FEDERAL COURT OF AUSTRALIA Adam v Minister for Immigration & Multicultural Affairs [1999] FCA 387 IMMIGRATION – Refugees – Refugee Review Tribunal – Refusal of application for protection visa – Whether Tribunal failed to speculate – Whether Tribunal obliged to make inquiries of those who write letters supporting applicant's case – Whether Tribunal failed to look into future – Whether illogicality in Tribunal's reasoning a ground of review – Whether Tribunal merely pretended to apply real chance test. Migration Act 1958 s 420(2)(b) The Minister v Wu Shan Liang (1996) 185 CLR 259 cited Guo v The Minister (1996) 64 FCR 151 mentioned The Minister v Guo (1997) 191 CLR 559 applied Trevanathan v The Minister (unreported, 24 December 1997) applied Zuway v The Minister (unreported, 31 December 1998) applied Emiantor v The Minister (1997) 48 ALD 635 mentioned Singh v The Minister (1997) 144 ALR 284 mentioned Mok v The Minister (1993) 47 FCR 1 mentioned The Minister v Epeabaka (unreported, 6 January 1999) applied Roads Corporation v Ducakis [1995] 2 VR 508 applied Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 applied FATH ELRAHMAN MOHAMED ADAM v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS VG 660 OF 1998 SUNDBERG J 8 APRIL 1999 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 660 OF 1998 BETWEEN: FATH ELRAHMAN MOHAMED ADAM Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: SUNDBERG J DATE OF ORDER: 8 APRIL 1999 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 660 OF 1998 BETWEEN: FATH ELRAHMAN MOHAMED ADAM Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: SUNDBERG J DATE: 8 APRIL 1999 PLACE: MELBOURNE REASONS FOR JUDGMENT BACKGROUND 1 The applicant is a 26 year old male citizen of Sudan who arrived in Australia on 9 August 1998 without travel or other identity documents. On 11 August he applied for a protection visa. A delegate of the respondent interviewed him on 8 September. His application was refused on 15 September on the ground that he was not a person to whom Australia had protection obligations under the Refugees Convention. An application for review of the delegate's decision by the Refugee Review Tribunal was dismissed on 5 November. The applicant has applied to the Court for a review of that decision. THE APPLICANT'S STORY 2 The applicant gave five accounts of the events on which he based his claim to refugee status. No exception was taken by counsel to the Tribunal's record of these accounts, and the exposition which follows is based on that in the Tribunal's reasons for decision. It is necessary to note the different versions of the applicant's story because the Tribunal attached importance to the discrepancies between them. Airport interview 3 At his airport interview, which was initially conducted in English, the applicant gave a false name and said he had been born in Egypt and had lived there all his life. After an Arabic interpreter had been engaged at the applicant's request, he gave his true name and said he had been born in Khartoum, Sudan. He is single, his parents live in Nyala, which is in the west of the country towards the border with Chad, and he has 11 siblings who still live in Sudan. He graduated in electronics in 1989‑1990 and had worked in that field since his graduation. He said he is a member of the Nuba tribe which is the target of discrimination by Sudanese authorities, particularly being sought for conscription to quell civil disturbances in the south. He experienced discrimination when he sought to leave the country using his own passport in early 1997, and was beaten and turned back at the border with Egypt. As he wished to avoid conscription, he later left the country illegally in April/May 1997 and went to Libya, which borders Sudan in the latter's north‑west corner. Although he had his own passport, he did not use it. He said he remained in Libya until October 1997 when he made a brief trip to Malaysia and Thailand before returning to Libya, where he remained until February 1998. He then went to Egypt for a month and again returned to Libya, where he remained for three months. He then went to Malaysia, about two months before his arrival in Australia. In Kuala Lumpur he obtained a Dutch passport from a Pakistani and used it to go to Indonesia where he tried to pass through to Australia. However, he believed he would not be successful, and returned to Malaysia, where the Pakistani agent arranged for him to go to Mauritius, where he was advised to buy a ticket for New Zealand, via Australia. He had financed his travels from income from his electrical equipment repair shop in Libya and loans from Libyan friends. He said that all of his travel after his initial arrival in Libya was undertaken by using his own passport Application form 4 In his application form he stated, among other things, that he is from the Nuba tribe and is a Sunni Muslim, and was born in Kadogli. Kadogli is in the Nuba Mountains about 550 kilometres east of Nyala and about the same distance south west of the capital, Khartoum. He said he was educated to high school level in Laait and then, from 1988, studied in Khartoum. When he graduated in 1990 he worked in Khartoum as a trainee until 1991 and was then self‑employed until 1996. The form does not disclose where he worked between 1991 and 1996, although it gives a residential address in Khartoum for the period 1988 to 1996. The applicant stated that he obtained a Sudanese passport by paying a bribe through a friend in Libya who went to Sudan and brought the passport back to the applicant in Libya. He left that passport in Malaysia. Statement accompanying application 5 In this statement the applicant said he could always remember problems in Sudan, but in the past they were confined to the south. Towards the end of 1980, however, the military took over and started pursuing members of all political parties. As the applicant's father was a member of the Umma party, the applicant had automatically become a member, and he attended meetings and distributed political materials. After a military coup in 1989, he was followed everywhere and kept under surveillance to ensure he would not make public his political beliefs. In the following seven years members of his Nuba tribe were deported to other areas of Sudan and many were otherwise persecuted. In 1992 his family was deported to Western Sudan (Nyala). The applicant refused to go there and moved around Sudan, but kept an address in Khartoum where he would go from time to time to collect messages. He stated that he and members of his family were interrogated on numerous occasions in Western Sudan, but he kept moving around as he was seen as an opponent of the government due to his membership of Umma and his refusal to join the Army. He refused to join up because he was repelled by the violence inflicted on fellow Sudanese, particularly in the south. In 1995 Umma asked him to go to Oumbrambita to investigate the situation of Umma members. On the way, the truck was stopped by soldiers and the applicant was detained and put in an Army truck to be taken to El Obeid. He jumped from the truck, breaking his ankle and injuring his feet, but he managed to hide and was found by friendly people who helped him reach Oumbrambita. They helped him go to Kosti, where he could move around undetected. Oumbrambita is probably Umm Barbit which is about 250 kilometres south of Kosti, which is itself about 150 kilometres south of Khartoum. 6 He said he tried to cross the border to Egypt in 1996, but was stopped and detained for a week, during which time Sudanese authorities beat him. He was then taken to Khartoum, where a relative paid a bribe to have him released. He then moved around the country for three months before crossing into Libya. He said that when he went to Malaysia, he joined an anti‑government group, the Democratic Sudanese Alliance (DSA). He is also a member of the Sudanese Human Rights Organisation (SHRO). He claimed that he had heard since he left Sudan that the authorities were searching for him because he had left the country illegally, had not served in the military and was a member of Umma. He expressed the fear that he would be executed if he returned. Interview with delegate 7 At his interview with the delegate, the applicant explained that he had claimed to have been born in Khartoum when he was interviewed at the airport because nobody would have known of Kadogli. He explained he had initially claimed to be Egyptian because he feared he would be returned to Sudan if he had disclosed that that was his country of nationality. He said that his father was a public servant who had retired in 1989. His father was a member of the Umma party and he had become a member automatically because his father was a member. He attended meetings and distributed leaflets. This was done publicly until the coup in 1989, after which he distributed pamphlets at night and put graffiti on walls. He told the delegate he had completed secondary schooling in Laait, and had then gone to technical college in Khartoum, where he graduated in 1991. He started his own business in Khartoum. He moved around areas near Khartoum to avoid being harassed by the authorities. In 1992 his family was forced to move to Nyala, as the military was displacing Nuba people from the south (including the Kadogli area of the Nuba Mountains). 8 He said that in 1995 he had been sent by Umma to Oumbrambita to collect membership details. On the way, his transport was intercepted by the military who told the passengers they were not permitted to enter the operational zone. The applicant and others were put on to a military truck to be taken to another town, but when night fell the applicant jumped from the truck, ran into the bush and found his way to a mosque, where he met some people who took him to Kosti where he could move around freely before leaving. He said he attempted to cross into Egypt in 1996, but was stopped at the border because those at the checkpoint had his name, and knew he was a member of Umma and was wanted for military service. He was detained for a week at the border post and then taken to a "white house" in Khartoum where he was tortured for three days before being released. He explained that his parents knew he had been detained at the border, and that he would be taken to the "white house", so they arranged through contacts for a bribe to be paid for his release. Following his release, he spent three months seeking a way to escape the country and eventually crossed illegally into Libya. When the delegate pointed out that he had initially stated at the airport that he had tried to go to Egypt in 1997, he replied that he had not said that. When she pointed out that he had claimed to have had a passport when he sought to go to Egypt and when he crossed into Libya, but had not used that document, he responded that he did not have a passport but a Nile Valley Card (an identification card) and that the interpreter had made a mistake. He explained that he had obtained a passport in mid‑1997 by paying a friend in Libya who was returning to Sudan. That friend paid bribes and filled in the forms to obtain the passport and delivered it to the applicant in Libya. He stated that he did not have an exit permit from Sudan. He said he was able to stay in Libya because the Libyan government had a policy of letting all Arabs stay there, and that there were many Sudanese who stayed without official permits. While he was in Libya, he ran his own electrical equipment business. 9 He told the delegate he twice went to Malaysia, in 1997 and 1998. He said he had never been to Egypt and had only tried to enter there in 1996, but had been detained at the border. When the delegate indicated he had previously stated he had been in Egypt for a month in early 1998, he agreed. He said that he had also made return visits to Libya and never had difficulties on entry because there were sanctions in place at the time, there was no military security at the airport, and the Libyans let Sudanese people into the country. The applicant provided the delegate with two letters from the SHRO, one from the London branch and one from the Cairo branch, and a letter from the National Democratic Alliance Australia and Oceania branch in Sydney (NDA). The letters refer to the applicant's political activities and/or his ethnicity. He told the delegate that he feared persecution because he had avoided military service, had left the country illegally and was a member of Umma and SHRO. Tribunal hearing 10 The applicant told the Tribunal he would be exposed to torture and execution if he returned to Sudan, because he is an educated member of the Nuba tribe, a member of Umma, opposes the policies of the government, and does not want to be conscripted and be forced to join warring factions. He stated that Nubian people are comprised of numerous tribes and are generally treated as second‑class citizens. From 1986 onwards he began to participate in Nubian demands for equality, and attended meetings and distributed brochures for that purpose. He supported the Sudanese People's Liberation Army (SPLA) led by John Garang and a Nuba commander, Yusuf Kowa, because the SPLA fought for the rights of Nubians. In the same year Umma was elected to government and remained in power until 1989. The applicant became a member of Umma because his father had been a member, and he supported its aims of democracy and freedom. He told the Tribunal that it was possible to discuss politics in senior years at school, and that he began participating in political activities in his last year of secondary school and his first year of college (1988). He explained that his political activities started with attending meetings held outside the school and listening to speakers, and subsequently he participated more directly. When he went to college in Khartoum, he openly participated in political meetings and expressed his support of Umma because Sudan was still democratic at that time. He did not encounter any difficulties prior to the coup of 30 July 1989. 11 He told the Tribunal that the coup was led by the Army with the backing of the National Islamic Front (NIF), which had been the major opposition party. The NIF orchestrated a campaign of arresting and/or killing its political opponents. On campus the political affiliations of students were public knowledge, as they had openly pursued their political interests when Umma was in charge of a democratic government. The dictatorship warned all students not to cause problems on campus at risk of being expelled and/or being charged in an emergency court. The applicant's Umma identity card was confiscated and he was forced to sign a declaration for the new government stating that he was not politically active. For the following one or two years security was very tight, students were kept under surveillance and citizens were generally subject to spot security checks. The applicant was inactive for that period and concentrated on his education and career. He was stopped and investigated many times, but nothing came of those incidents. He said that while he was a student he boarded, but when he graduated he was told it was unwise to stay in one place in Khartoum; it was better to move from place to place and only return to Khartoum when it was necessary. For that reason, he had a permanent address in Khartoum which was the house of a relative, but he never lived there. He used that address solely for correspondence and to check messages. He said he worked in a factory as a trainee for three months or so when he finished his course and then returned to school for his examination. Then he established his own business. 12 In 1991 the applicant resumed some political activities, distributing leaflets by throwing them on the road at night and writing graffiti. He avoided the authorities by never staying at the same place. He explained that he was a tradesman who worked on site whenever he had articles to repair. Around the end of 1991 his parents were forced to move from their home in the mountains to another town. They lost their property and their friends. The applicant joined them in the new town but could not stay as it was hard to find a place to live and to work. He visited his parents there from time to time, and during those visits he was stopped and questioned by the military two or three times. He told his interrogators he had signed the declaration that he was politically inactive, and to avoid being conscripted he paid a bribe, produced a false medical certificate he had obtained in 1993, or said he had already served in the Army. On each occasion the military let him pass without real difficulty. 13 In 1995 he was asked by Umma in Khartoum to go to Oumbrambita to obtain information about the membership there and to let members know that they still had support in Khartoum. On the way, the truck in which he was travelling was stopped at a military checkpoint. The applicant stated that the military knew he and some others were Nubian, but used the pretext of them entering a prohibited operational zone to assault him and some other men. They confiscated a student card that he carried as identification, and arrested him and other young men. They permitted women, the elderly and children to continue on their journey, but put the remaining men in a military truck to transport them to another city. The truck travelled in a convoy with two four‑wheel drive vehicles. When night fell, the applicant jumped from the truck and seriously cut his foot and ankle. It was a while before the soldiers realised he was missing, and by the time they returned to look for him he had escaped. He managed to walk all night and arrived at a village where he was known. The villagers took him to Oumbrambita, where he stayed for a few days. Then he went to Kosti where he remained for less than a month before going to Wad Medani on the way back to Khartoum. 14 In early 1996 the applicant became concerned that he would be arrested, so he went to a border crossing with Egypt and sought to use his Nile Valley Card to cross into Egypt. He explained that the card had been obtained for him by his father in 1985 when there was an agreement between Egypt and Sudan that permitted people to cross the border using that card. In a subsequent letter of 27 October 1998 he said his father had obtained the card when the applicant was approximately ten years old. At the border, the applicant was arrested. When the border officials checked him, they discovered that he was a member of Umma, had escaped from custody and was wanted for military service. They detained him for a week, during which time they tortured him. He said there were three other men, unknown to him, who were also detained for trying to cross into Egypt. The applicant showed the Tribunal some scars on his knees and on his hand and torso. He was then taken to a "ghost house" in Khartoum, where he was detained and tortured for three days before he was released after a relative intervened. He stated that he was not allowed to contact anyone when he was at the border post, but a visitor to the border heard that the applicant had been detained and reported it to his address in Khartoum where it came to the relative's attention. 15 In response to the Tribunal's inquiry as to why he would try to cross the border using a card that was more than ten years old when he believed he was being sought by the authorities, he said it was a mistake but he was desperate. He also reiterated that he had not said he had gone to the Egyptian border in 1997, as reported in the record of interview at Melbourne airport, and that he had not said he had a passport at the time he sought to cross into Egypt and later successfully crossed into Libya. He explained that he was tired and afraid at the airport , and he believes he said he had the Nile Valley Card and not a passport. He said that if he had possessed a passport he would have used it to leave the country by more secure routes. He explained that it was easy to obtain any documents by bribery, and that he had arranged for a friend to obtain a passport for him while he remained in Libya. 16 Having been released from the "ghost house" the applicant moved around for the following three months or so, avoiding security checks and planning his escape to Libya. He crossed into that country illegally, and once there established his business in a shop with a Libyan partner who took 40 per cent of the proceeds. He stayed in Libya for about eighteen months. He said that Colonel Khaddafi had proclaimed that all Arabs were free to stay in Libya. While the applicant is not ethnically an Arab, he comes from an Arab State and so was permitted to stay. He explained that some unskilled workers have been deported from Libya, but those with skills and work can stay as long as they like. However, he said he did not wish to return to Libya as that is a short term option and would not solve his problem of being a refugee. While he was in Libya, he visited Malaysia where he went to a forum that was held at a university. Subsequently, he was invited by the Sudanese Embassy to a meeting, where he was told that if he "did anything" in Malaysia, the Embassy would arrange for his deportation to Sudan. The applicant told the Tribunal he had joined SHRO in Cairo more than a year ago. He explained that information about him held by SHRO had been supplied by him and by other people. He said the information provided by the NDA in Sydney had been provided by him. He told the Tribunal that he will always face difficulties in Sudan because he is of the Nuba tribe, members of which are perceived to oppose the government and are called "slaves". If he reports something to the police he faces harassment. It is necessary for Nubians to keep their views to themselves, because even the slightest suspicion of those views may raise the ire of officials or non‑Nubians. He indicated that anybody who is not "for" the NIF is perceived to be against it and the government, and is at risk of serious human rights abuse. Following the hearing the applicant submitted a letter written by Mr Des Hogan, National Refugee Coordinator of Amnesty International, in which the author, after referring to the applicant's claims, concluded that the applicant faced the prospect of torture if he were detained on arrival at Khartoum airport. TRIBUNAL'S REASONING 17 The Tribunal examined the leading cases on "well‑founded fear of being persecuted". Its exposition of the law was accepted by both sides as accurate. The Tribunal observed that there were inconsistencies between the various versions of the applicant's story. Before examining them, it noted that the fact that it might find one aspect of his claim not to be credible did not mean that other aspects were not credible, or that he could not be a refugee. The Tribunal also noted that if an applicant was generally credible it was appropriate to give him the benefit of the doubt in relation to matters that were not susceptible of proof. It observed that its task was to examine the applicant's claims as a whole, rather than as a series of independent points, and that if there was any real doubt as to findings made on the basis of credibility, it was obliged to ask itself what consequences would flow if those findings were wrong. 18 The Tribunal accepted the applicant's explanation for initially claiming to have been Egyptian. It then examined his claim based on tribal ethnicity. While it accepted that he had supported efforts to achieve equality for the Nuba, it did not accept that he was an active supporter of the SPLA in its fight against government forces. It came to this conclusion for three reasons. First, he was at boarding school when he claimed to have begun supporting the SPLA in 1986, yet he said elsewhere that he did not become active until his last year at school (1988). Secondly, his claim to have been an SPLA activist was unlikely to be true because he was a member and supporter of Umma which, according to a human rights report on Sudan submitted by the applicant, was seeking to put down the SPLA insurgency. Thirdly, he had not before the hearing at the Tribunal put forward the SPLA claim. 19 The Tribunal then examined the applicant's political opinion claim, which was based on his membership of Umma. The Tribunal accepted that he was a member of Umma and was publicly identified as such. But it concluded that the post‑coup authorities had accepted his declaration that he would not participate in political activities, and that after he signed it he was not perceived to be a member of Umma or a student activist. In this connection the Tribunal noted that despite his "former" membership of Umma, he did not encounter any trouble on that account after the coup. The Tribunal also observed that at the airport interview the applicant had claimed asylum only on the grounds of ethnicity and military conscription, which suggested that he did not regard his real or imputed political opinions as a reason to fear persecution. 20 The Tribunal did not believe the applicant's claim that he had been born in Kadogli. Kadogli is in the Kordofan region in Western Sudan where the Nuba are concentrated. At the airport, after having abandoned his claim to be Egyptian, he said he had been born in Khartoum. At the Tribunal hearing, he stated that once the interpreter arrived at the airport and it became clear that he could tell the truth without fear of being summarily returned to Sudan, he had told the truth to the immigration officials. Yet he did not then claim to have been born in Kadogli, although he did say he was from the Nuba tribe. The Tribunal said it had no real doubt that he had been born in Khartoum, and that he had tried to bolster his claim to be a refugee by asserting that he was a potentially rebellious southerner from a predominantly Nubian area. 21 The Tribunal then turned to the 1995 Oumbrambita episode. It concluded that the applicant had been arrested because he was attempting to enter a prohibited operational area without a permit. That was the reason for his arrest given by the soldiers at the time, and it accorded with general information in a US Department of State publication about Sudan's human rights practices, and with information emanating from the Australian High Commission in London. The other incident in which the applicant claimed to have been maltreated was when he had attempted to enter Egypt a few months after the Oumbrambita incident. The Tribunal did not believe the applicant's claim that at this time he had genuine concerns that he was wanted by the authorities on account of his political affiliations, avoidance of military service and escape from custody. If he had had those concerns, it was not credible that he would have presented at a policed border crossing with no more than an identity card that had been issued ten or fifteen years before. He knew it was common for people to cross the border at various locations, and it was not credible that he would attempt to cross openly if he thought he was so much at risk. Nor did the Tribunal believe the applicant's claim that he did not have a passport when he attempted to cross to Egypt. It accepted the statement he had made at the airport that at that time he had a current passport, but did not want to use it. He also said it was easy to obtain a passport by a bribe. The Tribunal concluded from these findings that the applicant had no genuine fear that he was wanted, as he described, when he tried to go to Egypt. 22 While the Tribunal accepted that the applicant had tried to cross to Egypt and had been threatened with military service and beaten, it did not believe that he had been taken to a ghost house in Khartoum and tortured for three days before being released through the intervention of a relative. The Tribunal noted that the applicant had not mentioned this in his statement at the airport. It referred to the applicant's account of the circumstances that led to his release, and said that the coincidence of the friend's attendance at the border on the day of the arrest, the likelihood that the applicant's name would be available to the friend, and the friend's ability to track down the applicant to a particular ghost house, led it to disbelieve this aspect of his story. The Tribunal found that after his beating at the border, occasioned by his attempt to leave the country without proper documents, he had been released. The release showed that he was not wanted as a dissident. He was not passed on to other authorities for interrogation, or to military authorities for military service. 23 The Tribunal then examined the claim based on the applicant's refusal to do military service. It did not accept that there was a real chance that he would be conscripted if he were to return to Sudan. He had been eligible for military service since 1991. He had been stopped and questioned on numerous occasions since then and had not been conscripted. He said it was easy for someone to avoid conscription by stating that he had already done it, or by paying a bribe or producing a medical certificate of unfitness for service. The military could have conscripted him when he was in their hands at the Egyptian border, but let him go. The Tribunal went on to find, based on materials submitted by the applicant and other information, that the authorities were not motivated by Convention reasons in their efforts to conscript young men. It concluded that the applicant was not differentially at risk of being conscripted. In any event, the chances that he might be were remote, based on his evidence of how simple it is to avoid conscription. Furthermore, in the remote chance that he was punished for avoiding service, it would not be for a Convention reason but as a consequence of breaching a law of conscription applied to all young men. THE TRIBUNAL'S CONCLUSION 24 The Tribunal summed up its reasoning as follows: "The Tribunal accepts that the Applicant is a Nuba from Sudan and finds that he was born in the north, in Khartoum, and that he was formerly a low‑key member of the Umma Party. While his parents were forced to move because of the civil war, the Applicant has not been harassed because of his tribal connections. Nor has he participated in political activities that ever brought him to the adverse attention of the Sudanese authorities, who had numerous opportunities to harm him for reason of his political opinions, but did not do so. The Applicant's history demonstrates he is not seen to be an opponent of the government or in disagreement with its political agenda, despite being mistreated on two occasions because he breached some bureaucratic requirements. The Tribunal is satisfied that there is not a real chance that he might be persecuted for reasons related to his tribe or his political opinions if he returns to Sudan. He has encountered serious mistreatment on two occasions in the past, but each of those arose from his failure to comply with legal or bureaucratic requirements that apply to all Sudanese citizens, regardless of the Convention reasons, and he can avoid such incidents in the future by adhering to the laws that apply to his fellow nationals. … In summary, there is not a Convention reason that motivates the Sudanese authorities to conscript its citizens into military service and, in any case, there is not a real chance that the Applicant will be conscripted. Even if he was, he does not have a genuinely held conscientious objection to the war in Sudan and none of the information before the Tribunal suggests that people who refuse military service are differentially punished for any of the reasons in the Convention. The Tribunal is satisfied that, in the remote event that he is conscripted and refuses to serve, any punishment imposed on him would arise from laws of common application, regardless of the reasons set out in the Convention." GROUNDS OF REVIEW Failure to speculate 25 The applicant attacked the Tribunal's decision on four grounds. The first was that having found that the applicant had been roughly treated on two occasions, and that he had genuine subjective fears, but that those fears were not for a Convention reason, the Tribunal should have asked itself whether, if it were wrong on that last point, the fears were objectively well‑founded. It was said that this course was required by The Minister v Wu Shan Liang (1996) 185 CLR 259 at 293. See also The Minister v Guo (1997) 191 CLR 559 at 576. The Tribunal directed itself in accordance with those cases when it said that "if it is in any real doubt as to findings made on the basis of his credibility, [it is alert to the requirement] to ask itself what consequences would flow if these findings were wrong". 26 In Guo v The Minister (1996) 64 FCR 151 at 179 one member of a Full Court of this Court had been critical of the Tribunal for making findings before it evaluated whether there was a real chance of persecution for a Convention reason. The Tribunal had also, it was said, failed to consider the possibility that any of its findings were inaccurate. When the case reached the High Court (The Minister v Guo (1997) 191 CLR 559) Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said at 575‑576: "this criticism of the tribunal's reasons is wrong. For the reasons that we have given, the tribunal was entitled to weigh the material before it and make findings before it engaged 'in any consideration of whether or not Mr Guo's fear of persecution on a Convention ground was well‑founded'. Moreover, given the strength of some of the tribunal's findings … the tribunal was not bound to consider the possibility that its findings were inaccurate or that the punishment was Convention‑based. … In the present case … the tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well‑founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the tribunal was not then bound to consider whether its findings might be wrong." See also Trevanathan v The Minister (unreported, 24 December 1997) and Zuway v The Minister (unreported, 31 December 1998). Cf Emiantor v The Minister (1997) 48 ALD 635 at 644. 27 The only finding of relevance to the present ground of review is that the applicant's maltreatment on two occasions was not for a Convention reason. The Tribunal referred to this matter on four occasions. The first was in dealing with the Oumbrambita incident. It said: "In view of his own evidence and that from other sources, the Tribunal is satisfied that he was seeking to cross into an area that was otherwise prohibited to him because he did not have a permit and he was unable to satisfactorily identify himself when he produced a student ID card that was at least four years old. In the circumstances the Tribunal concludes that he was being taken by the military officials for further security checks after being refused entry to an operational zone for which he required a permit." The second reference was in connection with the applicant's attempt to enter Egypt. The Tribunal said: "The fact that he was released at the Egyptian border leads to the conclusion that he was not wanted as a dissident but had presented at the border without documents that would persuade border officials he was permitted to leave, notwithstanding that he possessed a passport at that time. They had beaten him and then released him. He was not kept for other authorities to interrogate nor was he passed on to military authorities for military service. The Tribunal finds that he was the unfortunate victim of an isolated and intemperate attack by border officials because he sought to cross into Egypt without proper consent. It does not accept that those officials already knew or discovered that the Applicant was wanted as a member of Umma or that he had previously escaped from custody in 1995." On the third occasion the Tribunal said: "he has had two serious encounters with the authorities that were unrelated to his tribal connections but emanated from his failure to comply with administrative directions or requirements that are applicable to all Sudanese citizens." The fourth reference was as follows: "He has encountered serious mistreatment on two occasions in the past, but each of those arose from his failure to comply with legal or bureaucratic requirements that apply to all Sudanese citizens, regardless of the Convention reasons, and he can avoid such incidents in the future by adhering to the laws that apply to his fellow nationals." On none of these occasions was the Tribunal's finding as to the reason for the applicant's maltreatment expressed with any hesitation. They are positive findings that it occurred because of a failure to comply with requirements applicable to all Sudanese citizens and not for any Convention reason. There was thus no occasion for the Tribunal to assume that its finding was wrong and on that basis to investigate whether the applicant's fear was well‑founded. Failure to make inquiries 28 The Tribunal had before it four letters supporting the applicant's case. One was from the NDA. It stated that the applicant has been a political activist opposing the government of Sudan since 1989, and would be persecuted for his political commitments were he to be returned to Sudan. The second was from the London office of the SHRO ("the London letter"). It stated that the applicant has been an active member of Umma which is a banned political party, and that his safety would be at risk if he returned to Sudan. The third letter was from the Cairo branch of the SHRO ("the Cairo letter"). It expressed a fear that because of his Nubian ethnicity, the applicant might be harassed and persecuted if he returned to Sudan. The fourth letter was from Amnesty International Australia ("the Amnesty letter"). This letter referred to the applicant's membership of Umma, his Nubian ethnicity and his evasion of military service. It concluded that if he were detained on arrival in Khartoum he would face torture which "may fall within the definition of a refugee under Article 1(A)(2)". The applicant informed the Tribunal that he was the source of the information in the NDA letter. He said that the information in the Cairo letter had been provided by him and "other people". The information in the London letter had been obtained from him and the Cairo branch. The Tribunal concluded that the information in the Amnesty letter had been supplied by the applicant. It expressed the view that the letters did not provide information from independent sources and did not add anything to, or corroborate, the applicant's own evidence. 29 For the applicant it was said that the Tribunal should have asked the writers of the letters whether they had any independent material which would support the applicant's fear of persecution for a Convention reason, or would bear on how someone in his position would be treated on his return. It was also said that the Tribunal should have asked the Foreign Affairs Department whether it had any information on the view the Sudanese authorities would take of someone who had applied for refugee status in Australia. Reliance was placed on the observations of Black CJ, von Doussa, Sundberg and Mansfield JJ in Singh v The Minister (1997) 144 ALR 284 at 288‑291. It was accepted in that case that while the Tribunal was under no general duty to make inquiries, there might be exceptional cases in which a failure to do so constituted a failure to act according to substantial justice within s 420(2)(b) of the Migration Act 1958. It was submitted that the present was an exceptional case, though nothing was said as to why it was exceptional. 30 The suggestion that the Tribunal should have made inquiries of Foreign Affairs is not tenable. If the Tribunal were obliged to do so in the present case, it would be obliged to do so in every case. The submission is at odds with the notion that there must be something special about a case in order that there be a duty to make inquiries. Nor, in my view, was the Tribunal bound to make inquiries of the writers of the letters. It is plain that the letters were written at the instigation of the applicant or his legal advisers. The information in them emanated from the applicant. It added nothing to the material directly put forward by him. His legal advisers did not, in their lengthy submission to the Tribunal, ask it to make the inquiries. In those circumstances it is rather a bold claim that because the Tribunal did not do something it was not asked to do it had not acted according to substantial justice. See Singh at 291. It would be burdensome in the extreme to require the Tribunal, on receipt of letters procured by an applicant and containing information supplied by him, to ask the writers whether they had any other material supporting the applicant's case. Events after leaving Sudan 31 The complaint here is that the Tribunal failed to look at the future as required by cases such as Mok v The Minister (1993) 47 FCR 1 at 66. It was said that the Tribunal should have asked itself whether, after the applicant's return, the Sudanese authorities might become aware that he had gone to Libya, joined a human rights group in Malaysia and attended a forum at a university there, and applied for refugee status in Australia. The failure to do so was said to be a breach of the Tribunal's obligation to act according to substantial justice in reviewing the delegate's decision. The applicant's experienced migration solicitors made a detailed written submission to the Tribunal with 187 pages of attachments. His case was clearly put on the basis of his fear of persecution because of his political activities in Sudan and Nubian ethnicity. No claim was made that he should be treated as a refugee because of post‑Sudan events. Whether the Tribunal conducted its review in accordance with substantial justice depends on the facts of the particular case. The Tribunal was, in my view, entitled to deal with the case in the way in which it was presented by the applicant's legal advisers. That is what it did, and it would in my view be wrong to describe as a denial of substantial justice a failure expressly to deal with a matter that was not put forward in support of the case but was discerned by a subsequent legal adviser. 32 In any event, there is nothing in the complaint. The applicant regarded his activities in Malaysia, and in particular his attendance at the political forum at the university, as the reason he had been invited to the Sudanese Embassy in Malaysia, where he said he had been warned that if he did anything wrong in Malaysia, the Embassy would arrange for his return to Sudan. As the Tribunal said, the discussion at the meeting showed that the Embassy did not consider that the applicant had done anything wrong in Malaysia. He was being warned not to do anything wrong in the future. There was thus no occasion for the Tribunal to ask itself whether the applicant was at risk of persecution if the authorities discovered his Malaysian activities. They knew of them, and found nothing wrong with them. Further, had the Tribunal made the inquiry suggested, it would not have altered its conclusion that the applicant's political activity was of a low level that was not of concern to the authorities. Those whom the Tribunal found were sometimes at risk of persecution by reason of their political opinions were high profile activists, not those with low‑key involvement, whose activities were sporadic and relatively minor. The nature of the forum at the Malaysian university was not particularised. On the material available to the Tribunal it is inconceivable that had it engaged in the inquiry suggested it would have concluded that his attendance at the forum converted him into the type of high profile activist who was of interest to the authorities. The same applies to joining the DSA in Malaysia. 33 It was said that the applicant might have acquired the profile of a refugee as a result of having applied for refugee status in Australia. He could not acquire that profile unless he had a well‑founded fear of persecution for a Convention reason. The Tribunal rejected his claim to refugee status on the ground of persecution by reason of his political opinion and Nuba ethnicity (race and particular social group). It was not suggested that the authorities' assumed discovery of the application for refugee status would have caused the Tribunal to come to a different view on those matters. No other Convention ground was, or could have been, relied on. In those circumstances, an application for refugee status could give rise to no well‑founded fear of the applicant being persecuted for a Convention reason, and there was thus no occasion for the Tribunal to have directed its attention to the possibility that the authorities might discover that it had been made. The same applies to the applicant's departure to Libya. There was no point in asking what was likely to happen if the authorities discovered that the applicant had illegally crossed into Libya. If they discovered that, they might punish him, but any such punishment would not be for a Convention reason. The Tribunal had rejected his claim that he would be persecuted by reason of his political opinion or ethnicity, and there is no independent Convention ground to which illegally leaving the country can be related. Again, it was not suggested that the authorities' assumed discovery of the applicant's departure from Libya would have caused the Tribunal to come to a different view on those matters. Illogicality No real application of "real chance" test 34 The applicant contended that some of the Tribunal's findings were illogical. In The Minister v Epeabaka (unreported, 6 January 1999) the Full Court said that illogicality does not constitute an error of law. Counsel submitted, correctly, that this was obiter, and urged me to apply the approach of the primary judge in Epeabaka that the adoption by the Tribunal of an illogical and self‑contradictory approach was an error of law in respect of which relief can be obtained under the Migration Act. What the Full Court said in Epeabaka was a considered opinion. It accords with the view taken in a comparable context by Batt J in Roads Corporation v Ducakis [1995] 2 VR 508. More importantly, I regard the matter as having been settled by the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356, where Mason CJ (with whom on this point Brennan, Toohey and Gaudron JJ agreed) said: "Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place". That observation is applicable to the error of law ground of review in s 476(1)(e) of the Migration Act. 35 As a fall‑back position the applicant relied upon the same illogicalities and inconsistencies to demonstrate that the Tribunal had merely purported to apply the "real chance" test; that it had not really done so; it had paid lip service to the test. Counsel relied on the following passage from the judgment of Batt J in Ducakis at 520, which was approved by the Full Court in Epeabaka: "… although want of logic in drawing an inference will not itself constitute error of law, … [it] might in some cases … sound a warning note to put one on inquiry whether there was only a purported, and not a real, exercise of the functions entrusted to the decision‑maker …". 36 Seven instances of alleged illogicality or inconsistency were pointed to. The first is that despite having accepted that "some Nubians support the SPLA", the Tribunal found that the applicant did not support the SPLA. Immediately before making the finding the Tribunal had set out a passage from a Human Rights Report on Sudan which, it said, showed that Umma and the SPLA were opponents in a war. In view of this, the Tribunal found that to claim support for both sides in public would be a contradiction. That was the basis for the finding. The preceding statement related to Nubians generally, and not those who claimed to support the SPLA and to be Umma supporters. There is no illogicality or inconsistency as alleged. 37 The second suggested illogicality is that having recorded the applicant's statement that there was no political activity on campus during the eighteen months following the coup, the Tribunal noted a United Nations report that there was such activity, and said that the applicant's statement was "somewhat at odds" with the report. The illogicality was said to lie in the false contrast between the applicant's statement of his own non‑involvement in political activity and the reporter's statement about the political activity of the general body of students. But that is not the contrast being made. Both statements refer to the general body of students. There is no illogicality or irrationality in the Tribunal's observation. Even if there is, nothing turned on it. The Tribunal merely made a passing observation that the two accounts are somewhat at odds, and moved on to another point. 38 The next inconsistency claimed is between the Tribunal's statement that the applicant's failure to mention his political affiliations at the airport interview suggests that he did not regard his real or imputed political beliefs as a reason to fear persecution, and its later acceptance that distributing leaflets and putting up graffiti can have serious consequences. The two passages deal with different topics and are not inconsistent. 39 It was then said that it was "totally absurd" for the Tribunal to have accepted that distributing leaflets and putting up graffiti could have serious consequences, yet to have concluded that the applicant did not fear persecution. But that is not what the Tribunal did, as appears from the passage in question: "While he claimed he was active in Umma, those activities appear to be participation in distributing leaflets and putting up graffiti at night. No doubt such activities can have serious consequences, but it is clear to the Tribunal that the Applicant was not detected participating in such activities and was not suspected of being a supporter of Umma. He had been stopped and questioned on numerous occasions over many years after mid‑1989 and he was not harmed, except for the incidents described below. In the context of the human rights record of the NIF government, extensively canvassed in the materials submitted by the Applicant, that history demonstrates that he was not perceived to be an opponent of the government or a supporter of the opposition." The contrast upon which the total absurdity claim is based is not that made by the Tribunal. 40 It was said that it was illogical for the Tribunal to have said that it had no real doubt that the applicant had been born in Khartoum when there was no evidence to support that finding. In his airport statement the applicant said he had been born in Khartoum. He later said he had been born in Kadogli. The Tribunal gave its reasons for accepting his first account. It was entitled to do so, and can certainly not be accused of illogicality in doing so. 41 It was claimed that there was no evidence to support the Tribunal's finding in relation to the Oumbrambita incident that the applicant had been detained by the military for further security checks after being refused entry to an operational zone for which he required a permit. In fact there was evidence. The applicant stated that the military knew he and some others were Nuba, but used the pretext of their entering a prohibited operational zone to assault him and some other men. In another place the applicant said that the men had been arrested "as they claimed that we were not allowed in that part of the country". Obviously the Tribunal found that the reason given by the military was the actual rather than a pretended reason for the incident. The Tribunal also referred to country information that for most of the locations outside Khartoum, especially those under government control in the south, travel permits are required for entry. 42 The final inconsistency was in relation to the Egyptian crossing. Two passages from the Tribunal's reasons are said to be in "direct contradiction". The first is as follows: "The Tribunal is satisfied that he sought to escape to Egypt in 1997, not in 1996. It concludes that after he was stopped by the military in 1995, he remained in the country without encountering any further difficulty until he was beaten at the Egyptian border in early 1997." The second is that "The Tribunal accepts that he sought to leave the country at the Egyptian border crossing, but he was threatened with military service and beaten by soldiers at the border." I am unable to discern any inconsistency. 43 For the reasons I have given, the illogicalities and inconsistencies relied on do not exist. Nothing that has been said on these topics supports the contention that the Tribunal was paying lip service to the real chance test, while in truth ignoring it. Counsel's examination of the alleged illogicalities and inconsistencies was prefaced by the words "I'm not going to try to do it with too fine a tooth comb". But that is what was being done – a meticulous search for error; a minute examination of passages taken out of context and stood side by side for a comparison of their verbiage. That is not the Court's task on a review. It was accepted that the Tribunal correctly directed itself as to the law, and the claim that it then merely pretended to apply it has no substance. CONCLUSION 44 None of the grounds of review has been made out. The application is dismissed. I certify that the preceding forty‑four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 8 April 1999 Counsel for the Applicant: P N Rose Counsel for the Respondent: S McLeish Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 28 January 1999