FEDERAL COURT OF AUSTRALIA W195/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 396 MIGRATION – refugee – refusal of protection visa – application for review of Refugee Review Tribunal decision – whether real risk of persecution if applicant returned to Iran – whether Tribunal failed to duly consider applicant's case and conduct the appropriate inquiry on the material before it as required by Migration Act 1958 (Cth). Migration Act 1958 (Cth) ss 5, 36(2), 65, 476 R v Secretary of State for the Home Department; Ex parte Bugdaycay [1987] AC 514 cited Bastanipour v Immigration and Naturalization Service 980 F.2d 1129 (7th Cir. 1992) cited Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 applied Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 applied Abebe v Commonwealth (1999)197 CLR 510 applied Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 cited Kalala v Minister for Immigration & Multicultural Affairs [2001] FCA 1594 cited W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 379 cited Minister for Immigration & Ethnic Affairs v Guo(1997) 191 CLR 559 applied Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 cited Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 cited Board of Education v Rice [1911] AC 179 cited Local Government Board v Arlidge [1915] AC 120 cited Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 applied Wade and Forsyth Administrative Law 7th ed. 1994 United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status Geneva 1992 W 195/01A v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 195 OF 2001 LEE J 9 APRIL 2002 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 195 OF 2001 BETWEEN: W195/01A APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LEE J DATE OF ORDER: 9 APRIL 2002 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal made 9 May 2001 be set aside. 2. The matter be remitted to the Tribunal for redetermination. 3. The respondent pay the applicant's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W195 OF 2001 BETWEEN: W 195/01A APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LEE J DATE: 9 APRIL 2002 PLACE: PERTH REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed the decision of a delegate of the respondent ("the Minister") not to grant a "protection visa" to the applicant. 2 The applicant, (37), is a citizen of Iran. He left Iran on 31 October 2000 and arrived in Australia by entering the "migration zone", without a visa, on 20 December 2000. Under ss 13 and 14 of the Act the applicant became an "unlawful non-citizen" upon entry and pursuant to ss 189 and 196 of the Act the applicant was placed in "immigration detention" where he has been kept ever since. 3 The applicant applied for a "protection visa" on 9 January 2001. The decision of the delegate to refuse the grant of a visa was made on 22 February 2001 and the decision of the Tribunal affirming the decision of the delegate was made on 9 May 2001. 4 Section 65 of the Act provides that if the Minister is satisfied that, inter alia, the criteria prescribed for a visa by the Act, or the regulations, have been satisfied, the Minister is to grant a visa but if the Minister is not so satisfied the grant of a visa is to be refused. 5 At material times, s 36(2) of the Act provided the following criterion in respect of a protection visa: "A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." 6 In s 5 of the Act, "Refugees Convention" and "Refugees Protocol" (together referred to hereafter as "the Convention") are defined respectively as "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and "the Protocol relating to the Status of Refugees done at New York on 31 January 1967". The term "protection obligations" is not defined in the Act and is not a term used in the Convention. 7 The Convention is a treaty under which the "Contracting States" have agreed to apply the provisions of the Convention to "refugees". Sub‑Article 1(A) of the Convention provides the following definition of "refugee": "For the purposes of the present Convention, the term 'refugee' shall apply to any person who:…(2)…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;…" Limitation of the operation of the Convention definition is set out in, inter alia, sub-Articles 1(C), (D), (E) and (F). It was not contended that any of the foregoing sub-Articles applied to the applicant. 8 As a Contracting State, Australia has accepted the obligations at international law that arise out of accession to the treaty. Numerous obligations in respect of refugees are set out in the Convention, including an undertaking by a Contracting State not to discriminate against a refugee, and to offer a refugee some of the opportunities available to a national of that State. All of the obligations so undertaken may be said to come within a broad meaning of "protection obligations under the [Convention]", but having regard to the purpose of s 36(2), the phrase, as used therein, means the direct, rather than indirect, obligation to protect a refugee imposed on Australia by the Convention. 9 In the written statement provided by the Tribunal under s 430 of the Act, setting out findings on material questions of fact; the "evidence" on which the findings were based; and the reasons for its decision, the Tribunal recorded details of the applicant's claims as follows: "At his entry interview (29 December 2000) the applicant said he was an Iranian citizen. He was born in Masjed Solayman, Khozestan, and most recently lived there. (He also spent 5 years in India, from 1993 – or 1992 – to 1998). He provided information about various identity documents. He did a bachelor of science in pharmacology in India and worked as a pharmacist there and as an assistant pharmacist in Iran. He was never married. He is the second oldest child in his family and he has five brothers and 2 sisters. They all live in Iran. The applicant travelled by Iran Air to Malaysia. Then he went to Indonesia. His passport was issued in Ahwaz. It was genuine. It is now with the smuggler. Asked whether his passport was checked in Jakarta, the applicant replied that he bribed customs $100, as he was advised to do by an agent in Malaysia. The applicant was not associated with activities against any government or political group. Nor were members of his family. Nor were he or members of his family involved in any political group or organisation. He has performed his military service. Asked why he left Iran, the applicant spoke of the 8 years of Iran/Iraq war. He noted that all industries had been destroyed in Khozestan province. Factories were destroyed. There was no welfare or security for people. When the applicant returned from India he was approved by the pharmacy board to open a pharmacy. He had to wait a year for permission. Before he opened for business, "they" came to investigate him. He was told they had to check up on him. He was blindfolded and taken to the security forces. He was questioned about involvement with opposition groups. This lasted 35 days. He was beaten and harassed. When he was released he was told not to speak to anyone about it. The same experience recurred 3 months later. He was held for 40 days in Ahwaz. By this time his pharmacy permission had expired. He then planned to leave Iran. The applicant said the reason he was treated this way was because Masjed Solayman was a small town and the information section was very strict. They opposed all educated people, especially those coming from overseas. He chose Australia because he had heard it was a good democratic country with good finance. He had no life security in Iran, no future, no work, and no job. His life was not secure there. In his protection visa application the applicant essentially confirmed his personal details. He said he left Iran on a red exit visa which he obtained in 1998 (his passport was issued in Ahwaz in 1998). He left legally and had no difficulty obtaining a travel document. In his supporting statement the applicant said that in 1998 after he returned from India he was issued by the Pharmacy Board with a certificate to open a pharmacy. It had to be checked by the Etelaat before he could in fact open the pharmacy. One night two Security agents came to his house and arrested him. They blindfolded him and took him to Ahwaz. He was detained for 35 days and physically abused. He was interrogated about his activities in Iran and also in India. They wanted to know if he had co-operated with the Iranian Embassy in India, which he did not. He was also interrogated about whether he had any links with the student movement in Tehran. On being released he was taken to a bus terminal in Ahwaz and warned against telling anyone what had happened. Three months later four agents came to the applicant's home in the middle of the night. He was again taken to Ahwaz to the Ministry of Information. He was beaten for 45 days and interrogated about the same issues as before. He was accused of being anti-government because he did not have links to the Basij or the Komiteh and because he did not cooperate with the Iranian Embassy in India (i.e. spy on Iranian students in India). His pharmacy certificate of registration was cancelled. The applicant decided to leave the country, and borrowed money from his family to do so, leaving 8 (later amended to 5-6) months later. [This 'later amendment' referred to by the Tribunal occurred when the applicant's statement was interpreted to him for his confirmation.] First he took his father to Isfahan for an operation. While he was there the Etelaat came to the applicant's house looking for him. His family said they did not know where he was. A few days later they called his family to say that as soon as he returned he was not allowed to leave town again until contacted by them. The applicant claimed that after the student uprising, the authorities were targeting anyone that was suspected of being anti-government, especially people who had studied abroad. In his protection visa application interview with the Department (14 January 2001) the applicant said he worked from 1988 to 1992 as a mechanic in his brother's shop. Up to 2000 he worked as a pharmacy supervisor. When he decided he wanted to be a pharmacist he sat the exam (in 1991) and was accepted for Tehran University Pharmacy College, but he did not pass the Sepah checks so had to study somewhere else. The reason he did not pass the Sepah checks was because he did not cooperate with the Basij or go to Mosque. The Mosque was used by the Basij to spy on people. Asked when he stopped going to Mosque the applicant said he sometimes did go but he would avoid the Basij when he was there. Asked where he was located in India the applicant said it was Dharwad, in Karnataka province, which was south of New Delhi. The closest Iranian mission was in Bombay. At the beginning of 1993 he received a letter from the consulate in Bombay asking him to go and see them. They gave him forms to fill out so that when they needed his cooperation they could obtain it. He was told to get to know the other Iranian students and find out if they were with the opposition. Asked whether there were Iranian opposition groups in India, the applicant said yes, but he did not have anything to do with them. There was some Iranians in Dharwad. Asked if he socialised with them, the applicant said that he did sometimes, for example around New Year. Asked how many Iranian students there were, he said about 6. There were more (about 25) in another city about 35 kms away. There were also Iranian residents there, considered by the locals to be financially well-off. He often went to this other city. It had more facilities. The applicant said his studies were conducted in English. Asked about his accommodation, he said he rented a room locally. The applicant was asked whether he paid his own way when he visited Bombay. He said he didn't go to Bombay. Questioned again on similar lines, he then said he very rarely went to Bombay. He did not, however, go to the Embassy. He then said he did not go to Bombay. Asked for further clarity on this point, he said he did not make any special trips there, except on his way in and out of India. The applicant was asked what was the response when he had told the Iranian representatives that he would not cooperate with them as requested. He said he was told it would not be good for his future. He did not know if the other students were spying on each other. Asked if he thought about this while socialising with them, he said he sometimes would forget. He did not discuss politics with them: it was dangerous to do so. Asked what he thought about Iranian politics, and whether things had changed there, the applicant said Khatami did not really have power. He referred to free speech issues such as the killings of newspaper editors, and the crackdown on university students. Asked if he had thought about remaining in India, he said he wanted to go back to Iran and help his family. The applicant said he received his permission from the Pharmacy Board to open a pharmacy business, in the ninth month of 1999. It needed to be exercised within 45 days. But it was qualified as follows: ' you have to fill out some forms and we have to do an inquiry with the Iranian embassy.' The applicant was asked who would make the final decision on his request. He said it was the Ministry of Information or Etelaat. The Pharmacy Board only checked his qualifications, the Etelaat checked his background. The checks in India took a month. The result was that in the next month a car came around 11.30 one night and two people came to the house and asked him to come out. His parents tried to intervene but were sent back to the house. He was taken in the car. He later found out he had been taken to Ahwaz. (Ahwaz was about 2 hours away or 180 kms). He was kept alone in a room, bashed and interrogated for 35 days. He was asked about his relations, his family, study, and why he didn't cooperate with the Embassy. They didn't have anything on him. His parents didn't come and look for him because they were scared and had been warned not to. Asked whether his parents couldn't have asked at the police station or, having lived so long in Masjed Solayman, whether they did not have any friends in a position to help them inquire, the applicant said they did not have anyone they could ask in Ahwaz. The authorities did not come to his house again during that time. He was asked whether he had any links to the student rioting in Tehran university. Asked when the Tehran University problems took place, the applicant said it was about a year ago. Asked why the authorities would want to question him about the events at Tehran University when he was never a student there, the applicant said he used to visit the library there a couple of times a year on his visits to Tehran, but never had any contact with the students. A few months after this first detention, about midnight they came again, and this time he was detained for 45 days, beaten and interrogated, again in Ahwaz. The applicant was asked why he was taken to Ahwaz each time; did not the security organs have offices in Masjed Solayman? The applicant said Ahwaz was the HQ. Asked whether all detainees were taken to Ahwaz, he said yes. In response to a question, the applicant said he had never been in contact with or been a member of [sic] supporter of the Basij. The applicant's father needed an operation, and the applicant took him to Isfahan. While he was there, security agents came to his house. His mother didn't say where he was. She was ordered to tell him to stay put when he returned. He would have to sign an undertaking not to engage in any anti-regime activities. He was ordered to report to the authorities every two weeks in Isfahan. But he left. Asked how he managed to get out of the country, he said that a friend of his brother's owed him a favour, and warned him that because of the crackdown on intellectuals his life was in danger, and promised to help him escape. This friend checked whether the applicant's name was on the blacklist. Even if it had been, the friend would have got him out anyway. Rather, he was on a list but not on the list held at the airport. The list he was on was a list of 'suspected persons'. Such people were made to disappear. The friend did everything. The applicant said he left Iran in October 2000. The authorities would think he had done something wrong because he escaped from Iran. Asked how this could be the case in view of the fact that he left Iran legally, the applicant said no one could understand the situation in Iran. An 'agent' had told him that he would be killed. This person was a family friend who lived in the same area as the applicant, and had a position in the Etalaat. The applicant did not know exactly what this person's position was but he was a veteran and a Basij. The applicant was asked, why didn't his parents contact this person when the applicant was detained. He said that his parents were scared. He reiterated that if he went back to Iran he would be killed. On 28 March 2001 the Tribunal received a submission from the applicant's advisers at the time. It largely reiterates his factual claims. It also cites various reports critical of the human rights situation in Iran, including the political oppression and the flawed policing and judicial systems. The submission also cites DFAT's [Department of Foreign Affairs and Trade] Country Profile concerning the identification of people with an imputed political profile in Iran. The submission also notes that it is not relevant whether an applicant has in fact been involved in political activities. What matters is whether he could be suspected of such activities. The risk of an imputed political profile greatly increased if someone had already had a brush with the authorities because of outspoken criticism of the regime. The submission also claimed that the applicant's illegal departure from Iran and application for asylum is likely to attract suspicion on return and persecutory mistreatment. It cites a decision in which the Tribunal member found that the applicant having no passport was particularly likely to be questioned about overseas activities on their arrival in Iran. On 24 April the Tribunal received a submission from the applicant's new advisers. Among other things, the submission addresses in two contexts a misconception of the Delegate's concerning dates mentioned in the applicant's claims. It addresses the argument that it was not reasonable for the Iranian authorities to have questioned the applicant about his links with the Tehran university students, saying that many unreasonable things happen in Iran, for example the applicant had been prosecuted twice and was about to be prosecuted a third time for refusing to spy for the government. The submission refers to UN and UK criticisms of the Iranian human rights situation and, in particular, its judicial and policing systems. The submission also refers to Tribunal decisions where the member has overlooked, or discounted for various reasons, DFAT advice that it would be near impossible to get around the blacklist at the airport where travelling on a legal passport in the applicant's own name. The applicant denies he has exaggerated his claims and reiterates that he is being linked with the student movement. The submission claims that the applicant reported to the authorities in Isfahan but through a contact learned that he could expect further mistreatment, and ought to leave the country because the authorities were building up a file against him that he was involved with the opposition groups. The submission annexed a certified translation of a letter from the applicant's mother. It is addressed to the applicant's new adviser which indicates that, although undated, it was written quite recently. Among other things, the author says that as the applicant left the authorities stormed into her home looking for him. They had a photo of him with a friend in India. They said the photo belonged to the Mujahideen and showed he was connected with the Mujahideen. The fact that he had escaped from Iran proved that he was involved in the students uprising and that he could only be sentenced to death. If they found him they would shoot him in the head. The author says that her husband protested, and they attacked and assaulted him. The applicant's brother also protested and was attacked. They were both taken to the information ministry and the husband was released but the son is still in detention. On 7 May the Tribunal received a further submission. It states that the applicant does not know why he was imprisoned twice. All he knows is that they have connected him to the MKO [Mujahideen-e-Khalq]. The submission cites more authorities on how the test of 'political opinion' is a broad one; that political opinions can be broad and imprecise and do not necessarily have to be manifested in membership of an organisation, can be reflected in challenging actions or can be imputed, as long as the applicant is perceived by the authorities to be an opponent. It argues that the applicant's mother's letter was imprecise about the timing of the applicant's brother's detention. The submission also annexes a certified translation of a letter from the applicant family lawyer in Iran, who seeks to confirm that the applicant's brother is in detention. He implies he has documents about this (but cannot send them for security reasons). He gives a phone number where he can be contacted for further information. The letter date on the translation is 26 April 2001, but the original has a facsimile date of April 24." [underlining in original.] 10 In its statement the Tribunal set out the following summary of further information obtained from the applicant at the Tribunal hearing and from a witness presented on the applicant's behalf: "The Tribunal asked the applicant for details of his relationship with the Iranian representatives in India. He said he received a letter, sometime in the first half of 1993, asking him to go and report to the Embassy. He went a week later. When he went he was treated in an extremely welcoming manner. The Tribunal asked the applicant whether the letter was from an Embassy or a Consulate. He said he thought it was a Consulate. The Tribunal asked the applicant who signed the letter. He said he did not know. He went to the Ideology and Political section of the Consulate. He did not know the title of the person he saw but he said he was in charge of Ideology and Politics. The applicant said most of the Iranian students who went to India did so because of having been rejected by the selection board at home (implying they had a reason to resent the government). The Tribunal asked the applicant what, specifically, did the consulate people suspect the students of doing. The applicant said they were suspected of having contacts with overseas opposition groups. The Tribunal asked, what groups? The applicant said he was asked to provide all information about the students. The applicant said he never went back to the consulate except once to renew his passport. He could not remember when that was. He never heard from the consulate again about its wish that he report on other students. The applicant took his qualifications to the Pharmacy Board for confirmation. This was received in the 5th month of 1998, from the scientific point of view. It was then sent to the Health Ministry. He went on a waiting list. In the 9th month of 1999 he was invited to go to the Health Ministry. He was told his request was confirmed but it had to be sent to the Ministry of Information for a further check-up. In the 10th month of 1999, in the dead of night, they came and arrested him. They took him to the intelligence section in Ahwaz, where he was subjected to severe torture and interrogated about his contacts with different group [sic]. He suffered cuts and bruises. Every time he remembers this experience he starts shivering, and is having nightmares and other psychological problems. They said that his rejection of their request for cooperation meant he must be in contact with an opposition group himself. He was told he was betraying his country and was a danger to Islam. The Tribunal asked the applicant why he was taken all the way to Ahwaz. He said he did not know. He was released after 35 days. They did not say anything but later he realised they were accusing him of not cooperating with them in India and that was their main problem. They beat him with an electric cable. He was extremely frightened, was physically and mentally unsound. Three months later he was arrested again. He was blindfolded and taken away for 45 days, and was kicked until he urinated blood. His family did not know where he was. He was told the authorities had evidence that he had contact with the anti-regime political group in India, and that he was in contact with the student movement. He was a great danger to Iran and to Islam and was an apostate. After this period of detention he had to make an undertaking to report every two weeks. When he returned home he realised his father needed medical attention. He went to Isfahan shortly after. His house was raided and the authorities found a picture of one of his friends from his time in India. The applicant got a referral from a doctor for his father's treatment in Isfahan. He told the Department of Health the reason he had to go to Isfahan. He was abused and told he should not go. When he got to Isfahan he was under the constant supervision of the Ministry of Information. Three months later he returned. He still had to go to the Department of Information every two weeks. He had a friend in that office that he had forgotten about. He ran into this friend accidentally. The friend said not to talk to him in the office. They went outside. The friend gave him a piece of paper with his address on it. The applicant's brother went and saw this friend, who said he would take a look at the applicant's file. He later said the applicant had been accused of serious offences and a serious case was being made against the applicant, and that the applicant's life was in danger. He might disappear at any of his fortnightly reporting sessions. He would be better off leaving the country as soon as he could. This friend promised the applicant's brother he would help him because the brother had helped him, and because he used to be a neighbour. (The applicant had helped this person's father during the war.) The Tribunal asked the applicant, what exactly did this friend do for him. The applicant said he arranged some dollars and for the applicant to get out of the country through the airport. $10,000 was to get through the airport and about $6,000 was for his expenses. The Tribunal asked the applicant why he needed to get through the airport when he already had a passport. The applicant said the money was for the costs. The Tribunal recalled the applicant left Iran legally, on his own passport with a red exit visa. The applicant said he did not know if his name was on the blacklist or not, if so his life would be in danger. He was under surveillance. The Tribunal asked, was the applicant's name on the blacklist. The applicant said his friend told him it did not matter whether it was nor not, he would still get him out. He told him his name was not on the list, and he could easily go. The adviser asked if she could suggest a line of questioning. At her request, the Tribunal asked the applicant when he got his exit permit; was it before or after this friend became involved in the applicant's problem. The applicant said the friend said he would take care of everything. The Tribunal reminded the applicant, again, that his protection visaapplication stated that he left Iran legally on his own passport with a red exit permit issued in 1998. The applicant said he did not say this. He said he renewed his passport at that time. The Tribunal asked the applicant what colour his passport was. He said it was brown. The adviser said that the applicant appeared confused, and asked the Tribunal to ask the applicant again if his friend informed him that he was or was not on the blacklist. The applicant said that the friend told him that he was not on the list and the money he paid was for the removal of his name from the blacklist. The Tribunal put to the applicant the DFAT information on pages 10 and 11 indicating that it would be virtually impossible for someone to bribe to have their name taken off the blacklist. The applicant argued that the situation in Iran was different, and just about everything was possible through bribery. The Tribunal asked the applicant why the authorities waited so long, after their first request in 1993, before punishing him? The applicant said they could not do anything while he was in India. The Tribunal asked the applicant why the authorities did not approach him on his return to Iran, but waited until the applicant sought a pharmacy licence. The applicant said they had probably forgotten about it until the inquiries associated with his pharmacy application revived the matter. The Tribunal commented that the applicant had no political profile apart from this one matter. The applicant said the house he lived in India contained a number of Iranian students who often discussed politics. The Tribunal asked about the applicant's mother's letter, saying there had been a raid on his house as he was leaving, and his father had been detained and mistreated and his brother was still in detention. Why did he not mention this to the Tribunal earlier? He had been in contact with his sister since arriving in Australia. He had contacted his parents from Malaysia en route. The applicant said he did tell his lawyer this. He did not know why the lawyer had not included the information in his application. The Tribunal noted that the applicant had said in his application that the Iranian government was attacking people who had spent time overseas. The Tribunal's understanding was that the Iranian government was in actual fact encouraging educated people to return from abroad. The applicant said that the government was sensitive about people returning from abroad if they had a political history. The authorities might be encouraging such people to return just so that they could harass them. The Tribunal asked the applicant if he was still claiming to have been questioned about involvement in student demonstrations. He said he was. The Tribunal asked the applicant why the authorities would have questioned him about this, when he had no substantial connection with Tehran University. The applicant said he was told they had evidence that he had been going to the university. He replied that he had only been going there to use the library. His supposition was that they wanted to find another way to demolish him, their main motive being his lack of cooperation in India. The Tribunal asked the applicant about his claim that the authorities found a photo of a friend who they said was an MKO (Mujahideen-e-Khalq) member. Was the person in fact an MKO member? The applicant said his friend was a person who talked about and was in contact with the Mujahideen. The applicant's witness gave evidence. He said that in about December 1999 or January 2000 the applicant's parents came to see his parents. The applicant's and the witness's fathers were friends of 20-30 years standing. The applicant's parents came to tell of the problems their son was having and to ask for the witness's brother's help. The witness was present. The witness's brother (who is a member of the Assembly of Expediency) was in a position to check the state records concerning the applicant, which he did. He then told the applicant's parents that their son had been disloyal to his country. At that stage the witness's father and brother argued, as the father tried to persuade the brother to help the applicant, with the brother refusing to do so because in his view the applicant had betrayed his country. The applicant concluded by saying that his life really was in danger, that he did not want to leave Iran, his occupation was well-paid, that he would not have submitted himself to a smuggler or risked his life if this was not the case. The situation in Iran was very dangerous. A woman had been executed in front of her two sons: what mercy would the regime show to him? Why should the authorities torture his father and detain his brother? His nerves were damaged, and he could not concentrate or sleep properly. If he returns to Iran he will definitely be arrested, and he would be executed or disappear. If he returns to Iran they will see his re-entry into Iran as confirmation that he is in contact with the MKO. They could accuse him of anything." 11 The Tribunal hearing was conducted by videolink transmission in which the Tribunal and the interpreter were at Tribunal premises in Melbourne; the applicant was at a telecentre in Derby in the north-west of Australia; and the "immigration consultant" assisting the applicant, and the applicant's witness, were at Tribunal premises in Sydney. Nothing turned on the demeanour of the applicant as perceived by Tribunal over the videolink transmission. 12 Under the heading "FINDINGS AND REASONS" the Tribunal's statement said as follows: "The Tribunal in general found the applicant's claims artificial and strained. While sympathetic to the argument that strange and unpredictable things can happen in Iran, the Tribunal is not required to accept the applicant's claims uncritically. The applicant failed to provide persuasive evidence to counter the self-contradictions in his claims or the inconsistencies with the country information. The Tribunal is prepared to accept that the applicant missed out on a university place because of his lack of connections with the regime. Noting the competition for university places, it is quite possible that in 1991 the available places in the applicant's chosen course were all given to those who were connected with the Basij or war veterans. This is not so much discrimination against the applicant but discrimination in favour of a more politically correct group. Positive discrimination may amount to persecution if it has a sufficient adverse effect on those who are disadvantaged by it. The Tribunal is satisfied that the applicant in this case was not significantly disadvantaged: he was able to study (abroad), his qualification was recognised and he was able to work. Nor does his exclusion from Tehran University establish a pattern of expected future persecutory treatment of the applicant in Iran: it was a long time ago and related to a specific aspiration of the applicant in Iran: it was a long time ago and related to a specific aspiration of the applicant's at the time. The Tribunal does not accept that the applicant was asked to spy on his fellow students in Iran [sic]. The account he has given does not ring true: he was not politically connected by his own account, and thus had nothing to recommend him as a reliable candidate for such a task. Why would the consulate have approached him as a potential informer? His contacts with the other Iranian students in India were not extensive, it would appear from his statements during the 14 January DIMA [Department of Immigration and Multicultural Affairs] interview. The scenario of the Consulate initiating the applicant as a spy with a letter, and some forms to fill out, is also improbably formal. The applicant was also vague about the type of information he was asked to obtain about the other students, i.e. what were the opposition groups the Iranian government suspected them of supporting. This information would have been important for him to know if he was expected to fulfil the demand. It also seems strange that the Embassy never followed up on its first approach. Even if the Tribunal is wrong in the foregoing finding, it does not accept that the applicant's refusal to cooperate with the consulate left any permanent serious mark on his record. The applicant went to the consulate to apply for his new passport. He re-entered Iran. His passport was issued the same year, together with an exit stamp (as is indicated in the DFAT profile cited above). He worked as a pharmacy supervisor. The authorities had every opportunity to actively pursue him before October 1999, and the processing of his passport application would have occasioned a check on his political background (the DFAT profile notes that passport issue can take longer if someone has been imprisoned for a political crime; this indicates that background checking is done.) The Tribunal does not accept that the applicant was imputed with an anti-government political profile as a result of any non-cooperation with the Iranian authorities or an imputed association with Tehran students or any kind of political opposition including the MKO. The Tribunal does not accept that the applicant was questioned about his links with the Tehran students or was accused of being anti-regime just because he had no links with the Basij or other security agencies. In isolation (and the other claims have not been accepted) the claim is far-fetched; indeed, the applicant himself appeared to concede during the hearing that the claim was subsidiary to the foregoing claims which have not been accepted. The applicant was quite obviously not a resident of Tehran or a student at the university. There is no evidence that the Iranian authorities are investigating people who may have only visited the university. The applicant sought to argue that politics had been discussed among the overseas Iranian students in India. But this is contradicted by the information given in his DIMA interview (it was too dangerous to discuss politics). The Tribunal does not accept that the applicant was imputed with an anti-government opinion because of any political discussions in India. Furthermore, there is no evidence, in the sources available to the Tribunal, that the authorities are interrogating Iranian citizens just because they are not members of or active supporters of the Basij. The Tribunal does not accept that the authorities claimed to have evidence (a photograph) linking his applicant with MKO supporters: this link was introduced late in the process of the review. If the applicant was associated with a known member of the Mujahideen, a group most reviled by the Iranian regime, the Tribunal would have thought it natural that he raise this earlier in the process. The evidence for the link is weak (see the comments on the mother's letter, below). The Tribunal does not accept the applicant's claim that his father and brother were detained because of his claimed political problems. The Tribunal has not accepted these political problems as well-founded. Further, if his family had really been affected the way he claimed, and at the time claimed, the Tribunal would have expected the information would have been made available to it earlier. (The Tribunal does not agree that the mother's letter was imprecise about when the incident supposedly occurred; she was precise enough). The Tribunal does not find it plausible that the applicant's first advisers would have omitted such critical evidence from the initial application and supporting documents, if the applicant had told them of it. The Tribunal does not accept that the contents of the applicant's mother's letter are true. No doubt she wished to support her son's application, and the letter was contrived with this aim in mind. Nor does the Tribunal accept the witness's testimony that his family was approached by the applicant's parents for help. Nor does it accept as true the statements made in the family solicitor's letter (of which the Tribunal was not made aware until more than a week after the hearing). The statements of an applicant's family solicitor are not sufficiently disinterested to counter the overall weaknesses in the applicant's claims. The Tribunal does not accept that there was any irregularity about the applicant's departure from Iran (i.e. that he 'escaped'.) In his initial protection visa application the applicant said he left the country legally; his red exit stamp was issued in 1998. The applicant has not given any reason for his exit permit being a red one, and later denied that he had given any information about his exit permit, so the Tribunal cannot draw any conclusions about the colour of his exit stamp, and does not accept that any limitations were placed on the applicant's travel. Nor does the Tribunal accept that the applicant was placed on a list of 'suspected persons' (instead of the blacklist) as claimed in the DIMA interview, or that he was on the blacklist but bribed to have his name removed (as claimed, eventually, in the Tribunal hearing). The strong contradiction in the applicant's evidence on this question reinforces the Tribunal in this finding; his credibility here is highly doubtful. It was only after repeated questioning, and prompting from his adviser, that the applicant claimed in the hearing that the purpose of the bribe money he needed for his departure was to remove his name from the blacklist. Before saying this he told the Tribunal, with apparent finality, that his name was not on the list (from which the inference was open, that he had never been on it.) It follows from the foregoing findings about the absence of any regime interest in the applicant, that the Tribunal does not accept that the applicant was detained, tortured and interrogated as he claimed, of [sic] that he [was] placed under surveillance or subjected to reporting requirements. The applicant has sought to build an inflated set of claims around the issue of his application to open his own pharmacy. It is implied in his claims that the request was refused because of a security check. The applicant has not presented any evidence of this. The Tribunal does not accept that it occurred. He has not satisfied the Tribunal that he has any political profile that would warrant such an action being taken against him. Even if it did occur, it does not amount to persecution. The applicant had his qualification recognised and was able to work." 13 In an application under s 476 of the Act for review of a decision by the Tribunal, the Court does not determine what decision should have been made on the material before the Tribunal, only whether a ground for review provided by the Act has been made out. In that regard the words of Lord Bridge in R v Secretary of State for the Home Department; Ex parte Bugdaycay [1987] AC 514at 531 are pertinent: "The limitations on the scope of [the court's power to review] are well known and need not be restated here. Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny." See also Lord Templeman at 537. 14 The Tribunal stated that the applicant was able to work in Iran as a qualified pharmacist. Given that the applicant, at the age of 36, had left a relatively secure position in Iranian society, and subjected himself to the risks inherent in departing Iran to make an asylum application, his claims had to be given close attention. Counsel appointed to appear for the applicant pro bono publico under O 80 of the Federal Court Rules submitted that the manner in which the Tribunal dealt with the applicant's case, in particular letters from the applicant's family in Iran, and from a lawyer acting for the family, revealed that the Tribunal had not duly considered the applicant's application and had failed to carry out a process of review and make a decision as required by the Act. 15 Perusal of the Tribunal's reasons show that the Tribunal relied upon findings that hinted obliquely, but did not state, that the applicant had concocted his claims. Those "findings" by the Tribunal appeared to be based on significant misunderstandings by the Tribunal of material relevant to the applicant's claims. 16 First, the Tribunal stated that the applicant's claims were "artificial and strained"and that the applicanthad"failed to provide persuasive evidence to counter the self-contradictions in his claims or the inconsistencies with the country information". 17 The "self-contradictions" and "inconsistencies" referred to by the Tribunal must be those discussed in the succeeding paragraphs of the Tribunal's reasons. It is necessary to examine the treatment of those issues by the Tribunal to understand how it reached its decision. 18 The Tribunal identified the following as a "self-contradiction": "The applicant sought to argue that politics had been discussed among the overseas Iranian students in India. But this is contradicted by the information given in his DIMA interview (it was too dangerous to discuss politics)." 19 The contradiction purportedly identified by the Tribunal did not exist. According to the material recited in the Tribunal's reasons, set out above in [9], the applicant said (in the "DIMA interview") that he did not discuss politics with other Iranian students in India because it was dangerous to do so. That was prefaced by a further statement that "[h]e did not know if the other students were spying on each other". The applicant did not say that other Iranian students believed that it was too dangerous to discuss politics in India, and, therefore, did not do so. That was the personal view of the applicant based on the experience of being asked by Iranian authorities to report on the activities of Iranian students in India. There was no internal inconsistency in the applicant's account when he said he observed Iranian students engage in political discussion in India. 20 The next purported contradiction in the applicant's account was described by the Tribunal as follows: "Nor does the Tribunal accept that the applicant was placed on a list of 'suspected persons' (instead of the blacklist) as claimed in the DIMA interview, or that he was on the blacklist but bribed to have his name removed (as claimed, eventually, in the Tribunal hearing). The strong contradiction in the applicant's evidence on this question reinforces the Tribunal in this finding; his credibility here is highly doubtful. It was only after repeated questioning, and prompting from his adviser, that the applicant claimed in the hearing that the purpose of the bribe money he needed for his departure was to remove his name from the blacklist. Before saying this he told the Tribunal, with apparent finality, that his name was not on the list (from which the inference was open, that he had never been on it.)" 21 As noted above in [9], the Tribunal recorded that when interviewed by an immigration officer after he had made application for a protection visa, the applicant, in response to the question "how he managed to get out of the country" said: "a friend of his brother's owed him a favour, and warned him that because of the crackdown on intellectuals his life was in danger, and promised to help him escape. This friend checked whether the applicant's name was on the blacklist. Even if it had been, the friend would have got him out anyway. Rather, he was on a list but not on the list held at the airport. The list he was on was a list of 'suspected persons'. Such people were made to disappear. The friend did everything." 22 The Tribunal's summary of the relevant statements made by the applicant at the hearing conducted by the Tribunal has been set out above in [10]. 23 The Tribunal's approach to this issue reveals that the applicant's account to the Tribunal was misunderstood insofar as the Tribunal stated that it contained a "strong contradiction". The applicant told the Tribunal that his friend required $10,000 to "get [the applicant] through the airport". The applicant said that he did not know if his name was on the blacklist but if it were his life would be in danger. (That is, if he attempted to leave Iran whilst on the blacklist). His friend told him that he would get him out even if the applicant were on the blacklist. His friend told him that "his name was not on the list and he could easily go". Making allowance for the Tribunal's record being several stages removed from the actual words used by the applicant in his own language, it may be assumed that the applicant was conveying that whatever was required to be done by his friend to remove the applicant's name from a list, be it a "list of suspected persons" or a "blacklist", had been done by the friend for the cost of $10,000. 24 The statement by the Tribunal that "only after repeated questioning, and prompting from his adviser, …the applicant claimed in the hearing that the purpose of the bribe money he needed for his departure was to remove his name from the blacklist. Before saying this he told the Tribunal, with apparent finality, that his name was not on the list (from which the inference was open, that he had never been on it)" misstated the account provided by the applicant to the Tribunal. Putting to one side whether it was appropriate for the Tribunal to state that the applicant's adviser had "prompted" the applicant, it can be seen, in the passages set out in [9], that the applicant did not say that he knew that his name was not on the blacklist before he said that he had paid money to have his name removed from the list. The applicant said he paid $10,000 to "get through the airport". He did not know if his name was on the blacklist but he could not take the chance. His friend told him that he would get him out even if his name was on the list. When the applicant said his friend told him he was not on the list the applicant, obviously, was asserting that his friend was claiming that he had done what was necessary to ensure that it would be safe for the applicant to present himself at the airport. 25 I turn now to the submissions of counsel for the applicant, which contended that the Tribunal erred in law in making its decision, by reason of its failure to consider the part of the applicant's case that consisted of a letter from his mother in Iran, a letter from the family lawyer in Iran, and testimony from a witness the applicant had requested the Tribunal to hear. 26 In April 2001, the applicant's mother sent a letter to the migration agent, Mrs Homa Hazrati, who had commenced to act for the applicant on 20 March 2001. In that letter, written in Farsi, the applicant's mother stated that at some time after the applicant had left Iran, the family home had been raided by security forces searching for the applicant. In the course of that raid the applicant's father and brother had been assaulted and detained. As at the date of writing, the brother was still imprisoned. 27 Mrs Hazrati, who could read Farsi, included the information set out in the letter in a further submission prepared on the applicant's behalf and forwarded to the Tribunal on 24 April 2001. 28 At the same time the agent sent the mother's letter to an accredited translator for translation. A "certified" translation was completed on 22 April and sent to the Tribunal by the agent on 26 April. The translation read as follows: "ATTENTION: MRS. HAZRATI, THE SOLICITOR OF MY SON, [applicant's name] I AM [mother's name] THE MOTHER OF [applicant's name] WHOM YOU ARE REPRESENTING IN AUSTRALIA. I BEG YOU HUMBLY TO DO WHATEVER POSSIBLE FOR MY SHELTERLESS SON NOT TO BE SENT TO IRAN. MY INNOCENT SON DID NOT COMMIT ANY SINS TO BE CAUGHT IN THE TRAP OF THESE BLOODTHIRSTY EXECUTIONERS OF HISTORY AND THAT AFTER SO MUCH STUDY AND STRUGGLE IN A FOREIGN COUNTRY. THIS OPPRESSIVE AND CRUEL REGIME WITH ITS MIDDLE-AGEDLY BEHAVIOUR HURT HIM PHYSICALLY AS WELL AS MENTALLY IN SUCH A WAY THAT HE HAD TO LEAVE US. AS A MOTHER I SHOULD HAVE HAD THE CHANCE TO SEE MY CHILDREN ALL AROUND ME BUT INSTEAD I HAVE TO SUFFER THE ABSENCE OF MY SON. I ASK YOU AS A SUFFERING MOTHER TO DO YOUR BEST FOR HIM TO PREVENT HIS RETURN TO IRAN. AT PRESENT HIS DEATH OR LIFE DEPENDS ON YOU. SO I BEG YOU TO HELP HIM. AS HE LEFT, THEY SAVAGELY STORMED INTO OUR PLACE. THEY WERE LOOKING FOR [the applicant]. THEY HAD A PHOTO FROM HIM TOGETHER WITH A FRIEND IN INDIA. THEY SHOWED US THE PHOTO AND SAID THAT IT BELONGED TO MUJAHEDEEN (THE CORRUPTORS ON EARTH) AND THIS PHOTO SHOWS THAT HE IS IN CONNECTION WITH THEM. THE OTHER FACTOR IS THAT HE HAS ESCAPED FROM IRAN WHICH PROVES THAT HE HAS BEEN INVOLVED IN THE STUDENTS UPRISING AND HE CAN BE SENTENCED ONLY YO[sic] DEATH. IF WE FIND HIM WE WILL GIVE HIM A SHOT INTO THE HEAD. IN RESPONSE TO MY HUSBAND'S PROTEST THEY ATTACKED AND ASSAULTED HIM. AS MY ELDER SON PROTESTED THEY ATTACKED HIM AS WELL AND TOOK BOTH OF THEM TO THE SECURITY OF THE INFORMATION MINISTRY. MY HUSBAND WAS RELEASED AFTER A WHILE BECAUSE OF HIS BAD HEALTH BUT MY SON IS STILL IN THEIR HORRIBLE DETENTION AT A LOSS. THEREFORE I BEG YOU TO DO EVERYTHING POSSIBLE TO PREVENT [the applicant's] RETURN TO IRAN BECAUSE THE SECURITY FORCES ARE SEEKING TO CAPTURE HIM AND THEN ONLY GOD KNOWS WHAT THEY WILL DO WITH HIM. WITH THANKS SIGNED BY: [applicant's mother]" [emphasis in original.] 29 On 7 May Mrs Hazrati forwarded to the Tribunal a "certified" translation of the letter received from the lawyer acting for the applicant's family in Iran. That translation read as follows: "FROM: [lawyer's name and registration number] DATE: 26/04//2001 AS THE FAMILY LAWYER OF [the applicant] I WOULD LIKE TO CONFIRM THAT SECURITY FORCES OF THE INFORMATION MINISTRY HAVE ARRESTED HIS BROTHER [brother's name]. HE IS ACCUSED OF NOT COOPERATING WITH THE AUTHORITIES IN FINDING OF WHEREABOUTS OF [the applicant]. HE IS AT PRESENT AT THE DETENTION CENTRE IN AN UNCERTAIN AND PERPLEXED STATE. DUE TO SECURITY REASONS I AM NOT IN A POSITION TO SEND YOU ANY DOCUMENTS AND WILL DESTROY THE ORIGINAL OF THIS FAX AFTER FORWARDING IT TO YOU. TO GET MORE INFORMATION PLEASE CONTACT THE FOLLOWING TELEPHONE NUMBER: [address, telephone and facsimile numbers] SIGNED AND SEALED: [lawyer's name]" 30 In addition to the letters described above, a witness the applicant requested the Tribunal to hear, testified that before the applicant left Iran the applicant's parents had told the witness's parents of their concern for the safety of their son. A summary of that evidence is included in the extract from the Tribunal's statement set out above in [10]. 31 The approach the Tribunal took to this part of the applicant's case appears to be confused. 32 The Tribunal stated that it: "[did] not accept that the authorities claimed to have evidence (a photograph) linking the applicant with MKO supporters: this link was introduced late in the process of the review. If the applicant was associated with a known member of the Mujahideen, a group most reviled by the Iranian regime, the Tribunal would have thought it natural that he raise this earlier in the process. The evidence for the link is weak (see the comments on the mother's letter, below). The Tribunal does not accept the applicant's claim that his father and brother were detained because of his claimed political problems. The Tribunal has not accepted these political problems as well-founded. Further, if his family had really been affected the way he claimed, and at the time claimed, the Tribunal would have expected the information would have been made available to it earlier. (The Tribunal does not agree that the mother's letter was imprecise about when the incident supposedly occurred: she was precise enough). The Tribunal does not find it plausible that the applicant's first advisers would have omitted such critical evidence from the initial application and supporting documents, if the applicant had told them of it. The Tribunal does not accept that the contents of the applicant's mother's letter are true. No doubt she wished to support her son's application, and the letter was contrived with this aim in mind." 33 Earlier in its reasons the Tribunal referred to the applicant contacting his parents whilst in Malaysia (presumably in November 2000), and contacting his sister after arrival in Australia. The Tribunal stated that the applicant had said that he had told "his lawyer this" and did not know why the lawyer ("the first adviser") had not included the information in submissions presented to the Tribunal. What information the applicant obtained from those contacts was not established by the Tribunal. In any event, on the face of the material before the Tribunal, it was the letter from the applicant's mother, received in April 2001, that provided the details of the use of a photograph by the security forces and of their allegation based on it. What the Tribunal intended to convey when it stated that "this link was introduced late in the process of review", and how it thought the applicant's credit suffered thereby, is not clear. It may be noted that the applicant departed Iran on 31 October 2000 and was in detention in Australia on 20 December 2000. The Tribunal hearing took place on 27 April 2001. 34 The Tribunal dismissed the statements made by the applicant's mother, the lawyer for the family and by the witness, without identifying grounds that permitted the Tribunal to reject that part of the applicant's case. The applicant's first adviser did not have the letter that provided the mother's account of the events involving the applicant's family that had occurred in Iran after the applicant left. In the absence of determining what the applicant had learned of events in Iran in the two months between his departure from Iran on 31 October, and lodgment of his application for a protection visa on 9 January 2001, the Tribunal could not say what, if any, "critical evidence" had been omitted from that application. In any event, the content and substance of the mother's letter, forwarded in April 2001, had to be addressed and considered, and unless there was probative material or reasonable grounds for rejecting that material, the possibility that the events described by her had occurred, had to be taken into account by the Tribunal in determining if there was a degree of chance that events involving persecution of the applicant may occur in future. 35 The Tribunal could not make a bare assertion that the letter from the applicant's mother was "contrived". As stated by the United States Court of Appeals in Bastanipour v Immigration and Naturalization Service 980 F.2d 1129 (7th Cir. 1992) at 1131: "A bare conclusion is not an adequate discharge of an administrative agency's responsibilities unless the ground or argument that it is rejecting is frivolous." 36 There was no basis on which the Tribunal could find that the applicant's mother had provided a false account, and insofar as the Tribunal made any finding by stating that it "[did] not accept that the contents of the applicant's mother's letter [were] true", the Tribunal did not identify any probative material, or reasonable grounds, that permitted the Tribunal to state that the mother had supplied a fabricated account in her letter. 37 Similar comment may be made on the treatment accorded by the Tribunal to the information provided by the witness who gave evidence to support the applicant's case, and to the letter provided by the family lawyer. The Tribunal stated in its reasons that it: "[did not] accept the witness's testimony that his family was approached by the applicant's parents for help." and that: "[it did not] accept as true the statements made in the family solicitor's letter (of which the Tribunal was not made aware until more than a week after the hearing). The statements of the applicant's family solicitor are not sufficiently disinterested to counter the overall weaknesses in the applicant's claims." 38 As set out above, the letter from the family lawyer confirmed that the applicant's brother was still in detention in April 2001. 39 The Tribunal provided no reason, or ground, for rejecting the foregoing material. This was not a case where there was material before the Tribunal that revealed that the claims in the mother's letter, the lawyer's letter, and the witness's testimony were patently false. The effect of the failure of the Tribunal to consider and assess that material was a failure by the Tribunal to duly consider the applicant's case and failure to conduct the appropriate inquiry on that material by way of review as required by the Act. (See: Wade and Forsyth Administrative Law 7th ed. 1994 at 318-319; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 per Gleeson CJ at [14], Gaudron and Gummow JJ at [42]–[44], [53], McHugh J at [67], Hayne J at [149]-[155], Callinan J at [163]–[164]; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at [4].) 40 The fact that the letter from the family lawyer was received "a week after the hearing" had no significance on the truth of its content. Why the Tribunal considered it did is unknown. The only ground provided for dismissing the contents of the letter from the Tribunal's consideration was that the lawyer was "not sufficiently disinterested". The Tribunal should have instructed itself that, in law, the applicant's case did not depend upon the applicant providing material from an independent source, nor did the process engaged in by the Tribunal place an onus on the applicant to establish that he was truthful. (See: Abebe v Commonwealth (1999)197 CLR 510 per Gleeson CJ, McHugh J at [83]; Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 555.) 41 The lawyer provided his address, and his registration and telephone numbers, permitting more information to be obtained if required and for his letter to be authenticated. No further step was taken by the Tribunal and the provenance of the letter was not in issue. No probative material, or reasonable ground, was identified by the Tribunal permitting the Tribunal to disregard the letter when considering the degree of possibility that the applicant had been persecuted as claimed, and the degree of chance that he would be persecuted in future. That chance, of course, may be substantially less than fifty per cent. (See: Kalala v Minister for Immigration & Multicultural Affairs [2001] FCA 1594 at [25]-[26].) 42 Texts by learned authors, the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status (Geneva 1992) and judgments of this Court, have counselled that caution must be exercised before "findings" on credibility are made in these matters. (See: W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 379 at [17]-[19].) 43 The Tribunal does not find the applicant to be an untruthful person by reason of demonstrated dishonesty or by reference to his demeanour. The reasons provided by the Tribunal are directed to showing why the Tribunal remained unpersuaded by the applicant's claims as to past events. The Tribunal does not make an affirmative finding that claimed events did not occur. Where the Tribunal states that it "does not accept" that events occurred as claimed, it is stating that it has not been persuaded that such events occurred, or, at its highest, that it believed that the events probably did not occur. 44 But as discussed below, that did not entitle the Tribunal to ignore thereafter the material submitted by the applicant when the Tribunal moved to assess whether there was some degree of possibility that, in the future, events involving persecution of the applicant may occur. 45 As set out in Minister for Immigration & Ethnic Affairs v Guo(1997) 191 CLR 559 by Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ at 574-576, the Tribunal had to assess whether the account provided by the applicant's mother, the applicant's witness and the family solicitor raised the possibility that events involving the applicant and his family had occurred as described by them, and whether the possibility that these events had occurred could suggest that a chance of persecution faced the applicant if he were returned to Iran. The possible occurrence of the past events had to be part of the process of determining whether there was a chance that events may occur in future that could have persecutory consequences for the applicant. It was not necessary at law that the Tribunal conclude affirmatively that events claimed by the applicant had occurred before it was obliged to take that material into consideration in making its decision. The Tribunal had to consider whether it was possible that the claimed events occurred, even if the Tribunal did not have an affirmative belief that the events had occurred or even if it believed they had not occurred. Only if the Tribunal, on probative material or reasonable grounds, had rejected that material, could the Tribunal put that material beyond its consideration. 46 As Gleeson CJ and McHugh J stated in Abebe at [83], the fact that an applicant: "…might fail to make out an affirmative case in respect of one or more of the above steps did not necessarily mean that her claim for refugee status must fail. As [Minister for Immigration & Multicultural Affairs v Guo (1997) 191 CLR 559 at 575-576] makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution. The Tribunal 'must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution' [Guo at 576]." 47 As Brooke LJ, with whom Robert Walker LJ concurred, said in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 at 469‑470: "For the reasons much more fully explained in the Australian cases, when considering whether there is a [real risk] of persecution for a convention reason if an asylum-seeker is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur." 48 The exclusion of the foregoing material from the Tribunal's consideration was central to the Tribunal's "finding" that the "regime" had no interest in the applicant. That finding underpinned the Tribunal's conclusion that it "[did] not accept that the applicant was detained, tortured and interrogated as he claimed, of [sic] that he placed [sic] under surveillance or subjected to reporting requirements". Unless the material referred to above had been duly rejected by the Tribunal, it had to have regard to the degree of probability of the occurrence of the past events claimed, and only then could the Tribunal determine whether there was some degree of chance that future events may occur including persecution of the applicant. Analysis of the reasons of the Tribunal displays that this was a case where the Tribunal remained unpersuaded as to the truth of the applicant's claims, not a case where the Tribunal, on probative material, had no real doubt that claimed past events had not occurred. 49 In effect the Tribunal ignored a substantial part of the applicant's case. It could do so if that material had been rejected by the Tribunal after due consideration, but it could not dismiss the material on intuition or inclination. The Tribunal could not determine whether it was satisfied as required by s 65 of the Act, by accepting or rejecting material in its discretion. The answer to the question whether the Tribunal was satisfied as to the existence of a possibility had to be formed reasonably upon the material put before the Tribunal. (See: Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [113], [119], [136]-[137] and [145]; approved in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 per Gleeson CJ, Gummow, Kirby and Hayne JJ at [34].) It followed that the Tribunal failed to hear the applicant's case as presented to it and failed to perform the duty imposed on it by s 414 of the Act. The purported decision of the Tribunal was unsupported by authority or jurisdiction. (See: Board of Education v Rice [1911] AC 179 at 182; Local Government Board v Arlidge [1915] AC 120 at 132-133). 50 Counsel for the respondent contended that the foregoing errors concerned "findings of fact". However, findings of fact may nonetheless involve an error that is a jurisdictional error, in respect of which s 476 provides relief. (See: Bhardwaj per Hayne J at [149].) The question raised by the process of judicial review is not the correctness of findings of fact, but whether findings of fact have been vitiated at law, making the decision based on those findings subject to review under s 476. 51 It follows that ground for review of the Tribunal's decision has been established under s 476(1)(b), (c), or (e) of the Act. By failing to consider relevant material the Tribunal purported to make a decision for which it did not have jurisdiction (s 476(1)(b)); or to make a decision it was not authorised to make (s 476(1)(c)); or so acted because of an error in its understanding, or application, of the relevant law (s 476(1)(e)). (See: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 per Gleeson CJ at [10], McHugh, Gummow and Hayne JJ at [76]-[85]). 52 The Tribunal's decision must be set aside and the matter remitted to the Tribunal for redetermination. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate: Dated: 9 April 2002 Counsel for the Applicant: J R B Ley (pro bono publico) Counsel for the Respondent: P R Macliver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 17 October 2001 Date of Written Submissions: 25 October; 1, 8 November 2001 Date of Judgment: 9 April 2002