there was no evidence to justify the making of the decision by the Tribunal in that the Tribunal had based its decision on the existence of a particular fact that did not exist.

38                  The false assumption on which the decision of the Tribunal was said to have been based was that the documents produced to the Tribunal by the appellant on 10 June 1998 were not disclosed by him until after the Tribunal hearing. The further material sought to be adduced by the appellant on the appeal was said to show that the card, and photocopy documents, had been produced by the appellant to officers of the Minister’s department before the date of the hearing conducted by the Tribunal, 29 May 1998. As a result of the concessions made by counsel for the Minister, discussed earlier in these reasons, it is now not denied that the appellant produced the card, and photocopy documents, soon after his arrival in Australia. It is unnecessary, therefore, to consider whether the well-established principles for the receipt of additional evidence on appeal have been satisfied. (See: Chopra v Minister for Immigration and Multicultural Affairs [1999] FCA 480.)

39                  Whether, as contended by the appellant, the Tribunal took as a fact that the appellant had not presented the documents until the Tribunal had conducted its hearing, is not so obvious. Certainly, in the hearing before his Honour, counsel for the Minister submitted that, on a proper reading of the Tribunal’s reasons, the Tribunal had accepted as a fact that the documents first appeared when they were produced to the Tribunal. Counsel went further and stated to his Honour that in respect of the card the appellant had “whipped it out after the Tribunal hearing” and that “everything suggests that (the documents) turned up after the hearing”. Counsel went on to submit that it was open to the Tribunal to doubt the authenticity of the documents “given the time and circumstances in which they appeared”, and how the appellant “suddenly came up with” the documents after the hearing. Having regard to the fact that it would have been obvious upon perusal of the relevant material that the appellant had not acted as described, it was unfortunate, to say the least, that counsel for the Minister made such a submission to his Honour. The thrust of the submission was accepted by his Honour when his Honour stated that some reinforcement for the Tribunal’s conclusion that the photocopy documents produced by the appellant were not genuine “was available in the circumstances in which the documents were first put forward”.

40                  However, although his Honour may have been misled by the submission put to him, it does not follow that the Tribunal accepted the fact to be that the appellant first produced the documents after the Tribunal hearing or, if it did, that it based its decision on the existence of that fact.

41                  The reasons give no sign of any awareness by the Tribunal that the card and copies of the documents had been produced at an early date and the copies kept on the file. It should be concluded, having regard to the reasons as a whole, that the Tribunal proceeded under the misapprehension that the documents had not been revealed by the appellant until after he had appeared before the Tribunal. But there is nothing in the reasons to indicate that the Tribunal had other than a neutral view as to the consequence of that “fact”. Perhaps the Tribunal’s opinion of the appellant’s credit may have been coloured by that false assumption but its decision that the appellant did not fear persecution was based on a finding that he had not been arrested as claimed, that he was not a member of the Management Committee of the Cooperative/Union in November 1997 as claimed, and that the card relied upon by the appellant to support a contrary finding had been altered by the appellant to “bolster” his claim.

42                  Nothing appears in the Tribunal’s reasons to suggest that it assumed that the “alteration” to the card was made by the appellant after the Tribunal hearing and it was immaterial to the Tribunal’s finding to determine that the alteration had been so made. In making its finding the Tribunal may have considered that the production of the card was a desperate act by the appellant after the hearing, but it did not say so, and its rejection of the card was based on a positive finding of forgery, discussed earlier in these reasons, and was not based on there being sufficient cause to doubt the authenticity of the card by reason of the circumstances of its production.

43                  It follows that this ground of the appeal cannot succeed.

44                  The appellant submitted that the Tribunal erred in “denying the appellant an opportunity to deal with the allegation that (the photocopy) documents were forgeries” and in failing to make further enquiries in respect of the authenticity of the card and in respect of particular details of the appellant’s claims. In so far as the submission relied upon an argument that the Tribunal had failed to act according to substantial justice, as required by s 420 of the Act, and that such a breach provided a ground of review under s 476(1)(a) for failure to observe procedures required by the Act to be observed, the submission must be rejected for the reasons set out by the High Court in Eshetu, delivered after this appeal was heard.

45                  The real question raised by the ground of appeal that the Tribunal failed to observe procedures required by the Act to be observed by the Tribunal, is whether the reasons provided by the Tribunal set out findings on material questions of fact that were not supported by logical grounds or by reference to probative material, and fail to comply with the procedures required to be observed by the Tribunal under s 430 of the Act. (See:  Eshetu per Gummow J at 611 [145].)

46                  Section 476(1)(a) of the Act provides a right of review where “procedures” that were required by the Act, or the Regulations, to be observed in connection with the making of a decision were not observed. The use of the plural “procedures” does not indicate an intention to limit the scope of the ground for review.

47                  The basic “procedures” to be observed under the Act, by a Tribunal deciding whether a visa is to be granted, are those provided under ss 65 and 430 of the Act. Under s 65 the Tribunal, as decision-maker, must consider the application and if satisfied that the necessary criteria have been satisfied, it is to grant the visa. If it is not so satisfied, it must refuse to grant the visa. Under s 430, on making a decision the Tribunal must prepare a written statement that sets out the decision, the reasons for the decision, the findings on any material questions of fact, and refers to the evidence, or material, on which the findings were based.

48                  The function of the Minister, and of the Tribunal exercising the Minister’s powers, is to determine, in the manner of an adjudication, whether criteria specified by the Act have been satisfied. The standard required by the Act for an affirmative determination is satisfaction that an entitlement under the Act has been demonstrated. An assessment is made of the relevant material to determine if it is sufficient to show that the necessary criteria have been met. (Eshetu per Gummow J at 604 [119].) What is determined is whether there is an entitlement to a visa under the Act, not whether a visa should be granted or refused in the exercise of a discretion. This function may be contrasted with the discretion vested in the Minister by s 417 of the Act, which permits the Minister to substitute for a decision of the Tribunal a decision more favourable to the applicant if the Minister thinks that it is in the public interest to do so.

49                  It follows that a determination by the Tribunal of the entitlement to a visa does not involve a discretion to accept or reject material at will. The obligation to provide reasons describing how that determination has been carried out, is a prescription that the process be rational, and demonstrably so. It may be contrasted with a decision made in the exercise of a discretion. The latter may not depend upon, nor oblige the exposure of, a reasoned process. At law, the exercise of discretion may be outside the terms of the discretionary power conferred if it is shown that the use of power has produced a decision that is wholly unreasonable to the point that it is an absurd or perverse decision. That requires something more than absence of a rational process, which would be only an element of the unreasonableness of a decision. A discretionary decision, made arbitrarily, may not be absurd or perverse and, thus, wholly unreasonable. (See:  Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-Stock Corporation (1990) 96 ALR 153 per Gummow J at 168.) However, an arbitrary decision cannot be a reasoned decision.

“Although the terms irrationality and unreasonableness are these days often used interchangeably, irrationality is only one facet of unreasonableness. A decision is irrational in the strict sense of that term if it is unreasoned; if it is lacking ostensible logic or comprehensible justification. Instances of irrational decisions include those made in an arbitrary fashion, perhaps ‘by spinning a coin or consulting an astrologer’. … ‘Absurd’ or ‘perverse’ decisions may be presumed to have been decided in that fashion, as may decisions where the given reasons are simply unintelligible. Less extreme examples of the irrational decision include those in which there is an absence of logical connection between the evidence and the ostensible reasons for the decision, where the reasons display no adequate justification for the decision, or where there is absence of evidence in support of the decision.

…

When reasons are required, either by statute or by the growing common law requirements, or where they are provided, even though not strictly required, those reasons must be both ‘adequate and intelligible’. They must therefore both rationally relate to the evidence in the case, … and be comprehensible in themselves. …”

                                                                (de Smith, Woolf & Jowell, Judicial Review of Administrative Action (5^th Ed), (London: Sweet & Maxwell, 1995), pars 13-019 - 13-020.)

50                  The obligation to explain how a decision has been made, imposed on the Tribunal by s 430, is the statutory safeguard against an irrational decision. (See:  de Smith, Woolf & Jowell, pars 13-019 – 13-022; M Aronson, B Dyer, Judicial Review of Administrative Action (Sydney: LBC Information Services, 1996), at 204 – 205.) It follows from the obligation to provide reasons in the form prescribed that it is a requirement of the Act that the procedure by which a decision is made be a rational procedure and not arbitrary or capricious. (See:  R v Connell; Ex parte The Hetton Bellbird Collieries Limited (No 2) (1944) 69 CLR 407 per Latham CJ at 432; Buck v Bavone (1976) 135 CLR 110 per Gibbs J at 188 – 119.)

51                  The purpose of s 430 is to require the Tribunal to show how a decision has been made, and, if an error recognised by the Act, has occurred in the decision-making process, it may be expected that the error will be revealed in the reasons. Section 430 provides the substance to the right provided in s 476, to obtain judicial review of a decision.

52                  The reasons required by s 430 are not directed to demonstrating the reasonableness of a finding of fact but to displaying the method used to reach the conclusion. When disagreement with conclusions on issues of fact is expressed by descriptions of the reasoning process which led to those conclusions as “unreasonable” or “illogical”, those words are to be taken to be used to emphasise the degree of disagreement, not to assert a legal consequence. (Eshetu per Gleeson CJ and McHugh J at 587 [40].) “Illogical”, when so used, would have a vernacular meaning, distinguishable from the proper meaning of the word, namely that which is devoid of, or contrary to, logic, or ignorant or negligent of, and not in conformity with, the laws of correct reasoning. It is that meaning which has consequences in administrative law when findings, or inferences, of fact are required to be supported by logical grounds. (See:  Eshetu per Gummow J at 611 [145].)

53                  Similarly, when it is said that a Tribunal does not err in law by making a “wrong” finding of fact (Waterford v The Commonwealth of Australia (1987) 163 CLR 54 per Brennan J at 77) the principle thus expressed is that a conclusion of fact, however unlikely, cannot be a “wrong” conclusion if there is some material able to support it. However, the principle does not extend to a conclusion made in the absence of probative material (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 359 and Deane J at 366) or a conclusion based upon the existence of a fact that does not exist.

54                  Section 430 of the Act must be construed according to the principle underlying it, namely, that there is a requirement that findings of fact be based upon some probative material or logical grounds. (Eshetu per Gummow J at 611 [145].) Failure to observe procedures required by the Act to be observed will not be made out by showing that a decision-maker has made findings that are barely conceivable on the material before the Tribunal. (See: Puhlhofer v Hillingdon London Borough Council [1986] AC 484 at 518.) However, it will be shown, inter alia, by the failure of the Tribunal to observe the requirement of the Act that the decision be made by a rational procedure. There must be a process of reasoning that is sufficient to support the determination, being reasoning that does not display a logical non sequitur. (See:  Dornan v Riordan (1990) 24 FCR 564; T Thawley, “An Adequate Statement of Reasons for an Administrative Decision”, Australian Journal of Administrative Law3(1996) 189 at 196 – 197; W Wade, Administrative Law (6^th Ed), (Oxford: Clarendon Press, 1988), at 251.) The lack of a rational connection between the reasons provided and the decision of the Tribunal will expose the failure of the Tribunal to observe procedures required by the Act to be observed.

55                  Whether such an inadequacy in the reasons provided by the Tribunal would, in itself, be an error of law is unnecessary to consider. (See:  Dornan at 573; Curtis v London Rent Assessment Committee [1997] 4 All ER 842 at 868; P Bayne, The Inadequacy of Reasons as an Error of Law (1992) 66 ALJ 302 at 306; Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 at 419 – 420; P P Craig, Administrative Law(3^rd Ed), (London: Sweet & Maxwell, 1994) at 375 – 383; Aronson, Dyer, 290 – 291.)

56                  Judicial review under the Act for failure to observe procedures required by the Act to be observed, is not to be confused with grounds for judicial review of administrative decisions, in respect of decision-making procedures, provided under the general law, for example, failure to observe rules of natural justice, failure to take into account relevant considerations, or the taking into account of irrelevant considerations. (See: Friends of Hinchinbrook Society Inc v Minister for Environment (No 2) (1997) 69 FCR 28 at 59 – 62.)

57                  There may be occasions when the circumstances which attract the operation of s 476(1)(a) may also raise other grounds for review, for example, s 476(1)(d) (improper exercise of the power to decide), or s 476(1)(g) (no evidence to justify the decision), but the ground provided by s 476(1)(a) is not dependent upon the existence of any other ground.

58                  The reasoning of the Tribunal in this matter, which concluded that the appellant was not entitled to the grant of a visa, was underpinned by a finding that the card produced by the appellant was a card issued by the Cooperative/Union, the date of issue of the card having been altered by the appellant to provide a date for the holding of office in the Cooperative/Union consistent with the appellant’s claims in his application for the visa. By reason of the finding of forgery it was further found that the appellant’s claim that he was dismissed from office and arrested was untrue and that he held no fear of persecution if returned to Iran.

59                  The logical flaw in that reasoning was that the scientific examination of the card, relied upon by the Tribunal, showed that the signature of the issuing officer, part of the requirements for the issue of a card, and all other ink endorsements on the card were made in the same ink. If the card was accepted as a card issued by the Cooperative/Union, the contents of the card as issued were the contents as produced to the Tribunal. It was not open to the Tribunal to find that the appellant had forged the card produced to the Tribunal and to make other findings based on that finding.

60                  The reasons provided by the Tribunal under s 430 of the Act revealed that a principal conclusion of the Tribunal was made without logical grounds and that that finding affected the ultimate decision that the appellant was not a person to whom Australia has protection obligations under the Convention. Therefore, the reasons were inadequate for the purpose of the Act. Whether they may be said to be inadequate for the purpose of s 430 by failing to refer to the evidence on which the finding of forgery was based is unnecessary to consider. (See:  Minister for Immigration and Multicultural Affairs  v Hughes [1999] FCA 325.)

61                  Accordingly, under s 476(1)(a), procedures required by the Act to be observed in connection with the making of the decision were not observed and an order should be made that the decision should be set aside and the matter returned to the Tribunal for reconsideration according to law.

Associate:

Dated:              12 August 1999

REASONS FOR JUDGMENT

MOORE & KATZ JJ

62                  We have had the benefit of reading the reasons for judgment of Lee J in draft form and we gratefully adopt his Honour’s account of the events leading to the decision of the Tribunal and to the judgment of the primary Judge.

63                  We agree with Lee J that the Tribunal’s decision was not based on the existence of the particular fact alleged by the appellant.  The particular fact alleged was that it was only after the appellant had given evidence before the Tribunal that he first produced the original identity card and other copy documents on which he relied in support of his claim for refugee status.

64                  The argument that the Tribunal's decision had been based on the existence of that particular fact had not been put to the primary Judge and was not raised in the original notice of appeal.  Leave to raise the point was sought on the hearing of the appeal. If the appellant’s proposed ground of review, which was based on pars 476(1)(g) and 476(4)(b) of the Act, had appeared to us to be arguable, then it would have been necessary for us to consider whether, given that he had expressly submitted to the primary Judge that the Tribunal’s decision had not been based on the existence of that particular fact, he should be granted leave to raise on appeal for the first time a ground of review the success of which would depend upon acceptance by this Court of the contrary of that which he had expressly submitted to the primary Judge: compare Tyson v Brisbane Market Freight Brokers Pty Ltd (1994) 120 ALR 1 at 11 (McHugh J).  However the ground was not arguable and, in the present circumstances, the simplest course is to grant leave to argue the ground, but reject the argument because the decision was not based on the alleged particular fact.

65                  We also agree with Lee J that the appellant’s two grounds of appeal based upon the combined operation of pars 476(1)(a) and 420(2)(b) of the Act must fail, having regard to the judgment of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577.

66                  However, we do not agree that the appellant has made out a case based on the combined operation of par 476(1)(a) and subs 430(1) of the Act.  There was no express reliance in this appeal on subs 430(1), though it must be accepted that the appellant’s case was formulated and argued before the High Court’s judgment in Eshetu (supra).  We will accept, for present purposes, that the original formulation of the case can now be treated as comprehending reliance on subs 430(1).  For reasons which will be apparent shortly, it is unnecessary to consider the extent to which subs 430(1) can be relied on to impugn a decision that is illogical or irrational in some material respect.  It is unnecessary because the reasoning of the Tribunal is not, in our opinion, tainted by a lack of logic of the type adverted to by Lee J.

67                  The Tribunal had before it the original identity card produced by the appellant and four documents which were probative material concerning the card.

68                  The first document was a translation of the card, which was a typed document in the following terms:

THE ISLAMIC REPUBLIC OF IRAN

With the Emblem

Identification Card

Under the [seal] of the Taxi-Van Owners Union.

First name & Surname:  [A]

Designation:  Member of the Management Committee of the Union & Company.

ID.No: 14+1

Date of issue: 18/10/95 (day is not legible)

This card is valid for one year after the date of issuance.

Signed up by:  The Director of the Taxi-Van Owners Union

Dated:  18/10/95

This card issued, according to the Note: 3 from the Article 45, of the Trade Union Regulation, clause 4 & 12 from the Sub-Article 25, from the regulation of the Taxi-Van Owners Union.    

The typed translation has been altered by hand on the line commencing “Date of issue”.  The date “18/10/95” is the typewritten date as altered by hand and next to the typed entry “(day is not legible)” is a handwritten notation “after sighting the original, corrected.”

69                  The second document was the report of a document examiner dated 24 June 1998 which said:

Iranian Identity Card

As requested an Iranian identity card which bears a photograph, printed entries and wet stamp impressions has been examined.

During the course of my examination the following observations were made:

a.         The triangular crest and pre-printed text on both sides of the document have been produced [by] the letterpress/flexography process.

b.         There are staple holes through the photograph that continue through to the rear side of the document.  Under microscopic examination, the hole through the photograph tapers down and into the hole in the document.

c.         The printed text has been produced by a typewriter using a fabric ribbon.

d.         There are handwritten overwritings over several typewritten characters.  These overwritings appear in the area of the 3^rd and 4^th characters in the 3^rd line of typewritten text.

e.         Under infra red irradiation and filtration, the ink used for the overwritings described in observation ‘d’ is consistent with the ink used for the signature and date.  The original typewritten date can be read as [several characters, in Arabic script, are set out].  Please note that the deciphering and insertion of the characters in this report was made with the assistance of an Arabic speaking officer to ensure accuracy.  

f.          With the exception of the first two characters in the date beneath the signature, the remainder have been overwritten. Under infra red irradiation and filtration, the ink used for these overwritings is consistent with the ink used for the original entries.

As a result of my examination I am of the opinion that:

A.        I am unable to give an opinion concerning the authenticity of the document or its issue.

B.         The overwritings described at observation ‘e’ were most probably made using the ink used for the signature and date.

C.        I cannot offer any opinion concerning the age of the document.  The only tests that can be conducted to determine age are destructive and are not practised in this unit.

For your information.

70                  The third and fourth documents were a letter dated 30 June 1998 written by the Deputy Registrar of the Tribunal to the solicitor acting for the appellant, which letter said:

You will note that the document examiner is of the opinion that the dates on the card have been altered.  It appears that the dates have been changed from a date in the 1360s (Persian calendar) to a date in 1373 (Persian calendar).

and a letter dated 7 July 1998 from the appellant’s solicitors responding to the letter of 30 June 1998, together with an annexed statement of the appellant.  The solicitor for the appellant wrote:

… The Applicant is in agreement with the opinion of the Document Examiner, that the dates on the card have been altered from 1360s (Persian calendar) to a date in 1373 (Persian calendar). 

The Applicant instructs us, that the typist made a mistake and confused the dates.  She typed the date 1360, which equates to 1981, which is when the Applicant finished military service. 

The Chairman gave the Applicant the identity card and said that the typist had made a mistake and that he, the Chairman, had corrected it.  The Chairman changed the date to 1373 (Persian calendar which equates to 1994) and confirmed it with his full name, date, signature and stamped the photograph and ID card.

The statement of the appellant was in handwriting and was to similar effect to the passage from the solicitor’s letter just quoted, though the statement refers only to the alteration of the typewritten date.

71                  Having regard to this material, the Tribunal said:

The report indicates that the original typewritten date can be read in the Arabic numerals that translate to 1361 (1982 in the Gregorian calendar)…

… In relation to the documents provided by Mr (A) in support of his claim, I accept the DEU’s opinion that the dates on Mr (A)’s identification card have been altered.  I note the DEU’s opinion that the ink used for the alterations is consistent with the ink used for the handwritten date and signature.  Mr (A)’s explanation for the alteration of the typewritten date is consistent with the DEU’s finding in this regard.  However, I do not consider that Mr (A)’s explanation for the alterations on the card explains why the handwritten date beneath the signature, and not only the typewritten date, has been altered. 

Accordingly, I do not accept the card as evidence that Mr (A) was appointed to the Management Committee of the Union in 1994.  I am of the view that Mr (A) altered the dates on the identification card in order to bolster his claim for refugee status.  I consider that the DEU report corroborates the evidence referred to above that Mr (A) was associated with the Taxi-Van Union in the 1980s, rather than in the 1990s.  …

72                  It can be seen that the report of the document examiner makes several references to overwriting (in paras (d), (e), (f) and (B)).  The opinion is expressed by the examiner that the typewritten date has been overwritten, as has the handwritten date at the foot of the document.  The opinion is also expressed that the ink used for the overwriting of the typewritten date is likely to be the same as the ink used for the original signature and date at the foot of the document, as well as for the overwriting of all but the first two characters in that handwritten date.   From sources which are not apparent from the material before us, the Tribunal believed the dates on the card (the typewritten date together with the handwritten date at the foot of the card) had been changed from a date in the 1360s (Persian calendar) to a date in 1373 (Persian calendar).  That contention was accepted by the solicitor for the appellant and by the appellant himself, at least as it related to the typewritten date and the overwriting over that date.

73                  It can be seen from the reasons of the Tribunal that it treated all references in the examiner’s report to “overwriting” as references to alterations.  That is, it proceeded on the basis that the examiner’s opinion could be taken to be that both the typewritten date and the handwritten date had been altered by overwriting.  The expression “overwriting” may only have been a reference to the repetition of characters and/or figures by writing superimposed on those characters and figures.  However it may, in the circumstances, also be treated as, additionally, a reference to alteration  That is, the superimposition of different characters and/or figures.  Given that in relation at least to the typewritten date, it was accepted by the appellant that the date had been altered (though described by the examiner only as overwriting), the Tribunal was not disentitled from proceeding on the basis that the same was true of the reference to overwriting in relation to the handwritten date.  Putting it slightly differently, it cannot be said that the conclusion of the Tribunal that both dates had been altered was illogical.

74                  It is true that, in its reasons, the Tribunal said that the examiner’s report indicated that the original typewritten date can be read in the Arabic numerals that translate to 1361, which is 1982 in the Gregorian calendar.  On one view this is an assertion that the report contains a translated date, which it plainly does not.  The other view, taking a benevolent approach to the Tribunal’s reasons, is that it was referring to a translation which it had obtained of the Arabic script set out in the examiner’s report and that translation was “1361”.  If so, that part of the decision is consistent with the statement in the letter of 30 June 1998 from the Deputy Registrar of the Tribunal that the typewritten date was changed from a date in the 1360s.  That is, the original date was a date in the 1360s.  While the translated original typewritten date is said by the Tribunal to be 1360 and by the applicant to be 1361, that difference is not a material one.  As just discussed, the more significant issue is that it was agreed the typewritten date had been altered, in the context of the examiner’s speaking only of “overwriting”. 

75                  It must also be remembered that the Tribunal had before it information from another source, namely, the information garnered by the Australian Embassy in Iran from the Taxi-Drivers Cooperative, that the appellant had not been a member of the committee in 1994, the date which the appellant claimed the card bore. Moreover, the premise of the appellant is that if the alteration to the typewritten date is in the same hand as the handwritten date and what may be a signature at the foot of the card, then the alteration of the typewritten date was made when the card was signed and dated at the time of its issue.  However, there was no material before the Tribunal which compelled a conclusion that the card had had to be signed and dated when issued.  Thus the possibility exists that an alteration was made to the typewritten date well after the card was issued and that, at the same time as that alteration was made, a signature and handwritten date were added to the card. In expressing this view, we are in effect adopting the same approach to the matter as did the primary Judge, who said, in light of the information obtained by the embassy, “It was open to [the] RRT to conclude that whilst the person who signed the card was probably the same person who made the alteration to the dates, that person was the applicant”.

76                  However, these are matters of fact which are within the province of the Tribunal.  It is sufficient, for present purposes, to say that the reasons for decision of the Tribunal are not illogical and, accordingly, cannot be said not to comply with subs 430(1), assuming that subsection operates in the way discussed by Lee J in his reasons for judgment

77                  The orders which should be made are that leave is granted to amend the notice of appeal so as to raise the “no evidence” ground and that the appeal is dismissed with costs.

Associate:

Dated:              12 August 1999