FEDERAL COURT OF AUSTRALIA [2001] FCA 1787 Savic v Minister for Immigration & Multicultural Affairs Migration Act 1958 (Cth) ss 420(2)(a),(b), 476(1),(b),(c),(e),(g), 476(4)(a),(b) Administrative Decisions (Judicial Review) Act 1997 (Cth) s 5(1)(h), 5(3)(a),(b) Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 referred to Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 applied Bank of Valetta PLC v National Crime Authority [1999] FCA 791 applied Scruples Imports Pty Ltd v Crabtree & Evelyn Pty Ltd (1983) 1 IPR 315 applied Parkasho v Singh [1968] P 233 considered Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 referred to Australian Broadcasting Appeal Tribunal v Bond (1990) 170 CLR 321 referred to Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 referred to Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 considered Western Television Ltd v Australian Broadcasting Tribunal (1986) 12 FCR 414 considered Minister for Immigration & Multicultural Affairs v Yusuf (2000) 180 ALR 1 considered Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 179, (1999) FCR 220 applied Wu Shan Liang v Minister for Immigration & Ethnic Affairs (1996) 185 CLR 259 considered DUSAN SAVIC v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS S 72 of 2001 MANSFIELD J 18 DECEMBER 2001 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 72 OF 2001 BETWEEN: DUSAN SAVIC APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE OF ORDER: 18 DECEMBER 2001 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application is allowed. 2. The application to the Refugee Review Tribunal is remitted to the Refugee Review Tribunal for reconsideration according to law. 3. The respondent pay to the applicant 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 SOUTH AUSTRALIA DISTRICT REGISTRY S 72 OF 2001 BETWEEN: DUSAN SAVIC APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE: 18 DECEMBER 2001 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The applicant seeks review of a decision of the Refugee Review Tribunal (the Tribunal) given on 1 May 2001. The Tribunal affirmed a decision of a delegate of the respondent given on 5 August 1999 to refuse to grant to the applicant a protection visa under the Migration Act 1958 (Cth) (the Act). 2 There is only one ground of review argued on this application, so the background to the application and the Tribunal's reasons for its decision need be referred to only briefly. 3 The applicant is 31 years of age, and is married with two children. He is a national of the Federal Republic of Yugoslavia (FRY). He is a Serbian who is an Orthodox Christian. After completing his schooling in 1988, he undertook a year of military service. He then worked as a driver employed by the government until 1991, and thereafter was self-employed as a heavy-plant driver. So much appears to have been accepted by the Tribunal. He arrived in Australia on 10 November 1997 on a visitor visa. That was extended on 4 February 1998. He did not apply for a protection visa under the Act until 4 June 1999. In the meantime, he applied for a Business Visa, but that was refused on 7 May 1999. He said that he came to Australia to attend to his wife's uncle's estate. He did not initially intend to remain permanently in Australia. He left his wife and children in FRY. 4 The circumstances which, he claimed, prompted his application for a protection visa were based only partly upon events which occurred after he had arrived in Australia. Although the applicant had completed his compulsory military service in 1989, he remained in the army reserve. He remained eligible for conscription thereafter. He was not called up in the period 1991 – 1993 when fighting broke out in Croatia and in Bosnia-Herzegovina because of an allergy. The applicant claimed that in 1993 he was involved in a car accident, and was charged with an offence arising from that accident. He further claimed that in March 1996 he was convicted of that offence and was sentenced to three years' imprisonment, and further that that sentence was confirmed on appeal in November 1996. The applicant also told the Tribunal that he was exempted from serving that sentence until December 1997. In the meantime, the applicant left FRY for Australia. 5 The applicant claimed before the Tribunal that his conviction and sentence were dishonestly procured, because he was associated with a prominent opponent of then President Milosevic, and that his departure from FRY was an attempt to escape persecution by reason of his political opinion. That allegation was expressed only to the Tribunal. It had not been made upon his arrival in Australia, nor when applying for the protection visa to any officer of the respondent. The applicant further claimed that, despite the downfall of President Milosevic, the same political structure which gave rise to his conviction and to the sentence of imprisonment still existed, so that he was still wanted by the FRY authorities ostensibly to serve a term of imprisonment for a criminal conviction but in reality as a subterfuge to harm him for his political opinions. 6 The events to which the applicant referred which had occurred after his arrival in Australia were that he had been called up for military service as a reservist in late 1998 and again in March 1999, but he had not responded to those call-up notices. He said that he fears that he will therefore be treated as a deserter, particularly as he did not notify the military authorities in 1997 when he left FRY for Australia, even though as a reservist he was required to have done so. He also claimed to be opposed to "any armed conflict in support of an undemocratic regime to which he is opposed". 7 The Tribunal in the section of its reasons under the heading "Discussion and Findings", accepted that the applicant subjectively fears persecution if he returns to the FRY. It recited the reasons given for that fear (the applicant's opposition to the former Milosevic regime and his objection to armed service for that regime), but it did not indicate which of the applicant's reasons for his fear it accepted that he held. It must be taken to have accepted one or other or both of them as being the foundation for the applicant's fear of persecution. 8 However, certain of its comments in that section of its reasons appear to indicate some doubt on the Tribunal's part about the existence of that subjective fear. It noted that, despite his opposition to the Milosevic regime, the applicant remained in FRY until late 1997 and during that period left FRY and returned on two occasions. It observed: "That is some indication that he did not have any deep-seated opposition to the wars pursued by Milosevic." It also saw "further indication" for that view from the applicant's failure to apply for a protection visa for many months after his arrival in Australia, even though the fighting in Kosovo continued to escalate and a state of war was declared on 24 March 1999. Despite those observations (which suggest that the Tribunal had doubts about whether the applicant harboured the fear of persecution for one or other or both of the reasons he had given), the Tribunal at the conclusion of its reasons again expressly accepted that the applicant has a subjective fear of persecution should he return to FRY. The point of the Tribunal's comments to the contrary is not apparent, but it is not necessary to address that feature of the Tribunal's reasons further. 9 The Tribunal concluded, however, that that fear of persecution held by the applicant is not well-founded. It is accepted by the applicant that, to be eligible to be granted the protection visa for which he had applied, the Tribunal had to be satisfied that he is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (using those terms as defined in the Act): s 36(2) of the Act. It is also accepted that, in the present circumstances, that meant that the Tribunal had to be satisfied that he is a refugee as defined in Article 1A(2) of the Convention, by him having a "well founded fear of being persecuted" for a Convention reason. That expression involves both the existence of a subjective fear of persecution for a Convention reason, and the existence of some objective foundation for that fear: Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 (Chan); Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo). 10 The Tribunal's finding that the applicant does not have a well founded fear of persecution for a Convention reason is to be viewed in the light of its acceptance that subjectively he has such a fear. Its conclusion is, therefore, that that fear is not "well-founded", i.e. that it was not satisfied that any objective foundation for the existence of the fear exists. It expressly applied that conclusion to the circumstances applicable when the applicant left FRY and then to any changed circumstances or events since that time. It was not satisfied that the applicant faces a real chance of persecution if he returns to FRY: "… on account of objections to military service, failure to respond to call up notices, affiliation with the SPO or for otherwise being imputed to hold certain political opinions." It also said that it had "grave doubts" that the applicant had been convicted of an offence and sentenced to three years' imprisonment as he claimed, but added that even if that had occurred it was not satisfied that "it has any connection with the Convention". 11 Relevantly for present purposes, the crux of the Tribunal's reasoning leading to those conclusions is contained in the following passage from its reasons: "The Tribunal is satisfied that the Applicant left FRY before there were restrictions on traveling [sic] for men eligible for conscription. While he may have been subject to a penalty for not responding to call-up notices while he was overseas, there is now an amnesty in place for such people and the Tribunal concludes that he does not face a real chance of punishment for that reason. The Applicant states that he is not eligible for the amnesty because he is wanted in regard to a sentence of imprisonment imposed in March 1996 and confirmed on appeal later that year. There is no information before the Tribunal to suggest that the amnesty for draft dodgers has been restricted and the Tribunal is not satisfied that it is. The Applicant had made no mention of any political involvement until the hearing and his explanation that he feared such a disclosure would be reported to Serbian authorities is incompatible with his willingness to disclose his opposition to the Milosevic regime in his initial application. His application form specifically states that he has never been convicted of any offence (Part B, Item 6) and the Tribunal finds that is most likely to be the case. Even if it is not the case, the Tribunal concludes that the Applicant has avoided a sentence in regard to a car accident for which he has been convicted, and such a sentence is unrelated to the Convention. It does not accept that he was sentenced because he was alleged to be connected with Vuk Draskovic, the leader of the Serbian Renewal Movement that now forms part of the governing coalition led by President Kostunica's Democratic Opposition of Serbia. The Tribunal is satisfied that the Applicant is not at any real risk of persecution for reason of his political opinions. It arrives at the same conclusion taking into consideration his opposition to the war prosecuted by Milosevic and to armed service. It also noted that the applicant had left FRY on three occasions, including his departure for Australia, on a valid passport issued in March 1993, soon after his alleged conviction. It was satisfied that he was issued with the passport "because there was no reason to withhold that document" and that he was able to leave FRY on those three occasions "because the authorities had no interest in him" either as a security risk or as a person otherwise wanted by the authorities. 12 The sole basis of review argued on this application is that the Tribunal erred in law in accepting as evidence of the content of the FRY "amnesty law" a media report in general terms. It is common ground that the source of the Tribunal's knowledge on that score was a Reuter Business Briefing "Yugoslavia pardons draft dodgers, deserters" issued on 26 February 2001 (The Reuters Briefing). The Reuters Briefing is in the following terms: "Yugoslavia's reformist-dominated parliament approved an amnesty law on Monday pardoning around 30,000 people accused of crimes during the autocratic rule of Slobodan Milosevic. But the law, widely seen as needed following the 1999 Kosovo conflict when many Yugoslavs refused to heed army call-ups, does not apply to those charged with so-called terrorism – mostly Kosovo Albanians. It covers about 28,000 draft dodgers and deserters from the army during a series of Balkan wars in the 1990s, mainly during NATO's 1999 bombing of Yugoslavia. It was not immediately clear how many were in jails and how many had fled the country". 13 The Tribunal appears to have accepted, or to have been prepared to assume, that the applicant received and did not respond to call up notices since he has been in Australia and that, but for that amnesty law, he would be vulnerable to punishment in those circumstances if he now returns to FRY. It was contended that the Tribunal erred in accepting the Reuters Briefing as a basis for it being satisfied that there was such an amnesty law, and then for being satisfied about the content of that amnesty law, i.e. that it applied in the applicant's circumstances. It was further contended that the Tribunal had erred by failing to address the particular claim of the applicant that the amnesty law did not apply to him because he is wanted in relation to the sentence of imprisonment imposed in March 1996. Those matters were said to enliven the grounds of review available under s 476(1)(b) and (c) of the Act, and in a limited respect s 476(1)(g) and (4)(a) of the Act. 14 The first step in the applicant's contention is not in issue. It is that the content of foreign law is a question of fact about which evidence is receivable: see e.g. Bank of Valetta PLC v National Crime Authority [1999] FCA 791 at [72 – 73] per Hely J. In that case, Hely J agreed with the remarks of Powell J in Scruples Imports Pty Ltd v Crabtree & Evelyn Pty Ltd (1983) 1 IPR 315 at 325 as to the respective roles of the fact finder and of expert evidence in deciding, as a matter of fact, the content and meaning of foreign laws. Hely J in that case considered the terms of the relevant foreign legislation to decide as a fact what it meant where expert evidence on that topic was conflicting. Powell J said: "… the task of identifying what is the relevant law and of expounding what, in general terms, is its meaning and effect, is, primarily, the task of the expert witness: … if, in a case in which the relevant law is reduced to writing, which writing becomes part of the evidence, the expert witness fails to demonstrate how the law has been interpreted and applied, or essays an exposition which provides no assistance as to its interpretation (see, for example, Williams v Usher (1955) 94 CLR 450 at 453-4 or which produces results which might be regarded as bizarre, the court is free to interpret the law for itself according to the rules of statutory construction normally applied in this court: … when expert witnesses have given conflicting views on the question, the court must resolve the question for itself, if need be by undertaking a like exercise." 15 The parties on this application accepted generally the correctness of that approach. 16 The applicant then argued that the Tribunal could not have decided on the content of the amnesty law of FRY, or even be satisfied that there was such a law, from the Reuter's Briefing. It was not, and did not purport to be, an expert report on the existence and content of foreign law. And, it was put, because the Tribunal did not have the legislative instrument before it, it also was unable to adopt the "constructionist" approach of itself deciding the meaning and content of that law. It should, the applicant contends, either have sought expert evidence on that question or at the least have procured a copy of the particular legislative instrument to determine its content. 17 In my view, the Tribunal is not bound to have proceeded to determine the question as to the existence and content of the FRY amnesty law by expert evidence or by examining the legislative instrument itself. It is not bound by the laws of evidence. Section 420(2)(a) of the Act provides: "…(2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; …" I reject the proposition that there should be implied into s 420(2)(a) some restriction arising when the content of foreign law is a matter which the Tribunal must address. Counsel for the applicant referred to the remarks of Cairns J in Parkasho v Singh [1968] P 233 at 250 to the effect that the determination of the content of foreign law involves a question of fact of a "peculiar kind". His Lordship's remark was in the context of whether an appeal court should interfere with the finding of fact of magistrates on such a matter. But, even accepting that description of the nature of the fact to be found, there is nothing in s 420(2)(a) which would warrant the inference contended for. If such an exception to the general application of s 420(2)(a) were intended, it could have been readily expressed. The obligation imposed on the Tribunal by s 420(2)(b) to act according to substantial justice and the merits of the case puts the Tribunal on notice that it should not irresponsibly or unfairly accept as evidence of a fact material which is clearly unreliable, and that it should act only on apparently cogent material in making its findings of fact, even if that obligation is not one the breach of which gives rise to review by the Court under s 476(1)(a) of the Act. See Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611. 18 In this matter, an apparently reliable media source was used by the Tribunal to find that there was an amnesty law enacted in FRY. I do not consider that the Tribunal, having regard to the terms of that report, erred in deciding that such an amnesty law had been passed in FRY. Nor, in an appropriate case, would it be inappropriate for the Tribunal to have regard to secondary non-expert evidence to determine how a particular law was being applied in fact in a particular country or area or in particular circumstances. Such material does not purport to explain the content of foreign law but to describe, as a fact, how it is being applied at a practical level. 19 The applicant next argued that the Tribunal erred in the way it addressed the applicant's claim that he was not eligible for the amnesty because he is still wanted by the authorities to undertake the sentence of imprisonment imposed in March 1996. It was submitted that the Tribunal's relatively summary dismissal of that claim in the sentence: There is no information before the Tribunal to suggest that the amnesty for draft dodgers has been restricted and the Tribunal is not satisfied that it is" involves two errors on the part of the Tribunal. The first is that the Tribunal erred because there was no evidence or other material upon which the Tribunal could find that the amnesty law did operate to the applicant's benefit in the light of his conviction, so as to enliven s 476(1)(g) of the Act. The second is that the Tribunal erred in failing to ask itself properly the question whether the amnesty law applied to the applicant having regard to his criminal conviction. 20 The first of those matters, in my view, is not made out. Section 476(1)(g) applies if there was no evidence or other material to justify the making of the decision. It is explained and limited by s 476(4). It provides: "The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based on the decision on the existence of a particular fact, and that fact did not exist." 21 Thus, the ground of review is not made out unless either s 476(4)(a) or s 476(4)(b) applies. Those provisions are, in terms, identical with the provisions of s 5(1)(h) and s 5(3)(a) and (b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). Cases decided under s 5(1)(h) of the ADJR Act are therefore relevant to the proper interpretation and application of s 476(1)(g) and (4). See e.g. Australian Broadcasting Appeal Tribunal v Bond (1990) 170 CLR 321 especially per Mason CJ at 357 and Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 per Black CJ with whom Spender and Gummow JJ agreed at 220 – 221. 22 In this matter, I do not consider that the fact that the amnesty law may or may not apply to persons such as the applicant, having regard to his criminal conviction, is one which falls within s 476(4)(a) of the Act. The authorities under the analogous provision, namely s 5(3)(a) of the ADJR Act, indicate that the fact to which that provision refers is a "jurisdictional fact" in the sense of being one expressly specified by the legislative provision as necessary to be established as a pre-condition to the Court having the jurisdiction to consider the claim. It is necessary that there be a precondition in law to the making of the decision: Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511, or at least a clear legislative intention that the making of the decision depends upon the establishment of a particular matter: Western Television Ltd v Australian Broadcasting Tribunal (1986) 12 FCR 414. It is important to recognise that s 476(4)(a) applies only where the Tribunal was required by law to reach the decision only if a particular matter is established. In this matter, I do not consider that the fact that the FRY amnesty law did not apply to the applicant in his particular circumstances was a particular matter to be established as a condition required by law to be met before refusing his application for a protection visa. 23 I am also not persuaded that s 476(4)(b) is made out. The particular fact identified is not one which enables the applicant to fall within s 476(4)(b) because, as his counsel acknowledged, it has not been shown that that particular fact did not exist; i.e. that the amnesty law did apply to the applicant in his particular circumstances. The highest that the applicant put the evidence is that there was no evidence on the applicability of the amnesty law to persons such as the applicant with a criminal conviction and an outstanding sentence of imprisonment to be served. However, that is a step removed from it being shown that the particular fact did not exist. 24 The alternative way that the applicant puts his case is that the Tribunal failed to address his claim that the FRY amnesty law did not apply to him because of his criminal conviction and his outstanding sentence of imprisonment. If there were such a failure on its part, and if the Tribunal did not reject his claim that he has a criminal conviction and an outstanding sentence of imprisonment, then the respondent acknowledges that the Tribunal's failure would enliven the grounds of review in s 476(1)(b), (c) and (e) of the Act. That was an appropriate acknowledgment, in the light of the decision of the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1. McHugh, Gummow and Hayne JJ said at 22 [84 – 85]: "If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out. Paragraphs (b), (c) and (e) would thus each be engaged in such a case and the Federal Court would have jurisdiction under Pt 8 of the Act to review the Tribunal's decision." The respondent contends that the Tribunal did address that issue, and additionally that the Tribunal was not satisfied that the applicant had been convicted and sentenced as he claimed. If it did firmly reject that factual claim, clearly it was not necessary for the Tribunal to address the application of the FRY amnesty law as if it accepted that factual claim. 25 The Tribunal's reasoning is not easy to follow. It is expressed largely by conclusionary statements, without it being clear why those conclusions were reached. It first found that there were no restrictions on the applicant, as a person eligible for conscription, travelling outside FRY when he left for Australia in November 1997. It did not at that point explain what, if any, material led to that conclusion. The only basis apparent to me for that conclusion appears later in the reasons, when the Tribunal refers to the facility of the applicant to have obtained a passport and to have left FRY through normal channels. Then it refers to the amnesty law, and to the applicant's claim that the amnesty law does not apply to him because he is wanted to serve his sentence of imprisonment. It then says: "There is no information before the Tribunal to suggest that the amnesty for draft dodgers has been restricted and the Tribunal is not satisfied that it is." That passage, in my view, shows that the Tribunal did address the applicant's claim that the amnesty law did not apply to him because of his claimed criminal conviction and outstanding sentence of imprisonment. It follows immediately after reciting his claim to the contrary. Despite the cursory nature of the reference, I conclude that it is a reference to the applicant's claim so that that attack upon the Tribunal's reasons must fail. 26 It is hard to see that the approach of the Tribunal is reasonable. The Reuters Briefing does refer to one exception in the amnesty law, namely those charged with "so-called terrorism". It is not a document which could rationally be taken to give other than a broad overview of the amnesty law. 27 The Tribunal then addresses the applicant's claim of persecution, including by the prosecution and conviction for a traffic offence, for political involvement. It rejects that claim, but in an assertive way. It makes no finding about the credit of the applicant, although it refers to the absence of any reference to political involvement or of any criminal conviction in his initial application for the visa. It rejects his claim that the conviction arising from the car accident is related to his political beliefs, but does not explain why. In the summary of its conclusions, it expresses "grave doubts" that the applicant has ever been convicted of an offence and sentenced to imprisonment. It earlier said that, because his application for the visa stated that he had never been convicted of an offence, "it is most likely" that he had not been convicted of any offence as he claimed to the Tribunal. 28 It is unclear whether the Tribunal did expressly reject the claim by the applicant that he had been convicted of an offence arising out of a motor vehicle accident and sentenced to a term of imprisonment as a result. In the paragraph of its reasons rejecting his claim to have a well founded fear of persecution arising from his failure to respond to call-up notices, it does not say anything to suggest that it doubted that claim. In the paragraph of its reasons dealing with his fear of persecution for his political beliefs, including that the conviction and sentence of imprisonment were acts of political vengeance, the Tribunal, on the basis of his initial visa information form, says that it is "most likely" that he had no such conviction, and concludes alternatively (for no expressed reason) that any such conviction and sentence of imprisonment was not connected to any perception about his political beliefs or connections. In its summary of its views, it says it has grave doubts about the genuineness of such a conviction, but again asserts that the Tribunal is not satisfied that it has any connection with the Convention. 29 One might have expected the Tribunal to explain at least in some more detail why it disbelieved the applicant about the fact of his conviction and the sentence of imprisonment, if in fact it rejected that claim. It has pointed to three matters which suggest that there was no such conviction: his application form for the visa which declared that he had no conviction, his ability to leave FRY, which indicated that he was not wanted by the authorities, and the belated nature of the claim, made only to the Tribunal. However, the absence of any reference directly to the applicant's credibility, together with the reference in its summary of conclusions to "grave doubts" only, leads me to the view that the Tribunal should not be taken to have rejected that claim, notwithstanding the expression that it is "most likely" that he has no convictions. It is proper for the Tribunal to make findings about what has occurred in the past as a means of enlightening the decision as to what might occur in the future: Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 at 574 – 575. Even so, it is sometimes appropriate for the Tribunal to consider a claim about which it has doubts on the basis that it may be correct. In this instance, as I read the Tribunal's reasons, I consider that it has not positively rejected that matter and has approached the applicant's claim on the basis that he has been convicted of an offence and has outstanding a lengthy sentence of imprisonment. 30 The picture which seems to emerge is that the applicant is accepted as having a fear of persecution for his political beliefs, but that he is mistaken in attributing his criminal conviction (if it occurred) to those political beliefs. He also appears to have been accepted as having a fear of persecution for his failure to respond to call-up notices in 1988 and 1989, and implicitly therefore that such call-up notices were issued, but that he is mistaken in believing that the amnesty in favour of draft dodgers and deserters does not apply to him. The foundation for the finding that the amnesty applies to persons with criminal convictions who are facing a lengthy term of imprisonment does not appear expressly in the Reuters Briefing on which the Tribunal relied nor in any other material. 31 It is in that context that the applicant contends that the Tribunal in reality must have failed to address the applicability of the amnesty to him or to have done so properly. Counsel for the respondent submitted that the Tribunal had addressed that question, and that any flaw in its conclusion was no more than a factual error, or an unreasonable factual conclusion, not amounting to a ground of review. 32 As I have indicated, I am not persuaded that the Tribunal failed to address the applicant's claim that the amnesty law did not apply to him. It is also necessary to consider whether the Tribunal erred in a reviewable way by reaching that conclusion without any apparent basis identified by it, or by counsel in the course of submissions. The only relevant document is the Reuters Briefing. It refers to the amnesty as excluding persons charged with "so-called terrorism". I assume that the Tribunal recognised that as an exclusion from the amnesty law, even though it said that there is no information that the amnesty has been restricted. I take it to mean that there is no information that the amnesty law had been restricted in the way the applicant claimed. 33 The existence of one general exclusion does not suggest that there are no other exclusions. The Tribunal would have acted illogically if it drew that inference from the Reuters Briefing. It might have concluded that, as a matter of commonsense, the amnesty law would not exclude persons who otherwise had criminal convictions. It might have considered, and rejected, the possibility of making further inquiries about the scope of the amnesty law. It might have regarded the applicant's claim about the scope of the amnesty law as no more than speculative, and perhaps even opportunistically speculative. Unfortunately, its reasons do not show why it formed the satisfaction that it expressed that the amnesty law is unrestricted in its scope. It would be alarming if it did so because that applicant had not "proved" the scope of the amnesty law, either by presenting to the Tribunal the text of the law, or by presenting some expert evidence as to its content, or in some other way. But the Tribunal did make a decision of fact, about the content of the amnesty law, based on the absence of information about its content. It appears to have proceeded simply on the basis that the absence of information about the content of the amnesty law entitled it to conclude that no restriction upon the scope of the amnesty law existed. As I have said, that is not logical. However, the Tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning: see per Kenny J in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 179, (1999) 93 FCR 220, at [146] and the cases there cited. 34 However, in my judgment, the Tribunal has erred in law in the way it addressed that claim. In reaching that view, I am mindful of the stricture that I should not approach the Tribunal's reasons with an eye keenly attuned to the perception of error: Wu Shan Liang v Minister for Immigration & Ethnic Affairs (1996) 185 CLR 259. The Tribunal was obliged to consider whether the applicant's fear of persecution if he were to return to FRY is "well founded". That concept has been explained by the High Court in Chan and Guo. By its approach to discerning the content of the FRY amnesty law, I consider the Tribunal has demonstrated error. That is because it has expressed itself as not being satisfied that the FRY amnesty law applies to the applicant in his particular circumstances, rather than addressing whether his fear that it does not do so is well founded. The Tribunal is obliged to grant the visa sought if it is satisfied that the criteria specified in the Act and in the Migration Regulations are met, and to reject it if those criteria are not met: s 65(1) of the Act. But the relevant satisfaction in relation to this claim of the applicant is whether he has a well founded fear of persecution for a Convention reason because, in his circumstances, the amnesty law does not apply to him. I understand the Tribunal to have addressed the question whether it is satisfied on the balance of probabilities that the amnesty law does not apply to him. It does not appear to have considered whether his fear, in that regard, is well founded, that is that there is a real chance on his return to FRY that he will not be the beneficiary of the amnesty law. The expression of its satisfaction in the particular sentence set out in [25] above, based upon the absence of information to the contrary, does not lend itself to that interpretation. The Tribunal has not explained its process of reasoning leading to the conclusion in that sentence in any other way. For those reasons, in my judgment, the Tribunal has asked itself the wrong question in the sense explained in Yusuf in addressing that aspect of the applicant's claim. 35 Accordingly, I consider that the application should be allowed and the matter remitted to the Tribunal for reconsideration according to law. I add that, of course, any inadequacy of the Tribunal's expression of its reasons of itself give rise to a ground of review: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1. 36 I also order that the respondent pay the applicant's costs of the application. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 17 December 2001 Counsel for the Applicant: Mr A Gibbons Solicitor for the Applicant: McDonald Steed Counsel for the Respondent: Ms S Maharaj Solicitor for the Respondent: Sparke Helmore Date of Hearing: 3 December 2001 Date of Judgment: 18 December 2001