FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744

MIGRATION - application for protection visa – RRT found applicant lacked credibility –where RRT took into account that finding as to credit might be wrong – whether decision based on facts that did not exist – whether any disputed facts critical to making of decision – whether RRT based decision on facts in question – whether any disputed fact played such a role in finding that without which RRT would not have reached he conclusion it did – whether s 476(4)(b) is matter of causation which may be determined as “a matter of common sense” – whether finding regarding credit is a “fact” for purposes of s 476(4)(b)

Migration Act 1958 s 476(1)(g) and (4)(b)

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

Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 cited

Minister of Immigration and Multicultural Affairs v Rajamanikkam [2000] FCA 1023 cited

Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 cited

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v

AKEEL RAHMA AL-MIAHI

N 256 OF 2001

SUNDBERG, EMMETT & FINKELSTEIN JJ

25 JUNE 2001

SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be allowed.

2.       The orders made on 23 February 2001 be set aside and in lieu thereof order that so much of the proceeding as has been remitted to this Court be dismissed with costs.

3.         The respondent pay the appellant’s costs.

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

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     The respondent to this appeal, Akeel Rahma Al-Miahi (“the Applicant”), arrived in Australia on 19 May 1999.  On 25 May 1999, he lodged an application for a protection (class AZ) visa with the Department of Immigration and Multicultural Affairs.  On 28 June 1999 a delegate of the appellant, the Minister for Immigration and Multicultural Affairs (“the Minister”), refused to grant a protection visa.  The Applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of that decision and, on 22 March 2000, the Tribunal affirmed the decision not to grant a protection visa.

2                     On 10 July 2000, the Applicant instituted a proceeding in the High Court of Australia in reliance on s 75(v) of the Constitution.  The Applicant sought, inter alia, the issue of an order nisi requiring the Minister to show cause why a writ of prohibition should not issue prohibiting the Minister from acting upon, or giving effect to, proceeding upon or enforcing the decision of the Tribunal.  The amended draft order, filed on 7 September 2000, identified four separate grounds for relief.  The first such ground was that the Tribunal based its decision on the existence of particular facts and those facts do not exist.  That is the ground identified in s 476(1)(g) of the Migration Act 1958 (“the Act”).  The other grounds were not grounds identified in s 476 of the Act.

3                     On 11 September 2000, a justice of the High Court, acting pursuant to s 44 of the Judiciary Act 1903, ordered that there be remitted to the Federal Court of Australia the Applicant’s application for relief, but excluding from that remitter the grounds that are not identified in s 476 of the Act.  On 23 February 2001 a judge of the Federal Court held that the ground in s 476(1)(g) had been made out and ordered that the decision of the Tribunal made on 22 March 2000 be set aside and the matter to which the decision relates be referred to the Tribunal for further consideration according to law.  The Minister was ordered to pay the Applicant’s costs.  The Minister now appeals to the Full Court from those orders of the Federal Court.

the ground of review

4                     Section 476(1)(g) provides that the following is a ground upon which the Federal Court may review a decision of the Tribunal:

“(g)     that there was no evidence or other material to justify the making of the decision.”

Section 476(1)(g) is relevantly qualified by s 476(4)(b) as follows:

(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.”

5                     The Applicant contended before the primary judge and before this Full Court that the Tribunal based its decision on the existence of a number of particular facts that did not exist.  The facts that the Applicant alleged were found by the Tribunal but did not exist were particularised by the Applicant as follows:

“1.1.    That before travelling to Australia the [Applicant] lived in the town of Al-Amarah in southern Iraq, rather than the town of Ali ash-Sharqi which is about 60 kms from Al-Amarah.

1.2.      That the [Applicant] claimed to be from the town of Al-Amarah, rather than Ali ash-Sharqi.

1.3.      That the [Applicant] was arrested in Al-Amarah, rather than that he was arrested in Ali ash-Sharqi and driven 60 kms to Al-Amarah where he was interrogated and severely beaten.

1.4.      That the [Applicant] was interviewed on arrival at Sydney airport ‘for over three hours’ and that ‘it was open to him at that stage to give a full account of the harm he had allegedly experienced or feared’, whereas on the face of the Immigration Inspector’s Report the [Applicant] was interviewed using a telephone interpreter on his date of arrival, 19 May 1999, from 15:25 to 16:30, and during that 65 minutes the interviewer discussed the case with another officer and informed the [Applicant] of various procedural matters and the state of accommodation in Australian detention centres...

1.5       That the [Applicant] claimed that the name of the Shi’a resistance group with which his late brother Hekmat was associated was called ‘Hezbollah’, rather than the ‘party of Mohammed Baker Al-Hakim’, and so the [Appellant] could not be believed because he could not accurately name the Shi’a resistance in Iraq.  However, the [Applicant] did not claim that the name of that Shi’a resistance group was ‘Hezbollah’, but specifically named the resistance group with which he was accused of having an association through his brother Hekmat.  He also used the term ‘Hezbollah’ in its generic Arabic use, that is, as a description of a political philosophy akin to terms like ‘fundamentalist’ or ‘radical’).”

THE TRIBUNAL’S DECISION

6                     The Tribunal was not satisfied that the Applicant was who he claimed to be or that the situation he claimed to find himself in was genuine.  The “lack of credibility all through the applicant’s evidence” made the Tribunal unsatisfied that any part of his story had “verity”.  The Tribunal had considerable doubts that the Applicant comes from Iraq as he claimed and was of the opinion that he had fabricated evidence in order to bolster his application for a protection visa.  However, the Tribunal acknowledged that if it makes adverse findings about the credibility of an applicant’s account then, depending on the degree of certainty with which those findings were made, it may need to take into account the possibility that those findings might be wrong when determining whether the applicant has a well-founded fear of further persecution.  Accordingly, the Tribunal gave consideration to the Applicant’s claims on the basis that he is a national of Iraq. 

7                     In its reasons, the Tribunal addressed the claims made by the Applicant under the following eight headings:

1.         “Hezbollah”

2.         Applicant’s description of his claimed home city

3.         Missing ID documents

4.         March 1999 detention

5.         August 1998 detention

6.         Rebels’ contact with the applicant

7.         Claim of persecution over religion

8.         Sur place claims. 

8                     In dealing with the Applicant’s claims and the evidence before it, the Tribunal referred to claims made by the Applicant or on his behalf on several separate occasions as follows:

·        First in an interview at Sydney Airport with a Departmental officer, the Applicant said that he and his family lived in Amara (or Al-Amarah) in southern Iraq. Mention was made of a period of detention in March 1999 but no other instance of detention.

·        In a later written statement the Applicant laid great stress on claimed Shi’ite ancestry and the political and religious ramifications of being a devout Shi’a in Iraq.  In the written statement, the Applicant described in great detail certain events that he had not alluded to in his airport interview, namely, a period of detention and torture in August 1998.

·        At a Departmental interview, the Applicant was questioned about the lack of mention in his airport interview of any Shi’ite dissident struggle or even of being a Shi’a.  The Applicant was also questioned about why he had not mentioned at the airport interview the period of detention and torture that he claimed had occurred in August 1998.

·        At the Tribunal hearing, the Applicant was led in detail through all the claims that he had made.  The Tribunal also asked him why, when first interviewed in Australia, he had not mentioned the period of detention and torture in August 1998.

9                     It is convenient to deal with the Tribunal’s reasons under the headings referred to above.

1.  hezbollah

10                  The Applicant claimed that he was wanted as a suspected member of “Hezbollah”.  The Applicant said that that was another name for the main Iraqi Shi’a opposition.  The Tribunal found the Applicant’s references to Hezbollah puzzling.  The Tribunal considered that the references raised a question as to whether the Applicant had any political knowledge of Iraq or any contact with that country.  The Tribunal considered that the Applicant’s persistence in giving a major organisation a name that the Tribunal considered was wrong led the Tribunal to doubt whether the Applicant is a Shi’a at all and whether his country of nationality was Iraq.

11                  The Tribunal’s treatment of this matter was canvassed before the primary judge.  However, the primary judge concluded that the material relied upon by the Tribunal was sufficient to prevent the Applicant from establishing any ground of review on the basis of the Tribunal’s conclusion on this matter.  The Applicant did not raise this matter as a ground of cross-appeal. 

2.  Applicant’s description of his claimed Home city

12                  In dealing with the Applicant’s description of his claimed home city, the Tribunal said as follows:

“The applicant’s partial description of his home city, Al-Amarah, is at odds with country information.  The description came during a passage at the hearing when he was questioned as to how a band of guerillas came undetected to his home.  He said that in Al-Amarah there was no surveillance at night, that even the lights were off, that the army had withdrawn and that there was no protection against rebel attack.  This apparent picture of a city without defences or proper facilities is at odds with independent evidence which shows that units of the army… are based in Amarah, that it contains a major airfield which is regularly under attack by US bombers… and that armed operations regularly take place in and around Amarah.”

Those observations caused the Tribunal to doubt the Applicant’s familiarity with Iraq and raised questions in the mind of the Tribunal as to whether the Applicant is from Al-Amarah or indeed from Iraq at all. 

3.  Missing ID DOCUMENTS

13                  When the Applicant arrived in Australia, he had no passport, ticket or reliable identity documents.  He certainly had no Australian visa.  He asserted that his passport and travelling papers had been taken from him at various points of his journey by people smugglers.  The only identity documents that he produced were photocopies of university graduation certificates in English.  When asked whether the documents were genuine, since they were photocopies only and in English, not Arabic, the Applicant said that the only document issued by the university was in English, that the original document was retained by the university and that graduates only received a certified copy of the English certificate.

14                  The Tribunal considered that the Applicant’s evidence about his identification papers was largely unconvincing.  The Tribunal concluded that, together, the findings made in relation to the identification documents demonstrated a lack of credibility in the Applicant’s evidence.  The Tribunal formed a firm view that the Applicant had sought to hide his real circumstances in coming to Australia without documentation and that, on the evidence before the Tribunal, the Applicant was not who he claimed to be.  The Tribunal concluded as follows:

“Given the applicant’s lack of proper identity documentation, leading to the fact that I cannot be satisfied that he is who he says he is, his major error over the name of the Shi’a resistance organisation, and the fact that his description of his claimed home city is at odds with independent evidence, I have considerable doubts that the applicant is a national of Iraq.  However, as I cannot be certain about this I am prepared to give him the benefit of the doubt, and so I have considered his claims against that country.”

15                  Thus, the Tribunal’s conclusion that it was not satisfied that the Applicant is who he claimed to be or that he was a national of Iraq is based on three matters, being:

·        the Applicant’s error in the use of the term “Hezbollah”;

·        the Applicant’s description of Al-Amarah as being at odds with independent evidence;

·        the Applicant’s lack of proper identification.

16                  There is no challenge to the findings of the Tribunal concerning the identity documentation.  The Applicant’s only complaint in relation to the conclusion in the passage just quoted is concerned with the statement that the Applicant’s description of his home city is at odds with independent evidence. 

17                  It is common ground that the Tribunal was under a misapprehension that the Applicant had claimed that Al-Amarah was his home city.  The Tribunal’s assumption as to that matter was part of the reasoning process that led to its considerable doubts that the Applicant was a national of Iraq.  However, because the Tribunal was apparently not certain about the question of the Applicant’s identity, it was prepared to give the Applicant the benefit of the doubt.  Accordingly, the Tribunal proceeded to deal with the Applicant’s claims against Iraq. 

4.  March 1999 detention

18                  The Applicant claimed that on 24 March 1999, his father received notice from the General Security Department in Baghdad requesting him to collect the body of the Applicant’s brother, who had been arrested in Bagdad while trying to attack a Ba’ath Party office and had been executed on 25 February 1999.  The Applicant claimed that he had accompanied his father to Baghdad to collect his brother’s body and to bury him.  The Applicant claimed that, three days after receipt of the notice, he was seized from a class where he was teaching mathematics and taken to the Security Department where he was tortured and questioned for three weeks.  He said that in the course of that detention he was asked why, contrary to instructions given to him at his alleged earlier detention, he had not told the authorities about a visit from his brother in December 1998. 

19                  The Tribunal found it implausible that police would have detained and interrogated the applicant for three weeks in March 1999 over the whereabouts of his brother when, according to his own evidence, the Authorities themselves had informed the family some days before about his brother’s execution in February 1999.  The Tribunal did not consider that, in a situation such as that described by the Applicant, the police authorities of a major city such as Al-Amarah would have been unaware of the fact that a very active rebel native to the city had mounted a terrorist attack in the capital, been arrested and executed and that his family in the city had been officially summoned to collect the body.  In that regard, the Tribunal appears to have proceeded on the basis that it was the police authorities from Al-Amarah who seized the Applicant and that his brother was a native of that city.  That may have been because of the mistaken assumption that the Applicant was from Al-Amarah. 

20                  The Tribunal found it equally implausible that the authorities would wait until March 1999 to question the Applicant if they had known in December that a brother known to be a leading guerilla had visited him.  The Tribunal considered that if the Applicant’s brother were regarded as a serious threat to security, the authorities would have acted immediately upon hearing that he had been spotted visiting his native area. 

21                  The Tribunal was not satisfied that any interrogation of the Applicant in March 1999, if one did take place, was about a brother in the guerilla forces.  At most, the Tribunal was prepared to accept that the authorities questioned the applicant in a routine and general manner about whether Shi’a rebel groups had been seen in the area in the same way as questions would be asked of others in the area in routine security operations, given the occurrence of attacks by rebels.  The Tribunal noted that it appeared from independent country information that government officials and security establishments in the south of Iraq are vulnerable to assassination and attack.  One of the reports referred to by the Tribunal mentions rocket propelled grenade attacks on government buildings in Al-Amarah.  The Tribunal considered that, in such a situation, routine security sweeps and general questioning of the public would be understandable and would in fact be carried out by the security forces of any other country placed in similar circumstances.  Once again, the Tribunal proceeded on the assumption that the Applicant was located in Al-Amarah.

22                  Thus, even though the Tribunal was prepared to give the Applicant the benefit of the doubt as to being a national of Iraq, it considered the question of the detention that he alleged occurred in March 1999 on the assumption that the Applicant had claimed that Al-Amarah was his home city.  In rejecting the Applicant’s claim that he was detained and interrogated for three weeks, the Tribunal had regard to:

·        its assumption that the police authorities in Al-Amarah would have been aware of the execution of the Applicant’s brother and would not have asked about his whereabouts;

·        its assumption that routine questioning would occur in Al-Amarah because it was the subject of grenade attacks on government buildings;

·        its assumption that the authorities would not have waited from December to March before interrogating the Applicant.

5.  August 1998 Detention

23                  The Applicant claimed that in July 1999 his brother and a few others had left home because of fears that their membership of the Supreme Council of the Islamic Revolution in Iraq had been discovered by the authorities.  About three weeks later, on 21 August 1998, the local ruling Ba’ath Party office and the police and security centre had been attacked.  The following day the authorities raided the Applicant’s house, knocked him about and interrogated him about the whereabouts of his brother.  The Applicant claimed that he was taken to a local detention centre where he was kept and beaten and thrashed with thick electric cables. 

24                  The Applicant did not mention the August 1998 incident at his interview at the airport.  He first mentioned it in the later written statement that was furnished to the Department.  The Tribunal considered that, if such a detention had happened in the way alleged by the Applicant, he would have mentioned the fact when he was first questioned at Sydney airport about why he allegedly feared return to Iraq.  The Tribunal considered that there was a complete lack of credibility in the Applicant’s explanation that he had not mentioned it because he had only been talking about the event that actually drove him from Iraq, namely, the March 1999 interrogation.  The Tribunal considered that, as a matter of common sense, an applicant in a similar situation would talk about the totality of his experiences that had caused him to take flight. 

25                  The Tribunal considered that when one had been detained twice in the space of seven months, it would be far more natural and compelling to mention both detentions, rather than only the more recent one.  The Tribunal said:

“It is not the case that when asked for the reasons he was seeking protection in Australia the Applicant had only had time to gabble a few words of explanation to his Departmental interlocutor within a few minutes. This is far from being the case: the applicant was questioned for over three hours by the interlocutor and in my opinion had plenty of time, even allowing for the delays caused by using an interpreter, to give a full account of his claims.”

26                  The Departmental report of the airport interview indicates that the Applicant was interviewed for 65 minutes, using a telephone interpreter, on the day of his arrival.  During that period, the interviewer discussed the case with another officer and informed the Applicant of various procedural matters and the state of accommodation in Australian detention centres. 

27                  The Minister accepted before the primary judge, and accepts for the purpose of the appeal, that the Applicant was interviewed on arrival for 65 minutes and that there was no evidence that the interview lasted for three hours as stated by the Tribunal.  Thus, the Tribunal considered the credibility of the Applicant’s claims concerning the August 1998 detention under a misapprehension as to the length of the interview at Sydney airport when the Applicant first arrived in Australia.

28                  The Tribunal found implausible the explanation proffered on behalf of the Applicant by his adviser that he had not mentioned the detention of August 1998 because his interlocutor had not raised the matter.  The Tribunal considered that the account of the airport interview indicated that the Applicant had first been asked personal details and that the questioning then moved to the subject of the reason why he claimed to have fled Iraq.  The Tribunal considered that it was open to the Applicant, at that stage, to give a full account of the harm he had allegedly experienced or feared.  The Tribunal did not accept any argument that the airport interlocutor had in some way censored, ignored or overlooked a vital area of evidence.  The Tribunal was not satisfied with the credibility of the Applicant’s claims to have been detained and tortured in August 1998 and was of the firm opinion that the Applicant invented that occurrence later in order to boost his claims for a protection visa.

6.  Rebels’ Contact with the applicant

29                  The Applicant claimed that he had been visited by a group of rebels at his home the day after his release from detention in April 1999 and had been asked by them to join in an attack on the local Ba’ath Party office and police headquarters.  He said that he steadfastly refused to join such an enterprise and that, after about 2 hours, the rebels had gone away and shortly afterwards mounted the proposed attack.

30                  The Tribunal was not satisfied that the Applicant had encountered any difficulties as a result of such an alleged visit before attacks were launched around Al-Amarah.  The Tribunal considered implausible the claim that the rebel group had come to the Applicant in the night and told him all about their plans to bomb vital areas of the city.  The Tribunal considered that a rebel group in such a situation would have believed that the reason why the Applicant had not joined the group, despite his brother being a long-term member of it, was because he had no desire to join.  The Tribunal considered that, at the very least, such a rebel group would have kept the Applicant under guard until their planned attack was over in order to prevent the possibility of his informing on them.  The Tribunal considered that it verged on the fanciful that such rebels would have left him to his own devices in what was for them a tense and hazardous situation.

7.  claim of persecution over religion

31                  The Applicant claimed at the hearing before the Tribunal that, irrespective of the particular claims he made that he was targeted by the Iraqi authorities because of his real or imputed political beliefs, he faced persecution in Iraq for his religious beliefs, namely, being a Shi’a.  The Tribunal was not satisfied with the credibility of that claim and was not satisfied that Shi’a as a group are persecuted in Iraq.  In the light of independent evidence, the Tribunal did not accept the Applicant’s claims that all Shi’as in Iraq are punished and that he had faced persecution simply for being a Shi’a. 

32                  Nor was the Tribunal satisfied that there were circumstances that would cause the Applicant in particular to be persecuted for his religious beliefs.  The Tribunal accepted that Shi’as who have taken up arms against the government or are in prominent positions to be lightning rods for dissent are, or can be, persecuted.  However, the Tribunal did not accept that the Applicant fits those categories or any other that might cause his Shi’a religion to be a motive for persecution.  The fact that the Tribunal did not accept the claims regarding detention or interrogation meant that the Tribunal did not accept that such a link would have caused the authorities to view the Applicant as being a Shi’a with an imputed or real political profile of concern to the authorities.

conclusion of the tribunal

33                  The Tribunal concluded that it was not satisfied that the Applicant had a well-founded fear of persecution in Iraq over his religion or his real or imputed political beliefs or any other Convention reason.  Nor was the Tribunal satisfied that the claimed circumstances of his departure and application for refugee status in Australia gave him sur place claims to refugee status.  For those reasons, the Tribunal was not satisfied that the Applicant is a person to whom Australia has protection obligations under the Convention.  The Applicant, therefore, did not satisfy the criterion set out in s 36(2) of the Act for the grant of a protection visa.

REASONING ON APPEAL

34                  The question whether there is any evidence of a particular fact is a question of law.  Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law.  That is because, before the inference is drawn, there is a preliminary question as to whether the evidence reasonably admits a different conclusion.  Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law.  On the other hand, there is no error of law simply in making a wrong finding of fact.  Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law.  A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning.  Thus, at common law, want of logic is not synonymous with error of law.  So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place - Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6. Sections 476(1)(g) and 476(4) appear to have been intended to give effect to such principles.

35                  The application of s 476(1)(g) and s 476(4)(b) in any particular case requires the following steps:

·        A relevant particular fact first must be identified.

·        Then it is necessary to determine whether there was any evidence before the Tribunal to justify a finding of that fact.  If there was such evidence, the ground cannot be made out.

·        If there was no such evidence, it is next necessary to apply the second limb of (4)(b).  If there is no evidence, on review, to show that the fact did not exist, the ground cannot be made out.

·        If there is evidence, on review, to show that the fact did not exist, it is then necessary to apply the first limb of (4)(b).  That requires an analysis of the Tribunal’s reasoning to determine whether its decision was based on that fact. 

See, for example, Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 at [26] to [28]

assumption about al-amarah

36                  The assumption made by the Tribunal, that the Applicant had claimed that he lived in Al-Amarah, was, of itself, of no significance.  The significance of the assumption was the part that it played in the Tribunal’s assessment of the Applicant’s credibility.  Section 476(1)(g), as qualified by s 476(4)(b), is capable of having application in relation to a finding of credit.  For example, if a tribunal rejected a visa applicant’s evidence because it attributed to that applicant the claim that event “A” happened, when there was other evidence showing that event “A” did not happen, the Tribunal might reject that applicant’s evidence as not credible.  If that applicant, by examination of the transcript upon which the tribunal relied, can show that he or she did not say that event “A” happened, the ground of review may well be made out.  The particular fact which was shown not to exist in that example is that the applicant claimed that event “A” happened – Minister of Immigration and Multicultural Affairs v Rajamanikkam [2000] FCA 1023 paragraph [21].  The fact that the Applicant claimed to have lived in Al-Amarah is thus capable of being characterised as a particular fact for the purposes of s 476(4)(b).

37                  The Minister accepted before the primary judge, and accepts for the purpose of the appeal to the Full Court, that the Applicant claimed only that he had lived in Ali ash-Sharqi, and that there was no evidence that he had claimed to have lived in Al-Amarah, as found by the Tribunal.  Ali ash-Sharqi is a township or village approximately 60 km from Al-Amarah, which is a city much more populous than Ali ash-Sharqi.  The Minister’s concession leads to the conclusion that, for the purposes of the appeal, the fact that the Applicant claimed to be from the town of Al-Amarah did not exist.  The real question, therefore, is whether, for the purposes of s 476(4)(b), it can be said that the Tribunal based its decision on the existence of that fact.

38                  A decision may be based upon the existence of many particular facts.  It will be based upon the existence of each particular fact that is critical to the making of a decision.  A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that it is of more obvious immediate importance.  If a decision is in truth based, in that sense, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed, whatever the relative importance of the fact.  There is no reason to read s 476(4)(b) in a way that would limit its operation to a predominant reason for the decision under review – Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-221.

39                  The reasons of the primary judge included the following passage:

“That is, in my view, the assumed facts were critical to the making of the Tribunal’s decision in that there was a tangible link between one or more of the assumed facts and each of the two considerations which led to the Tribunal’s decision, and the assumed facts contributed significantly to the Tribunal’s decision.  That is, as a matter of common sense, there was a sufficient causal link between the Tribunal’s belief in the assumed facts and the Tribunal’s decision for the decision to be based on the existence of the assumed facts within the meaning of s 476(4)(b) of the Act.”

The emphases are ours. 

40                  It is sufficient to demonstrate that the relevant fact played a part in the process of reasoning of the Tribunal in the sense that the fact is one without which the Tribunal would not have reached the conclusion that it did.  However, it is not sufficient to say only that the link between the fact and the decision is tangible and that the assumed existence of the fact contributed significantly to the ultimate decision.  It is not a matter of causation and is not therefore to be determined just by the application of common sense.  The primary judge erred in so far as that approach was adopted. 

41                  Nevertheless, it is still necessary to analyse the Tribunal’s reasons in order to make a judgment as to whether any of the conclusions reached by the Tribunal under headings 4, 5, 6 and 7 above would have been different, if it had not assumed that the Applicant had claimed to be from the town of Al-Amarah. 

March 1999 Detention

42                  There were two limbs in the reasoning that led to the Tribunal’s conclusion that if the Applicant was detained and interrogated in March 1999, it was in a routine and general manner in the same way as questions would be asked of others in the area in routine security operations, given the occurrence of attacks by rebels.  One limb was that the Tribunal found it implausible that the authorities would wait until March 1999 to question the Applicant if they had known in December 1998 that a brother known to be a leading guerilla had visited him.  The Tribunal considered that if the Applicant’s brother were regarded as a serious threat to security, the authorities would have acted immediately upon hearing that he had been spotted visiting his native area.  The Tribunal did not consider that the Applicant’s evidence, when he was questioned about that matter, effaced the implausibility of the claim. 

43                  It cannot be said that that limb of the reasoning of the Tribunal was based, in the relevant sense, on the fact that the Applicant claimed to live in Al-Amarah.  The Tribunal would have reached the same conclusion concerning the March 1999 detention and interrogation, namely, that it was a questioning in a routine and general manner about whether Shi’a rebel groups had been seen in the area, irrespective of whether it assumed that the Applicant claimed to be from the town of Al-Amarah. 

August 1998 Detention

44                  The Tribunal’s conclusion concerning the August 1998 detention does not include any reference to Al-Amarah.  That claim was rejected by reason of the lack of mention of it at the airport interview.  That matter will be dealt with below. 

Rebels’ Contact with the Applicant

45                  The rejection of the claim by the Applicant that rebels came to him and told him their plans to bomb vital areas of Al-Amarah and asked him to join him involves no reference to the Applicant coming from Al-Amarah.  That claim was rejected simply because the Tribunal regarded it as fanciful that rebels, having disclosed their plans to the Applicant and met with rejection, would have left the Applicant to his own devices. 

Claim of Persecution over Religion

46                  Finally, the Tribunal’s rejection of the claim that the Applicant faces persecution in Iraq for his religious beliefs also involved no reference to Al-Amarah.  The Tribunal was simply not satisfied that the Shi’a, as a group, are persecuted in Iraq.  In making that finding, the Tribunal considered country information on general conditions for the Shi’a in Iraq. 

47                  While the Tribunal accepted that Shi’a who have taken up arms against the government or are in prominent enough positions to be “lightning rods for dissent” might be persecuted, the Tribunal did not accept that the Applicant fitted those categories or any other that might cause his Shi’a religion to be a motive for persecution.  The Tribunal, however, made clear that its non-acceptance of the claims regarding detention and interrogation regarding the Applicant’s brother meant that the Tribunal did not accept that such a link would have caused the authorities to view the Applicant as being a Shi’a with an imputed or real political profile of concern. 

48                  Thus, the conclusion of the Tribunal in this aspect of its reasoning was, in a sense, dependent upon the earlier conclusions and, to that extent, involved the fact that the Applicant claimed to be from Al-Amarah.  However, if that fact was not critical to the conclusion in relation to the interrogation and detention in March 1999, as indicated above, it was not critical to the conclusion concerning the claim of persecution over religion. 

assumption as to airport interview

49                  The Applicant’s complaint in relation to the time involved in the airport interview is that the Tribunal should not have concluded that there was plenty of time for the Applicant to give a full account of his claims at the airport interview.  He contended that an adverse inference should not have been drawn that he was fabricating the August 1998 detention, since in an interview of only 65 minutes, interrupted as it was on several occasions, there might not have been time to give a full account.  However, the length of the interview was irrelevant.  It is clear that the reasoning of the Tribunal was based on the fact that there had been time to mention the incident at the airport interview.  Thus, the Tribunal said the following at various stages in its reasons:

“If this had happened in the way alleged by the applicant I would have expected him to mention the fact that when he was first questioned by a Departmental officer at Sydney airport about why he allegedly feared return to Iraq.”

“The applicant’s belated lengthy description of the harsh treatment he claimed to have received in August 1998 also raises questions about why he would have omitted mentioning the episode when first questioned.”

“The applicant was also questioned about why he had not mentioned his claimed period of detention and torture in August 1998 but only a March 1999 detention at the airport interview.”

“The Tribunal asked the applicant again why he had not mentioned this period of detention when first interviewed in Australia.”

The emphases are ours. 

50                  The inference that was drawn by the Tribunal from the failure to mention the incident has nothing to do with the length of the interview, whether it was three hours or 65 minutes. It could not be said that there was no time to mention the incident at the interview.  There is no ground for a complaint that such an inference could not or should not have been drawn.

conclusion

51                  The appeal should be upheld and the orders of the primary judge should be set aside.  In lieu thereof there should be an order that so much of the proceeding as has been remitted to this Court should be dismissed.  The Applicant should pay the Minister’s costs of the appeal. 

Associate:

Dated:              22 June 2001