FEDERAL COURT OF AUSTRALIA

W280 v Minister for Immigration & Multicultural Affairs [2001] FCA 1606

MIGRATION - refugees - protection visa - Refugee Review Tribunal - well-founded fear of persecution - real chance test - whether Tribunal applied criteria for determining well-founded fear of persecution - verbal formulae consistent with application of such test - Tribunal finding applicant credible and truthful at close of oral hearing - Tribunal rejection in written reasons of major aspects of applicant's evidence - no explanation for departure from views expressed at close of oral hearing - inference that Tribunal did not give consideration to hypotheses consistent with a well-founded of persecution - decision set aside.

Migration Act 1958 (Cth) s 476

Minister for Immigration and Ethnic Affairs v Guo  (1997) 191 CLR 559

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

W280 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W280 OF 2001

FRENCH J

14 NOVEMBER 2001

MELBOURNE (HEARD IN PERTH)

THE COURT ORDERS THAT:

1.         The decision of the Refugee Review Tribunal given 22 June 2001 affirming the refusal of the grant of a protection visa to the applicant is set aside.

2.         The matter is remitted to the Refugee Review Tribunal differently constituted to be determined according to law.

3.         The respondent is to pay the applicant's costs of the application.

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

REASONS FOR JUDGMENT

Introduction

1                     The applicant is a national of Afghanistan.  He is in his mid-twenties. On 6 January 2001, he arrived in Australia by boat from Indonesia without any lawful authority.  He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs ("DIMA") on 27 January 2001.  The application was refused by a delegate of the Minister for Immigration and Multicultural Affairs on 23 March 2001.  On 30 March, the applicant applied for review of that decision.  After an oral hearing on 1 June 2001, the Refugee Review Tribunal ("the Tribunal") decided, on 22 June 2001, to affirm the decision not to grant a protection visa.  On 6 July, the applicant lodged an application in this Court for review of the Tribunal's decision.

Evidence before the Tribunal

2                     The applicant is a Tajik from the Kabul province in Afghanistan.  The Tribunal so found, accepting that the term "Tajik" refers to a non-tribal Persian speaking Afghan rather than a particular ethnic group.  He lived in Meskin Refugee Camp in Peshawar in Pakistan where he was educated between March 1986 and December 1992.  In 1993 he returned to Afghanistan.  At that time his eldest brother was with the organisation known as Jamiat-e-Islami, a predominantly Islamist party which was the dominant party in the Persian speaking areas of North-eastern and Western Afghanistan.  After the withdrawal of the Soviet Union some non-Pashtun Afghanis sought to secure their futures through alliance with this party.  Several key government figures, Tajik army officers and intelligence officers also joined with them.  A sophisticated military-political organisation, the Supervisory Council of the North, established by the military commander of Jamiat-i-Islami, Ahmad Shah Massoud, coordinated Jamiat commanders in about five provinces.  It also established region wide forces which developed into Massoud's Islamic Army.  It oversaw a regional administration from its base in Taloquan, the centre of the Takhar province, which Massoud captured following the withdrawal of Soviet troops in mid-1988 - UNHCR Background Paper on Refugees and Asylum Seekers from Afghanistan, Geneva, June 1997, Section 2.1 - the Tribunal's reasons at p 8.  The Tribunal accepted that the applicant's eldest brother though his active support of Jamiat-i-Islami, obtained the top employment position at a detention centre in Kabul in or before 1993 and that the applicant himself worked at that detention centre as a guard from about 1993.  However when the Taliban captured Kabul in September 1996, they had to leave their positions at the detention centre.  It was also accepted that people living in the district regarded the applicant's family as supporters of the Jamiat-i-Islami.

3                     According to the applicant's statement in support of his protection visa application, when the Taliban took over Kabul in 1996 they appointed people to collect weapons and disarm the population.  Mullah Qaium was put in charge of that work in the area of the applicant's family.  One of the local villagers, Qari Shir, was Mullah Qaium's body guard.  The applicant said that his father was concerned that he and his brother were active members of Jamiat-i-Islami and spoke to a person called Gulai, the father of Qari Shir.  He asked Gulai to speak to Qari Shir in order to exempt the applicant and his brother from punishment by the Taliban.  As a result of this intercession, Mullah Qaium said that the applicant's eldest brother should provide three Kalashnikovs and $US2,000.  The Tribunal accepted that the applicant's father paid a bribe and provided three Kalashnikovs to Mullah Qaium to ensure that the applicant's eldest brother would be protected.   It accepted also that Mullah Qaium provided the family with a letter to record that his eldest brother had been "cleared" in exchange for three Kalashnikovs.  The applicant's father raised the money by selling some of his land. 

4                     According to the applicant's statement in support of his protection visa application, his brother did not trust the Taliban so he stayed at home and worked in the fields.  In 1998 the Taliban took a town called Mazar-e-Sharif and transferred Mullah Qaium there.  A new person, Mullah Saleem was appointed in his place with responsibility for the area in which the applicant and his family lived.  As soon as he took over he came to their village.  One day, the applicant's brother was at home with the women when someone knocked at the door.  When he opened the door he found Mullah Saleem and three others in a vehicle.  The Mullah asked his name and when he confirmed it, he was apprehended and taken to the car.  He has been missing ever since. The applicant said that he and his family tried many times to find out where his brother is but they have no news of him.

5                     The Tribunal accepted that the Taliban arrested and detained the applicant's elder brother in mid-1998 in connection with his political support of the Jamiat-i-Islami and that his whereabouts remain unknown.  It also accepted the applicant's evidence that Mullah Qaium's letter had served to protect his elder brother while Mullah Qaium worked for the Taliban in his area but that it no longer protected him after Mullah Saleem was appointed.

6                     The applicant said in his statement in support of the protection visa application that in May 2000 Taliban people came to his shop and arrested him.  They told him he had weapons and that he had better surrender them.  He pointed out that they had had three Kalashnikovs which had been given  to Mullah Qaium together with $US2,000.  The Taliban told him he was lying.  The applicant referred to the letter they had from Mullah Qaium.  The Taliban would not let him go to the shop to get it so he asked them to go to the shop and get the letter from another of his brothers.  When they read the letter the Taliban said that the weapons had belonged to his older brother and that he was to bring his own weapons because he also used to work with the Jamiat government.  They told him he owed twenty Kalashnikovs.  He swore on the Koran that he did not have any, but they told him he was lying.  He said he was kept like a political prisoner and detained on his own.  While he was detained his family did not know his whereabouts.  He spent a total of six months in detention.

7                     The applicant said that Mullah Shah Mohammad, who was in charge of preaching, had married a girl who was a distant relative of his family.  His mother made inquiries with the Mullah and one night the Mullah came to where he was detained.  The applicant said he had been beaten very hard with a cable to the head the night before.  The Mullah opened the door and as soon as he opened the door the applicant thought he was going to receive another beating.  However, he was greeted and was asked what sort of questions the Taliban had asked.  Mullah Mohammad then spoke to one Mullah Yunus who said that the applicant would be released if he paid $US2,000.  This was conveyed to the applicant's mother. The family sold another area of land and gave the money Mullah Shah Mohammad.  According to the applicant, Mullah Shah Mohammad came to him on 1 November 2000, gave the money to Mullah Yunus, and then took the applicant to Gardiz.  He was handed over to Mullah Karim, a smuggler who kept him in Gardiz for twenty five days.  The applicant did not  have a chance to say goodbye to his family.  Mullah Yunus warned him that if he were seen around the area again or in Afghanistan he would be killed.  He would be harmed because he had links with the former anti-Taliban government of the Jamiat-i-Islami.

8                     There was country information before the Tribunal that in August 1997 Taliban police in Kabul had reportedly arrested over 100 men alleging that they were loyal to Massoud.  Mass arrests of Uzbeks, Hazara and Tajiks on suspicion of fifth column activities increased in frequency at this time.  The Canadian Immigration and Refugee Board Research Directorate reported that the Taliban had arrested, detained and mistreated Tajiks in Kabul during 1997.  The Directorate cited a report describing life in Kabul a year after the Taliban captured the city.  According to that report:

"The Taliban have used the war to justify a campaign of arrests that has targeted the city's Tajik, Uzbek, and Hazara minorities…Hundreds have been arrested in Kabul in the past two months on suspicion of aiding the opposition.  Most are released after a few days, sometimes after a lashing….[However, according to Sher Mohammed Abbas Stanakzai, the deputy foreign minister,] every edict [the Taliban] issue and every arrest they make is part of the army's step-by-step attempt to bring law and order."

9                     In 1998, according to the Directorate, there were reports that sixty young men of Tajik and Hazara origin were imprisoned, tortured and killed by the Taliban in Kabul.  One source indicated that Tajiks in Kabul in mid-1998 were under close surveillance because of the proximity of the front line.  In 2001, the UNHCR Centre for Documentation and Research stated:

"Minority groups continue to face harassment by the Taliban.  Arbitrary detention, hostage taking and summary execution for imputed political opinion are used for minority populations (ie, Tajiks originating from the Panjshir Valley, the stronghold of Commander Massoud, and Uzbeks in Faryab province) as a pre-emptive measure to deter opposition to emerge in certain areas or where there is an increased number of security incidents attributed to the opposition or as a direct response to developments at the front lines.   The main element of these violations is not the ethnicity or the religion, rather the actual or imputed opposition to the Taliban.

(Background Paper on Refugees and Asylum Seekers from Afghanistan, Geneva, April 2001, Section 5.2)

The Tribunal accepted that the Taliban arrested, detained and mistreated Tajiks in Kabul in 1997 and 1998.  Further, it accepted that the Taliban had mistreated Tajiks whom they suspected were supporters of Massoud or their political opponents.

10                  The Tribunal made reference to evidence given by the applicant at the hearing.  It noted that in the declaration attached to his protection visa application form, he said his father had been concerned about the safety of both his brother and himself as they had both been "active" members of the Jamiat-i-Islami, yet Mullah Qaium's letter only referred to his elder brother as having been "cleared".  The Tribunal member found that the applicant's evidence at the Tribunal hearing that he did not know why his name was not included in Mullah Qaium's letter to be unconvincing.  The Tribunal considered that the applicant's name was not included in that letter because it was his brother alone who required protection from the Taliban.  This was consistent, it was said, with his brother's background as a senior officer at the detention centre in Kabul and his political profile of support for Jamiat-i-Islami in his area.  The Tribunal does not appear to have had any regard to its finding that the applicant had worked at the same detention centre as his brother as a guard from 1993. 

11                  The Tribunal went on to observe that the applicant stated in his declaration that, after Mullah Qaium's clearance, his elder brother stayed at home or worked in the fields because "he did not trust the Taliban".  Yet, it said, the applicant continued working as a self-employed shopkeeper shortly after the Taliban captured Kabul and continuously worked in that capacity until at least May 2000, that is for almost two years after his brother's arrest and disappearance.  His ability to continue his employment and other daily activities without interference by the Taliban was not consistent with a fear that they would harm him because of his imputed political opinion, his family relationship to his brother, or his Tajik ethnicity.  Had he feared that the Taliban would harm him it was reasonable to expect that he would  have stayed at home or gone into hiding or fled from Afghanistan after the Taliban detained his brother.  It was said that when questioned at the Tribunal hearing about why he had not left Afghanistan when the Taliban detained his brother, "…he unconvincingly responded that it was because he believed that Mullah Qaium's letter would protect him and because he was a favourite child of his parents."  It is not clear why the Tribunal excluded or did not have regard to the hypothesis that this young man would think he might be protected by Mullah Qaium's letter.  The unconvincing aspect of his response was presumably related to its content.  The actual exchange in this respect between the Tribunal member and the applicant, via an interpreter, as appears from a transcript of the proceedings before the Tribunal was thus:

"Q.      I noticed that that letter only mentions the name of your brother, that it didn't mention your name.

A.        No it didn't mention my name.

Q.        Why didn't it mention your name?

A.        I don't know why it didn't mention my name but he assured us the family that he will support us, till he is not dead, because he was telling me I am here, no worry about that, and we didn't know that one day he will be transferred somewhere else.  But even though when my brother he was in that letter, they arrested him, so if the name was not important. (sic)

Q.        Your brother who was arrested, was the oldest brother, and you are the 5th eldest brother, was it that his name was only mentioned because of out of everyone in your family he was the most at risk?

A.        The danger was for everybody, every member of the family, so that letter was just a piece of insurance, and to give us some moral assurance about the matter, but the danger was for everybody.

Q.        What about the danger of, you have got 3 older brothers who are still living in the village is that correct?

A.        Yes.

Q.        Are they not in danger?

A.        No because whether they are alive, or taken away by the Taliban, but the conditions change, and everybody will be in trouble.

Q.        Well were your older brothers in less danger than you?

A.        Yes that is the case, because I served for the Jamiat, I was working in the office which was ruled by the Jamiat, they didn't have that, if they had the only membership card that was just, we didn't know if they were aware of that.

Q.        So what do your 3 older brothers do to earn a living?

A.        2 of them were shopkeepers, 1 with whom I was working or he was working with me, the one, second to [the eldest brother] is working on the farm as a farmer."

The questioning about the applicant remaining in his village after his brother disappeared was limited:

"Q.      My last question to you is why you didn't leave Afghanistan after your oldest brother disappeared?

A.        First, we thought that as we paid the $2,000 and got that letter from one of the Mullahs and we thought that this person would also be the person who accepted the bribe and we will pay him not to be in trouble, but it didn't happen that way.

Q.        That is right and that is why I am wondering why you didn't leave Afghanistan in the middle of 1998 when you realised that the payment of that bribe and that letter hadn't protected him.

A.        Lots of (unclear) the person it could be, he advised the family and myself as well that first of all I have to find out about your brother, then when he bribed the Mullah, or any means he was able to release me to those Mullahs, he advised me not to leave at this time.

Q.        Why did he advise you not to leave?

A.        He was telling us that there would be no problems everything will be in control, I will support you and also my father and family wanted me to be there because I was one of the favourites of my parents, the 3 others are (unclear) and also I wondered where to go."

12                  This was said to be an unconvincing response.  It was the last question put by the Tribunal to the applicant at the hearing.  The applicant was then given an opportunity to say anything else that he thought was relevant.  He spoke about being teased by Hazara people at the camp and then reiterated that he did not want to be returned to Afghanistan because of the Taliban. 

13                  The following exchange then took place between the Tribunal member, Ms Boyd, and the applicant's representative, Ms Gould:

"Tribunal:       And Miss Gould, is there anything else you would like to say?

Ms Gould:       No Miss Boyd as I said before, I believe our client had every opportunity and he has been very credible and informative today.

Tribunal:         Alright, [applicant's name] I am going to make a decision I would say in about the next few days or possible 5 days, and when I have written, I have got to write the decision and it gets checked usually by someone for typing errors and then it will get faxed to you where you are, so it shouldn't be very much longer.

Applicant:       Thank you very much.

Tribunal:         I won't make a decision here right and now, but I will say that I agree with your adviser that your evidence has been very credible today, that you have been truthful and I appreciate that very much.

Applicant:       Thank you very much.

Tribunal:         All right then, I will now close the hearing and thank you and the adviser and the interpreter."

14                  It was surprising in the light of these closing comments at the oral hearing, that the Tribunal commenced the "Findings and Reasons" section of its reasons for decision  delivered three weeks later, with the following statement:

"I find that the applicant does not have a genuine or subjective fear of being persecuted for a Convention reason by the Taliban.  His evidence was inconsistent and unconvincing in significant respects as discussed below."

15                  In addition to characterising as unconvincing the applicant's explanation for remaining in his village after his brother had been arrested, the Tribunal went on to say:

"I find that the applicant was not a member or supporter of the Jamiat-i-Islami  after the Taliban captured Kabul in September 1996; and that he was not a high-profile or "active" member of the Jamiat-i-Islami  before that time.  I refer to his evidence at the hearing that his activities in support of the Jamiat-i-Islami  consisted of his work as a guard at the detention centre in Kabul; and that he no longer supported the Jamiat-i-Islami after the Taliban captured Kabul in September 1996.

I have found the applicant's evidence in relation to him being at risk of harm by the Taliban to be inconsistent and unconvincing.  I therefore do not accept that the Taliban perceived him to be a supporter of the Jamiat-i-Islami on the basis of [his eldest brother's] political profile or any other basis after he left his employment position at the detention centre in Kabul.  On the same basis, I do not accept that the Taliban arrested him in May 2000 and detained him for six months or that someone informed the Taliban of his previous support for the Jamiat-i-Islami at about that time."

The Tribunal having informed the applicant at the close of his testimony that it found his evidence to have been credible and that he had been truthful, in effect finding him, in its reasons, to have lied on major issues of fact.

16                  The Tribunal referred to its finding that the Taliban had mistreated Tajiks who were suspected of being supporters of Massoud or their political opponents and to the report of the UNHCR Centre for Documentation and Research in April 2001 to the effect that minority groups are mainly targeted by the Taliban on the grounds of actual or imputed political opposition.  The Tribunal said:

"As I have not accepted that the Taliban have perceived the applicant to be a political opponent or targeted him for harm because of his family relationship to [his eldest brother] or Tajik ethnicity, I do not accept that there is a real chance that they would harm him because of an imputed political opinion, his membership of a particular social group or his Tajik ethnicity in the reasonably foreseeable future. 

Accordingly, I find that the applicant does not have a well-founded fear of being persecuted by the Taliban for reasons of political opinion, particular social group or race."

The Grounds of the Application for Review

17                  The grounds of the substituted application for review of the decision of the Tribunal are as follows:

"5.       The grounds of the application are:

            a)         The Tribunal erred in law in determining that the Applicant did not have a well founded fear of persecution for a convention reason.

PARTICULARS

            i.          The Tribunal accepted that the Applicant's elder brother had been an active supporter of the Jamiat e Islami and in charge of a Jamiat e Islami detention centre between 1993 and 1996 and had been taken by the Taliban in 1998 and that his whereabouts remained unknown, that the Applicant's family was perceived as supporters of Jamiat e Islami until 1996, and that the Applicant had worked as a prison guard at the Jamiat detention centre at which his brother was in charge between 1993 and 1996.

            ii.         Further a consideration of the Applicant's claims, as contained in his arrival interview, his protection visa application, and at the hearing before the Tribunal, showed that the Applicant had been consistent in his primary claims that the Applicant elder brother had been taken and disappeared as accepted by the Tribunal and that the Applicant himself had been detained by the Taliban, interrogated and tortured and held for 6 months from May to November 2000.

            iii.        Further at the conclusion of the hearing before the Tribunal, the Tribunal stated that the Applicant's evidence to the Tribunal had been credible and the Applicant had been truthful.

            iv.        Further the Tribunal accepted country information that showed that in 1997 and 1998 the Taliban had continued to detain and mistreat Tajiks in Kabul particularly those were suspected of being supporters of Massoud (the military leader of the Jamiat e Islami) or the Taliban's political opponents. (sic)

            v.         Further the only Country Information relied on by the Tribunal related to the period since 1998 stated that "Minority groups continue to face harassment by the Taliban.  Arbitrary detention hostage taking and summary execution for imputed political opinion are used for minority populations…as a pre-emptive measure to deter opposition to emerge in certain areas…The main elements of these violations is…the actual or imputed opposition to the Taliban."

            vi.        In those circumstances the Tribunal has failed to properly consider the risk that the Applicant was indeed telling the truth and that the Tribunal could be wrong in its determination that the Applicant had not been arrested and detained for 6 months from May 2000 and that the Tribunal should have regard to the possibility it was wrong in such determination when it determined that the Applicant was not at risk of persecution for a Convention reason if returned to Afghanistan.

            b)         The Tribunal erred in law, alternatively made its decision without jurisdiction, alternatively its decision was not authorised by the Migration Act.

PARTICULARS

            i.          The Tribunal relied on irrelevant material namely that the Applicant's name did not appear on the letter from Mullah Qaium and the Applicant did not appear to have significant fear of persecution by the Taliban prior to the Applicant's claimed arrest and detention by the Taliban in May 2000 in order to determine that the Applicant had not in fact been arrested and persecuted at that time."

The Statutory Framework - The Criteria for Grant of a Protection Visa

18                  The grant of protection visas is dealt with in the general provisions of the Migration Act 1958 (Cth) for the grant of visas for non-citizens.  These are to be found in Division 3 of Part 2 of the Act.  The Minister has a general power to grant a non-citizen permission, to be known as a visa, to travel to and enter Australia and/or to remain in Australia (s 29).  There are classes of visas prescribed by the Migration Regulations and classes provided for in the Act (s 31).  Criteria for the grant of specified classes of visas may be prescribed in the Regulations (s 31(3)).  An application for a visa is to be considered by the Minister (s 47) and if satisfied that the criteria for its grant and other conditions not relevant for present purposes have been met, the Minister is to grant the visa.  If not so satisfied, the Minister is to refuse the grant (s 65).  Section 36 provides for the grant of protection visas.  It is a criterion for the grant of such a visa that the applicant be a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (s 36(2)).  This criterion is replicated in Schedule 2 of the Regulations which, pursuant to reg 2.03 sets out criteria for the grant of various classes of visa.  Item 785 of Schedule 2 deals with temporary protection visas and Item 866 with protection visas.  Both include as a criterion that:

“…the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.”

19                  The primary obligation which qualifies as a protection obligation arises out of Article 33 of the Refugees Convention.  Under that Article the Contracting States undertake not to expel or return a refugee to the frontiers of territories in which his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.  The obligation which is otherwise known as the prohibition against refoulement has two important elements:

1.         It operates in respect of refugees.

2.         It prohibits their expulsion or return to the frontiers of territories where their lives or freedoms would be threatened for a Convention reason.

A refugee is defined in Article 1A(2) of the Convention as any person who:

“…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

The Statutory Framework - The grounds for Judicial Review

20                  The available grounds of review in this case are as set out in s 476 of the Migration Act  as it stood prior to recent amendments.  The relevant parts of that section are as follows:

"476(1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

…

(b)       that the person who purported to make the decision did not have jurisdiction to make the decision;

(c)        that the decision was not authorised by this Act or the regulations;

…

(e)        that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;"

Error of Law

21                  The Tribunal was required by the Act to determine whether or not Australia had a protection obligation to the applicant under the Refugees Convention.  The relevant obligation is that of non-refoulement under Article 33.  In this case the decision whether that obligation applied to the applicant depended critically on the determination whether he was a refugee within the meaning of Article 1A(2) of the Convention.  This required consideration of whether, if returned to Afghanistan, he would have a real chance of persecution on account of his ethnic origin, membership of a particular social group or political opinion, real or imputed.  This did not require the Tribunal to be satisfied on the balance of probabilities of a risk of persecution if the applicant were to be returned.  It required consideration whether there was, objectively speaking, a finite non-trivial risk of persecution.  The High Court said in Minister for Immigration and Ethnic Affairs v Guo  (1997) 191 CLR 559 at 572:

"A fear is "well-founded" when there is a real substantial basis for it.  As [Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429] shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate."

The existence of a well-found fear, may of course be negatived by a finding of fact that necessarily excludes the possibility, or anything more than a remote probability, of persecution if returned.  Where such an exhaustive finding is made then in the ordinary course, the Court cannot go behind it.

22                  A case may however arise, and it will be rare, that the Court will be satisfied on the materials before it that notwithstanding invocation of the appropriate form of words the Tribunal has not in truth considered whether there is a real chance of persecution for a Convention reason.  Findings of fact made by the Tribunal may be consistent with the presence of such a chance so that conclusions excluding its existence may be indicative of a failure actually to consider the risk of persecution supporting a well-founded fear in the sense referred to in Guo.  This is not to suggest that errors of logic are reviewable. As the Full Court recently observed in Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 at [34]:

"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." 

That does not exclude the possibility that an error of logic, in the circumstances of a particular case, may point to an underlying error of law. 

23                  In this case the Tribunal made a number of findings of fact which were consistent with the existence of a risk of persecution of the applicant for a Convention reason.  They were referred to by counsel for the applicant in his written submissions and included:

1.         The finding that the applicant had worked as a guard in a detention centre under the anti-Taliban Jamiat-i-Islami regime and that his brother who was an active supporter of Jamiat-i-Islami had held the top position at that detention centre.

2.         The finding that the Taliban Mullah Saleem had arrested the applicant's brother in 1998 and that the applicant's brother had not been seen since. 

3.         The finding, based on country information, that the Taliban arrested, detained and mistreated Tajiks in Kabul in 1997 and 1998 and that the Taliban had mistreated Tajiks whom they suspected of being supporters of Massoud or of their political opponents.

Those findings having been made, it is difficult to see why, even, rejecting the applicant's account of his arrest and detention, the Tribunal thought the applicant would not be at some ongoing risk of persecution by the Taliban because of his association with a particular regime and, in particular, his work as a guard at the detention centre. 

24                  The Tribunal's rejection of the applicant's explanations for continuing to work and not fleeing or going into hiding after his brother's arrest appears to be based upon a very brief question and answer exchange at the end of the oral hearing.  The answers, given as were all the answers, through an interpreter, were not particularly clear.  They conveyed however a reference to family pressures on the applicant to remain, the payment to Mullah Qaium and the letter which he had sent.  It may be said that reliance on the letter was misplaced and that a combination of family pressures and denial or wishful thinking caused the applicant to stay as long as he did.  There is nothing inherently unconvincing about that.  The fact that at that time he did not harbour or may have repressed any subjective fear of persecution did not mean that there was not a risk of that occurring.  The fact that, on his account, nothing happened to him until May 2000 does not exclude the possibility that he was continuing at risk and that for any of a variety of reasons the risk did not crystallise until his arrest in May 2000.  These observations go to the logic of the Tribunal's reasons.  They do not themselves expose any grounds for review.  They have to be seen however in the light of the discrepancy between the Tribunal's clearly stated view of the applicant's evidence at the end of the hearing and its written reasons.

25                  The Tribunal at the end of the oral hearing, stated, not merely by way of platitude or aside, that the applicant's evidence to it was "very credible" and that he had been "truthful".  These observations were made when the oral testimony was at its freshest in the Tribunal's mind and at a time when the Tribunal was also familiar with the written material.  The Tribunal made no reference in its reasons for departing as radically as it did from the unqualified observation which it made at the end of the hearing.  This suggests that the Tribunal, having previously accepted the applicant as a witness of the truth, overlooked, when it came to the preparation of its written reasons, the considerations which had caused it to arrive at that view.  The Tribunal having found the applicant to be a credible and truthful witness at the time of the hearing must then have regarded his account of his arrest and incarceration as true in substance.

26                  The Tribunal's reasons are so inconsistent with its views at the time it heard the evidence as to lead to the inference that it failed to give any consideration to those features of the evidence that had brought it to that contrary view on 1 June 2000.  It has offered no explanation of its departure from that conclusion.  Despite the terms of its written reasons, the Tribunal has in my opinion failed to have regard to those features of the evidence which would at least support the hypothesis that what the applicant said about his own arrest and incarceration was true and that there was a real chance of persecution if he were to be  returned to Afghanistan.  This amounted to a failure by the Tribunal to apply the law it was required to apply in determining whether the criterion for the grant of a protection visa was satisfied.  There was therefore an error of law in that, notwithstanding the content of its reasons for decision, the Tribunal failed to apply to the evidence the test for the existence of a well-founded fear of persecution that it was required to apply.

27                  The first ground of review is therefore made out.  The decision of the Tribunal will be set aside and remitted to a Tribunal differently constituted.

Associate:

Dated:                 November 2001