FEDERAL COURT OF AUSTRALIA

Tour Gul v Minister for Immigration and Multicultural Affairs [2000] FCA 1537

MIGRATION - application for protection visa – well-founded fear of persecution for reason of political opinion – new evidence produced after Tribunal’s decision – whether the no evidence ground under s 476(1)(g) and s 476(4)(b) of the Migration Act 1958 (Cth) can apply where the tribunal has made adverse findings on credibility - whether the no evidence ground can apply to a finding that a particular event did not happen - whether different principles apply in this respect in relation to new evidence.

Migration Act 1958 (Cth) ss 36(2), 476(1)(g), 476(4), 476(4)(b)

Migration Regulations 1994 (Cth) Sch 2 Sub class 866

Pat Tai Choi v Minister for Immigration and Multicultural Affairs [1998] FCA 1556 followed

Nefiodova v Minister for Immigration and Multicultural Affairs  [2000] FCA 179 followed

Charaev v Minister for Immigration and Multicultural Affairs [2000] FCA 865 followed

Guden v Minister for Immigration and Multicultural Affairs [2000] FCA 236 followed

Alijagic v Minister for Immigration and Multicultural Affairs [1999] FCA 280 followed

Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 854 referred to

N258/00 A v Minister for Immigration and Multicultural Affairs [2000] FCA 993 distinguished

Curragh Qld Mining Limited v Daniel (1992) 34 FCR 212 at 221 followed.

TOUR GUL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 173 OF 2000

MATHEWS J

1 NOVEMBER 2000

SYDNEY

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.                  The applicant is to pay the respondent’s costs.

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

REASONS FOR JUDGMENT

Introduction

1                     The applicant, Mr Tour Gul, seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 February 2000 in which the Tribunal affirmed a decision of the respondent’s delegate to refuse Mr Tour Gul’s application for a protection visa.

2                     In order to be eligible for a protection visa an applicant must meet the criteria set out in s 36(2) of the Migration Act 1958 (Cth) (“the Act”) and Sub class 866 in Sch 2 to the Migration Regulations 1994.  Both provisions require that the applicant for a protection visa be a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).  Article 1 of the Convention defines a “refugee” as any person who “… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …”.

3                     Mr Tour Gul says that he has a well-founded fear of persecution for reason of his imputed political opinion.

Background

4                     On 26 April 1999 Mr Tour Gul arrived at Sydney Airport on an aeroplane from Indonesia.  He held no passport or other form of identification.  As routinely happens in such cases he was interviewed at the airport by an immigration inspector.  He was assisted by a Pashto speaking interpreter.

5                     Mr Tour Gul told the immigration inspector that he was an Afghan citizen, who had left Afghanistan five or six days earlier and had spent a few days in Pakistan en route to Australia.  He gave his date of birth as 13 May 1961 and said his wife and seven children were still in Afghanistan.  The inspector made the following notes of the interview.

“Does not want to return to Afghanistan because he was imprisoned for 9 mths in 1997, with the help of his brother in law, paid 100,000 Paki rupees to a guy who helped him escape

In 1988 the then Communist govt established a girl school in his area when the Taliban gained power he was arrested and accused a [sic] establishing a girl school to try and introduce prostitution into the area which is against their religion.  He works as school teacher

After his escape his photo was placed in the ‘Shariat’ the Taliban newspaper. The headline read ‘can you find this man.  He has escaped from the prison.’

He paid a smuggler, Mohamad Dawood, US$3800.  This cost included all airline tickets and documents.”

6                     Mr Tour Gul was taken into immigration detention, where he remains.  Two days later, on 28 April 1999, he applied for a protection visa.  This was accompanied by a lengthy statement, made with the assistance of an interpreter in the Dari language.  The statement commenced in the following terms:

“My name is Tour Gul.  I was born in 1961.

If I am returned to Afghanistan I will be killed because during the communist rule I set up a primary school for boys and then for girls.  This was opposed by the clergy especially when we expanded the school for girls.

Between 1985 and 1988 there was a major dispute between the school (Bibi Fatima School) and the Mullahs because they stated that we were spreading prostitution and promoting western culture and also affecting the minds of people.

The Mullahs stated that girls should not be provided with an education. This was a major bone of contention between us.  We did not want this matter to become an issue, but the problem was where the school was in under the influence of the Mullahs.

We did not want to end up in a civil war.  There was a split, a group supported the school and the other group opposed it.

After consultation with the people it was decided to close the school by the Mullahs.  There was no appeal process – no court system to appeal to.  We therefore left.”

7                     The statement went on to say that the Mullahs with whom Mr Tour Gul had come into conflict went on to become key figures in the Taliban forces.  In 1995, when the Taliban forces were marching towards Maidan Shahar, Mr Tour Gul was warned that they would exact reprisals against him because he had established the girls’ school.  He left the area and went to Kabul.  The statement contains a somewhat discursive account of what happened later.  It includes a description of being arrested and severely beaten in jail in an endeavour to persuade him to confess on Kabul radio “that the reason for setting up the school was that because Massood’s front had paid me some money through the British so as to propagate corruption and mislead boys and girls”.

8                     Mr Tour Gul said that he refused to confess. His brother paid a bribe to the authorities to facilitate his escape.  Later he was given an opportunity to escape from the prison hospital.  A few days later his photograph was published in the Shariat newspaper saying that he was “most wanted” and that anyone with knowledge of his whereabouts should report it to the authorities.  After escaping, he went to his aunt’s home at Sarobi where he remained in hiding for over a year before raising the money to pay a smuggler who organised his travel to Australia.

9                     On 4 May 1999 a firm of solicitors, “Partners in Law”, sent a lengthy submission to the Minister in support of Mr Tour Gul’s application.  No additional factual material was contained in that submission.

10                  On 25 June 1999 the Minister’s delegate refused Mr Tour Gul’s application for a protection visa.  The delegate was not satisfied that he was a citizen of Afghanistan.  Even if he was, the delegate found his claims to refugee status not to be credible.

11                  On 6 July 1999 Mr Tour Gul applied to the Tribunal for review of the delegate’s decision.  On 2 August 1999 his solicitors sent to the Tribunal a four-page document prepared by Mr Tour Gul, containing detailed “corrections and/or explanations” relating to the delegate’s decision.  On 26 July 1999 letters in support of Mr Tour Gul’s application were also sent to the Tribunal by the Afghan Community Support Association.  These certified that he came from Badam village in Afghanistan and was personally known to a member of the Afghan community living in Sydney.

12                  The hearing before the Tribunal took place on 10 August 1999.  Mr Tour Gul gave evidence at the hearing.  The transcript of his evidence was not included in the documentary material furnished to the Court.  However the Tribunal’s decision contains a detailed account of the information provided by Mr Tour Gul at this time. In the absence of any complaint as to the fairness or accuracy of this account it must be taken as an essentially accurate description of what transpired at the hearing.

13                  I do not propose to quote the whole of this portion of the Tribunal’s decision.  However certain parts of it bear repetition.  For example:

“The applicant stated that he lived in Badam village from 1961-1995 and then from February 1995 - November 1996 he lived in Kabul.  He stated that from November 1996 – March 1997 he lived in a village close to Mayden Shahr [sic] and then he returned to Kabul where he stayed for ten days.  He claimed that he was arrested in April 1997 and held until December 1997.  He claimed that he resided with neighbours for three months and then in March 1998 he went to Sarobi where he claimed to be in hiding until March 1999.  He then claims that he left Afghanistan.

The Tribunal asked the applicant what teaching qualifications he has?  The applicant replied that he has none.  He claimed to have began a school in March 1985 which continued to operate until the end of 1988.  The applicant stated that he taught at this school which was a boys school until early 1988 and then he established a girls school which ran for about 6 months until it was closed down by the Mullahs from one of the Mojahedin factions.

The Tribunal asked the applicant how the Mullahs closed down the school.  The applicant stated that he closed the school because he did not want to be caught between the various Mojahedin factions.  The Tribunal pointed out to the applicant that he had stated earlier that the Mullahs closed the school not him.”

14                  Mr Tour Gul then described to the Tribunal the events which he said took place in 1995 and 1996.  On numerous occasions the Tribunal member pointed out inconsistencies between what he was saying and other portions of the evidence.  In relation to the events of 1997 and later, the Tribunal’s decision contained the following account:

“He stated that he returned to Kabul in March 1997.  The Tribunal asked the applicant why, if he was afraid of the Taliban, did he return to Kabul in March 1997.  The applicant stated that a high ranking person from the Taliban in his area said that it was safe to return.  The Tribunal asked the applicant why he would trust the Taliban.  The applicant stated that he was acting on the advice of his father and the village elders.

The applicant claimed that ten days after he returned to Kabul he was arrested by the Taliban.  The applicant stated that he was kept in the No 3 Intelligence office until December 1997.  The applicant claimed that he was assisted to get out of prison by a person by the name of Bis Mellah Khan, a head of one of the sections of Taliban security.  The applicant claimed that he heard from his brother-in-law that a death sentence had been passed against him and so he paid money to be able to escape.  The Tribunal asked the applicant asked [sic] how his brother-in-law heard about the death sentence.  He stated that his brother-in-law was friends with the head of the Taliban secret police from the past.

The applicant stated that he was in hiding for three months in Kabul.

The Tribunal referred the applicant to his statement that the Taliban placed his photograph in a newspaper.  The independent evidence suggests that the Taliban are anti-photography and in fact have banned photographs because they depict living images.  It therefore seems implausible they would place a photograph in a newspaper going against their principles.  The applicant responded that although these things are banned they use photographs when necessary.  The tribunal asked the applicant where they would get a photograph of him from.  He responded that Khan might have given it to the Taliban.

The applicant stated that he went to Sarobi and hid there for a year.  The Tribunal asked the applicant why didn’t he leave the country immediately given that the Taliban had passed a death sentence on him, and showed his photo in the newspaper as a ‘most wanted’ man.  The applicant stated that he was trying to find out routes and he had no alternative.  The applicant stated that when he was in hiding in Sarobi he was ‘walking around during the day’ and staying at one place at night.  The applicant then stated that at dawn he would go to the nearby mountains and return at night.

The applicant stated that he had been in hiding for nine months when his father went missing.  The Tribunal asked the applicant why the Taliban would wait nine months to take action against his father when one would assume that he would be the first person to be approached if the Taliban were seeking the applicant.  The applicant then raised a new claim that his father was taken for interrogation on a number of occasions before he disappeared.

The applicant stated that he would be killed upon return to Afghanistan.”

15                  On 20 August 1999 Mr Tour Gul’s solicitors wrote to the Tribunal forwarding statements from persons who were said to corroborate that Taliban members took bribes and that the Taliban were prepared to publish half-body photographs.  Various items of country information were included, containing “credible reports” that the Taliban extorted bribes from civilians in return for their release from prison or freedom from arrest.  In addition, Mr Tour Gul provided a statement which explained why he remained in Afghanistan for some seventeen months after his escape from prison. It took most of this time, he said, for family members to raise money in order to fund his escape from Afghanistan.  During this period he was living in a remote area where he managed to elude the Taliban.

16                  On 17 January 2000 the Tribunal wrote to Mr Tour Gul saying that it had taken evidence from an independent witness, “an Academic who is a recognised expert on Afghanistan”.  The expert had been asked to give his opinion as to the plausibility of a number of aspects of the Mr Tour Gul’s claim.  For example, he was asked whether it was plausible that the Taliban would be interested in the applicant from 1995 onwards because of his involvement in the teaching of girls, given that that involvement had ceased in 1988.  The expert is said to have responded that it was “somewhat implausible” unless Mr Tour Gul had aroused the ire of a particular fanatic within the Taliban.  The expert was asked about the plausibility of the applicant paying bribes to be released from prison.  He responded that the claim would be more plausible in a provincial town than in a major city, where Taliban officials are themselves under scrutiny from their peer group.  As to Mr Tour Gul’s claim that his photograph appeared in the Shariat newspaper with a statement that he was “a most wanted person”, the expert said that escaping from custody might itself be a basis upon which the Taliban would seek to pursue somebody.  However he did not consider that having run a girls school in the 1980’s would be a basis upon which a person would be seen as “public enemy number one”.  Finally the expert was asked about the plausibility of Mr Tour Gul having bought a property in August 1996 and of his account of the Taliban taking action against family members, particularly his father.  It is unnecessary for present purposes to give details of these aspects.

17                  On 16 February 2000 Mr Tour Gul’s solicitors forwarded to the Tribunal yet another statement in which Mr Tour Gul accepted that “just teaching at a girls’ school” would not be a sufficient reason for him to be arrested and interrogated.  What he had done went beyond this, he said.  He had established the school on the outskirts of the city, and this was not tolerated by the Mullahs.  It led to a split between the people in the area, one group favouring the school and the other opposing it.  There was great tension which, he said, almost led to a violent showdown.  The tension and jealously did not abate after the closure of the school.  He, Mr Tour Gul, was accused of being a “pro-West agent” and having anti-Islamic ideas.  He again asserted that members of the Taliban at all levels are known to take bribes.  His statement went on to deal with other aspects on which the expert had voiced his opinion, which do not need to be recounted here.

The Tribunal’s Decision

18                  On 29 February 2000 the Tribunal affirmed the respondent’s delegate’s decision not to grant a protection visa to the applicant.  The Tribunal’s decision recited the background to the matter, and contained accounts of the various statements provided by Mr Tour Gul. 

19                  The Tribunal did not accept as credible Mr Tour Gul’s claims to have been a teacher or to have established a girls’ school.  Given the matters raised in this Court, it is necessary to quote much of the Tribunal’s finding in this regard:

“In light of the issues raised above the Tribunal does not accept that the applicant has ever been a teacher or that he has ever been responsible for the establishment of a girl’s school in his village.  However, even if the Tribunal accepted that the applicant was somehow involved in the education of girls in his village, the Tribunal finds his claim that the Taliban arrested, imprisoned him, and sentenced him to death and have an on-going interest in him because of this is to be completely implausible.

The applicant’s claim involvement in the girl’s school was, according to the applicant’s own claims and evidence for a total of about six [6] months, years before the Taliban existed as a force in Afghanistan, and eight years before they came to power.  The Tribunal finds it implausible that the Taliban would be interested in the applicant, and would arrest, detain, and sentence him to death, eight years after his brief involvement had ceased.  The Tribunal sought advice regarding the plausibility of this claim from an independent expert witness on Afghanistan.  The Afghanistan expert responded to the Tribunal’s request stating that this claim was ‘not enormously plausible’.  He added that today, in rural parts of Afghanistan [the applicant lived in a village] at the moment schools are functioning in areas which are not only under Taliban control but with female pupils.

The Tribunal does not accept that the applicant was ever a teacher or that he established a girls’ school.  Even if the Tribunal did accept this claim it cannot be satisfied that he has a well founded fear of persecution arising from this involvement.  His claimed very brief involvement in female education took place years before the Taliban even existed, and was eight years before they came to power.  In light of the implausibility of this claim, and in light of the advice from an independent expert on Afghanistan who found this claim to be “not enormously plausible”, the Tribunal cannot be satisfied that  the applicant has ever been of any interest to the Taliban, and it cannot be satisfied that he was ever detained by the Taliban, it cannot be satisfied that he was ever imprisoned, it cannot be satisfied that he was ever sentenced to death, and it therefore logically follows that it cannot be satisfied that the applicant ever escaped from prison or that he was in hiding.

Given the fact that the Taliban’s views on women [and female education] are notorious, the Tribunal concludes that the applicant’s claims in this regard are opportunistic and self serving, having been contrived to give him a profile that would lead to a claim for refugee status.  The Tribunal therefore gives this claim no weight.

……….

CONCLUSION

Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.”

The application to this Court

20                  In his amended application to this Court Mr Tour Gul relied on one ground only, which was expressed as: “The Tribunal based its decision on a particular fact, and that fact did not exist”.  The particulars in support of the ground were as follows:

1.                  The Tribunal was mistaken when it found that the applicant had fabricated his claims in relation to detention, and “threats of harm” from the authorities.

2.                  The Tribunal was mistaken when it found that the applicant had never been a teacher, and had never been involved in the establishing of a school.

The Course of the Proceedings

21                  When the case first came for hearing Mr Tour Gul was unrepresented.  On 5 May 2000 his application was adjourned for one month in order to enable him to seek legal assistance.  On the adjourned hearing Mr Jackson of Counsel appeared, first as amicus curiae, and later as representative of Mr Tour Gul.  He was given leave to file in Court an affidavit of Sharif Amin,aNAATI accredited translator in the Pashto language.  In the affidavit Mr Amin deposed that on 1 May 2000 Mr Tour Gul handed him an original of the Shariat newspaper. being the official Taliban newspaper in the Pashto language, dated 31 December 1997.  One of the articles in that newspaper was translated by Mr Amin as follows:

                        “The Intelligence headquarter main department Alert

All Securities service and Muslims countries are advised that these three individuals, namely, Shir Mohammad Son of Delawar, Tour Gul son of Saheb Gul, and Mohammad Nabi son of Isa Khan have escaped from prison on first of Ramadan.  You are requested to advise the nearest intelligence branch for any information concerning their whereabouts and arrest and receive reward and cash prize.

From right to left: Photos, Shir Mohammad, Tour Gul, and Mohammad Nabi.”

22                  The original newspaper was exhibited to Mr Amin’s affidavit.  It appeared to be the front page of a newspaper, although the contents were illegible to a person versed only in Roman script.  Three photographs appeared towards the bottom of the page, containing the faces of three men.  At first glance none of them appeared to be Mr Tour Gul, who has always been clean shaven when appearing before the Court.  However on closer examination there can be little doubt that the heavily bearded man depicted in the middle photograph is the applicant Mr Tour Gul. 

23                  Also annexed to Mr Amin’s affidavit was a letter in Pashto, which Mr Amin said was on the letterhead of the Department of Education of Jamiat-E-Islami party and which was dated 10 June 1987.  The English translation of the letter, according to Mr Amin, is as follows:

“Department of Education

Date: 19/04/1366 (10/06/1987)

Dear brother Tourgul Khan, Badam Primary School, headmaster,

Peace, greetings and blessing of Allha to you,

Enclosed we are sending you a number of cassettes, school materials and stationeries for your urgent assistance.  The list of all items is attached.

Please acknowledge the receipt of these items by writing to this department.

With Regards,

Sealed

(Jamiat-e-Islami of Afghanistan, Wordak province)

signed”

24                  The production of these documents came as a surprise to the respondent.  Neither party was in a position to make detailed submissions in relation to the issues which this new material raised.  Accordingly the hearing of the matter was further adjourned until 12 July 2000.  On that date Mr Jackson again appeared for Mr Tour Gul and Mr Bromwich for the respondent Minister.  Both Counsel had previously provided written submissions.  Mr Bromwich’s submissions, inter alia, questioned the authenticity of the documents produced by Mr Tour Gul.  He pointed out that no explanation had been provided as to why the documents were produced at such a late stage, well after the Tribunal had completed its review.  Accordingly, after the taking of oral submissions, the case was further adjourned.  This was done so that two further steps could be taken.  First, Mr Tour Gul was to provide an affidavit setting out the provenance of the newly produced documents and explaining why they had not been produced to the Tribunal.  Secondly, the respondent was to submit the original documents, both the newspaper and the letter, to a forensic unit in an endeavour to ascertain their authenticity.

25                  Both these steps have now been taken.  On 17 July 2000 Mr Tour Gul made a statutory declaration describing his various attempts to obtain a copy of the Shariat newspaper.  It was eventually posted from Pakistan on 21 March 2000, he said, and received by himself shortly after its arrival in Australia on 9 April 2000.  As to the letter purporting to be addressed to him as “headmaster”, Mr Tour Gul said that he did not appreciate the significance of this letter until after he received the decision of the Tribunal and understood that the Tribunal did not accept that he had been a teacher.  He subsequently arranged for a contact to obtain the letter from his family in Afghanistan and to post it from Pakistan to Australia.  He received it late in April 2000.  In his affidavit Mr Tour Gul described the Jamiat-E-Islami as the party in opposition to the Taliban.  He said that he had mentioned in his interview with the Tribunal that this party had assisted him with some educational material. 

The Authenticity of the New Documents

26                  As to the authenticity of the documents, the respondent submitted a “Minute” written by Ms Debbie Battersby, a document examiner, on 29 August 2000 together with a statutory declaration of Ms Christine Grimm, a Senior Migration Officer in the Australian High Commission at Islamabad, dated 15 August 2000.  In summary, these documents establish the following:

Shariat Newspaper: the original newspaper tendered by Mr Tour Gul did not, to my untutored eye, contain any indicia of fabrication.  However the document examiner observed excessive deposits of ink around the article referring to Mr Tour Gul, which could be indicative of  “cut and paste”.  A copy of the Shariat newspaper tendered by Mr Tour Gul was faxed to Ms Grimm.  She took it to the United States Congress Library in Islamabad and compared it with an original copy of the same newspaper, dated 31 December 1997, held at the library.  She was unable to read either newspaper, because they were in Arabic script.  However they were identical in all respects except for the article referring to Mr Tour Gul, which appeared only in the newspaper which had been faxed to her.  A completely different article, unaccompanied by any photographs, appeared in the original newspaper examined by Ms Grimm.  Nor were there any “cut and paste” marks on that newspaper similar to those which appeared around the article produced by Mr Tour Gul.

As a result of this information, Ms Battersby concluded that the newspaper article was bogus.

Letter dated 10 June 1987:  Ms Battersby was unable to give an opinion as to the authenticity of this letter.  However she was able to say that it contained no alterations and that the stamp of the Jamiat-E-Islami Party, was probably affixed to the letter before 1996, as this Party was removed from power by the Taliban in that year. 

27                  The limited material available therefore suggests that this letter might well be authentic.  However it is inadequate to support any firm conclusion to that effect.

No Further Submissions

28                  After receiving these documents, my Associate wrote to both parties asking if they wished to make further submissions on the basis of this new material.  Both declined to do so, saying they were content that I base my decision on the existing documentation. 

29                  As will be seen, the bogus nature of the Shariat article produced by Mr Tour Gul effectively undermines any chance he might have had of establishing a ground of review under s 476(1)(g) of the Act.  However when the documents were first produced, a significant issue was debated as to whether the documents, assuming their authenticity, could, as a matter of law, establish a ground of review under s 476(1)(g) as augmented by s 476(4)(b).  To a large extent, the more recent evidence makes these considerations otiose.  However they were significant issues which were closely debated and which thus bear some discussion here.

Could s 476(1)(g) apply in this case?

30                  The sole ground of review now relied upon by Mr Tour Gul is that contained in s 476(1)(g), namely “that there was no evidence or other material to justify the making of the decision”.  This is to be read in conjunction with s 476(4) which provides, as relevant here:

“(4)     The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a)   … … …

(b)   the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

31                  It is now well-settled that an applicant who relies on s 476(1)(g) as a ground for review must satisfy the terms of that provision as well as the relevant terms of subs (4).  In other words, compliance with s 476(4)(b) alone will not suffice to establish a ground under s 476 (1)(g).  Subs (4) merely provides a gateway through which any applicant seeking to rely upon s 476(1)(g) must pass. (See Pat Tai Choi v Minister for Immigration and Multicultural Affairs  [1998] FCA 1556; Nefiodova v Minister for Immigration and Multicultural Affairs [2000] FCA 179)

32                  In order to make out the ground in s 476(1)(g), as qualified by s 476(4)(b), the following must be established:

·        The decision of the Tribunal was based on a fact

·        There was no evidence of that fact before the Tribunal;

·        The fact is disproved

(See Charaev v Minister for Immigration and Multicultural Affairs [2000] FCA 865)

33                  It is apposite to start this discussion by noting that the particulars provided on Mr Tour Gul’s behalf were inadequate.  The mere fact that the Tribunal may have been “mistaken” in its findings could not on its own support a ground under s 476(1)(g).  Nor can the Tribunal’s finding that Mr Tour Gul fabricated his claims be categorised as a finding as to a “particular fact” under s 476(4)(b).  Rather it is a conclusion drawn by the Tribunal on the basis of the material before it.  (Guden v Minister for Immigration and Multicultural Affairs [2000] FCA 236, Nefiodova v Minister for Immigration and Multicultural Affairs [2000] FCA 179, Alijagic v Minister for Immigration and Multicultural Affairs [1999] FCA 280)

34                  Mr Jackson clearly recognised this difficulty.  He submitted that “the particular facts” which were sought to be impugned on the basis of the new material, were not the Tribunal’s findings as to Mr Tour Gul’s credibility, but its conclusions as to primary facts which were consequential upon its findings as to credibility.  The particular primary facts which the new material was said to refute are::

·        that Mr Tour Gul was never a teacher

·        that he was not detained by the Taliban

·        that he was not wanted by the Taliban

35                  There is much to be said, in my view, for adopting Mr Jackson’s approach in this respect.  Mr Tour Gul’s claim to have a well-founded fear of persecution was based upon several factual propositions, including the fact that he had been a teacher at a girls’ school, that he had been detained by the Taliban and secured his escape, and that he was wanted by the Taliban.  The Tribunal’s rejection of his claims was based upon its rejection of at least some of these propositions.  The mere fact that it rejected them for reasons of credibility does not detract from the status of these propositions as the building blocks of Mr Tour Gul’s application.  His credibility was relevant to the Tribunal’s acceptance or rejection of those facts but was not itself a fact upon which he relied in order to make good his claims.  These propositions were accordingly the “particular facts” which will be the subject of focus when considering the application of s 476(1)(g) and s 476(4)(b).

36                  A further issue arises, as to whether the ground of review provided for in s 476(1)(g) and s 476(4)(b) can apply to findings by the Tribunal of the non-existence of facts, as well as to its findings of the existence of facts.  This issue was adverted to in Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 854 (French, RD Nicholson and Finkelstein JJ ).  At para 59 their Honours noted:

“There is a constructional question which was not debated before the Court, namely whether the no evidence ground can apply to a finding that a particular event did not happen.  Having regard to the conclusions already reached in relation to this ground it is unnecessary to explore that question in this case.  It can await debate to another day”.

37                  That day has since arrived. In N258/00 A v Minister for Immigration and Multicultural Affairs [2000] FCA 993 (“N258”)  Katz J, having referred to Yilan, made the following observations:

“In the present case, I conclude that par 476(1)(g) of the Act does not apply to findings of the non-existence of facts.  In order for the paragraph so to apply, it would be necessary to give an extremely strained construction to the language actually used in it (as well as to the language actually used in both limbs of subs 476(4) of the Act).  Furthermore, there appears to be no reason of policy justifying the giving of such a strained construction to the provision.  The giving of that construction to the provision would appear to amount to a departure from the longstanding distinction made in the law (including in administrative law) between finding a fact to exist when there is no evidence that that fact does exist (which is an error of law) and not finding a fact to exist when there is some evidence that that fact does exist (which is an error of fact only).  Such a strained construction of the provision would thus involve this Court in an intrusion into the merits of the administrative decisions under review by it under the Act.”

38                  The applicant in N258 was seeking to impugn a statement made by the Tribunal to the effect that it “was not aware of reports that businessmen faced treatment such as arrest, imprisonment, or detention” in the Democratic Republic of the Congo (“DRC”).  The applicant pointed to country information  which was before the Tribunal which reported the mistreatment of businessmen.  Katz J took the Tribunal’s statement to be an implied assertion to the effect that businessmen did not face this type of mistreatment in the DRC.  Considered in that way, as his Honour said, the Tribunal’s finding was one of the non-existence of a fact.  His Honour concluded, as the quoted passage indicates, that s 476(1)(g) did not apply to such a finding.

39                  Katz J’s conclusion may well be correct in cases, such as occurred in N258, where the Tribunal’s factual findings are sought to be impugned on the basis of material which was before the Tribunal when it made its decision.  However in my view different considerations apply in cases where material later becomes available which directly undermines the Tribunal’s finding as to a material fact.  The distinction referred to by his Honour between an error of law and an error of fact has no relevance in this situation.  It is not suggested in the circumstances of the present case that the Tribunal made a reviewable error on the material which was before it.  Rather, it is submitted that the new material throws a completely different complexion on the factual matrix of the case in such a way as to invoke the provisions of s 476(1)(g) and 476(4)(b).

40                  With this background I return to the three matters to be established by an applicant under s 476(1)(g) and s 476(4)(b), namely that:

·        the decision of the Tribunal was based on a fact

·        there was no evidence of that fact before the Tribunal

·        the fact is disproved.

41                  In this case the decision of the Tribunal made negative findings in relation to each of the three matters referred to earlier (in par [33]).  Had the newly presented documents been authentic they would, in my view, have been sufficient to disprove at least some of the facts which were found by the Tribunal relating to them, negatively expressed as those findings were.  Nor was there any direct evidence to support the Tribunal’s negative findings.  The Tribunal made its findings as to the non-existence of those facts because of its adverse view of Mr Tour Gul’s credibility. It was not a case of the Tribunal relying on evidence which directly contradicted Mr Tour Gul’s assertions.  Had there been any such evidence then s 476(1)(g) would not, by its terms, have applied, as there would have been material before the Tribunal justifying the making of the decision.

42                  For these reasons I consider that, had the new material produced by Mr Tour Gul been authentic, it would, subject to the issue of materiality, have been capable of supporting a ground of review under s 476(1)(g) as augmented by s 476(4)(b). 

Conclusion

43                  It goes without saying that the Shariat article produced by Mr Tour Gul, which must now be taken to be bogus, will be incapable of supporting any ground of review.  Accordingly I do not propose to refer to it further.  The 1986 letter might be authentic, but its reliability is seriously undermined by the bogus nature of the other document produced by Mr Tour Gul at the same time.  Given its questionable reliability, it would be inadequate in my view to establish the non-existence of any factual proposition upon which the Tribunal based its decision.  Moreover, in order to support a ground of review under s 476(1)(g) and s 476(4)(b) the “particular fact” which is sought to be refuted must be shown to be material to the Tribunal’s decision.  As Black CJ said in an oft-quoted passage in Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 221, the “fact” in question must be critical to the making of the decision.  In Mr Tour Gul’s case, the only fact which the 1986 letter is capable of establishing is that he was working as a teacher in 1986.  This fact was not accepted by the Tribunal.  However, as the passage quoted in par [19] of these reasons shows, the Tribunal went on to say that, even if Mr Tour Gul had been a teacher and had established a girls’ school as he claimed, the Tribunal could still not be satisfied that he had a well-founded fear of persecution in Afghanistan. 

44                  It follows that the Tribunal’s finding that Mr Tour Gul never worked as a teacher was not material to its decision.  Accordingly, the 1986 letter, even if authentic, could not establish a ground of review under s 476(1)(g) and s 476(4)(b).

45                  For these reasons no ground of review has been made out.  The application must be dismissed with costs.

Associate:

Dated:              1 November 2000