FEDERAL COURT OF AUSTRALIA

Al-Asam v Minister for Immigration & Multicultural Affairs [2001] FCA 1361

MIGRATION – visa – refusal to grant protection visa – whether no evidence or other material to justify the making of the decision – whether a particular fact did not exist – nature of particular fact – whether finding that appellant had never been arrested or that he had said in his application that he had never been arrested – whether finding that he had not been imprisoned during a period or that he said he had lived at home during that period – whether decision based on particular fact

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

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 applied

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

Abila v Minister for Immigration & Multicultural Affairs [2001] FCA 1186 cited

N258/00A v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 478 cited

Kheirollahpoor v Minister for Immigration & Multicultural Affairs [2000] FCA 1350 cited

ABDUL RUDDA ALI SALMAN AL-ASAM V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 78 of 2001

GRAY, HILL & MOORE JJ

26 SEPTEMBER 2001

MELBOURNE (HEARD IN PERTH)

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s 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

GRAY AND MOORE JJ:

Introduction

1                     This in an appeal from a judgment of a judge of this Court, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 13 January 2001. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) not to grant the appellant a protection visa.  The primary judge gave judgment on 23 February 2001: Al-Asam v Minister for Immigration & Multicultural Affairs [2001] FCA 127. The Minister has filed a notice of contention putting in issue two of the conclusions of the primary judge.

Background

2                     The appellant is a citizen of Iraq who arrived in Australia by boat on 13 August 1999 and applied for a protection visa on 14 September 1999. The appellant is a Muslim of the Shi’a sect. He is married with nine children. With the exception of a brother and sister in Sweden his entire family still reside in Iraq. The appellant claims that he has not seen his family since 1991. The appellant’s claims concerning his reasons for leaving Iraq and experiences in that country, made in his initial interview, protection visa application and hearing before the Tribunal, are summarised at [4] of the primary judge’s decision. It is convenient to set out his Honour’s summary:

“(B) Departure from Iraq:

            In his initial interview the applicant claimed he left Iraq in 1991.  He then lived in Turkey for one year and for the rest of the time in northern Iraq and Iran.  From Iran he claimed he travelled to Malaysia and Indonesia and then by boat to Australia.

            In his protection visa application the applicant stated he lived in Irbil in northern Iraq from January 1992 until January 1995.  But he also claimed that from February 1991 until February 1995 he had various jobs in Turkey and Iran.  He said from February 1995 until March 1999 he was a taxi driver and lived in the city of Qom, Iran.

            He claimed to have departed from Iraq illegally, travelling by car through Dohuk in northern Iraq to Turkey.  He claimed he did not have difficulties in obtaining his passport, a false one, and that it had been destroyed.  He had left Iran for Australia on 8 July 1991, arriving in Australia on 13 August 1991.

            In his departmental interview, the applicant said he had returned to northern Iraq from Turkey because the situation had improved in northern Iraq.  He had lived in northern Iraq with another person for three years while his family stayed in southern Iraq.

            In Iran where he had gone in 1995, the applicant claimed to have been an illegal resident.

            At the hearing the applicant stated that when he went to Turkey in May 1991 he did not have any documents and had been smuggled across the border.  He claimed to have stayed in northern Iraq from about May 1992 to 1995/96.  He lived in a friend’s home at Shaqlawa about 35km from Irbil. 

            In Iran he had spent two years in Qom and two years in Teheran.  He claimed to have had none of the usual identity documents issued to refugees by the Iranian Government such as a green card or a temporary residence card.  He had not applied for refugee status there because he would have had to live in a refugee camp for a period of time.

            Nor had he applied in Turkey because he preferred to go back to northern Iraq.

(C) Reasons for departing Iraq:

            In his initial interview the applicant claimed he left Iraq because he was wanted by authorities.  He claimed he was involved in a 1991 uprising.  He had then been working as a stores manager controlling food and supplies of consumer goods.  After the uprising, he was held responsible for supplying food without authority to people involved in it in Kadisio and Dagara in southern Iraq.  He was not arrested but considered he had to escape.  This was because if a person stole Government money the death penalty would be imposed. 

            In his protection visa application, as summarised by the Tribunal, he claimed he was in prison from February 1987 to February 1991.  The Tribunal said he also stated that he had not been convicted of a crime or any offence and that he had lived at the same address in Dagara in Iraq from January 1989 until January 1992.

            He claimed that in the mid seventies he had written anti-government political articles on a part-time basis for a publication in the Kurdish newspaper called Al-Taaki which was edited by his cousin.  His articles were published about four or five times a week and his name appeared as the author.  In Karbala in 1987 he claimed to have been taken in and questioned by the authorities concerning his editor cousin.

            He had been released in February 1991 during the uprising (in Intifada) by the rebels and put in charge of allocating the food stores.  It was when the Iraqi forces resumed control of the area that he had escaped and gone to northern Iraq.  He had paid Kurdish people to smuggle him in to Turkey.

            In his departmental interview the applicant again claimed that he was in jail in Karbala in 1987–1991 but was released by rebels in 1991.  He claimed that if he went back to Iraq he would be executed because he had escaped from prison and was involved in helping the rebels and had left illegally. 

            At the hearing the applicant claimed he was arrested in February 1987 because he used to write articles about politics for the newspaper Al-Taaki in the period 1974–1979.  He ceased writing in 1980 when the newspaper was closed down.  He further claimed that in 1987 he was invited to become a member of the Ba’ath party but had refused.

            At the hearing the applicant also claimed that he would be executed not only because he had left Iraq illegally but also because he had been out of that country for nine years.

            At the hearing he further claimed that it was not safe for him to return to northern Iraq because he was not Kurdish and had no place to stay.

            He said he had thrown away his passport into the ocean as his boat approached Australia as everyone on the boat did the same thing so they would not be sent back.”

Tribunal’s reasons

3                     The Tribunal accepted that the appellant was a citizen of Iraq and a Shi’a but did not accept many of the claims central to the appellant’s application for a protection visa. The Tribunal did not accept that the appellant would be persecuted simply because he was a Shi’a, particularly given that the appellant was from Karbala, near Baghdad, rather than southern Iraq. The Tribunal also did not accept that the appellant had been arrested or imprisoned either because of newspaper articles he had written or because of his refusal to join the Ba’ath party. The Tribunal also did not accept that the appellant had escaped custody, that the authorities came to his home searching for him, nor that he fled to northern Iraq.  The Tribunal's reasons contained the following passage which is central to the appeal:

“I do not accept the claim that the applicant was arrested and jailed in 1987 because of the newspaper articles he allegedly wrote some ten years before.  If the applicant was invited to join the Ba’ath Party in 1987, as he claimed, then the newspaper articles that he allegedly wrote in 1974-79 were not perceived to be of adverse political significance.  According to the independent evidence, above, only those with a suitable family background are invited to join the Ba’ath Party.  (CX17116).  If the applicant was invited to join the Ba’ath Party, as he claimed, then clearly a decision was made by the authorities to ignore the newspaper articles.  I do not accept the claim that the applicant was jailed merely because he refused to join the Ba’ath Party.  According to the independent evidence, membership of the Ba’ath Party is not compulsory and refusal to join is not a punishable offence.  (CX38491 and IRQ11595).

In any event, according to the applicant’s evidence in his interview with the Departmental representative, he was accused or suspected of stealing government property and/or supplying food to those involved in the uprising in 1991 but, he stated, he was not arrested per se.  This means he could not have been in jail and he did not flee to northern Iraq in May 1991 as he claimed.  This conclusion is supported by statements elsewhere in his protection visa application that he was living at home in the period 1989-92, and that he last saw his family in 1992.  These dates that are not consistent with his claim to have been in jail in 1987-91 and to have fled north in May 1991.  Nor are they consistent with a claim to have participated in the intifada in 1991 and to have been sought by the authorities.

As I do not accept the applicant’s claim that he was jailed in 1987-91, either for refusing to join the Ba’ath Party or for writing articles articles (sic) for a Kurdish newspaper, I do not accept his claim that he escaped from custody or that the authorities subsequently came around to his home searching for him.  He did not mention anything about the authorities searching for him at his home until the hearing.  I do not accept his explanation that he was not asked.  It follows, therefore, that I do not accept the claim that the applicant will be persecuted if he returns to Iraq because of an imputed political opinion arising from his refusal to join the Ba’ath Party, for writing articles for a Kurdish newspaper, for having a jail record or for escaping from custody.  For the same reasons, I do not accept the claim, in the submission from the applicant’s adviser, that he would be vulnerable in northern Iraq because he was a known opponent of the regime.  In my view, he was not regarded as an opponent of the regime.  This conclusion is supported by the fact that the applicant’s family is still living in southern Iraq with no evidence that they were ever troubled by the authorities for any reason, contrary to the submission from the applicant’s adviser that the family of a known opponent of the regime would likely suffer.”

4                     The Tribunal did not accept that the appellant faced a real chance of persecution either because of political opinions imputed to him as a result of his refusal to join the Ba’ath party or because of his membership of a particular social group, even if it was accepted that the appellant’s family could constitute a particular social group. The Tribunal did not accept that the appellant left Iraq illegally and found that the only reason the appellant threw his passport away was because it was genuine. In addition, the Tribunal found that if the appellant genuinely feared persecution in Iraq he would have stayed in Turkey and sought protection there or alternatively would have sought protection in Iran.

5                     The Tribunal did not accept that the appellant would be persecuted if returned to Iraq merely because of his nine year absence. The Tribunal considered it highly unlikely that the Iraqi authorities would be aware of his asylum application and that even if he had departed Iraq illegally and the authorities were aware of his application, those factors alone were unlikely to lead to severe punishment.

6                     The Tribunal concluded that it was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason, now or in the reasonably foreseeable future, if he were to return to Iraq.

7                     In case it might be wrong in its findings, the Tribunal turned its attention to the question whether the appellant could relocate to northern Iraq. The Tribunal held that returning to northern Iraq was a reasonable option for the appellant, that he could return safely there via the UNHCR in Turkey, that he had connections there and would not be of adverse interest to Iraqi intelligence agents active there.

Proceeding before the primary judge

8                     In his application for an order of review filed in this Court on 24 July 2000, the appellant sought review of the Tribunal’s decision on a number of grounds. Several of those grounds related to the Tribunal’s approach when determining whether the appellant faced a real chance of persecution on his return to Iraq as a result of his lengthy absence and attempts to secure asylum abroad. As to these matters, the primary judge was not satisfied that any reviewable error had been made out and the appellant does not challenge that aspect of his Honour’s judgment in this appeal.  Similarly, the appellant does not challenge his Honour’s rejection of an allegation of actual bias.

9                     Before the primary judge the appellant also submitted that the Tribunal had made a reviewable error of law of the type contemplated by s 476(1)(g) of the Migration Act 1958 (Cth) (“the Act”) in that there was no evidence or other material to justify the making of its decision.  Section 476(4) of the Act, (when read with s 476(1)(g)) relevantly provides that it is a reviewable error for a decision-maker to base his or her decision on the existence of a particular fact if that fact did not exist. The appellant submitted that there was no evidence or other material to support the Tribunal’s determination that the appellant could not have been imprisoned and that he did not flee to northern Iraq in May 1991 as claimed by the appellant. Further, the appellant submitted that the Tribunal’s determination on that issue was based on the existence of two particular facts which did not exist.

10                  The Tribunal’s finding that the appellant had lived at home during the period 1989-92 was in these terms (the entire passage in which the following appears is set out earlier at [3]):

“This means that he could not have been in jail and he did not flee to northern Iraq in May 1991 as he claimed.  This conclusion is supported by statements elsewhere in his protection visa application that he was living at home in the period 1989-92, and that he last saw his family in 1992.”  (Emphasis added)

11                  This finding appears to have been based on a response the appellant had given on his protection visa application to the question – “Give details of all addresses outside Australia where you have lived for 12 months or more in the last ten years”.  This was question 30.  The appellant’s response was to the effect that from January 1989 to January 1992 he had lived in Dagara, Iraq. However, in response to a question about employment, question 34, and in a statement attached to the application, the appellant stated that he had been imprisoned from February 1987 to February 1991. The appellant submitted that, in the context of his entire application, his response to the question about past addresses should have been understood as a reference to his home address, rather than where the appellant resided during that period. The appellant also submitted that the evidence and material as a whole proved that the appellant had not lived at home during the relevant period.

12                  The Tribunal’s finding concerning whether the appellant had or had not been arrested, was based on answers the appellant gave to questions relating to events which followed the intifadah.  In its reasons for decision the Tribunal said that (the entire passage in which the following appears is set out earlier at [3]):

“ In any event,according to the applicant’s evidence in his interview with the Departmental representative, he was accused or suspected of stealing government property and/or supplying food to those involved in the uprising in 1991 but, he stated, he was not arrested per se.”

(Emphasis added)

The appellant submitted that when he stated he had not been arrested after the intifadah he did not intend to state, nor did he in fact state, that he had never been arrested prior to that point. According to the appellant, all the evidence and materials before the Tribunal proved that he never made a statement to the effect that he had never been arrested.

13                  The primary judge accepted both that the Tribunal had based its finding that the appellant could not have been in prison on the particular facts asserted, and that it had been established positively that those facts did not exist. The primary judge did not accept the Minister’s submission that the facts which were found not to exist were merely underlying facts and not in themselves sufficiently central to the Tribunal’s ultimate conclusions to be regarded as “particular facts” of the type contemplated by s 476(4)(b). The primary judge also did not accept the Minister’s submissions that the Tribunal’s finding in respect of the appellant’s imprisonment had been based on unrelated facts, in particular the rejection of the appellant’s claim that he had been arrested and jailed as a result of his refusal to join the Ba’ath party or because of newspaper articles he had written. The primary judge found that the Tribunal’s rejection of the appellant’s evidence concerning his imprisonment “was at the core of credibility findings made against him” which in turn may have impacted upon the Tribunal’s other findings including the ultimate finding of whether the appellant would be persecuted for a convention reason if returned to Iraq.

14                  It is convenient to set out the passage from his Honour's reasons for judgment dealing with these matters (at [30] and [31]):

“It was next submitted for the respondent that the applicant is required to establish positively that such a fact did not exist:  Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 223.  This is common ground.  In my opinion the case made for the applicant in respect of each of the particular facts on which the first part of the first determination is based establishes that those particular facts did not exist.  Question 30 of the application for a protection visa is to properly be understood in the context of the response to question 34 and the statement.  It forms part of a whole and is to be understood in that context.  Examination of the minute of interview shows that the reference to arrest arose only in relation to the deliveries which were post – “intifadah”.

The submissions for the respondent then contend that the first determination was not a particular fact upon which the Tribunal’s decision was based.  Rather, the decision is said to be based upon finding no. (4)(a), the rejection of his arrest and jailing being based on writing of newspaper articles, and finding no. (4)(b), based on non-acceptance of his refusal to join the Ba’ath party.  The submission for the respondent is that it was because of these two conclusions that the Tribunal subsequently decided that it did not accept the applicant’s claim to have escaped from custody or that the authorities subsequently came to his home searching for him.  In my view that is taking far too narrow an understanding of the reasons of the Tribunal.  Having reached its views in relation to the propositions concerning the newspaper article writing and the Ba’ath party, the Tribunal went on to address “in any event” the two matters the subject of the particular facts in issue.  In my view a fair reading of the reasons of the Tribunal shows that the decision of the Tribunal was based upon the non-acceptance of the applicant's claim that he was imprisoned from 1987 to 1991 not only because of the two reasons relating to the writing of articles or the Ba’ath party but also the two reasons contained in the particular facts.  I consider that the applicant has made out a case for review pursuant [to] s 476(1)(g) in this respect, subject to what follows.”

15                  In this passage his Honour refers to "the first part of the first determination" and finding no (4)(a) and finding no (4)(b) each of which were set out earlier in his reasons in the following terms:

“First determination:  “The applicant could not have been imprisoned and that he did not flee to northern Iraq in May 1991 as claimed by the applicant”

and:

“(4)  As to his claim of imprisonment:

(a)   His claim that he was arrested and jailed in 1987 because of newspaper articles he allegedly wrote some ten years before was not accepted.

(b)   His claim that he was jailed from 1987–1991 merely because he refused to join the Ba’ath party was not accepted.

(c)    Because he said he was not arrested, he could not have been in jail.

(d)   Because of statements in his application, he could not have been in jail.”

16                  The appellant’s application for an order of review was ultimately dismissed however, because the primary judge found that it was reasonably open to the Tribunal to find that the appellant could relocate to northern Iraq. The primary judge decided that, although some aspects of the Tribunal’s decision were affected by legal error, those errors did not impact on the relocation finding.  That finding alone was sufficient to support the ultimate conclusion that the appellant was not a person to whom Australia had protection obligations. In reaching that conclusion, the primary judge rejected the submissions of the appellant that the Tribunal’s findings on the relocation issue were themselves affected by reviewable error.

17                  One of the grounds relied upon by the appellant before the primary judge, concerning the Tribunal’s consideration of the issue of relocation, was a contention that the Tribunal did not observe the procedures in s 430(1) of the Act.  Following the judgment of the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1, delivered after the decision of the primary judge in this matter, failure to observe the procedure in s 430(1) is no longer an available ground of review and any alleged error of the primary judge in relation to that ground has not been pursued in this appeal.

18                  The appellant contended that the Tribunal misapplied the test as to whether it was reasonable, practical and safe for the appellant and his family to relocate to northern Iraq. In particular, the appellant submitted that the option of internal relocation is only relevant in cases where the central government is able to provide protection in some but not all parts of the country rather than in cases where the applicant might be free from persecution in some parts of the country but only because those regions are outside the effective control of the central government. The primary judge did not accept that argument and found at [46]:

“An applicant who did not have a well-founded fear of persecution in relation to a particular region, and who therefore did not have a well-founded fear of persecution is (sic) relation to his or her country of nationality as a whole, could not claim to be a person to whom protection obligations were owed because the government in respect of whom he feared persecution was not present in the area of relocation.”

19                  The primary judge also did not accept the appellant’s contention that in considering whether it is reasonable and safe for an applicant to relocate within his or her country of nationality, the Tribunal must consider whether the applicant can be returned to that country and then once returned relocate to another region. The primary judge held at [47]:

“If, as a matter of practical reality, an applicant is able to relocate to a particular region within his or her country of nationality by reaching that region across the borders of adjoining countries, that is a proper basis for considering whether or not relocation is possible.  In the present case there was country information in relation to northern Iraq which showed that Iraqi nationals have returned to the United Nations supervised enclave of northern Iraq across the borders of Turkey and Iran with UNHCR assistance.”

20                  Finally, the primary judge did not accept the appellant’s submission that the Tribunal had failed to carefully consider the practical realities facing the appellant in northern Iraq. After referring to the relevant authorities the primary judge concluded that the factors which the Tribunal is required to consider in determining whether it is reasonable, practical and safe for an applicant to relocate, depend on the particular facts and circumstances of each matter. In the present case, the primary judge found that the Tribunal’s inquiries of the appellant about the possibility of relocation to northern Iraq and the Tribunal’s recourse to other independent materials were sufficient to demonstrate a careful consideration of the relevant issues.

Issues on appeal

21                  The appellant raised several grounds of appeal each concerned with the relationship between the primary judge’s “no evidence” finding and the Tribunal’s consideration of whether the appellant could relocate to northern Iraq.  The appellant submitted that the primary judge erred in finding that the error which affected the Tribunal’s consideration of his status and situation in central Iraq, did not similarly affect the Tribunal’s consideration of whether he would be safe in northern Iraq. In particular the appellant submitted that the Tribunal’s error may have affected its finding about the extent to which the appellant might attract adverse interest from Iraqi intelligence agents in northern Iraq and the ability of his family to travel to northern Iraq to join him.  The appellant further submitted that the primary judge misstated the applicable principle when his Honour said that in addition to establishing that the Tribunal made its decision based on a particular fact that did not exist, the appellant must also show that the ultimate decision was not open to the Tribunal on the evidence before it and on the basis of the other findings of fact made by it. The appellant submitted that the correct test to be applied was whether the appellant had established that the erroneous finding was a critical link in the chain of reasoning to the ultimate decision. Finally, the appellant submitted, in the alternative, that even if the Tribunal’s finding on relocation was a finding independent of any consideration about the appellant’s status and circumstances in central Iraq, nonetheless the matter should be remitted to the Tribunal to reconsider whether the appellant did have a well founded fear of persecution if returned to central Iraq or whether his only alternative was relocation to northern Iraq.

22                  The Minister, by way of notice of contention, has also put in issue certain conclusions of the primary judge.  The Minister submitted that it was not reasonably open to the primary judge to conclude that the Tribunal’s non-acceptance of the appellant’s imprisonment claims was based on the two facts which did not exist. Rather, the Minister submitted that the Tribunal did not accept the appellant had been in prison during the period claimed because it did not accept that the appellant was jailed by the authorities for the reasons given by him, namely his refusal to join the Ba’ath party and the publication of articles in the mid seventies. In the alternative, the Minister submitted that even if the decision of the Tribunal was based on the existence of the contentious particular facts, said to be that the appellant had lived at home during the period 1989 to 1992 and that the appellant had stated that he was not arrested, the appellant was required to establish by admissible evidence that those facts did not exist. The Minister submitted that there was no admissible evidence before the primary judge which would have allowed him to find that the two relevant facts did not exist.

Reasoning on appeal

23                  It is convenient to commence consideration of the issues raised in the appeal by addressing the issue raised in the notice of contention.  If the Minister is correct on this issue then it effectively removes from consideration the grounds raised by the appellant in the appeal. That is because those grounds have as their starting point and depend on the conclusion of the primary judge that the Tribunal based its decision on the two facts which did not exist.  To deal with the point raised by the Minister, it is necessary to try to identify with some precision what the two relevant facts were that the appellant contended did not exist and on which the Tribunal based its decision.

24                  We have already set out the two passages from the Tribunal's decision containing what are said by the appellant to contain the impugned findings (see [10] and [12] above).  It can be seen that, in relation to where the appellant had been living, the observations of the Tribunal focused on what it understood to be the contents of statements made by the appellant on that question.  It can also be seen that, in relation to whether the appellant had been arrested, the observations of the Tribunal focused on what it understood had been said by the appellant about whether he had been arrested.

25                  In the re-amended application for judicial review (which appears to be the version on which the hearing before the primary judge was based), the no evidence ground (s 476(1)(g)) was raised in the following terms:

2.“2.    There was no evidence or other material to support the Tribunal's determination that:

(a)   The Applicant could not have been imprisoned and that he did not flee to northern Iraq in May 1991 as claimed by the Applicant.

(b)   The Applicant could safely return to northern Iraq via the UNHCR in Turkey.

(c)    The Applicant's family could travel to northern Iraq if they wished.”

26                  It is to be noted that this ground does not identify, or particularise, facts concerning what the appellant did or did not state in his application or to departmental representatives but rather concerns findings of the Tribunal about the appellant's experiences in Iraq and what might occur were he to return.

27                  In the written submissions filed by counsel for the appellant in the proceedings before the primary judge, the no evidence point was adverted to in the following way (but in the context of a general summary of the Tribunal's findings):

“6. Next the Tribunal determined that the Applicant had claimed in his protection visa application that he had lived at home during the period [from] 1989 [to] 1992 and that the Applicant had stated to the department's representative (presumably referring to the delegate) that he had not been arrested and that accordingly he could not have been in jail and could not have fled to Northern Iraq in May 1991.

“7 It is hard to know how the Tribunal would have reached these conclusions, unless it was determined to find against the Applicant and had not read the evidence.  There was no evidence to support the Tribunal's findings.  The Applicant's protection visa application consisted of a Parts A, B and C of a printed form of which Part C is the part in which the claims are submitted and which refers to an annexed statement which set out the Applicant's claims. The form used is computerised and no part of the form can be left blank, ie. a date is required, the computerised form will only accept a full date, being days, month and year.  Question 30 asked for previous addresses.  It gave the Applicant's home address rather than stating that the Applicant was in prison and gave the date up to January 1992.  However in the answer to question 34, it stated that from Feb. 1987 to Feb. 1991 the applicant was in prison and in the accompanying statement signed by Applicant (sic) the correct information is clearly detailed.  It is impossible to understand how any rational Tribunal could reach this conclusion.  However the simple approach is that there is no evidence on which the Tribunal could reach this finding of fact that the Applicant had stated in his protection visa application that he had lived at his home from 1987 to 1992 and that his statement in this regard was inconsistent with his later claims.  That finding can only be justified by abusing the English language.  It is a finding of fact that can be proved to be wrong.”

28                  It can be seen that in this passage counsel for the appellant was apparently focusing on the Tribunal's finding about what the appellant had stated in his application about where he had lived and not any finding the Tribunal may have made about where he actually lived.  On the question of arrest, the written submissions of counsel for the appellant stated:

"8    The Tribunal's next finding is that, as the Applicant had stated to the delegate that he had not been arrested per se, the Applicant could not have been jail (sic) and he did not flee to northern Iraq in May 1991 as he claimed.  Leaving aside the reasoning process by which the Tribunal reached its conclusion, its finding that the Applicant stated to the delegate that he had not been arrested and the Tribunal's apparent assumption that this means never, at anytime arrested, is clearly wrong.  The Applicant did not make any such statement to the delegate, which fact can be substantiated by reference to the transcript of the interview with the delegate.  If instead the Tribunal is referring to the initial interview, it is there that the Applicant states that he was suspected or known to be responsible for the distribution of food and consumer supplies during the Intifadah, he fled north and was not arrested.  That statement is correct and is entirely consistent with the account that the Applicant gave throughout.  Further the Applicant's statement that he had not been arrested after the Intifadah does not mean that he could not have been in jail prior to the Intifadah, released during the Intifadah and then fled after it was crushed.  Indeed the opposite would apply, if he had been arrested after the Intifadah, he would not have been able to flee to Northern Iraq and to Turkey.  Accordingly, both the finding that the Applicant had stated to the Departmental representative that he had not been arrested and the conclusion that such statement meant that he could not have fled to the north of Iraq, can be proved to be incorrect.  They are findings of fact with no evidence to support them.  They are also essential findings in determining that the Applicant does not fear persecution from the Iraqi authorities.”

29                  It is relatively clear that counsel for the appellant was focusing on the Tribunal's finding that a statement had been made by the appellant concerning whether he had ever been arrested.  It should be noted, however, that these matters were two of a considerable number of matters raised by counsel for the appellant before the primary judge in extensive and detailed written submissions.  Indeed the initial submissions were supplemented by further written submissions in which these matters, concerning the address where the appellant may have been living and whether he had been arrested, were raised again both in the context of a bias submission as well as a no evidence submission.  They were also addressed in a "schedule to submissions" which set out many extracts from the Tribunal's decision including the two presently relevant extracts about the appellant’s address and arrest.  However the schedule was apparently in support of the allegation of actual bias and not the no evidence ground. 

30                  In the supplementary submissions, counsel for the appellant effectively repeated what appears in par 8 of the earlier submissions set out above (concerning a statement by the appellant about his arrest) but no mention was made of the issue addressed in pars 6 and 7 of the earlier submissions set out above.  In addition, counsel for the appellant made a concession about two aspects of the no evidence ground.  The submission read:

"8    The Applicant however appears to have an insurmountable difficulty in relation to an application of the no evidence rule to the Tribunal's other findings, which relate to the country information.  It is not sufficient to show that there is no evidence to support the finding made by the Tribunal.  It is also necessary to show by admissible evidence that the fact does not exist.  Accordingly, the Applicant does not pursue, as a no evidence ground, the particulars contained in Particulars 2(b) and (c) of the Re-Amended Application.”

31                  This concession in the appellant's supplementary submissions may have been as a result of the earlier written submissions filed by counsel for the Minister which drew attention to the need to establish positively that the contentious fact (on which the Tribunal's decision was based) did not exist.  However, of some significance, is that in the written submissions of the Minister, the contentious facts were treated as being whether the appellant had been in jail and had fled to northern Iraq and not whether the appellant had made statements about these matters in his application.  It may be that this was when the point sought to be argued by counsel for the appellant (but not articulated in the application) became obscure.  That is, the contentious facts were no longer being viewed as simply whether the appellant had or had not said or stated certain things.  It should be noted that after the appellant filed his supplementary submissions and schedule, both parties filed further and detailed written submissions traversing a range of issues.  Some of this occurred after the hearing on 31 July 2000.

32                  In this appeal, counsel for the appellant submitted in his written outline:

“8  The Tribunal based its findings in part on 2 primary findings:

a)      Because he said he was not arrested (in the initial record of Interview), he could not have been arrested.

b)      Because of statements in his Protection Visa Application, he could not have been in jail.  (His Honour's findings at AB 534).

…

11.     His Honour correctly held that the particular facts outlined in paragraph 8 a) and 8 b) did not exist within the meaning of s 376(1)(g) (scil. 476) and (4)(b).  (AB 540-542).”

33                  The submissions appear, in substance, to repeat the submissions made to the primary judge. 

34                  In the notice of contention filed by the Minister, the error was identified in these terms:

“His Honour erred in concluding that the decision of the Tribunal was based upon the non-acceptance of the Appellant's claim that he was imprisoned from 1987 to 1991 because of the two reasons that (i) because the Appellant had said that he was not arrested, he could not have been in jail; and (ii) the Appellant had made statements in his protection visa application that he had lived at home during the period 1989-1992.”

35                  This involves a characterisation of the contentious facts by counsel for the Minister in a way that appears to be different from that advanced before the primary judge.

36                  In the passage from the primary judge's reasons dealing with this issue (set out in [14] above), his Honour does not identify what the particular facts were and their identification of them earlier in his Honour's reasons tends to illustrate the diverging characterisation of them by the parties.  Nonetheless the approach of the primary judge clearly reveals that his Honour was dealing with the contentious particular facts as identified by the appellant.  We approach the matter on the same basis.

37                  The first contentious fact is whether the appellant stated he was not arrested.  What precisely the Tribunal meant by use of the Latin phrase when it said "arrested per se" (emphasis added) is somewhat obscure.  However the only material to which we were taken by counsel for the Minister concerning what the appellant said about not having been arrested was in a specific and limited context as explained by the primary judge.  The finding of the Tribunal that the appellant stated he was not arrested was fairly clearly, in context, a finding that the appellant had stated he had never been arrested.  The primary judge was correct in concluding that this fact did not exist.  That is, as a matter of fact the appellant did not state he was never arrested.

38                  The second contentious fact was whether the appellant made statements in his protection visa application that he was living at home in the period 1989-92.  We accept, as the primary judge pointed out, that when making findings of fact concerning the appellant's account of his experiences in Iraq, the various answers in the application should be viewed together for the purpose of determining what the appellant was saying.  However the issue raised by the appellant before the primary judge was, in the context of the no evidence ground, a fairly narrow one and raises a slightly different issue.  It is whether, as a matter of fact, the appellant made a statement or statements that he was living at home in the period 1989-92.  The answer to question 30 plainly, in our opinion, constituted such a statement.  In this respect, the fact said not to exist, does exist.  It is another question whether that statement (the answer to question 30), viewed in context and having regard to other statements in the application, would justify a finding (by reference to what the appellant said in the application or elsewhere) that the appellant lived at home in the period 1989-92.  However this latter question is not the question posed by the ground raised by the appellant.  We would respectfully disagree with the primary judge that this particular fact did not exist.

39                  It is then necessary to consider whether the primary judge was correct in concluding that the decision of the Tribunal was based on the existence of a fact or facts which did not exist.  Given that we are satisfied that only one of the two contentious facts identified by the appellant and accepted by the primary judge does exist, it is probably necessary to approach afresh the question of whether the Tribunal's decision was based on the non-existent fact.  That is, was the Tribunal's decision based on the fact that the appellant stated he was not arrested?

40                  The applicable principles have recently been discussed by a Full Court in Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744.  In that matter the Full Court said:

“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 & Multicultural Affairs v Indatissa [2001] FCA 181 at [26] to [28]

…

36. The assumption made by the Tribunal, [about what the applicant in that case claimed as to where he lived] 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 & Multicultural Affairs v Rajamanikkam [2000] FCA 1023 paragraph [21].  The fact that [the applicant in that matter claimed to have lived at a particular place] 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 [at a particular place], and that there was no evidence that he had claimed to have lived [at another place], as found by the Tribunal. … 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 particular place] 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                  Can it be said, in the present matter, that the Tribunal would not have reached the conclusion it did had it appreciated that the contentious fact did not exist?  That is, would the Tribunal have decided the appellant was not a person to whom Australia owed protection obligations had it appreciated that the appellant had not stated he had never been arrested?  Plainly the question of whether the appellant had ever been arrested was an important if not central issue in the Tribunal's consideration of what the appellant had said had happened to him in central Iraq and the reasonableness of him relocating to northern Iraq were he to return.  However the Tribunal's conclusion that the appellant had not been arrested was not based solely on the Tribunal's mistaken finding that he had made a statement that he had not been arrested.

42                  It is clear from the passage from the Tribunal's reasons set out at [3] above, the Tribunal did not accept that the appellant would have been jailed for either of the reasons raised by the appellant's claims, namely writing newspaper articles in an earlier period or refusing to join the Ba’ath Party. The Tribunal would not have reached a different conclusion even if it had appreciated that the appellant had not stated he had not been arrested.  It cannot be said, in our opinion, that the decision of the Tribunal was based on its erroneous finding.

43                  The Tribunal’s conclusion that it was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason, now or in the reasonably foreseeable future, if he were to return to Iraq cannot be impeached on any ground available under s 476 of the Act.  No purpose would be served by considering the issue concerning relocation to northern Iraq.  The Tribunal dealt with that issue only on the basis that it would be relevant if the Tribunal were wrong in its findings leading to its principal conclusion.  If it erred in its consideration of this question, it would be an immaterial error.

44                  Accordingly the appeal should be dismissed and the appellant ordered to pay the respondent’s costs.

Associate:

Dated:              26 September 2001

REASONS FOR JUDGMENT

HILL J:

45                  I have read the joint judgment of Gray and Moore JJ and agree with their Honours, and generally for the reasons which they have given, that the appeal should be dismissed.  I wish, however, to make some comments of my own.

46                  An applicant who seeks to rely upon s 476(1)(g) of the Migration Act 1958 (Cth) (the “Act”) must show that there was no evidence or other material to justify the making of the decision.  Although s 476(4) makes it clear that the no evidence ground is not to be taken to be made out unless one of the alternatives in that subsection is satisfied (here s 476(4)(b)), an applicant will not succeed in having a decision of the Refugee Review Tribunal (the “Tribunal”) set aside unless the applicant also establishes that there is no evidence or other material to justify the decision.  The question for decision is ultimately, in a case such as the present, whether the Tribunal is satisfied that the applicant for a protection visa is a person to whom Australia owes protection obligations.  It is not whether the particular fact referred to in s 476(4)(b) existed or did not.

47                  Where the applicant seeks to rely upon s 476(4)(b) of the Act, it will be necessary to make clear precisely what the particular fact is upon which the Tribunal’s decision is said to be based and which is said not to exist.  Failure to do so may, as in the present case, lead to confusion.  The difficulty may be compounded by the manner in which the Tribunal expresses its findings of fact.

48                  For example, in the passage set out in the joint judgment at para 3, the Tribunal states that it does not accept the claim that Mr Al-Asam was arrested and gaoled in 1987 because of newspaper articles he allegedly wrote some ten years before.  If that is a finding of fact at all, it is a finding not of the fact that Mr Al-Asam made a claim to have been arrested, but rather that he was not arrested at the time stated and/or for the reason he had claimed.  It is for this, if for no other, reason that it is incumbent upon the Tribunal to set out clearly the material facts it finds, even if failure to do so is not, in this Court, a ground of review.

49                  There is a problem of interpretation of s 476(4)(b) in any case where the “particular fact” upon which it is claimed the Tribunal’s decision is based is actually the non-existence of a fact.  For example, if it be assumed that the Tribunal made a finding that Mr Al-Asam had not been gaoled, either at a particular time or at all, and had based its decision upon that finding, there would be a question whether the decision was based upon the existence of a particular fact which did not exist.  It can be said, with some force, that in such a case the decision would have been based upon the non existence of the fact, rather than upon its existence.  The difficulty of construction has been noted in a number of cases at first instance and has led to conflicting decisions: see Abila v Minister for Immigration and Multicultural Affairs [2001] FCA 1186 (per Tamberlin J), N258/00A v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 478 (per Katz J) and Kheirollahpoor v Minister for Immigration and Multicultural Affairs [2000] FCA 1350 (per Carr J).  It may be argued that to restrict s 476(4)(b) to cases where there are positive findings of fact and to exclude cases where the fact found is expressed in the negative is unduly narrow.  However, it is unnecessary here to resolve the issue of construction and, moreover, undesirable because it has not been the subject of argument on the appeal.

50                  Although there is a degree of confusion as to the identification of the particular fact or facts said not to exist here, there seem to be two.  First, is the fact said to exist or at least to have existed that Mr Al-Asam had stated that “he was not arrested per se”.  I can find nowhere in the Tribunal’s reasons a finding that Mr Al-Asam had never been arrested at all.  The only finding is that he had stated that he was not arrested in circumstances arising out of his stealing government property and/or supplying food to those involved in the uprising in 1991.  Second, is the fact that Mr Al-Asam had stated in his visa application that “he was living at home in the period 1989-92”.

51                  As to the first “particular fact” it obviously did not exist.  It is clear enough that in his visa application Mr Al-Asam stated that he had been imprisoned from February 1987 to February 1991.  As to the second “particular fact” it did exist.  Mr Al-Asam did state in his visa application form that he had lived at home in the period 1989-1992.  Hence, it is only the first particular fact that is of relevance here.  However, in my view, and for the reasons given by Gray and Moore JJ, the Tribunal’s decision was not, in the sense used in the authorities (see Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744) “based” upon that fact.  First, it was based upon his ability to relocate to northern Iraq and that so to do was a reasonable option, which in my view cannot be said to have been based upon whether or not Mr Al-Asam had made any statement in his application for a visa.  Second, and perhaps more importantly, it was based upon the fact that the Tribunal did not accept that any confinement in gaol (or for that matter any fear he had of persecution) had a connection with newspaper articles written some ten years before he claimed to have been arrested and further that he had after writing the articles been invited to join the Ba’ath Party, an invitation which was inconsistent with his being perceived to be politically opposed to the regime. 

52                  In any event, it could not be argued that there was no evidence upon which the Tribunal could reach the decision it did that Mr Al-Asam had no well-founded fear of persecution for a Convention reason or that he could reasonably relocate to northern Iraq, with the consequence that he was not a person to whom Australia owed protection obligations.  The appeal should accordingly be dismissed with costs.

Associate:

Dated:              26 September 2001