FEDERAL COURT OF AUSTRALIA NAAG of 2002 v Minister for Immigration & Multicultural Affairs [2003] FCAFC 135 MIGRATION – protection visa – Refugee Review Tribunal – conduct of hearing – whether denial of natural justice – claim of rape while in custody in Iran – claim that rape accompanied by statements relating it to political activities of appellant – Tribunal invited appellant not to give detailed evidence of circumstances of rape – told appellant that if it had any concerns about the rape it would give her an opportunity to respond in writing – no such opportunity given – finding about rape ignored political context – Tribunal dealt with rape only in context of claim of persecution for reason of membership of particular social group (women in Iran), not in context of claim of persecution for reason of political opinion Migration Act 1958 (Cth) ss 474, 479 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 (2003) 195 ALR 1, referred to Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 195 ALR 24, applied Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 (1999) 197 CLR 611, referred to NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, not followed R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598, cited Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 144, disapproved Koulaxazov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 75, discussed SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 121, followed Bull v Repatriation Commission [2001] FCA 1832 (2001) 188 ALR 756, referred to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82, followed Muin v Refugee Review Tribunal [2002] HCA 30 (2002) 190 ALR 601, followed Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6 (2003) 77 ALJR 699, discussed NAAA v Minister for Immigration & Multicultural Affairs [2002] FCA 362 (2002) 117 FCR 287, referred to Minister for Immigration & Multicultural Affairs v Wang [2003] HCA 11 (2003) 196 ALR 385, referred to Re Ruddock; Ex parte Reyes [2000] HCA 66 (2000) 177 ALR 484, referred to VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74, referred to NAAG OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 606 of 2002 GRAY, MOORE AND WEINBERG JJ 20 JUNE 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 606 of 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: NAAG of 2002 APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGES: GRAY, MOORE AND WEINBERG JJ DATE OF ORDER: 20 JUNE 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The judgment and orders made on 5 June 2002 be set aside. 3. There be substituted for those orders the following orders: (a) that a writ of certiorari issue, directed to the Refugee Review Tribunal, removing into this Court to be quashed, the decision of the Tribunal of 21 December 2001, affirming a decision not to grant a protection visa to the appellant; (b) that the decision be quashed; (c) that a writ of mandamus issue, directed to the Refugee Review Tribunal, ordering that the application of the appellant for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant a protection visa to the appellant be heard and determined according to law by the Tribunal differently constituted; (d) that the respondent pay the applicant's costs of the proceeding. 4. The respondent pay the appellant's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 606 of 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: NAAG of 2002 APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGES: GRAY, MOORE AND WEINBERG JJ DATE: 20 JUNE 2003 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT: The nature of the proceeding 1 This appeal is from a judgment of a judge of the Court. His Honour dismissed an application for relief pursuant to s 39B of the Judiciary Act 1903 (Cth) in respect 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, who is now the Minister for Immigration and Multicultural and Indigenous Affairs (in both cases, "the Minister"), refusing to grant to the appellant a protection visa, pursuant to the Migration Act 1958 (Cth) ("the Migration Act"). 2 Section 36 of the Migration Act provides that there is a class of visas known as protection visas. A criterion for a protection visa is that the applicant for the visa be 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) to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The term "Refugees Protocol" is defined in the same provision to mean the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call those two instruments, taken together, the "Convention". For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to 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". 3 The appellant is a citizen of Iran, who arrived in Australia on 12 September 2000. On 24 September 2000, she lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 16 November 2000, a delegate of the Minister made a decision refusing to grant a protection visa. The appellant applied for review of that decision by the Tribunal. On 22 June 2001, the Tribunal affirmed the decision of the delegate. The appellant sought review of the Tribunal's decision by the Court. On 20 August 2001, the Court set aside the decision and remitted the matter to the Tribunal to be determined according to law. The Tribunal, constituted by a different member, conducted a hearing on 30 October 2001 and 5 November 2001. On 21 December 2001, the Tribunal published a written decision and its reasons for decision. Its decision was to affirm the decision not to grant a protection visa. 4 The appellant then again applied to the Court. On 3 January 2002, she filed an application in the Court. The application was in the form designated as Form 56 in Sch 1 to the Federal Court Rules. That form was appropriate to the provisions of Pt 8 of the Migration Act as they stood prior to early October 2001, when the Act was amended substantially. It was not until the third attempt, by which time the appellant had secured legal representation, that she was able to file an amended application on 27 May 2002, making clear the relief that she sought and the grounds on which she did so. 5 On 5 June 2002, the learned primary judge gave judgment on the application. His Honour ordered that the application be dismissed and that the appellant pay the Minister's costs. This appeal is from that judgment. 6 The hearing of the appeal was completed on 15 November 2002. Before judgment was delivered, the High Court of Australia delivered judgments in two cases dealing with the effect of s 474 of the Migration Act, a privative clause inserted into the Act as one of the amendments that came into operation in early October 2001. See Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 (2003) 195 ALR 1 and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 195 ALR 24. As a consequence, the Court requested the parties to provide further submissions in writing as to the effect on the present case of the judgments in those two cases. The appellant filed written submissions on 25 February 2003, the Minister on 13 March 2003 and the appellant, in reply, on 14 March 2003. The appellant's claims 7 The appellant claimed to have a well-founded fear of being persecuted, if she should return to Iran, on the grounds of political opinion and religion. The following summary of her claims is adapted from the reasons for decision of the Tribunal. 8 In the early 1990s, while studying at a university, the appellant had a roommate, who was a close friend and a strong supporter of the opposition group MKO. University officials discovered the friend's allegiance and the friend was arrested and detained. The appellant came under close observation by the authorities because they knew she was a close friend of the MKO supporter and had the same political beliefs. She was also criticised for refusing to wear approved clothing for a woman, and for being seen in the company of men in public. The appellant was not permitted to sit for her exams and had to take leave from the university. The university authorities made an unfavourable report about her so that other universities would not accept her. 9 In the mid 1990s, the appellant obtained employment in Tehran. In 1999, she decided to enrol in Tehran University. In July 1999, she participated in a major student demonstration. She was carrying a video camera. She was bashed and lost a fingernail. Tehran University rejected her, although she had passed the entrance exam. She was told that she had been arrested because of the bad report from her previous university and her participation in the student protest. 10 In July 2000, the appellant participated in another student demonstration with another friend, who was also an MKO supporter. The appellant and the friend spent a lot of time together, distributed pamphlets bearing slogans, and were active at the demonstration. They were both arrested there. 11 The appellant was detained for two days. During that time, she was tortured mentally and physically, and sexually assaulted. When she was released, she was told the release was "temporary" and that she would be killed if she participated again in such protests. On the following day, she picked up her passport and moved back to her home city. She hid at a relative's house. Her mother arranged for her to go to Dubai, where she intended to study or to reside. Permission to enter the United Arab Emirates was organised by a distant relative. 12 The appellant left Iran on 7 August 2000 on her own passport. She had used a name that was not wholly her real name when arrested, but her passport contained her real name. She discovered later that her mother had paid a bribe, partly to secure her release from detention and partly to enable her to leave Iran before her name was placed on the "black list", a list used to prevent people leaving Iran if they were wanted by the authorities. 13 In Dubai, the appellant stayed at a hotel. She went to a university there to obtain enrolment information. She was told that, to obtain a student visa, she would have to return to Iran. As her life would be in danger in Iran and she could not stay in Dubai, she contacted her mother, who organised for her to contact a people smuggler. With the assistance of this person, the appellant travelled to Malaysia and then Indonesia, where she stayed for about a month. While she was there, her mother told her about the bribe she had paid and also told her that the authorities had been asking about her whereabouts and wanted to interrogate her further. 14 After she had arrived in Australia, the appellant contacted her sister, who told her that the friend with whom she had participated in the July 2000 demonstration had been imprisoned, and that the authorities had asked about the appellant several times and had raided her house and confiscated some personal belongings, including books written by a banned author and the videotape she had taken at the July 1999 demonstration. Her mother had been tortured severely and was warned to keep the authorities informed about the appellant. 15 The appellant did not know whether her friend who had been imprisoned was dead or alive. As they had carried out the same activities against the Iranian regime, the same fate awaited the appellant. 16 After her arrival in Australia, the appellant became a convert to Christianity. She was baptised and undertook a series of bible correspondence courses. 17 At a late stage in the proceeding before the Tribunal, the appellant raised the contention that she had a well-founded fear of persecution, if she should be returned to Iran, by reason of her membership of a particular social group, namely women in Iran. The Tribunal's reasoning 18 The Tribunal accepted that the appellant had attended university but was forced to leave because she would not accept certain Islamic dress and behaviour codes. It was prepared to accept that she had a roommate there who was an MKO supporter and was arrested. It did not accept that the authorities thought that the appellant shared the roommate's political views. Relying on information supplied by the Department of Foreign Affairs and Trade ("DFAT"), the Tribunal took the view that, had the authorities connected the appellant to an MKO supporter, they would not have hesitated in arresting her too. The fact that, after leaving the university, the appellant obtained and held a steady job for two years and then moved, without impediment, to Tehran where she worked in another job for about four years without problems, also suggested that she was not suspected of links with the MKO. 19 The Tribunal was prepared to accept that the appellant attended the July 1999 student demonstrations in Tehran and that one of her fingers was injured by the Basiji militia. It did not accept that she had a video camera and was filming what was happening. It found it implausible that the Basiji, who came into direct contact with the appellant in order to beat her, would not have noticed her using a video camera, even if she tried to conceal it. Moreover, the Basiji were there in large numbers and were moving around rapidly, beating and arresting demonstrators, making it even less likely that someone using a video camera would not be noticed. The Tribunal did not accept a claim of the appellant, made at a late stage, that the camera was not hers but her friend's, that they took turns in using it, that they were careful in doing so and that at the time the appellant was beaten her friend had the camera. 20 The Tribunal accepted that the appellant was not accepted by Tehran University because of an adverse report from her earlier university. It did not accept that her participation in the demonstration was another factor in the refusal as it was unlikely that university authorities would have noticed her presence among the many thousands of participants. The Tribunal noted that the appellant had no further problems with the authorities in the ensuing year. 21 The Tribunal was prepared to accept that the appellant participated in the demonstration in Tehran on 8 July 2000. It accepted that the appellant and a friend were distributing pamphlets containing protesters' demands and that they were arrested and the appellant was detained for two days. It did not accept that she gave the people arresting her a false name, finding it implausible that they would simply have accepted her word and not checked by demanding a contact address or phone number. In addition, the appellant claimed that her family became aware of her detention because of her absence and helped organise her release. The Tribunal took the view that they could not have become aware of her detention if the authorities did not have her real name. 22 The Tribunal accepted that the appellant was sexually assaulted while in detention. It considered that this would be serious enough to constitute persecution. 23 The Tribunal did not accept that the appellant was released only after payment of a bribe by her mother. The appellant was one of a large number of people arrested. She had no political affiliations. The Tribunal took the view that the authorities would only have been interested in the leaders, not the minor participants, as had been the case after the 1999 demonstration. A bribe would not have been needed. 24 The Tribunal found it implausible that the authorities would regard the appellant's release as in any sense temporary, yet not impede her from leaving Tehran and in effect facilitate her departure from Iran by not demanding that she surrender her passport and by delaying having her name placed on the black list. The Tribunal found that the appellant left Iran almost a month after her arrest. The Tribunal relied on information supplied by DFAT about the black list and the stringency of exit checks at Tehran Airport. It found that the appellant was able to leave on her own passport without difficulty because she was not of adverse interest to the authorities. It did not accept her claim that her mother told her by telephone about the bribe and that the authorities wanted to question her further. Even if the Tribunal accepted the existence of the MKO supporter friend, it was not satisfied that this fact would have caused the authorities to take an adverse interest in the appellant. It did not accept that the appellant's house was raided, that the authorities found a book by a banned author and the videotape of the 1999 demonstration among her possessions. 25 The Tribunal accepted that the conversion of a Muslim to Christianity can be considered apostasy and may be punished harshly. On the basis of its findings about the lack of credibility of the appellant's key claims and of the fact that her conversion occurred in the months leading up to the Tribunal hearings, the Tribunal was of the view that the conversion was not undertaken in good faith but rather with the express purpose of strengthening her claim for a protection visa. Relying on s 91R(3) of the Migration Act, the Tribunal disregarded her conversion for the purpose of determining whether she was entitled to protection under the Convention. The Tribunal then said: "It follows that the Tribunal is not satisfied that, if the applicant returns to Iran, she will continue to observe Christianity or attempt to proselytise." The Tribunal then said: "Likewise, the Tribunal is not satisfied that if she returns, she will be politically active in opposition to the regime. She was not active previously. She had no significant contact with the MKO. The Tribunal has found that the authorities have no adverse interest in her ..." 26 The Tribunal then turned its attention to the appellant's claim based on membership of a particular social group, namely women in Iran. The Tribunal was prepared to accept that women in Iran constituted a particular social group. It was not satisfied that the appellant had a well-founded fear of persecution in future by reason of her membership of that particular social group. The Tribunal then said: "As already noted, the Tribunal has found that it is not satisfied that if she returns, she will be politically active against the regime. In regard to the sexual assault while in detention, the Tribunal finds that this was a deeply unfortunate but ad hoc, opportunistic act by the person in question, not indicative of how her participation in the demonstration was regarded[.] Nor is it indicative in any way of future behaviour toward her, especially as she does not have an adverse profile with the authorities. Accordingly, although the rape occurred because she is a woman, the Tribunal finds that there is not a real chance that the circumstances which gave rise to it will recur in the future." 27 The Tribunal then expressed the view that the exclusion of the appellant from university because of her refusal to wear certain types of clothing and to refrain from talking to men in public was not sufficiently serious to amount to persecution. It pointed out that the appellant was able to work continuously both in her home city and Tehran and that she did not claim to have suffered any other harm because of her refusal to wear appropriate clothing. The Tribunal found that the prohibition on talking to men in public was a law of general application, enforced in a non-discriminatory matter, and not for reasons of the appellant's membership of the particular social group, women in Iran. This was because, on her evidence, on two occasions when she was detained for walking with men, the harassment she received was equally applied to the two men, her brother and her fiance. 28 The Tribunal repeated its conclusion that the appellant's roommate's arrest had no bearing on her exclusion from her university. Referring to its previously expressed conclusion that the university authorities would not have been aware of her participation in the July 1999 student protest, the Tribunal also expressed the view that the refusal to admit the appellant to Tehran University was not serious enough to have constituted persecution. 29 The Tribunal rejected a claim by the appellant that she feared persecution because of her husband's political troubles. It also found that she would not suffer harm on return as a consequence of seeking asylum in Australia. 30 The Tribunal concluded that the appellant did not have a well-founded fear of persecution in Iran by reason of her political or religious beliefs or her membership of a particular social group, or for any other Convention-related reason. It was therefore not satisfied that the appellant was a person to whom Australia had protection obligations under the Convention. She did not therefore satisfy the criterion for a protection visa set out in s 36(2) of the Migration Act. The appellant's case at first instance 31 In the final version of her application to the Court, the appellant challenged the validity of s 474 of the Migration Act on the basis that it purported to oust the judicial power of the Commonwealth and was inconsistent with s 75(iii) and (v) of the Constitution. She also raised the contention that s 474 is not effective to deny judicial review of an administrative decision made by an officer of the Commonwealth where the ground for review is constructive failure to exercise jurisdiction, excess of jurisdiction, or unreasonableness in the sense used by Gummow J in Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 (1999) 197 CLR 611 at [131] – [145]. The appellant's amended application particularised the allegations of unreasonable findings of jurisdictional facts as follows: "(a) the RRT's finding that the applicant was not a Christian was a finding which it could not reasonably have reached, and this finding was critical to the ultimate conclusion of the RRT that the jurisdictional fact of it being satisfied that the applicant had a well founded fear of persecution for a Convention reason was not made out. (b) the RRT's finding that the applicant's rape in detention was an ad hoc act was a finding which it could not reasonably have reached, and this finding was critical to the ultimate conclusion of the RRT that the jurisdictional fact of it being satisfied that the applicant had a well founded fear of persecution for a Convention reason was not made out. (c) the RRT's finding that the applicant was not politically active previously was a finding which it could not reasonably have reached, and this finding was critical to the ultimate conclusion of the RRT that the jurisdictional fact of it being satisfied that the applicant had a well founded fear of persecution for a Convention reason was not made out. (d) the RRT's finding that the prohibition of women walking and talking with men in public was a law of general application was a finding which it could not reasonably have reached, and this finding was critical to the ultimate conclusion of the RRT that the jurisdictional fact of it being satisfied that the applicant had a well founded fear of persecution for a Convention reason was not made out." 32 The Tribunal was said to have ignored relevant material, being material suggesting that the appellant was commonly known by a particular name, her claims that she had previously been politically active, her claims that she would be politically active if she returned to Iran, and her fear of persecution by reason of an imputed religious profile adverse to the Muslim religion. There was a claim that the Tribunal had constructively failed to exercise jurisdiction by ignoring that material, by erring in assessing her claims of past persecution for walking and talking with men in public as being the operation of laws of general application, the failure to determine whether the penalty for breaching these laws would offend the standards of civilised nations, the making of the unreasonable findings as to jurisdictional facts and the failure to assess whether the appellant's claims, when taken as a whole, gave rise to a well-founded fear of persecution. The final ground was that the Tribunal's decision was not made bona fide because it was not an honest consideration of the appellant's claims. It was said that the Tribunal did not address the appellant's claims genuinely, but rather asked whether there was any evidence which would enable it to reject her claims, instead of honestly assessing whether she had a well-founded fear of persecution for a Convention reason. The primary judge's reasoning 33 The learned primary judge devoted most of his reasons for judgment to an analysis of the effect of s 474 of the Migration Act. Anticipating the reasoning of the majority of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 (in which his Honour's views were followed), his Honour held that the correct approach to a privative clause was that expressed by Dixon J in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 at 615. As long as the Tribunal approached its task bona fide, and its decision related to the subject matter of the Migration Act and was reasonably capable of reference to the power given to the Tribunal, the Tribunal's decision was rendered immune from challenge in this Court by s 474. His Honour rejected a submission that s 474 was invalid for purporting to oust the judicial power of the Commonwealth and for being inconsistent with s 75(iii) or s 75(v) of the Constitution. His Honour held that it was unnecessary to consider the grounds raised by the appellant at first instance, because it was not open to him to consider whether there was jurisdictional error or a constructive failure to exercise jurisdiction. He rejected a submission that invited him to consider the case on the assumption that his views about the effect of s 474 were wrong. 34 Although he expressed the view that the decision-making of the Tribunal did not leave him confident that the factual conclusions were correct or reliable, his Honour did not think that the execution of the task of review was such as to lead to the conclusion that it was not undertaken in a bona fide way. Plainly, the decision related to the Migration Act and to the task of review of the decision of the Minister's delegate. It was also reasonably capable of reference to the powers under ss 414 and 415 of the Migration Act and the role given to the Tribunal to review decisions of the delegate. His Honour discussed whether the decision transgressed an inviolable limitation, on the basis that the Tribunal had failed to attend to all of the claims of the appellant. Even if the Tribunal had overlooked one aspect of how the appellant put her claim, his Honour held that the intention of parliament was to widen the authority of the Tribunal so as not to require that the attempt to exercise the power be complete. In any event, his Honour was not persuaded that the Tribunal had not dealt, albeit briefly and obliquely, with all the claims of the appellant. The appellant's case on appeal 35 In her notice of appeal, the appellant challenged the learned primary judge's conclusion about the validity of s 474 of the Migration Act. She raised the contentions that the Tribunal's decision was not made bona fide and that it involved a breach by the Tribunal of an inviolable condition upon which the Tribunal's jurisdiction depended. The notice of appeal contained the ground that s 474 of the Migration Act was not effective to oust judicial review of a decision made by the Tribunal where the ground for review was lack of reasonableness as to jurisdiction or failure or constructive failure of jurisdiction, and that the Tribunal's decision was made in excess of jurisdiction for both these reasons. It alleged constructive failure to exercise jurisdiction. It also contained an allegation that the exercise of the Tribunal's power was arbitrary and capricious or without a rational link to the occasion for its exercise. 36 On the hearing of the appeal, without objection from counsel for the Minister, the appellant filed in Court a supplementary notice of appeal, adding the ground of denial of natural justice as a ground for judicial review, notwithstanding s 474 of the Migration Act. Counsel for the appellant conceded that, in the light of NAAV, he would not argue, other than formally, the constitutional invalidity of s 474 or the question of its construction. The argument therefore concentrated on the question of the bona fides of the decision of the Tribunal. The focus was on two findings of the Tribunal, namely its finding in relation to the sexual assault of the appellant while she was in detention in July 2000 and the finding that the appellant had not been politically active previously. In the reasons of the Tribunal, the two findings were related, and the second one referred to in the appellant's submissions was in fact made first. To examine the Tribunal's reasoning, it is necessary to have regard to the passages from the Tribunal's reasons, quoted in [25] and [26] above. 37 The appellant contended that the Tribunal could not have made the first finding, consistently with its acceptance of certain other facts: that the appellant would not accept certain Islamic dress and behaviour codes; that she was forced to leave her first university because of this; that she attended the student demonstrations in July 1999; and that she attended the student demonstration of 8 July 2000 and, with a friend, distributed pamphlets containing protesters' demands. 38 The second finding, with respect to the sexual assault, requires a slightly fuller examination of the evidence. 39 In a written submission, which was before the Tribunal, the appellant said with respect to this assault: "According to the Koran and Islamic law a girl who dies a virgin will go to hell. The security forces sexually assault women who are politically active and tell them that at any time they may die or be executed and will go to hell. They then sexually assault in the name of Islam. They read part of the Koran 'Sigha', a verse, and by reading this they say that they are not a stranger to the women, they are temporarily like husband and wife. I begged the authorities not to assault me and told them I was married but they raped me anyway. This felt like a mental execution of me." Also before the Tribunal was a statutory declaration of a lawyer, who had practised law in Iran for approximately a year, referring to material from the United States documenting the sexual abuse, rape and torture of women in prison. 40 In another written statement, also before the Tribunal, the appellant described the incident as follows: "These two days passed like two years for me. I was mentally and physically tortured. I was sexually assaulted at second day by a man named Haji. And he was to laugh and say that ladies with political activities opposite to the Regime according to Islam may die any day so they should not go virgin from this world. I said and begged that I was not single and was married but he did not bother." 41 In the course of the hearing before the Tribunal, the appellant's evidence was heard through a male interpreter, although she had advised the Tribunal in advance that she wished to have a female interpreter. During the hearing, it became apparent that the appellant would experience some difficulty in giving evidence about what happened to her while she was in prison in July 2000 through the male interpreter. As a consequence, the Tribunal said: "at this stage I have no intention of asking you any questions about what happened to you in detention. I have no intention at this stage of asking you any questions about that. But if you wish to talk about it then we can." The appellant said: "Sorry. Do you mean that those issues that are, that have happened to me and are mentioned regarding jail and so on that those are acceptable or they're not. Because as I have been many times in the court and so on and I want to ... everything that has happened and so on." The Tribunal replied: "At this stage they are acceptable. If it, yes I have no problems with those. At this stage. If I did have any concerns later I will write to you and give you an opportunity to respond in writing. But at this stage I'm prepared to accept what you say happened. Ok we'll continue." 42 Following the hearing of the appeal, while the Court was considering its judgment, the High Court gave judgments in two cases concerned with s 474 of the Migration Act. See Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 (2003) 195 ALR 1 and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 195 ALR 24. As a consequence, by letter dated 11 February 2003, the Court invited the parties to make further written submissions, limited to the effect on the appeal of those judgments. In written submissions, and written submissions in reply to those of the respondent, counsel for the appellant argued that there had been jurisdictional error on the part of the Tribunal, by way of denial of natural justice, unreasonableness as to jurisdiction and constructive failure of jurisdiction. The Minister's case 43 Counsel for the Minister contended that the Tribunal's finding that the appellant had not been politically active in opposition to the regime in the past was open to it. In relation to the rape of the appellant whilst in prison, counsel for the respondent drew attention to the fact that the Tribunal had found that the rape amounted to persecution, for a Convention reason, because it accepted that women in Iran constituted a particular social group. His contention was that the Tribunal did not accept that the rape gave rise to a well-founded fear of persecution in the future. The effect of s 474 of the Migration Act 44 In Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 144, Gyles J took the view that NAAV remains a binding Full Court decision, except in cases of denial of natural justice (to which Plaintiff S157 related), because not expressly overruled by the High Court. Counsel for the Minister urged that we should follow this reasoning, and hold that the appellant's grounds of jurisdictional unreasonableness and constructive failure to exercise jurisdiction were precluded by s 474 of the Migration Act, on the reasoning of the majority in NAAV. See also the obiter dicta in Koulaxazov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 75 at [14] per Gyles J, [64] – [73] per Conti J and [9] – [13] per Madgwick J contra. 45 In SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 121 at [18] – [19], the Court referred to Applicants S134/2002 and Plaintiff S157 and said: "Following those decisions it is clear that the reasoning of the majority in NAAV is incorrect. It follows that NAAV is no longer binding authority. So much is established by the decisions of the Full Court in SDAH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 49 at [17] – [18], Minister for Immigration and Multicultural and Indigenous Affairs v WAAG [2003] FCAFC 60 at [5] and in Scargill v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 116 at [3] – [5]. In this regard we note the obiter comments of two members of the Full Court in Koulaxazov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 75 ('Koulaxazov') at [14] and [73]; contrast at [10] that the decisions in S134 and S157 should only be followed for what they actually decide and that otherwise the reasoning in NAAV should continue to apply. We also note that the issue of the continuing effect (if any) of the reasoning in NAAV was left open in WACM v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 92 at [35] – [36] and in SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 … at [16] – [17]. We cannot avoid dealing with the issue. In our respectful opinion the approach suggested by two members of the Court in Koulaxazov is not open given the clear terms and effect of the reasoning of the High Court." 46 Although not expressly overruled, NAAV cannot any longer be regarded as good law. It is plain from what the High Court said in Plaintiff S157 that jurisdictional error on the part of the Tribunal takes a case outside the operation of s 474 and renders it open to this Court to exercise the jurisdiction given by s 39B, or s 44(1), of the Judiciary Act 1903 (Cth). It is true that the distinction between jurisdictional error and error within jurisdiction is preserved, and that the High Court in Plaintiff S157 did not provide definitive guidance as to what amounts to jurisdictional error for this purpose. Nonetheless, it cannot be said as a result of Plaintiff S157 that denial of natural justice is the only kind of jurisdictional error that will overcome the effect of s 474. The finding that the appellant had not been politically active 47 If the Tribunal in the present case had made what amounted to a finding that the appellant had never engaged in any political activity, it would have been necessary to give close consideration to the arguments put on behalf of the appellant. Such a finding, in the face of the Tribunal's acceptance of the appellant's history of involvement in two student demonstrations, and her expulsion from a university for her refusal to accept Islamic dress and behaviour codes, might have been said to be irrational. This would have given rise to the question whether the fact found was properly to be characterised as a jurisdictional fact, and whether the finding was one which no reasonable person could have made. The authorities are referred to in Bull v Repatriation Commission [2001] FCA 1832 (2001) 188 ALR 756 per Emmett and Allsop JJ at [23] – [25], on which the appellant relied. 48 An examination of the Tribunal's reasons, however, discloses that it was not making such a finding. Its reasons must be read as a whole. The sentence, "She was not active previously" must be taken in its context. The context includes the Tribunal's findings as to the reason for the appellant's expulsion from university, and her history of involvement in the student demonstrations of 1999 and 2000. It also includes the immediate context of the paragraph in which the sentence appears. The Tribunal was expressing its lack of satisfaction that the appellant would be politically active "in opposition to the regime" if she should return to Iran. Thus, its finding that she was not active previously must be taken to mean that she was not active previously in opposition to the regime. The sentence that follows casts even clearer light on the finding. It expresses a finding that the appellant had no significant contact with the MKO. On her own case, the appellant had no significant level of involvement with the MKO. She had friends who were active in the MKO, but gave no more than tacit support to that organisation. Thus, the Tribunal's finding cannot be taken to mean anything more than that, if she should return to Iran, the appellant would not be part of any organised political body acting in opposition to the Iranian regime. Viewed in this way, the finding cannot be criticised on the grounds of rationality. It was firmly based in the evidence before the Tribunal and was perfectly open to the Tribunal. No question of jurisdictional unreasonableness, or of constructive failure to exercise jurisdiction, can arise. The finding as to the rape of the appellant in prison 49 This finding raises different considerations. The material the appellant placed before the Tribunal, with respect to the treatment of her in prison in July 2000, made it clear that the rape had a political dimension. If her two accounts of the circumstances of the rape were accepted, it was clear that the motivation for the rape was that she was regarded as someone politically active in opposition to the Iranian regime. The Tribunal described the rape as "a deeply unfortunate but ad hoc, opportunistic act by the person in question, not indicative of how her participation in the demonstration was regarded." Despite the use of the ambiguous Latin phrase ad hoc, the meaning of the Tribunal's finding seems clear enough. As the Macquarie Dictionary shows, ad hoc can mean either "for this (special purpose)", or "impromptu". In context, it is clear that the Tribunal was using it in the latter sense. Its use of the word "opportunistic", although perhaps tautological, suggests so. More importantly, the description of the rape as not indicative of how the appellant's participation in the demonstration was regarded is directly contrary to the appellant's own evidence. The effect of her evidence is that she was selected to be among those raped because she was seen to be politically active in opposition to the regime and was therefore liable to be killed. 50 The Tribunal could only have described the rape in the terms it used if it ignored or rejected the evidence of the appellant about its circumstances. To ignore or reject that evidence was inconsistent with the clear statement of the Tribunal to the appellant at the hearing that, if the Tribunal had any concerns it would write to her and give her an opportunity to respond in writing, but it was prepared to accept that what she said happened had happened. 51 Giving to the appellant that indication in the course of the hearing, the Tribunal may well have given the appellant to understand that everything she had said in her two written statements about the rape would be accepted, unless she were advised to the contrary and given an opportunity to respond in writing to the Tribunal's concerns. The migration agent assisting the appellant appears to have had such an understanding. In a written submission dated 6 December 2001, after the hearing, the agent said: "We note that at Hearing the Member indicated he was minded to accept that the applicant had been raped in detention and would advise us in writing if he had any credibility concerns about this claim. As we have not received any such notice we assume that the Tribunal does accept this claim." Significantly, that passage appears in the written submission under the heading "Political opinion". In the circumstances, to reject the appellant's evidence without providing her with a further opportunity to make her case on that point might amount to a denial of natural justice. 52 There is ample authority that a denial of natural justice on the part of the Tribunal, affecting the decision in the sense that it deprives the applicant for review by the Tribunal of the opportunity of success, amounts to a jurisdictional error. See Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82, Muin v Refugee Review Tribunal [2002] HCA 30 (2002) 190 ALR 601 and Plaintiff S157. In Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6 (2003) 77 ALJR 699, the High Court clarified the circumstances in which the failure to carry out a previously expressed intention, possibly involving the provision of a further opportunity to provide information or make submissions, can give rise to such a denial of natural justice. It is clear that the failure of an administrative decision-maker to adhere to a statement of intention as to the procedure to be followed may result in unfairness and will justify judicial intervention to quash the decision in some, but not all, circumstances. See per Gleeson CJ at [25] and [103] – [106] per McHugh and Gummow JJ. In that case, a citizen of Vietnam failed to establish a denial of natural justice affecting a decision to deport him, simply because of an indication that the decision-maker intended to contact other persons, an intention not carried out. The citizen of Vietnam failed to prove that he would have taken any course other than the course he took, in placing material before the decision-maker, had he known that the action indicated would not be carried out. 53 In the present case, the circumstances are different. There may not have been factual material, other than the appellant's own account of the rape, that could have been placed before the Tribunal (which already had general material about rape of political dissidents in detention). The Tribunal, however, deprived the appellant of the opportunity of giving oral evidence about the full circumstances of the rape, and thereby deprived her of the opportunity to place her case fully before it. The appellant might have made submissions, designed to focus the mind of the Tribunal on the political aspects of the rape. As the written submissions on behalf of the appellant noted, if the Tribunal had indicated that it had any concerns as to the appellant's credibility about the circumstances surrounding the rape, further submissions could have been made. The Tribunal did not give such an indication. It therefore gave no opportunity for further submissions. In effect, it misled the appellant as to what she was required to do, although it appears not to have done so intentionally. As a result, its failure to carry out its previously expressed intention denied the appellant procedural fairness. Its finding about the circumstances of the rape, inconsistent with the appellant's evidence, therefore involved a denial of natural justice. 54 It is then necessary to determine whether that finding was of such importance to the Tribunal's reasoning that it amounted to jurisdictional error. It is true, as counsel for the Minister submitted, that the Tribunal found: that the appellant was raped while in detention; that the rape was serious enough to amount to persecution; that the rape was for a Convention reason (that the appellant was a woman, and therefore a member of a particular social group of women in Iran); but that there was not a real chance that the circumstances which gave rise to it would recur in the future. It is the juxtaposition of these findings in the Tribunal's reasoning that gives rise to concern. In the course of discussing whether the appellant had a well-founded fear of persecution by reason of her political opinion, the Tribunal simply made the finding that it accepted that she was sexually assaulted while in detention and that this would be serious enough to constitute persecution. After the Tribunal had completed its discussion in its reasons for decision about the question of political opinion (and about the question of religion), the Tribunal turned to the issue of membership of a particular social group. It was in that context that, after referring to its previous finding that the appellant would not be politically active against the regime, the Tribunal expressed its views about the nature of the rape and about the future prospects of its repetition. 55 It is clear from the Tribunal's reasoning that it had no regard to the appellant's claims as to the political circumstances of the rape either in relation to the ground of political opinion or in relation to the ground of membership of a particular social group. If it had accepted the appellant's full account of the rape, in accordance with the indication it gave to her, the Tribunal would have made a finding that the rape was politically motivated. It would have found that the appellant was raped while in detention, not simply because she was a woman, but because she was regarded as politically active in opposition to the Iranian regime, as likely to be killed for this reason, and therefore as a suitable candidate for destruction of her supposed virginity, in order to save her from damnation. For the Tribunal to have accepted this might have led it to a different conclusion in relation to the appellant's future prospects of persecution on the ground of her political opinion. The fact that the appellant had in the past been persecuted on this ground was at least some indication that her fear of being persecuted on that ground in the future had some foundation. Acceptance of the appellant's evidence about the rape might therefore have caused the Tribunal to take a different view about that aspect of her case. In turn, such a different view would have caused the Tribunal to take a different view about the appellant's case based on membership of a particular social group. It appears to have taken the view that, although the rape occurred because she was a woman, and therefore a member of a particular social group of women in Iran, she would be unlikely to be raped again because she would be unlikely to do anything that would cause her to be detained for political reasons. If it had reached a different conclusion about the likelihood of future detention for political reasons, the Tribunal may well have reached a different conclusion about the likelihood of a repetition of the rape. 56 For these reasons, the Tribunal's denial of natural justice to the appellant affected the Tribunal's decision in a relevant sense. It deprived the appellant of an opportunity to make submissions that might have caused the Tribunal to reach a different conclusion on a fundamental aspect of her case. It thereby deprived her of the opportunity of success. This means that it amounted to jurisdictional error. Conclusion 57 The appellant has not made out the grounds of jurisdictional unreasonableness and constructive failure to exercise jurisdiction, on which she relied. She has succeeded in establishing jurisdictional error in the form of denial of natural justice. In accordance with the reasoning of the High Court in Plaintiff S157, such an error takes the case outside the ambit of s 474 of the Migration Act. It entitles the appellant to orders having the effect of setting aside the Tribunal's decision and remitting the matter to the Tribunal, differently constituted, to be heard and determined according to law. 58 As the subsequent decision in Plaintiff S157 has revealed, the learned primary judge fell into error in his analysis of the effect of s 474 of the Migration Act. His Honour should have proceeded to embark upon a full consideration of the grounds on which the appellant asserted that the Tribunal's decision was affected by jurisdictional error. Had he done so, his Honour would have reached the conclusion that the Tribunal's decision was so affected, and would have granted the relief to which the appellant is entitled. The appeal should therefore be allowed. 59 Although the appellant has succeeded on only one of her grounds, she has succeeded in establishing her entitlement to have the decision of the Tribunal quashed. She should therefore be awarded her costs of the appeal, on the principle that costs follow the event. Because she was entitled to succeed at first instance, she should also have an order for her costs at that stage. 60 The appropriate orders to reflect these conclusions, are to quash the decision of the Tribunal with a writ of certiorari and remit the matter to the Tribunal for rehearing to be conducted by a different member of the Tribunal. That latter step would entail issuing a writ of mandamus. The Minister, but not the Tribunal, was named as a party in the original application: see s 479 of the Act and NAAA v Minister for Immigration & Multicultural Affairs [2002] FCA 362 (2002) 117 FCR 287 at 289 – 294. However, consistent with the observations of McHugh J in Minister for Immigration & Multicultural Affairs v Wang [2003] HCA 11 (2003) 196 ALR 385 at 392 – 394 and Re Ruddock; Ex parte Reyes [2000] HCA 66 (2000) 177 ALR 484 at 489, the orders made by the High Court in Muin v Refugee Review Tribunal [2002] HCA 30 (2002) 190 ALR 601 and the Full Court in VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 at [44] – [46], the constitutional remedies should be directed to the Tribunal itself. They should not be directed to the individual who constituted the Tribunal. Accordingly we propose to make the following orders. If there is any issue between the parties about their terms, the matter should be brought to the Court's attention (within seven days of this judgment) before the orders are entered. 1. The appeal be allowed. 2. The judgment and orders made on 5 June 2002 be set aside. 3. There be substituted for those orders the following orders: (a) that a writ of certiorari issue, directed to the Refugee Review Tribunal, removing into this Court to be quashed, the decision of the Tribunal of 21 December 2001, affirming a decision not to grant a protection visa to the appellant; (b) that the decision be quashed; (c) that a writ of mandamus issue, directed to the Refugee Review Tribunal, ordering that the application of the appellant for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant a protection visa to the appellant be heard and determined according to law by the Tribunal differently constituted; (d) that the respondent pay the applicant's costs of the proceeding. 4. The respondent pay the appellant's costs of the appeal. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 20 June 2003 Counsel for the Appellant: D Godwin Solicitor for the Appellant: Ian D Graham & Associates Counsel for the Respondent: T Reilly Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 11 and 15 November 2002 Date of Final Submissions: 14 March 2003 Date of Judgment: 20 June 2003