FEDERAL COURT OF AUSTRALIA

Abedi v Minister for Immigration & Multicultural Affairs [2001] FCA 1430

MIGRATION – review of decision by Refugee Review Tribunal - whether the information which the Tribunal may “get” under s 424(1) of the Migration Act is limited to specific information obtained by the Tribunal on its own initiative – whether the Tribunal was under a duty not to exclude relevant country information provided by the applicant from its consideration – whether any breach of duty by the Tribunal denied the applicant the possibility of a successful outcome

Migration Act 1958 (Cth) ss 424, 476(1)(a), 476(1)(c) and 481(1)

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 – cited

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 – cited

Applicant “F” v Minister for Immigration and Multicultural Affairs [2001] FCA 304 – followed

Inderjit Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 73 – applied

X v Minister for Immigration and Multicultural Affairs[2001] FCA 253 - cited

Applicant “N 346 of 2000” v Minister for Immigration and Multicultural Affairs [2001] FCA 1179 - cited

Minister for Immigration and Multicultural Affairs v Sarrazola [2001] FCA 263 - cited

ABC v Minister for Immigration and Multicultural Affairs [2001] FCA 955 – cited

Nick Dike v Minister for Immigration and Multicultural Affairs [2001] FCA 1030 - cited

Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546 - cited

Stead v State Government Insurance Commission (1986) 161 CLR 141 – cited

Refugee Review Tribunal Ex Parte Aala (2000) 176 ALR 219 – cited

Nguyen v Minister for Immigration and Multicultural Affairs [1998] 88 FCR 206 - cited

ABEDI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 331 OF 2001

JUDGE:          MERKEL J

PLACE:          MELBOURNE

DATE:            12 OCTOBER 2001

THE COURT ORDERS THAT:

1.      The decision of the Refugee Review Tribunal dated 12 April 2001 be set aside and the matter be remitted to the Refugee Review Tribunal, differently constituted, to be determined in accordance with law.

2.      The respondent pay the applicant’s costs being the taxed costs of counsel for the applicant of and incidental to the application, in accordance with Order 80 Rule 9 of the Federal Court Rules.

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

REASONS FOR JUDGMENT

Introduction

1                     The Applicant, a citizen of Iran, lodged an application for a protection visa in January 2001, having arrived in Australia the previous month.  A delegate of the respondent refused to grant a visa to the applicant.  The applicant applied, unsuccessfully, to the Refugee Review Tribunal (“the RRT”) to review the delegate’s decision under Pt 8 of the Migration Act 1958 (Cth) (“the Act”).  The RRT affirmed the decision not to grant a protection visa as it was not satisfied that the applicant was a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”).

2                     The applicant claims to be a refugee, as defined in Article 1A(2) of the Convention, and therefore to be a person to whom Australia has protection obligations.  The ground for the claim is that the applicant has a well founded fear of being persecuted for reasons of imputed political opinion were he to return to Iran.

3                     The claim of political persecution stems from a sequence of events (set out in this paragraph) that the applicant claims occurred during his military service in Iran while on secondment to the police force in July 1999.  In the course of student demonstrations in Tehran the applicant was given responsibility for escorting two protesters arrested during the demonstrations to police headquarters.  He released the two protesters because he sympathised with their cause.  As a result of his conduct the authorities imputed to him a political opinion of sympathising with the student’s cause and being in opposition to the Government.  Consequently he was detained, tortured and interrogated.  The applicant produced a photograph which showed signs of the beatings he had suffered on his back during his detention.  The applicant was ultimately able to escape by overpowering a guard.  He then went into hiding for some 16 months before leaving Iran for Australia.

4                     The RRT accepted that the applicant was doing his military service and that after his initial training he had been posted to an anti-riot police squad in Tehran.  After noting that the applicant had no history of political activism, the RRT explained why it did not accept the applicant’s claim relating to the release of the two protesters, upon which the applicant’s political persecution claim depended.  The RRT stated:

“The Tribunal finds a number of aspects of his claims relating to the detention of two protesters implausible and does not accept them. Firstly, the applicant appears to have finished his recruit training on 8 April 1999 after which he was posted to Tehran; secondly his posting was as a driver. He confirmed this at the hearing and indicated that he was driving an anti-riot vehicle or the commander's vehicle. The Tribunal finds it implausible that he, a member of this force by virtue of his military service, employed as a driver would be entrusted with the custody of two people who were handcuffed to each other and asked to take them, on foot, to the Karegar Ave. police station by himself in a situation in which, according to the applicant, there were people everywhere.

The Tribunal also finds that the recounting of this event has been changed considerably. In his PV application he stated that ‘on the way to the headquarters I set them free. Unfortunately, someone from the security forces saw me. When I realised that I had been seen, I went into the crowds. After the crowds subsided, I went back to my headquarters and pretended that nothing had happened’. At the hearing he stated that he ‘wasn't sure that anyone had seen me [releasing the two demonstrators] but my sixth sense told me… I went back to Engelhab Ave. [the scene of the demonstrations]’. He then stated that at 3 p.m. he went back to the Karegar Ave. base. There has been some dispute about what the applicant meant by ‘I went into the crowds’; the delegate interpreted this as the applicant disappearing into the crowd of people. The applicant's adviser submitted to the Tribunal that there was an interpreting error and what was meant was that he disappeared into a crowd of police.

The Tribunal considers this story totally implausible, it believes that a person of the applicant's limited experience in the police force is unlikely to have been given the job of escorting prisoners; even if he had been given that job, it is implausible that he would have been asked to take two people by himself through crowds of demonstrators; even if the Tribunal  accepts that the applicant, having freed the protesters, had tried to lose himself amongst other police, he would firstly have been seen releasing the demonstrators and then would have been dealt with immediately. The Tribunal also notes that the applicant firstly claimed that he had been seen by ‘the security forces’ and later claimed that he had the feeling that he had been seen. Given the above discussion the Tribunal finds that the applicant, while doing his military service was part of the anti-riot squad in Tehran during the student protests in July 1999 but is not satisfied that he released two 'prisoners' as claimed.”

5                     Counsel for the applicant claimed that the RRT wrongfully excluded from its consideration certain country information contained in a written submission dated 30 March 2001 to the RRT.  The submission was made by Macpherson & Kelley, the solicitors for the applicant on the review, which was due to proceed to a hearing on 4 April 2001.  The Macpherson & Kelley submission set out the claims of the applicant, the legal submissions in support of those claims, and the relevant country information relied upon by the applicant.

6                     The applicant’s proceeding in the Court involves three issues:

·        whether the RRT excluded from its consideration relevant country information;

·        whether the RRT was under a duty not to exclude that information from its consideration;

·        whether any breach of duty by the RRT denied the applicant the possibility of a successful outcome.

Did the RRT ignore relevant country information?

7                     Prior to the hearing the RRT requested that the applicant send to it “any new documents or written arguments that [he] would like the Tribunal to consider”.  Pursuant to that request Macpherson & Kelley sent its submission to the RRT on 30 March 2001.

8                     On 3 April 2001 Oboodi Barristers and Solicitors, who had then commenced to act on behalf of the applicant in relation to the review, forwarded its written submission to the RRT in anticipation of the hearing due to be held on 4 April 2001.  The Oboodi submission outlined the legal basis for the applicant’s claim and specifically dealt with certain matters that had led to the rejection of the applicant’s claim by the delegate of the Minister.  The Oboodi submission did not refer to the Macpherson & Kelley submission or to any of the country information contained in it.

9                     At the hearing on 4 April 2001 the applicant was represented by Ms Oboodi.  The RRT informed the applicant that there was some confusion over his advisers as it had received submissions from Macpherson & Kelley and from Oboodi.  The RRT confirmed with the applicant that he wished to have Ms Oboodi act as his adviser and stated that the applicant need not “feel that there’s any problem with that”.  In the course of the hearing the applicant answered the RRT’s questions concerning his claim of political persecution but no reference was made to any country information.  The hearing concluded without any reference being made to the status of the Macpherson & Kelley submission.

10                  In its reasons for decision, under the heading “Claims and Evidence”, the RRT identified the documents it had “before it”.  The documents included “written submissions in support of the application for review”.  Subsequently, under the same heading, the RRT referred to the two sets of submissions it had received and stated that it “has not relied on” the Macpherson & Kelley submission.  The RRT made no other reference to the Macpherson & Kelley submission and did not refer to any of the country information contained in that submission.  The RRT concluded that the applicant’s claims concerning his arrest, torture and detention were implausible without referring to any country information although, on an incidental matter, it referred to certain country information contained in an article from “The Economist” magazine.

11                  I infer from the foregoing that the RRT had “before it” the Macpherson & Kelley submission but excluded that submission from its consideration in arriving at its decision to reject the applicant’s claims.  It was not suggested that the RRT had been requested to ignore the Macpherson & Kelley submission or the country information contained in it.  It follows that I do not accept the submission of counsel for the Minister that, having regard to the RRT’s adverse findings concerning the applicant’s credit, I should infer that the RRT considered the submission but determined that as it was not helpful there was no need to rely on it.  While that explanation is not necessarily inconsistent with the manner in which the RRT dealt with the submission in its reasons, the better view is that, in context, the RRT’s statement that it had not “relied upon” the submission meant that it had excluded it from its consideration, presumably because it regarded Ms Oboodi, rather than Macpherson & Kelley, as acting for the applicant.  In my view that is the most likely explanation for the RRT stating it has not relied upon the Macpherson & Kelley submission.

The duty of the RRT not to exclude from its consideration relevant material

12                  The applicant’s counsel contends that the country information contained in the submission was relevant information as it corroborated the applicant’s claims that his arrest was arbitrary, that the perception that he was an opponent of the government led to his detention, and that he was tortured while in detention.  It was contended that the RRT was under a duty to treat that country information as part of the material before it upon which, together with other material, it was to conduct its review of the applicant’s claim.  The Minister disputed that contention, arguing that the RRT’s duty to have regard to material only arises under express provisions of the Act (eg s 424(1)) or under the more general duty to have regard to relevant considerations, that is considerations which the Tribunal is bound to take into account (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 (“Yusuf”) at 21-22 and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-42).

13                  At the outset it is appropriate to set out the relevant country information, the claims to which are said to be relevant, and the RRT’s findings in relation to the claims.  The country information was:

·        a Department of Foreign Affairs and Trade report concerning the July 1999 student demonstrations in Tehran.  The report stated, inter alia:

“…out of 1,500 individuals arrested during the unrest, 500 had been released immediately after questioning and 800 were later released on bail, while further investigations were being conducted against the 200 individuals who remained in detention.”

·        a United States Country Report concerning human rights practices in Iran for 1999.  The report stated, inter alia, that any suggestion of political dissidence in Iran is brutally repressed.  In respect of detention and torture the report stated:

“The Constitution forbids the use of torture; however, there are numerous, credible reports that security forces and prison personnel continue to torture detainees and prisoners.  Some prison facilities, including Tehran’s Evin prison, are notorious for the cruel and prolonged acts of torture inflicted upon political opponents of the Government.  Common methods include suspension for long periods in contorted positions, burning with cigarettes, sleep deprivation, and, most frequently, severe and repeated beatings with cables or other instruments on the back and on the soles of the feet.  Prisoners also have reported beatings about the ears, inducing partial or complete deafness, and punching in the eyes, leading to partial or complete blindness.

…

There is reportedly no legal time limit on incommunicado detention, nor any judicial means to determine the legality of detention.  Suspects may be held for questioning in jails or in local Revolutionary Guard offices.  Although reliable statistics are not available, international observers believe that between scores and hundreds of citizens are imprisoned for their political beliefs.”

·        the Iran Human Rights Chronicle of November 1999 stated:

“According to reports in the press, three of the people arrested after the July unrest at university campuses in Iran are still facing the death sentence.  Scores of other students have been sentenced to long term imprisonment, while an unspecific number of other detainees, possibly running into hundreds, are still in prison or unaccounted for.  Widespread use of torture against the detainees has also been reported.”

14                  The gravamen of the above statements, and others in the submission, was that the July 1999 student riots in Tehran involved the arbitrary arrest of some 1,500 individuals who were for the most part released after questioning or were released on bail soon thereafter.  Persons in detention were said to face the risk of torture, a common method of which was “severe and repeated beatings with cables or other instruments on the back”.  It was also plain from the country information that the individuals most at risk of arbitrary arrest, detention, and torture were those suspected of being opponents of the Government.

15                  The information was said to be directly relevant to the RRT’s finding that the applicant’s claims of his arrest, detention and torture were implausible.  For example, it was said the information was relevant to whether the applicant escorted two protesters, whether he was detained, and whether he was tortured.  On the issue of torture counsel for the applicant contended that the statement that beatings on the back was a common method of torture corroborated the applicant’s statement (supported by the photograph he produced) that that was the method of torture employed against him.  Further, it was contended that the RRT appeared to assume that the arrests were of persons regarded as serious offenders.  That assumption was said to flow from the RRT’s statement that it was implausible that the applicant alone would be given the responsibility of transporting two arrested demonstrators to the police station.  However, the country information suggested that most of those arrested were released almost immediately.  It was also contended that the information showed that the riots were widespread and extensive and that the surrounding crowd was so numerous that it was plausible that many police, including the applicant, had to deal with the demonstrators on foot rather than in vehicles.

16                  I have some difficulty in forming a view as to the role the country information relied upon by the applicant might have played if the RRT had had regard to it.  Although the RRT explained why it found the applicant’s version of events to be implausible, it did not outline the facts upon which its findings were based.  However, I am satisfied the information was credible, relevant to, and logically probative of the credit issues the RRT was addressing in its reasons.  Plainly, the information formed part of the background facts which provided the context for the applicant’s claims.

17                  The applicant contended that the duty imposed on the RRT not to exclude from its consideration relevant country information contained in the Macpherson & Kelley submission arose specifically under s 424(1) of the Act, but also more generally from the nature of the RRT’s inquisitorial functions under the Act.

18                  Division 4 of Pt 7 of the Act (which includes s 424) is concerned with the conduct of a review by the RRT.  Section 423(1) provides for an applicant for review to provide to the Registrar of the RRT a statutory declaration in relation to any matter of fact the applicant wishes the RRT to consider and written arguments relating to the issues arising in relation to the decision under review.

19                  Section 424(1) provides that the RRT, in conducting the review, may “get any information that it considers relevant”.  The sub-section also provides that if the RRT gets “such information” it “must have regard to that information in making the decision on the review”.  Section 424(2) provides that, without limiting s 424(1), the RRT may “invite a person to give additional information”.  Section 424(3) provides for the manner in which a person is to be “invited” by the RRT to give such additional information.

20                  A claim in relation to s 424(1), similar to that made by the applicant in the present case, was considered in Applicant “F” v Minister for Immigration and Multicultural Affairs [2001] FCA 304.  In that case Carr J rejected the applicant’s submission that the word “get” in s 424(1) meant “obtain” or “received” and therefore included country information supplied to the RRT on behalf of the applicant together with the applicant’s submissions to the RRT.  Carr J stated at [31]-[32]:

“In my view, this submission misconstrues s 424(1).  I think that it is sufficiently plain that s 424 deals with information which the Tribunal gets (in the sense of ‘obtains’) by its own initiative.  The context suggests that it is not intended to refer to information proffered by the applicant – s 423 deals with that. 

The heading to s 424 reads ‘Tribunal may seek additional information’.  The heading is not part of the Act [see s 13(3) of the Acts Interpretation Act 1901 (Cth)].  However, pursuant to s 15AB [and bearing in mind the matters referred to in s 15AB(3) of the Acts Interpretation Act] I consider that the headnote to s 424(1) is capable of assisting in its meaning and that I may give consideration to it.  I do so in reaching the interpretation which I have put on the word ‘get’ immediately above.  In my opinion, the duty imposed on the Tribunal by s 424(1) to ‘have regard’ to information only relates to such information as it obtains on its own initiative pursuant to that sub-section.”

21                  In my view Carr J was correct in concluding that s 424(1) dealt with information that the RRT obtains on its own initiative pursuant to s 424 and therefore does not extend to information given by an applicant to the RRT for the purposes of the application.  In the present case the country information was proffered by Macpherson & Kelley in response to a request made by the RRT that the applicant provide any “new documents or written arguments” he would like the RRT to consider.  I do not regard that factor as resulting in the information being information obtained by the RRT on its own initiative.  Rather, the request was for the applicant to provide any further information which he wished the RRT to consider.

22                  If the applicant’s contention in respect of the operation of s 424(1) is correct, the RRT would be obliged to have regard to any information proffered by an applicant, irrespective of its relevance, merely because it was received or obtained by the RRT.  It is difficult to see what legislative purpose is served by that interpretation.  One can, however, readily accept that where the RRT exercises its inquisitorial power under s 424 to “get” information, in the sense stated by Carr J in Applicant “F”, the requirements of s 424 should attach to the exercise of that power.  Applying Carr J’s approach to the Macpherson & Kelley submission, it is not information to which the RRT was required to have regard under s 424(1).

23                  The alternative basis of the applicant’s claim was considered by me in Inderjit Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 73 at [49]:

“As explained above, an inquisitorial body, such as the RRT, is under a duty to arrive at the correct or preferable decision in the case before it according to the material before it.  In arriving at its decision under the Act the RRT is required to deal with the case raised by the material or evidence before it, which must be taken to mean the evidence and material which it accepts, or does not reject: see Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63, Satheeskumar v Minister for Immigration and Multicultural Affairs (1999) FCA 1285 at [15] Sellamuthu at [23].  As was pointed out by the Full Courts at Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 at [19] and Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at [52]:

‘The Tribunal is under a duty to review the decision of the delegate on the merits and in doing so must have regard to all of the material and evidence before it…’”

24                  In Inderjit Singh I concluded that the RRT had erred in law in not receiving certain material because it had erroneously considered itself to be functus officio.  I stated at [51]:

“That resulted in the RRT ignoring relevant material presented to it by the applicant without having a valid or lawful reason for doing so.  Thus, the RRT concluded its review of the application of the delegate’s decision without conducting the review in the manner required by the Act.  The situation is analogous to an Administrative Appeals Tribunal, which is also an inquisitorial body, ignoring some of the facts contained in the material relied upon by one of the parties before it in determining a matter: see Repatriation Commission v Owens (1996) 70 ALJR 904.  As explained above the reviewable error was a failure to observe procedures required by the Act to be observed (s 476(1)(a)) and was not authorised by the Act (s 476(1)(c)).”

25                  My observations in Inderjit Singh were cited with approval by Lee J in X v Minister for Immigration and Multicultural Affairs [2001] FCA 253 at [29] and by Ryan J in Applicant “N 346 of 2000” v Minister for Immigration and Multicultural Affairs [2001] FCA 1179 at [70]-[77].  See also my reasons in Minister for Immigration and Multicultural Affairs v Sarrazola [2001] FCA 263 at [55] with which Heerey and Sundberg JJ agreed.

26                  The Minister relied on Yusuf at [73]-[74] and [80]-[83], and certain observations of judges of the Court applying Yusuf (see for example ABC v Minister for Immigration and Multicultural Affairs [2001] FCA 955 at [21]-[23] per Stone J and Nick Dike v Minister for Immigration and Multicultural Affairs [2001] FCA 1030 at [42]-[47] per Kenny J) to contend that the RRT was only required to have regard to relevant considerations, being those it was bound in law to take into account.  Reliance was also placed on Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546 in which a Full Court (at [25]) rejected a submission by an applicant that the apparent failure of the RRT to refer in its reasons to a large number of documents meant that it had concluded its review without reading the material before it.  The rejection of that submission in Cabal turned primarily on the absence of any evidence that the RRT had not read the material “before it”.  Further, it was not established in Cabal that much of the allegedly unread material was relevant to any issue.

27                  The Minister’s submission conflates two distinct issues; the material before the RRT and the RRT’s evaluation of that material.  The first issue, which I dealt with in Inderjit Singh, relates to the material the RRT has before it and upon which it is to conduct its review.  That material is the material upon which the case raised by the applicant’s claims is to be determined and upon which the decision of the RRT is to be based.  The material will contain information which may, or may not, be relied upon by the RRT and which may, or may not, be regarded by the RRT as relevant to its decision.  In so far as the material contains information that is a relevant consideration, in the Peko Wallsend sense, then it is not open to the RRT to fail to take into account that consideration.  However, before the RRT gets to that question it must determine the material before it upon which it is to conduct its review.  The issues in the present case are concerned with that anterior stage in the conduct of the review.

28                  The point I made in Inderjit Singh is that the RRT, as an inquisitorial body, is required to have regard to the material “before it” for the purposes of the review in the sense that it is not entitled to exclude that material from its consideration without having a proper basis for so doing.  A proper basis may exist, for example, where the RRT is functus officio or where it has determined that the material is not credible or reliable or is irrelevant to the review it is conducting.

29                  In the present case the RRT did not give any reason for excluding the information contained in the Macpherson & Kelly submission.  It was not requested to exclude that material from its consideration.  It was not suggested on behalf of the Minister that the change of advisers, without more, would entitle the RRT to exclude from its consideration apparently credible and relevant material proffered by the previous adviser.

30                  I have concluded that the RRT acted in breach of its duty by excluding from its consideration country information that appeared to be credible and relevant in the sense that it was logically probative of the issues it was determining.  It follows that there was reviewable error as there was a failure by the RRT to observe procedures required by the Act to be observed (s 476(1)(a)) and its decision was not authorised by the Act (s 476(1)(c)).  As the error was procedural it may not have been a jurisdictional error in the sense described in Yusuf at [82]-[84], although it is not necessary for me to decide that issue.

Was the applicant denied the possibility of a successful outcome?

31                  In Inderjit Singh I made the point that the grant of relief under s 481(1) is discretionary.  Thus, where the breach does not deny the applicant “the possibility of a successful outcome” (see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147 and Refugee Review Tribunal Ex Parte Aala (2000) 176 ALR 219 at [4], [80], [103] and [130]-[132]) or where the error could not have made a difference to the outcome of the review (see Nguyen v Minister for Immigration and Multicultural Affairs [1998] 88 FCR 206 at 213-214) it is appropriate for the Court to exercise its discretion to refuse relief under s 481(1).

32                  I have had some difficulty with this aspect of the present case.  Plainly, the RRT rejected the applicant’s claims because it regarded his story as implausible.  The RRT outlined its reasons for its findings of implausibility, but the factual basis for those reasons is far from clear.  For example, it is a matter of speculation as to why, in the situation prevailing during the student demonstrations, it was implausible that the applicant “would be entrusted with the custody of two people who are handcuffed to each other and be asked to take them, on foot, to the Karegar Ave. police station by himself in a situation in which, according to the applicant, there were people everywhere.”.  It is also a matter of speculation as to why the RRT considered it to be implausible “that a person of the applicant’s limited experience in the police force” would “have been given the job of escorting prisoners” and as to why, even if he had been given that job, it was implausible that he would have been asked “to take two people by himself through crowds of demonstrators”.  It is difficult to assess the relevance of the country information relied upon by the applicant in relation to these issues.  I am not satisfied, however, that the information was irrelevant to the issues.

33                  The significance of the country information that might have been relevant to the RRT’s findings in relation to torture is clearer.  In its reasons the RRT rejected the photograph relied upon by the applicant as showing signs of torture on the basis that there was “nothing before the Tribunal to connect the photograph purporting to show signs of torture on his back and the origin of the marks on his back”.  The country information relied upon by the applicant set out details of the nature and extent of torture engaged in by the authorities against detainees in Iran, including references to the particular kind of torture the applicant alleged he had suffered.  That information was logically probative of the issue of torture the Tribunal was determining.  While the RRT had found all of the preceding elements of the applicant’s account to be “implausible” it does not follow that, if it had accepted the applicant’s version of his torture, it would nevertheless have still rejected his other claims on the ground that the earlier elements were implausible.  Each aspect of the mistreatment the applicant allegedly suffered was inter-related so that if the applicant’s account of his torture had been accepted the RRT would, inevitably, have had to reconsider its earlier findings of implausibility.

34                  Ultimately, I have come to the view that the uncertainty as to the factual basis for the RRT treating the applicant’s claims as implausible leaves me unable to form any concluded view as to whether its views might have changed had it considered the country information relied upon by the applicant’s counsel in the present case.  It follows that I cannot be satisfied that relief should be refused on the ground that the breach did not deny the applicant the possibility of a successful outcome, or that it could not have made a difference to the outcome of the review.

35                  Earlier in these reasons I referred to the fact that country information from “The Economist” was referred to in the RRT’s reasons.  Counsel for the Minister relied on that information on the ground that it contained substantially the same country information as that set out in the Macpherson & Kelley submission.  There is some substance in that contention.  The report in “The Economist” dated 17 July 1999 made reference to the student riots and demonstrations.  The riots were stated to involve students who “rampaged through central Tehran…, burning cars, attacking buildings and fighting pitched battles with armed security agents”.  The article stated the demonstrations involved “(t)housands of students” and led to “chaos” in central Tehran.  However, the focus of the article was on the political reasons for the demonstrations and it was used by the RRT to note “in passing that the applicant’s knowledge of the reason for the demonstration betrays his lack of experience and scant political awareness”.  The information did not appear to otherwise be relied upon by the RRT.  Thus, the RRT did have before it country information that, in significant respects, was similar to that relied upon by the applicant.  However, the additional country information in the Macpherson & Kelley submission relating to the number of persons arrested, their release, and the torture information to which I have referred, was not referred to in “The Economist” article.  Accordingly, I do not accept the Minister’s submission that the same information was before the RRT in any event.

Conclusion

36                  It follows that the applicant is entitled to succeed in his application for review.  He is entitled to an order that the decision of the RRT be set aside and the matter be remitted to the RRT, differently constituted, to be determined in accordance with law.

37                  Counsel for the applicant, who appeared pro bono under Order 80 of the Rules of Court, carefully reviewed the material before the RRT, prepared an Amended Application and made comprehensive and succinct written and oral submissions in support of the application.  In my view it is appropriate that the costs of counsel appearing for the applicant be paid by the respondent.  Accordingly, it is appropriate to order under Order 80 that the

respondent pay the costs of the applicant, being counsel’s costs of and incidental to the application, which costs are to be taxed.

Associate:

Dated:              12 October 2001