FEDERAL COURT OF AUSTRALIA

Pour v Minister for Immigration & Multicultural Affairs [2001] FCA 1370

HAMID BANAEI POUR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W167 of 2001

FINN J

PERTH

19 SEPTEMBER 2001

THE COURT ORDERS THAT:

1.      By consent, the decision of the Refugee Review Tribunal dated 2 May 2001 be set aside.

2.      By consent, the matter be remitted to a differently constituted Tribunal for further consideration according to law.

3.      The Respondent pay the Applicant’s costs of today.

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

EX TEMPORE REASONS FOR JUDGMENT

1                     In this matter, the parties by consent seek that the decision of the Tribunal be set aside and that it be referred back to the Tribunal for further consideration according to law.

2                     The ground under section 476(1) of the Migration Act 1958 (“the Act”) said to be sufficiently made out to enliven my power to make an order under section 481 of the Act is that the Tribunal did not have the jurisdiction to make the decision: section 476(1)(b).  The want of the jurisdiction resulted, it is agreed, from the Tribunal's ignoring a relevant fact (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 82 and 83).  The fact in question, contained in answer to question 3 of Part C of the Unauthorised Boat Arrivals Biodata Questionnaire, refers to a claim that the applicant, an Iranian national, was twice arrested by the Iranian intelligence services in 1998 and 1999.

3                     The Tribunal in its narrative of facts in its reasons, commenced with documentation later than this questionnaire.  It omitted any reference to the questionnaire which, of course, contained the first statement of claims made by the applicant in this matter.  When it referred to the basic claims made, the fact of the applicant's being arrested on two occasions is not mentioned.

4                     The reason for this occurring arises in all probability because of the manner in which the Tribunal dealt with the applicant's encounters with the intelligence services in 1998 and 1999 on account of activities at his workplace.  These are set out in the final paragraph on page 26 of the Tribunal's reasons for decision.  The clear conclusion to be drawn from this paragraph is that the question of detention was seen as having been first raised by the applicant at the hearing.  The Tribunal characterised this as being inconsistent with how the matter was treated by the applicant in an interview with the Department.  One can only conclude from this particular part of the reasoning, that the Tribunal simply ignored the questionnaire. 

5                     The important effect of the manner in which the Tribunal dealt with the evidence to which it referred is that it provided an important part in the adverse credibility finding against the applicant which in turn led to the rejection of the applicant's claim.

6                     It cannot be said in this matter, as it could be said in Yusuf’s case, that the biodata questionnaire material not having been referred to should be taken as having been rejected by the Tribunal.  Given the form in which the paragraph I have mentioned took, it can only be concluded that the Tribunal ignored that questionnaire notwithstanding that it was material to the very issue it was determining.  In these circumstances and given that there is accord between the parties on this matter, I am satisfied that a ground has been made out sufficiently for me to exercise my power under section 481 of the Act and I will order accordingly.

7                     I would add that in taking this course I am content to take a like approach to that of Stone J in Yulianti v Minister for Immigration and Multicultural Affairs [2001] FCA 142 at [12] and not specify in my order the basis on which the decision is set aside.  These reasons suffice for the purpose of informing the Tribunal of the basis of the consent order.

Associate:

Dated:              27 September 2001