FEDERAL COURT OF AUSTRALIA

Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380

MIGRATION – protection visa – whether Refugee Review Tribunal failed to observe a procedure required – failure to invite applicant to comment on material relied on by tribunal as part of the reason for its decision – material in fact tended to support applicant’s case but was misconstrued by tribunal – whether applicant denied the possibility of a successful outcome – whether no evidence or other material to justify the making of the decision – finding that there was no by-election near the applicant’s home in which he could have campaigned – whether finding of the existence of a particular fact – whether finding expressed in negative terms can be such a finding – whether tribunal based its decision on particular fact – whether there was other evidence or material justifying the decision

Migration Act 1958 (Cth) ss 5(1), 36(2), 424A(1), 424A(3), 424A(4)(b), 476(1)(a), 476(1)(g), 476(4)(b), 481(1)(b)

Federal Court Rules O 80

Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919 applied

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

Giretti v Commissioner of Taxation (1996) 70 FCR 151 considered

Abriel v Australian Guarantee Corporation [2001] FCA 165 referred to

Carlos v Minister for Immigration & Multicultural Affairs [2001] FCA 301 referred to

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82 considered

N258/00A v Minister for Immigration & Multicultural Affairs [2000] FCA 993 (2000) 101 FCR 478 referred to

Ordeniza v Minister for Immigration & Multicultural Affairs [2001] FCA 35 referred to

Pei Lan He v Minister for Immigration & Multicultural Affairs [2001] FCA 446 referred to Kheirollahpoor v Minister for Immigration & Multicultural Affairs [2000] FCA 1350 referred to

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

Sarancharkh v Minister for Immigration & Multicultural Affairs [2001] FCA 1461 referred to

Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 considered

ABDUL KHALIQUE BAIG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 358 of 2001

GRAY J

9 APRIL 2002

MELBOURNE

THE COURT ORDERS THAT:

1.         The decision of the Refugee Review Tribunal, made on 9 May 2001, be set aside.

2.         The matter be referred to the Refugee Review Tribunal, differently constituted, for
            further consideration.

3.         The respondent pay the applicant’s costs of the proceeding.

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

REASONS FOR JUDGMENT

The nature of the proceeding

1                     This is an application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (“the Migration Act”) of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) to refuse to grant the applicant a protection visa.  Because of the age of the matter, it is required to be dealt with in accordance with the provisions of the Migration Act as they stood prior to amendments that came into operation on 2 October 2001. 

2                     The applicant is a citizen of Pakistan.  He arrived in Australia on 26 September 1998.  On 9 November 1998, he applied for a protection visa.  On 23 November 1998, a delegate of the Minister refused to grant a protection visa.  The applicant applied to the Tribunal for review of that decision on the merits.  On 9 May 2001, the Tribunal handed down a written decision affirming the decision of the delegate of the Minister, together with its reasons for decision.  The applicant seeks judicial review of that decision of the Tribunal in the present proceeding.

3                     Section 36 of the Migration Act provides for a class of visas to be known as protection visas.  By s 36(2), a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  The term “Refugees Convention” is defined in s 5(1) of the Migration Act to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951.  The term “Refugees Protocol” is similarly defined to mean the Protocol relating to the Status of Refugees done at New York on 31 January 1967.  It is convenient to refer to these two instruments together as the “Convention”.  For present purposes, the effect of the Convention is to provide that Australia has protection obligations in respect of a person who:

“owing to 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”.

The applicant’s claims

4                     The Tribunal had before it three accounts of the applicant’s claims.  The first was in the application form dated 9 November 1998.  The second was in an interview by an officer of the Department of Immigration and Multicultural Affairs on the applicant’s return to Australia after he had left on 9 November 1999.  The third was the evidence that the applicant gave to the Tribunal at its hearing on 11 April 2001.  The following is a summary of the applicant’s case.  It is not intended to be exhaustive and what the applicant said was set out in more detail in the Tribunal’s reasons for decision. 

5                     The applicant sought protection on the basis of his fear of persecution for his political opinion if he should be forced to return to Pakistan.  He said that he had been a long-time supporter of the Pakistan People’s Party (“PPP”), although not a member.  This involvement led to personal enmity on the part of local feudal lords and landlords who supported another political party.  The applicant feared kidnapping, torture, illegal detention and death in the torture cells of local feudal landlords, who held considerable influence with the local police and other government departments.

6                     The applicant claimed that in March 1997 (at one stage he gave the date as 26 March), he supported a friend of his who was contesting a by-election for a seat in the National Assembly on the ticket of the PPP.  The by-election was in or near Rahimyar Khan, the applicant’s home town, in Punjab.  It was brought about because a politician named Makhdom Mahmood had stood for and won two seats in the National Assembly at a general election that took place in February 1997.  Makhdom had to vacate one seat and this led to the by-election.  The Muslim League was the party in power as a result of the February general election.  The by-election was also contested by a Muslim League candidate, who was a feudal lord and industrialist with influence over the police and the courts.  The applicant claimed to have attended meetings and arranged gatherings, visited people and encouraged them to support the PPP.  He campaigned in the evening because he was working.

7                     According to the applicant, it was unusual for a feudal lord to be opposed in an election.  The applicant was warned to withdraw his support.  The Muslim League candidate won the election by a large margin.  The PPP candidate ran away because, prior to the by-election, he had been threatened and offered money to withdraw his candidacy.  The applicant said that, despite having won the by-election by such a large margin, the Muslim League was affronted at having been opposed.  He received more threats and was abused publicly.  He was stopped in public and told that he would live to regret what he had done, that they had told him to withdraw his support and that he had gone against them.  The applicant began to see groups of people at the ends of streets wherever he went, apparently watching him.  At night there were groups with guns in his area.  He was followed in this fashion for five or six days and then left his home.

8                     In Lahore, the applicant tried to see the chairman of the Muslim League to seek his intervention to stop the threats.  For six months, he moved to several different places and was supported by friends.  He then asked friends to arrange for him to leave Pakistan.  He obtained a new passport to replace an expired one, but not through the normal channels, because of his fear.

9                     In November 1999, the applicant returned to Pakistan after a military coup had replaced the Muslim League government.  He went to his home and kept a low profile.  After two weeks, he had a visit from someone who told him he should go to the feudal lord and apologise and that if he did not he had better be careful.  Subsequently, he was walking in the street in Lahore when someone shot him from a car.  He did not report the matter to the police.  He was treated in a private clinic and took two months to recover.  He then made arrangements to return to Australia, this time on a counterfeit Singapore passport. 

The invitations to comment

10                  Section 424A(1) of the Migration Act provides:

“Subject to subsection (3), the Tribunal must:

(a)       give to the applicant, in the way that the Tribunal considers
            appropriate in the circumstances, particulars of any information that
            the Tribunal considers would be the reason, or a part of the reason,
            for affirming the decision that is under review; and

(b)       ensure, as far as is reasonably practicable, that the applicant
            understands why it is relevant to the review; and

(c)        invite the applicant to comment on it.”

11                  Subsection (3) refers to three classes of information to which s 424A(1) does not apply.  Of those, the only relevant one is information:

“(a)     that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”.

12                  On 19 April 2001, in accordance with s 424A(1), the Tribunal sent to the applicant a letter informing him that it had failed to find any record of a by-election held around 26 March 1997 in Punjab.  Attached to the letter was a search for the week ending 29 March 1997 of the archives of the DAWN Wire Service, a free weekly news service from Pakistan’s largest English language newspaper, the Daily DAWN.  The letter sought comment on two issues.  The first was the absence of any record of a by-election held around the date when the applicant said it had been held.  The second was the failure of the applicant to mention at his airport interview that he had been shot during his return to Pakistan.

13                  The applicant responded by letter dated 26 April 2001.  He stated that he had made a mistake with the date and that the by-election actually took place on 15 April 1997.  He also stated that a doctor could verify that he had been shot.

14                  On 24 April 2001, the Tribunal forwarded to the applicant another letter, seeking comment pursuant to s 424A(1) of the Migration Act.  The subject of this letter was inconsistency between the applicant’s claim that he went into hiding five or six days after the by-election and his employment references, which indicated that he was working throughout 1997 and until September 1998.  By letter dated 2 May 2001, the applicant gave an explanation for this inconsistency.

The Tribunal’s reasons for decision

15                  In its reasons for decision, the Tribunal made no finding of fact favourable to the applicant.  It described him as “a most unsatisfactory witness.”  It found that, on several occasions, he had made statements and then denied having said them.  It gave one example, concerning the issue of when his earlier passport had expired.  The Tribunal also referred to the applicant as having given evasive answers on the question why he did not see the feudal lord when requested to do so during his period back in Pakistan. 

16                  In most cases, the Tribunal made findings rejecting what the applicant had said on the basis of inconsistencies in his own evidence, or the “implausibility” of his story.  Thus, the Tribunal thought that it was far-fetched that the applicant would approach the chairman of the Muslim League, who was then Prime Minister of Pakistan, to try and sort out the problems he was having with the feudal lord in his own area, when he would not try to approach someone in his area or at a lower level.  The Tribunal took the view that it was inherently implausible that supporters of the party that won a by-election would try to harm and kill the applicant, whose involvement in politics was limited to campaigning outside working hours in respect of one by-election.  The Tribunal found inconsistencies between the applicant’s employment history and his evidence that he was in hiding and being supported by friends.  It found that the fact that he was able to remain in Pakistan for over a year with nothing happening to him, and to return to his local area in November 1999 with no consequence but a threat, was inconsistent with the risk that he would be killed.  The Tribunal also noted the applicant’s failure to mention during his airport interview that he had been shot and to provide any medical evidence to support this claim.  It doubted that the applicant had been shot and expressed the view that, even if he had, it was not by reason of any Convention ground. 

17                  In one respect, the Tribunal’s rejection of the applicant’s case was based on material not specific to the applicant, concerning the 1997 general election.  That material indicated that all constituencies in the general election were contested except for seats reserved for women and minorities.  The Tribunal took this to be inconsistent with the applicant’s claim that the local feudal lords were outraged at the local candidate for daring to contest the by-election.  It found that it was implausible that the feudal lords were seeking revenge, particularly when their candidate had won the by-election and the Muslim League had won 137 seats in the general election, compared with the PPP’s eighteen.

18                  A significant part of the Tribunal’s reasons for decision was devoted to dealing with the by-election issue.  The Tribunal recounted the searches it had undertaken to try to find a record of a by-election in March 1997.  It referred to a search of its country information database, and an internet search involving a number of search engines, which it said did not reveal any information to indicate that Makhdom had won two seats at the February 1997 general elections and that this led to a by-election.  (Interestingly, in view of the fact that it had apparently engaged in computer key-word searches, in this part of its reasons for decision, the Tribunal spelt the name of the politician concerned as “Makhdoom Muhhammad”, compared with the spelling “Makhdom Mahmood” earlier in its reasons for decision.)  The Tribunal referred to items in the Xinhua News Agency and The Hindu, mentioning Makhdoom Ahmed Mahmood becoming a minister, but said that no information was found to indicate that a seat held by him was required to be recontested in a by-election during March 1997 or at any other time.

19                  The Tribunal then said:

“After the applicant indicated that he had provided the wrong date of the by-election the Tribunal ascertained that a by-election had taken place on 15 April 1997 in the Punjab.  However it was for a seat in Lahore which is over 500km from Rahimyar Khan the applicant’s home town.  There were four Punjab provincial assembly elections held the same day but the applicant had been adamant the by-election was for the National Assembly and not the provincial assembly.  Further it was clear from his evidence that it was a constituency in his local area and not a set [sic] situated 500km away.  (see Agence France Presse: April 15 1997.  ‘Bye-elections in four parliamentary constituencies held in Pakistan’ and April 16 1997 ‘Pakistani ruling party bags most seats in nine bye-elections.’).”

20                  The Tribunal summed up its reasoning on all issues other than the applicant’s claim that he was shot (to which it referred separately) in this way:

“For all these reasons including the general implausibility of the applicant’s story the Tribunal does not accept that the applicant campaigned on behalf of a candidate in a by-election.  He was not targeted as a result of his participation in that campaign, he did not have to go into hiding and was not being sought by the supporters of the person who won the election.  The Tribunal finds the applicant has fabricated a story in order to claim refugee status.”

21                  The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention.  It found that he did not satisfy the criterion set out in s 36(2) of the Migration Act for a protection visa. 

The grounds of the application to the Court

22                  The applicant’s original application to the Court, filed on 18 May 2001, was compiled by the insertion of hand-written passages on a printed form, based on form 56 in Sch 1 to the Federal Court Rules, with adaptations making it suitable for use under the Migration Act.  It did not set out any of the grounds referred to in s 476 of the Migration Act.  The hand-written text consisted largely of a plea for legal aid and an explanation of the airport interview.

23                  On 4 June 2001, at the first directions hearing, I made an order giving directions for the conduct of the proceeding.  The directions required the filing on or before 2 July 2001 of an amended application containing grounds and particulars.  On 2 July 2001, the applicant filed a further version of the same form with hand-written entries.  On this occasion, he relied on the ground specified in s 476(1)(g) (that there was no evidence or other material to justify the making of the decision), as limited by s 476(4)(b) (that the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist).

24                  At the same time, the applicant sought referral for legal advice pursuant to the Court’s legal referral scheme, detailed in O 80 of the Federal Court Rules.  Initially, on 10 July 2001, I referred the applicant for the purpose of advice and, if appropriate, the drawing of an amended application.  Subsequently, on 1 October 2001, I referred the applicant for representation generally in the conduct of the proceeding.  As a result, counsel who appeared for the applicant at the hearing before me on 8 February 2002 was engaged.  Also on 1 October 2001, I made an order directing that, on or before 15 October 2001, the applicant file and serve a further amended application containing grounds and particulars.  The further amended application was filed on 16 October 2001.  It invoked the ground specified in s 476(1)(a) of the Migration Act (that procedures that were required by the Migration Act to be
observed in connection with the making of the decision were not observed).  Reliance on this ground was particularised as follows:

“The Tribunal failed to comply with s 424A of the [Migration] Act, in that it did not supply the Applicant with the information it ultimately relied upon in relation to the byelection [sic].  Rather it supplied the application with information in relation to the byelection [sic] which it did not rely upon at all.”

25                  The further amended application also indicated that the applicant continued to rely on s 476(1)(g).  This ground was particularised as follows:

“1.       The Tribunal relied upon, inter alia, two facts which were critical to
its decision that the Applicant had fabricated his story in order to obtain a protection visa.  Those facts were:

a)         There was no seat held by Makhdoom Ahmed Mahmood which was
            required to be recontested in a by-election during March 1997 or at
            any other time.

b)         The applicant was not shot on his return to Pakistan in November
            1999.

2.         Those two facts did not exist.”

26                  Also on 16 October 2001, counsel for the applicant filed written contentions of fact and law on his behalf.  Although the written contentions referred to both the by-election issue and the issue of whether the applicant had been shot, the latter was not pursued at the hearing.  The case therefore falls to be determined on two issues, one of failure to follow the procedure laid down in s 424A and the other of “no evidence” in relation to the finding that there was no by-election.

The Agence France Presse material

27                  Central to both issues are the two items from Agence France Presse to which the Tribunal referred in the first of the passages from its reasons for decision quoted above.  It is necessary to set out in full those items, as the Tribunal saw them.  The first, dated 15 April 1997, was as follows:

“HEADLINE: Bye-elections in four parliamentary constituencies held in Pakistan

DATELINE: ISLAMABAD, Apr 15

BODY:

    Voters in Pakistan went to the polls Tuesday in bye-elections to elect representatives for four vacant parliamentary seats, with official reports saying the day-long polling ended peacefully.

    The voting took place in three National Assembly constituencies in Hyderabad and Karachi, in southern Sindh province, and in one area in Lahore, the capital of central Punjab province.

    No incidents were reported from the areas, the official Associated Press of Pakistan news agency said.

    The counting of votes was in progress and unofficial results were expected to be announced late Tuesday or on Wednesday.

    Pakistan held national elections in February in which the Pakistan Muslim League, headed by Nawaz Sharif, the current prime minister, routed the Pakistan People’s Party of deposed premier Benazir Bhutto.”

28                  The item from 16 April provided the following information:

“HEADLINE: Pakistani ruling party bags most seats in nine bye-elections

DATELINE: ISLAMABAD, April 16

BODY:

    Pakistani Prime Minister Nawaz Sharif’s party has won most seats in bye-elections in nine national and provincial constituencies, according to unofficial results available Thursday.

    People went to the polls in five National Assembly and four Punjab provincial assembly constituencies on Wednesday to fill vacant seats.

    The ruling Pakistan Muslim League (PML) clinched two federal assembly seats and all four assembly seats from Punjab.

    The opposition Pakistan People’s Party of former prime minister Benazir Bhutto won one seat in parliament from Hyderabad in Sindh province.

    The ethnic-based Mohajir Qaumi Movement, an ally of the PML, won a National Assemly [sic] seat from Karachi, capital of Sindh, and another at stake in Karachi was secured by an independent.

    Sharif’s party, which had routed PPP in the February 3 parliamentary elections, already commands a two-thirds majority in parliament.”

Failure to invite comment

29                  It was common ground that, although it sent to the applicant two letters seeking his comments on information pursuant to s 424A, the Tribunal did not send to the applicant either of the Agence France Presse items and did not seek his comment on the information contained in them.  This failure was relied on to make out the ground in s 476(1)(a) of the Migration Act in relation to the Tribunal’s decision.

30                  This argument raises an interesting issue.  An examination of the two items from Agence France Presse discloses that the information contained in them in fact supports the applicant’s case.  It will be recalled that, in the first of the passages from its reasons for decision quoted above, the Tribunal had found that the only by-election in Punjab for a National Assembly seat was for a seat in Lahore, over 500 kilometres from the applicant’s home town.  The first of the Agence France Presse items referred in its headline to by-elections in four parliamentary constituencies.  It referred specifically to three National Assembly constituencies, in Hyderabad and Karachi, in Southern Sindh Province, and a fourth in Lahore, in Punjab.  It was dated April 15 and referred in the past tense to “Tuesday”.  Reference to a calendar indicates that 15 April 1997 was itself a Tuesday.  On its own, this item supported the view that the Tribunal appears to have taken, that there was no room for a by-election near the applicant’s home.

31                  It was the second item, dated the following day, to which the Tribunal does not appear to have paid attention.  That item referred to nine by-elections.  Four could be disregarded, because they were for the Punjab provincial assembly.  The item referred specifically to five National Assembly seats.  It is not clear whether these five were additional to the four referred to in the previous day’s item, or whether only one additional National Assembly by-election was reported.  The reference to “Wednesday” might suggest that the article was dealing with five additional by-elections, making nine in total.  References to seats in Hyderabad and Karachi suggest that there were five in all and that the article was dealing with one by-election additional to those mentioned in the previous day’s article.  The reference to “unofficial results available Thursday” is cryptic, and perhaps refers to the prospective availability of those results to the public generally on the following day.  On the assumption that there were only five National Assembly by-elections in all, the second item referred to one in Hyderabad, and two in Karachi.  It is consistent with the first item’s reference to three seats in Hyderabad and Karachi.  Allowing for the fourth being in Lahore, this still left open the possibility of a National Assembly by-election elsewhere.  The specific reference to the Muslim League having clinched two federal assembly seats and all four assembly seats from Punjab suggests that the additional National Assembly seat was from Punjab.

32                  The Tribunal seems to have taken the view that the Agence France Presse material was exhaustive of the possible by-elections for the National Assembly held on or about 15 April 1997 and that the designation in that material of the places in which by-elections were held excluded the possibility that one was held near the applicant’s home.  In drawing its conclusion from this material that no by-election took place, the Tribunal was plainly in error.  The second item clearly referred to at least one more National Assembly by-election, probably held in Punjab.  On its face, it did not justify the Tribunal’s apparent conclusion that the material was inconsistent with the applicant’s account.  Ordinarily, an error of fact by the Tribunal cannot be the subject of judicial review by the Court.  It is plain that the purpose of s 476 of the Migration Act is to commit to the Tribunal the task of finding the facts and to confine the Court to very limited grounds of procedural, jurisdictional and legal review.

33                  Counsel for the applicant therefore endeavoured to bring the case within the procedural ground in s 476(1)(a).  She relied on the proposition that s 424A of the Migration Act obliged the Tribunal to provide the applicant with an opportunity to comment on the Agence France Presse material.  Section 424A did not oblige the Tribunal to afford the applicant an opportunity to comment on material favourable to his case.  If, as I have said, the Agence France Presse items in fact supported the applicant’s case, it appears strange to suggest that there was a failure to observe the procedure required by s 424A(1).  It must have been the case, however, that the Tribunal considered that the Agence France Presse items would be the reason, or a part of the reason, for affirming the decision of the delegate of the Minister.  It did rely on the items as part of the reason for affirming that decision.  The fact that, in relying on them in this way, it misconstrued the items does not detract from the fact that its subjective view was that the items contained material that refuted the applicant’s case on this point.  Section 424A(1)(a) is expressed in terms of the Tribunal’s subjective view: if the Tribunal “considers” that information would be the reason, or a part of the reason, for affirming the decision under review, it is obliged to give the applicant particulars of that information, ensure that the applicant understands why its relevant to the review and invite the applicant to comment on it.  Once the Tribunal reached the state of mind that it considered that the Agence France Presse items could be relied on to refute the applicant’s claim that he had campaigned in a by-election that took place on 15 April, it was obliged to follow the procedure in s 424A(1).  The material did not fall within the exclusion in s 424A(3)(a), because it was not about a class of persons of which the applicant or any other person was a member.  It bore specifically upon the question of the applicant’s involvement in campaigning in a by-election.  Nor did it fall within the exceptions in s 424A(3)(b) and (c).

34                  The Tribunal did not comply with s 424A(1) in relation to the Agence France Presse items.  It therefore failed to observe a procedure required by the Migration Act to be observed in connection with the making of its decision.  The ground specified in s 476(1)(a) of the Migration Act is made out.  It does not follow, however, that the applicant is entitled to an order setting aside the decision of the Tribunal.  Such an order will only be made if the failure to observe a required procedure has denied the applicant the possibility of a successful outcome of his application for review by the Tribunal of the decision of the delegate of the Minister.  See Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919 at [42] per Merkel J, where his Honour referred to Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Giretti v Commissioner of Taxation (1996) 70 FCR 151 at 164 – 166; Abriel v Australian Guarantee Corporation [2001] FCA 165 at [18] and Carlos v Minister for Immigration & Multicultural Affairs [2001] FCA 301 at [57].  In Al Shamry at [21], Ryan and Conti JJ expressed their agreement with Merkel J on this point.  Reference might also be made to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82 at [4] per Gleeson CJ, [80] per Gaudron and Gummow JJ, [87] and [104] per McHugh J, [131] – [133] per Kirby J and [211] per Callinan J.  The question therefore is whether the Tribunal’s failure to observe the procedure required by s 424A of the Migration Act in relation to the Agence France Presse material was so significant as to deny the applicant the possibility of a successful outcome of his application.

35                  It is clear that the absence of a by-election was not the only ground on which the Tribunal rejected the applicant’s story.  As I have said, it did so for a number of reasons based on the applicant’s credibility, inconsistencies in his evidence and its view of the implausibility of his story.  It must be accepted, however, that the only hard evidence on which the Tribunal relied to refute an element of the applicant’s case was the Agence France Presse items.  The Tribunal relied on the absence of any record of a by-election in any of the material it searched.  It was entitled to rely on the absence of material, but it is necessary to recognise that such reliance carries only so much weight as the competence of the searches allows.  An absence of evidence is not itself hard evidence.  In the Agence France Presse items, the Tribunal believed it had specific evidence that there was not, on 15 April 1997, a by-election for a National Assembly constituency close to the applicant’s home.  If it had given the applicant an opportunity to comment on the Agence France Presse material, it is possible that the applicant might have been able to point out that the second item left open the possibility that the by-election he claimed to have participated in had taken place.  The Tribunal might then have taken a more benevolent view of the applicant’s credibility if it had found in his favour on this issue.  In turn, that view might have affected the view that the Tribunal took on the applicant’s credibility in other respects.  Whether it would have been sufficient to turn around the Tribunal’s adverse opinion of the applicant and his story is another question.  The applicant still had considerable ground to make up even if the Tribunal had accepted that he had campaigned in a by-election for the National Assembly that took place on 15 April 1997.  The ultimate result is not, however, one for this Court to determine.  This Court is not a trier of fact when exercising its jurisdiction to hear applications for judicial review of decisions of the Tribunal.  I am left with the real possibility that the failure of the Tribunal to observe a procedure it was required to observe denied the applicant a
successful outcome of his application.  The proper course is to set aside the decision of the Tribunal and return the matter to the Tribunal, differently constituted, for reconsideration.

The “no evidence” issue

36                  Strictly speaking, my conclusion as to the ground of failure to observe a procedure required by the Act makes it unnecessary for me to deal with the “no evidence” ground.  In deference to the arguments put on this ground, and because of the way in which the hearing before me was conducted, I should set out my conclusions in relation to it.

37                  To make out the ground specified in s 476(1)(g) on the basis referred to in s 476(4)(b), the applicant had to establish that the Tribunal had based its decision on the existence of a particular fact and that fact did not exist.  The particular fact selected by the applicant, as particularised in the amended application filed on 16 October 2001, was that there was no seat held by Makhdoom Ahmed Mahmood which was required to be recontested in a by-election during March 1997 or at any other time.

38                  In order to prove that this fact did not exist, counsel for the applicant tendered to the Court a statement of Qamar uz Zaman Khan, the General Secretary of the PPP from a location described as City Sadiq Abad.  The statement was in the Urdu language, and so a translation of it into the English language was also tendered.  Counsel for the applicant called Mr Khan as a witness by telephone from Pakistan.  He gave evidence through a telephone interpreter.  The applicant also gave oral evidence, through an interpreter, identifying the voice of Mr Khan on the telephone.  According to his statement, Mr Khan was a candidate on behalf of the PPP in a by-election for the National Assembly seat of Rahimyar Khan IV, Ward 150, held on 15 April 1997.  The applicant campaigned on his behalf.

39                  The attempt to rely on the “no evidence” ground in this fashion faced many obstacles.  First, it is not possible to find in the reasons for decision of the Tribunal an express finding of fact in the terms particularised.  The Tribunal recorded that it “could find no record of a by-election in March 1997” in its search of newsagency clippings put to it by the applicant.  It also recorded that its computer searches “did not reveal any information to indicate Makhdoom Muhhammad had won two seats at the February 1997 general elections and that this led to a by-election.”  It referred to its searches of the Xinhua News Agency and The Hindu and concluded “no information was found to indicate that a seat held by Makhdoom was required to be recontested in a by-election during March 1997 or at any other time.”  It then dealt with the Agence France Presse material in the paragraph which I have quoted above.  It is necessary to infer from the Tribunal’s reasons for decision that it found each of the three elements of the particular fact alleged, namely:  (i) there was no seat held by Makhdoom Ahmed Mahmood which was required to be recontested in a by-election; (ii) during March 1997; or (iii) at any other time.  The need to construct a finding in this way raises inevitable questions as to how the particular fact is properly to be specified.  For instance, if it were to turn out that the applicant had campaigned for a PPP candidate in a by-election on 15 April 1997, it would not matter significantly to the applicant’s case whether that by-election was caused by a vacancy in a seat originally won by Makhdoom, or that it was not held in March 1997.  It is more likely that the applicant’s true complaint is that the Tribunal failed to make a positive finding in his favour that there was a by-election on 15 April 1997 in respect of a constituency near the applicant’s home.  If it had made such a finding, this might have strengthened the applicant’s credibility in relation to his claim that he campaigned in that by-election.  The precise terms in which the particular fact is expressed may therefore be very important.  In the present case, the lack of a specific finding expressed in the terms desired by the applicant does not assist his case.

40                  The second problem for the applicant in relying on the “no evidence” ground is that any finding of fact on which he would wish to rely is inevitably expressed in the negative.  The difficulties encountered in relying on a finding that a particular fact did not occur as a finding of the “existence” of that fact have been pointed out in cases such as N258/00A v Minister for Immigration & Multicultural Affairs [2000] FCA 993 (2000) 101 FCR 478 at [24] – [27], Ordeniza v Minister for Immigration & Multicultural Affairs [2001] FCA 35 at [27], Pei Lan He v Minister for Immigration & Multicultural Affairs [2001] FCA 446 at [38], Kheirollahpoor v Minister for Immigration & Multicultural Affairs [2000] FCA 1350 at [33] – [37], Abila v Minister for Immigration & Multicultural Affairs [2001] FCA 1186 at [12] – [21] and Sarancharkh v Minister for Immigration & Multicultural Affairs [2001] FCA 1461 at [43] – [45].  It must be said that there are negatives and negatives.  If the Tribunal has simply disbelieved evidence placed before it, without any positive evidence to the contrary, and has made a finding that a particular event did not occur, it is easy to see that that is not a finding of the “existence” of a particular fact.  On the other hand, a finding, based on evidence, that some event did not occur, although expressed in the negative, might be seen as a finding as to the “existence” of a particular fact, namely the non-occurrence of the event concerned.  The issue is not an easy one.  In some cases, the view taken of it might depend upon the way in which a particular finding is expressed.  In the present case, it is possible to see the negative view obviously taken by the Tribunal as to the occurrence of a by-election as a positive finding that no such by-election took place, although it might equally be seen as a rejection of the applicant’s assertion that there was such a by-election.

41                  Assuming that the applicant could overcome the first two problems, and that the evidence tendered to the Court establishes that the particular fact did not exist (ie there was a by-election in the relevant place on 15 April 1997), the next problem for the applicant is to establish that the Tribunal based its decision on the existence of the particular fact.  I have outlined the Tribunal’s reasoning above.  It took a negative view of the applicant’s credibility.  It is true that the non-occurrence of a by-election on 15 April near the applicant’s home was perceived by the Tribunal to be the one point on which it had hard evidence to refute what the applicant was saying.  As I have said above, the point was an important one in relation to the applicant’s credit, and it may be that, if it had been satisfied that the by-election had occurred, the Tribunal would have taken a different view.  This does not mean that it based its decision on the non-occurrence of the by-election.  Its assessment of the applicant’s credit was also based partly on inconsistencies in his evidence and its view as to the implausibility of his story.  It took the view that, even if the applicant had campaigned in a by-election, it was unlikely that he would have been in danger from Muslim League supporters for doing so, because there was nothing unusual about contesting a seat against the Muslim League and the Muslim League had won comfortably, both in the general elections and in the relevant by-election.  Finally, the failure of the applicant to refer to the shooting incident in his airport interview played a part in the Tribunal’s reasoning.  There were therefore several bases for the Tribunal’s decision.  It could not be said that the decision was based on any finding about the by-election.

42                  Finally, Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 at [26] – [27] stands in the applicant’s way.  In that case, the Full Court held that the requirement that there be no evidence or other material to justify the making of the decision, found in s 476(1)(g) is additional to the requirements of s 476(4)(b).  In other words, even if it could be said that a decision was based on a particular fact, if Indatissa be correct, if there was evidence or other material justifying the making of the decision, the “no evidence” ground cannot be made out.  In the present case, the Tribunal did rely on the negative outcome of its searches.  However unreliable the searches may have been, the fact that they were made and did not turn up material supporting the applicant’s case itself amounted to material justifying the decision.  The Tribunal also relied on general information as to the outcome of the general election in February 1997 and the state of the National Assembly thereafter.  This was material justifying its conclusion that, even if the applicant had campaigned in a by-election in April 1997, it was implausible that adverse consequences would be visited upon him in revenge for this.  It was material justifying the decision.  The Tribunal also relied on the airport interview, and the absence from it of any statement by the applicant about the shooting incident.  Again, this was material justifying the decision.

43                  For these reasons, the applicant must fail on the “no evidence” ground. 

Conclusion

44                  Having succeeded on the ground specified in s 476(1)(a), and having been deprived of a proper chance of making out his case in the Tribunal by the Tribunal’s failure to observe a required procedure, the applicant is entitled to have the Tribunal’s decision set aside.  An order should be made pursuant to s 481(1)(b), referring the matter back to the Tribunal, differently constituted, for further consideration.  When an application succeeds, the normal order is that the Minister pay the successful party’s costs of the proceeding.  In the case of counsel appointed pursuant to the Court’s legal referral scheme, O 80 r 9(2) expressly contemplates that an order for costs in favour of the party represented pursuant to that scheme can be made.  The making of an order for costs in favour of the party provides the only
circumstance in which a legal practitioner to whom a matter is referred is permitted to charge professional fees and disbursements.  In the circumstances, the normal order should be made.

Associate:

Dated:              9 April 2002