FEDERAL COURT OF AUSTRALIA

SZQRW v Minister for Immigration and Citizenship [2012] FCAFC 164

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

the court:

1    On 20 July 2010, the appellant arrived on Christmas Island by boat and was detained. The appellant lodged an application for a Refugee Status Assessment claiming to be a refugee to whom Australia owed protection obligations.

2    In his entry interview, the appellant said that he was a Bidoon, born in Kuwait and that he and his family were forced to move to Iraq in 1992. He also said that he was a Sunni Muslim Arab and that between 2005 and 2008, he worked in the family business, running a mobile telephone shop in Nasiriyah, Iraq. The appellant said that on one occasion the shop was broken into and everything was stolen. On the instructions of his father, the shop was closed so that they could investigate what had happened. The shop was reopened after a month and for six months there was “normal routine”. Then, said the appellant, a further incident occurred. The appellant left his younger brother in charge of the shop and later that day received a report from neighbours that the shop was empty. The appellant’s younger brother was returned to the shop later that evening in a “bad condition”. His brother told the appellant that he had been kidnapped from the shop whilst working there and had been beaten by the kidnappers. His brother said that the kidnappers had a message for the appellant that they were “after him” and would “get him”. The kidnappers had, said the appellant, told his brother that they wanted the appellant because “we are Sunnis using the nearby mosque”. The kidnappers had told his younger brother to tell the appellant that “any time he is in the shop we will come to get him”. The appellant said that after that threat, his father closed the shop and the family moved to Basra. He said that it was difficult to find work in Basra and the family was supported by relatives in Kuwait.

3    The appellant made a statement on 29 August 2010 in support of his application for refugee status. In this statement, the appellant also referred to the incident in approximately June 2008 when three men came to the shop and kidnapped his younger brother. He said that the kidnappers had asked his brother where he (the appellant) was. The appellant also said that the kidnappers had beaten his brother and brought him back to a location close to the shop “later that evening”. His brother told him that the kidnappers were Shia, and they “were against Sunni people”. The appellant claimed that he feared harsher treatment from the group that kidnapped his brother because he is the oldest male in the family.

4    The appellant went on to say that the kidnappers had forced his brother to identify their family home and that after the kidnapping, their house was watched and vehicles drove by slowly. Also, said the appellant, often men would knock on their door and ring the bell. The appellant went on to say that the family tried to ignore this but eventually the family decided that they needed to protect their safety by running away. The appellant said that he was unable to work in regular employment in Basra because it was not safe for him to move around and that he was in constant fear that persons who may belong to “political parties could harm” him because he was a Sunni Muslim and a Bidoon. The appellant said that he feared harm and that he would be killed by these persons. The appellant said that the authorities in Iraq would not protect him because he was a Bidoon.

5    The assessor found that the appellant was not a refugee to whom Australia owed protection obligations.

independent merits review

6    The appellant sought an independent review of the assessor’s decision. The assessor’s decision was reviewed by the second respondent (the reviewer), in her capacity as an independent merits reviewer. The reviewer identified the appellant’s claim as being that he feared persecution by political/Shia militias on account of his ethnicity (Bidoon), religion (Sunni Muslim) and membership of a particular social group (non-citizen Bidooons who are stateless).

7    The reviewer conducted an interview with the appellant, the content of which, she recorded in her reasons for decision. The reasons reveal that the interview was comprehensive. The interview dealt with the events which occurred some months prior to the alleged kidnapping, the circumstances relating to the visit to the store by the kidnappers, the subsequent surveillance of the appellant’s house and the doorbell ringing incidents, the departure of the appellant’s family to Basra, the means by which the family had supported themselves in Basra and how the appellant had succeeded in leaving Iraq to travel to Australia.

8    A perusal of the reasons shows that the reviewer correctly understood the appellant’s version of events in relation to the kidnapping. In particular, it is apparent that the reviewer understood that the appellant had stated that three men kidnapped his brother from the shop and brought him back about seven hours later. This is apparent from [49], [53], [57], [59] and [61] of the reasons.

9    It is also apparent that at [59]-[62] of the reasons, the reviewer put to the appellant her concerns that he was not able to be more forthcoming about what had happened to his brother whilst he was detained for seven hours by the kidnappers, and her concern as to the appellant’s apparent lack of curiosity in relation to that circumstance. The reasons also record that the reviewer also put to the appellant that it was implausible that once his brother gave the appellant’s home address to the kidnappers (as he did), the kidnappers did not simply go to the house and take him away, rather than “wasting seven hours” with his brother. The reviewer also put to the appellant that it appeared implausible that if the kidnappers were truly intent upon harming the appellant, that once they knew where he lived, they did no more than engage in the doorknocking and bellringing incidents to which the appellant had referred.

10    The reviewer rejected the appellant’s application for review on credibility grounds. At [127], the reviewer stated that she had “serious concerns” about the appellant’s credibility and the plausibility of his claim. At that paragraph the reviewer observed:

My findings in relation to the claimant also rest on my serious concerns about his credibility and the implausibility of his account, as well as the claimant’s inability to spontaneously engage in a discussion about the claimed events, in a manner that would lead me to find that these events actually occurred. Despite a lengthy interview and with several adjournments, one in which I explicitly asked the claimant to consider carefully whether there was any further information he wanted to provide me, I found the claimant’s account laboured and that I was required to prompt him continually to ensure he remained focussed on his claims.

11    After instructing herself that she should be cautious about dismissing an applicant’s claim on the grounds of credibility, the reviewer at [137]-[140] stated as follows:

137.    The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded”, or that it is for the reason claimed. A fear of persecution is not “well-founded” if it merely assumed or if it is a mere speculation. A decision maker is not required to make the applicant’s case for him or her. Nor is the decision maker required to accept uncritically any or all the allegations made by an applicant. In MIEA v Guo (1997) 191 CLR 559 at 572 and also in MIEA v Wu [1996] HCA 6; (1996) 185 CLR 259 at 293, the court found that conjecture or surmise had no part to play in determining whether a fear was “well-founded”. In the case of the claimant I have also considered whether his general state of mind may have contributed to my concerns about his credibility. Even allowing for his frustration at his circumstances and his general sadness, I find overall that the claimant’s demeanour and general affect did not affect his ability to give evidence to the extent that he was not able to provide me with clear particulars of his claims, on being repeatedly asked to do so.

138.    The claimant claims that unidentified persons came to the family shop where his younger brother was working, whilst the claimant was on a lunch break, stating that they wanted [the appellant]. Despite repeated attempts by me to elicit information from the claimant about who “they” were, the claimant could only speak in generalities stating that they were militias. As I have stated previously it is not inconceivable that persons might not be aware of the motivations of his or her persecutors, particularly if this is in the context of random violence, however, I would have expected that given that the claimant argues these militias had some religious or political motivation, it would seem implausible that these groups would set out to persecute a lone target without some key motivating factor.

139.    Furthermore, the claimant was not able to provide me with a reasonable response in relation to my repeated questions about why the militias would want to target him. The claimant implied that it might be his Sunni background and that the militias might have been Shia militias but during interview he also stated that he did not know why they would specifically target him. The claimant himself argued that he did not have a profile of any sort in his community as he did not have enemies and was a very peaceful person. I find, therefore, that it is implausible that suddenly for no specific reason, the claimant would become the target of Shia or political militia groups simply because he did not go to the mosque to pray, as claimed by him although the claimant did not limit his explanation to not going to the mosque. The claimant appeared to imply that the Shia wanted him to change religion but provided no detail about this matter.

140.    I would have expected that in the circumstances, the claimant would be able to at least posit a plausible theory about why the “groups” might want to kill him as claimed on the basis of some perceived wrong, for example. I find, therefore, that the claimant was never targeted for a Convention reason and that indeed the incident involving the three men arriving at the shop looking for the claimant did not occur.

12    The reviewer then went on to state at [141] of her reasons:

My findings in this respect are reinforced by the fact that the claimant was unable to provide a plausible explanation as to why his would-be assailants proceeded to kidnap the claimant’s younger brother for several days, even when they were able to obtain from him their home address and thereby take their claimed target, the claimant. Again, at interview the claimant was not able to provide a plausible explanation as to why on obtaining the address they did not immediately proceed to his home and storm his home to seek out the claimant. Instead, the claimant asserts that these groups were ringing their doorbell and knocking on the door as well as driving by in trucks, in an attempt to intimidate him and his family. I reject that the events involving the ringing of the doorbell, loud knocking and drive by in large vehicles occurred. On the one hand, the claimant argued that his would-be assailants were driven to find him at all costs, yet on the other they appeared not to take any real action to apprehend him, for reasons that remain unexplained. (Emphasis added.)

13    Also at [143] of her reasons the reviewer observed:

The claimant could only state that his brother was taken to a “house” but could not provide any further detail on this matter. I would have expected that the claimant would have been curious to know where exactly his brother was taken and what was said to him precisely, if for no other reason that the treatment of his brother might have given him some insight into what he might expect in terms of their plans to kidnap or harm the claimant himself. I also find it implausible that his brother would have been detained for seven days without a mention of what the Shia/political group were aiming to achieve by persecuting the claimant. I therefore reject the claimant’s claims in relation to his brother ever having been kidnapped and detained for seven days. (Emphasis added.)

14    In fact, as we have already mentioned, the appellant’s version of events was that his brother had been held by the kidnappers for a matter of hours, not days.

15    The reviewer found that the appellant did not meet “the criterion for a protection visa” and recommended that the appellant not be recognised as a person to whom Australia had protection obligations.

the federal magistrates court

16    The appellant made an application to the Federal Magistrates Court for judicial review of the reviewer’s recommendation.

17    The appellant sought declarations that in making her recommendation, the reviewer had failed to consider relevant material, had considered irrelevant material, and also had failed to accord procedural fairness. The appellant also sought an injunction restraining the Minister from relying on the recommendation of the reviewer.

18    In support of his application for judicial review, the appellant contended that the irrelevant material the reviewer considered was a claim that the appellant’s brother had been kidnapped and held for “several days” or “seven days”. The appellant also contended that an integer of the appellant’s claim was that his brother had been kidnapped and held for about seven hours, and this claim had not been considered by the reviewer. A further consequence of the reviewer’s error, said the appellant, was that the reviewer failed to accord the appellant procedural fairness.

19    The Federal Magistrate found that the reviewer’s references to “several days” and “seven days” were not mere typographical errors, as had been contended by the Minister. However, on 15 March 2012, the Federal Magistrate dismissed the appellant’s application for judicial review.

20    The Federal Magistrate found that when the reviewer came to discuss her reasons for her recommendation, the reviewer was mistaken as to the appellant’s evidence of the length of time that the kidnappers had detained his brother. At [40] of the Federal Magistrate’s judgment, the Federal Magistrate observed:

However, although the Reviewer’s error is a large one in terms of the time periods involved, it does not appear to me to have had any significance for her ultimate conclusion or her recommendation. In this regard, the comments in para 141 were expressed to be only reinforcement of conclusions expressed in preceding paragraphs, in particular paras 139 and 140. It is apparent that the Reviewer would have reached those conclusions even if she had not mistaken the length of his brother’s abduction. Similarly, the incorrect reference to “seven days” in para 143 supported a conclusion which was expressed in that sentence but which was no more than supplementary and effectively irrelevant to the substantive conclusion reached earlier in that paragraph, namely that the Reviewer did not accept that the alleged abduction had occurred because the applicant had not been able to discuss in a realistic way with her his own discussions with his brother about what had happened to him. The reference to the length of the abduction was introduced, presumably for completeness, in the second last sentence of the paragraph but by that point the conclusion that the story of the abduction was not to be accepted already stood on other foundations.

21    The Federal Magistrate also found that a mistaken appreciation of the evidence by the reviewer did not amount to material that must be provided to a person who is likely to be affected by an administrative decision as a matter of procedural fairness. The Federal Magistrate noted that, even if it was the case that the material was of the kind that should have been provided to the appellant (at [42]):

In this case, for the reasons already given, namely that [the reviewer’s] conclusions were reached without reliance on the mistaken fact, I am not of the view that the correction of the Reviewer’s mistake could have had any bearing on those conclusions. Consequently, even if the mistaken fact should be considered information, procedural fairness did not require the Reviewer to put or provide it to the applicant.

the appeal

22    The appellant’s notice of appeal comprised the following grounds:

1.    The trial judge erred in fact and law in finding that; though the Second Respondent did mistake the evidence when she came to make her recommendation to the First Respondent, this did not mean that the Second Respondent fell into jurisdictional error by considering irrelevant material.

2.    The trial judge erred in fact and law in finding that; though the Second Respondent did mistake the evidence when she came to make her recommendation to the First Respondent, this did not mean that the Second Respondent failed to consider relevant material, being an integer of the Appellant’s claims to refugee status.

3.    The trial judge erred in fact and law in finding that; though the Second Respondent did mistake the evidence when she came to make her recommendation to the First Respondent, this did not mean that the Second Respondent fell into jurisdictional error by failing to afford the Applicant procedural fairness, in that she:

1)    failed to address one of the claimed bases for the Applicant’s fear of persecution; and

2)    failed to put to the Applicant that, had his brother been held by the kidnappers for “several days” or “seven days”, his brother would have been able to tell the Applicant what his kidnappers had hoped to achieve by persecuting the Applicant.

23    In his written submissions and at the hearing of the appeal, counsel for the appellant stated that ground 3(2) of the notice of appeal was no longer pressed by the appellant.

24    The appellant contended that the Federal Magistrate had erred in concluding that the reviewer’s mistake did not have any significance for the ultimate outcome. The appellant also contended that the Federal Magistrate had erred in failing to find that the reviewer, in making that mistake, had failed to deal with a claim which the appellant had made, and had considered a claim which he had not made.

25    The appellant submitted that the reviewer had disbelieved the appellant’s claims because he was unable to say who the kidnappers were, and why they wanted to kill him. The appellant said that the source of this information could only have been his brother. How much information his brother would be expected to know about the kidnappers and their motivation for wanting to harm the appellant would depend, said the appellant, on the amount of time that he had been held by the kidnappers. Therefore, contended the appellant, since the reviewer’s error was a serious error about the time that his brother had to gather intelligence about the kidnappers, it could not be said that the error could not have had a bearing on the outcome, nor that the appellant was not denied the possibility of a different result.

26    The appellant relied particularly upon the case of VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 (VAAD). In that case, the visa applicant, a Sri Lankan, claimed that she was a member of the United National Party (UNP), that she had been preselected as a UNP candidate in provincial council elections, and that she feared persecution by opposition supporters because of her support for the UNP. Before the Minister’s delegate had made a decision on the visa application, the office of the Federal Member of Parliament for Perth sent the delegate a letter from the UNP which supported the visa applicant’s claim to have been preselected in September 1995 as a UNP candidate (the UNP support letter).

27    The delegate refused the visa application and the visa applicant applied to the Tribunal for a review of the delegate’s decision. The delegate’s file, which contained the UNP support letter, was transferred to the Tribunal.

28    After the hearing, the Tribunal forwarded to the visa applicant a letter under s 424A of the Migration Act 1958 (Cth) expressing concerns as to the veracity of aspects of the claims made by the visa applicant. One of those aspects was that she had been preselected by the UNP to contest a provincial council seat. In response to the Tribunal’s letter, the visa applicant sent a copy of the UNP support letter to the Tribunal, with a certified translation.

29    In its reasons, the Tribunal found it was “incongruous” that the UNP support letter was first provided to the Tribunal on 21 October 2001 when the question of the visa applicant’s political profile had been an issue from the date of her visa application. The Tribunal relied on the lateness in the production of the letter to find that the letter was not a genuine document, and went on to find that the visa applicant had not been preselected as a candidate, and so had not been subjected to the threats for which she contended in support of her claim.

30    The Full Court in VAAD found that the Tribunal’s finding that it could not be satisfied that the letter was authentic because it had been provided at such a late stage, was based on an error. The UNP support letter, of course, had been provided to the Minister’s delegate at the commencement of the visa application assessment process, and had always been before the Tribunal. The Full Court, allowing the appeal, found that the Tribunal had failed to take into account relevant material.

31    The Full Court observed at [77]:

These comments make clear that whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In this case the Tribunal failed to consider a document, the UNP Letter, which was not only particular to the first appellant but arguably of critical importance to the claims of all the appellants. This is not a situation of the kind to which Mason J referred in Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24 at 40, where the factor was so “insignificant that failure to take it into account could not have materially affected the decision”. The failure to do so led the Tribunal into error and that error had an adverse effect on the Tribunal’s assessment of the first appellant’s credibility. The Tribunal failed to have regard to material evidence and, as the Tribunal’s own comments show, that initial error was not corrected by the Tribunal’s subsequent consideration of the UNP Letter and the UNP Translation. On the contrary, the initial error tainted the later consideration of this evidence and compounded the Tribunal’s error. The Tribunal’s conclusion that the UNP Letter was fabricated was greatly influenced by the Tribunal’s mistake in thinking that the UNP Letter had not been provided to the Delegate or been sent to the Tribunal only after the Tribunal’s letter of 5 September 2001, the s 424A letter. The fact that, as originally provided, the UNP Letter was in Singhalese language and no translation was provided does not alter the fact that the Tribunal erred. Nor does it detract from the significance of the Tribunal’s error; see X v Minister for Immigration and Multicultural Affairs [2002] FCAFC 3 at [52]-[53].

32    The Full Court went on to find at [79] that it was not possible to say that the error could not have affected the outcome.

33    Counsel for the Minister contended that the nature of the error made and its potential effect on the integrity of the review in VAAD, was to be distinguished from the error as to the evidence made by the reviewer in this case. The Minister referred to the recent case of MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441 (MZXSA). In that case, the visa applicant was a citizen of Turkey. He arrived in Australia on a business visa and then applied for a protection visa. In support of his application, the visa applicant said that he had been persecuted for protesting his rights as a worker and unionist and as a Kurd and Alevi, and for protesting the rights of other workers, Kurds and Alevis. He said that he feared that if he was to return to Turkey he would be arbitrarily imprisoned or murdered by the Turkish government or its agents. He said the reason why he had left Turkey was because he had been detained and tortured on several occasions by the Turkish police. In support of his application, the visa applicant also referred to a three page document which purported to be a warrant for his arrest for being a member of the Turkish Communist Party and an indictment for his trial on that charge by the Istanbul Criminal Court. He said that his parents had received the arrest warrant and indictment about a week after he left Turkey. He also said that he left Turkey on his own passport because his father had bribed immigration officials.

34    At the hearing before the Tribunal, the visa applicant relied on the arrest warrant and indictment as a genuine document. However, the Tribunal carried out its own investigations into the warrant and indictment through the Australian embassy in Turkey. The embassy reported that the warrant and indictment did not relate to the visa applicant but to two other persons who were under arrest in Turkey in relation to terrorist activities.

35    In May 2007, the Tribunal wrote a letter pursuant to s 424A of the Migration Act inviting the visa applicant to comment on that information and also on how the visa applicant was able to leave Turkey by ordinary immigration means. The visa applicant filed a statutory declaration with the Tribunal which relevantly stated:

I did not see the warrant myself as it was provided to my father. I am aware that when my travel arrangements were made to come to Australia, this was one of the things that my father paid extra money to still enable me to leave the country. I became aware of this after I had left Turkey.

36    The Tribunal rejected the visa applicant’s application for review on credibility grounds. The Tribunal found that the arrest warrant and indictment did not relate to the visa applicant. In so doing, it relied on the information it had obtained from the Australian embassy. It also referred to the visa applicant’s declaration as comprising evidence that the visa applicant’s father had paid for a false arrest warrant and indictment. This evidence, said the Tribunal, was inconsistent with the position the visa applicant had advanced at the hearing, namely, that the warrant and indictment were genuine.

37    On review, the Federal Magistrate found that the Tribunal had misunderstood the effect of the visa applicant’s declaration, in that the Tribunal had construed the declaration as stating that the visa applicant’s father had paid money to obtain a falsified arrest warrant and indictment. The Federal Magistrate found that the true effect of the declaration was that the warrant and indictment were genuine and a bribe had been paid to immigration officials to permit the visa applicant to depart from Turkey. However, the Federal Magistrate found that the Tribunal’s error was an error of fact within jurisdiction and dismissed the review application.

38    On appeal to the Full Court, the visa applicant contended that the misunderstanding by the Tribunal of the evidence meant that the Tribunal had fallen into jurisdictional error on the grounds that the Tribunal had failed to consider the visa applicant’s claim or failed to take into account relevant material. The Full Court dismissed the appeal.

39    At [83]-[86] in MZXSA, the Full Court observed:

[83]    A distinction is to be drawn between the failure to deal with a claim (a constructive failure to exercise jurisdiction) and what has been described as errant fact-finding: HTUN v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42] (HTUN) per Allsop J; cited with approval by the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; 219 ALR 27; [2004] FCAFC 263 (NABE); where the Full Court discussed extensively errors of fact and jurisdictional error in the tribunal. In Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 at [28] North and Lander JJ observed that an error of fact based on a misunderstanding of evidence in considering an applicant’s claims is not jurisdictional error so long as the error does not mean that the tribunal has not considered those claims.

[84]    It is plain from the tribunal’s decision record that the tribunal was seized of the appellant’s claims that he had a well-founded fear of persecution because of (a) his religious beliefs as a Kurdish Alevi; (b) his actual or an imputed political opinion based on his involvement in the trade union movement in Turkey as well as his association with the TKP; and (c) his membership of a particular social group.

[85]    It is equally plain that the tribunal understood the appellant to be contending that a warrant had been issued for his arrest but that, in part through the bribery of officials, the appellant succeeded in departing from Turkey and travelling to Australia on his own passport. It is true that the tribunal misunderstood one part of the evidentiary material before it, which it recognised as conflicting with the version of events for which the appellant was contending. But, as the Federal Magistrates Court correctly pointed out, other passages of the decision record show that the tribunal correctly understood the effect of the evidence that the appellant was propounding and asking the tribunal to accept on this issue. Moreover, as shown by the tribunal decision record, the tribunal appears to have relied on its misunderstanding in only a peripheral way. It did not obscure the tribunal’s understanding of the claims being advanced by the appellant or the appellant’s preferred version of the facts that he had advanced in support of those claims. At most the tribunal’s misunderstanding of para 37 of the appellant’s declaration amounted to an instance of errant fact-finding on a matter on which, by reference to the information it had received from the Australian Embassy in Turkey, the tribunal had independently made a decision adverse to the appellant.

[86]    The Federal Magistrates Court instructed itself by reference to NABE and HTUN and concluded that, although the tribunal had made a factual error, that error did not infect the tribunal’s statutorily imposed duty to examine and deal with all the claims for asylum made by the appellant. It found that the tribunal clearly understood the question it had to decide and, although it may have erred on its finding in one matter of fact, the tribunal did consider the appellant’s claim and all its component integers. The Federal Magistrates Court was not in error in so finding. Grounds 3 and 4 of appeal should be dismissed.

Grounds 1 and 2

40    By grounds 1 and 2, the appellant contended that the Federal Magistrate had erred in failing to find that by reason of the impugned error, the reviewer had fallen into jurisdictional error by failing to consider a claim made by the appellant, and in considering a claim that was not made by the appellant. Thus, said the appellant, the Federal Magistrate ought to have found that the reviewer took into account irrelevant material and failed to take into account relevant material.

41    In our view, for the following reasons, the Federal Magistrate did not err in concluding that the reviewer had not fallen into reviewable error.

42    The Full Court in MZXSA drew a distinction between a failure to address a claim and its integers, on one hand, and errant fact-finding on the other hand. It was the former and not the latter which gave rise to jurisdictional error. The Full Court in MZXSA also endorsed the observations of North and Lander JJ that an error of fact based on a misunderstanding of the evidence in considering an applicant’s claim did not amount to a jurisdictional error so long as it did not mean that the Tribunal had not considered those claims.

43    In this case, the appellant claimed that he feared persecution on account of his ethnicity (Bidoon), his religion (Sunni Muslim), and membership of a particular social group (non-citizen Bidoons who are stateless).

44    Also, an important integer of the appellant’s claims, particularly, of the claim that he feared persecution based on his religious beliefs, was that three men had kidnapped his brother from the family business, and that, whilst his brother was in their custody, the kidnappers had conveyed a message to his brother that they were intent on harming the appellant.

45    In our view, the reviewer understood and addressed the appellant’s claims. This is apparent from [122] of her reasons, where the reviewer identified the appellant’s claims in the terms set out in [43] above.

46    It is also apparent from [137]-[140] of her reasons, that the reviewer understood and addressed the integer of the appellant’s claim referred to at [44] above. The length of the appellant’s detention is just part of the narrative of that integer. Of particular significance for this appeal is [140] of the reviewer’s reasons because in the last sentence of that paragraph the reviewer made the crucial factual finding that the incident involving the three kidnappers arriving at the shop looking for the appellant never occurred.

47    This finding is based on adverse credibility findings made by the reviewer at [127] and [128] of her reasons, and, in essence, repeated at [138] and [139] of her reasons. The reviewer’s adverse credibility findings are based to a very considerable extent upon the appellant’s demeanour during the interview, the lack of particularity in the version of events described by the appellant during the interview, and the implausibility of his version of events in light of the appellant’s low profile, peaceful demeanour, and his inability to identify any plausible basis on which the kidnappers would seek to single him out from any other member of the Sunni Muslim community.

48    In our view, the reviewer relied on the erroneous references to the appellant’s evidence in only, as the Full Court in MZXSA described it, “a peripheral” way; and the Federal Magistrate did not err in finding to that effect.

49    The erroneous references to the length of time the appellant contended that his brother was held by the kidnappers, appear in [141] and [143] of the reviewer’s reasons. However, by then, the reviewer had already made the crucial factual finding that the kidnapping incident never occurred, based on reasoning which is independent of the erroneous understanding of the appellant’s evidence as to the length of his brother’s detention.

50    The first erroneous reference is in [141] of the reviewer’s reasons. There the reviewer referred to the detention as being for “several days”. This reference was made in the course of the reviewer finding that it was implausible that, if the kidnappers were intent on harming the appellant, they would not have sought him out once they became aware of his address, rather than resorting to the relatively innocuous activity of driving by his family’s home, ringing the doorbell, and knocking on the door. The reviewer went on find that these events did not occur. It was unnecessary, of course, for the reviewer to make this factual finding because it was inherent in the earlier finding that the kidnapping had not occurred. That this was the case, was expressly recognised by the reviewer who said that the finding was made as reinforcement of her earlier and crucial finding that the kidnapping alleged by the appellant, had not occurred.

51    However, we would also observe that the error was peripheral to the reviewer’s conclusion for another reason. This is because the length of time for which the brother was held by the kidnappers was a neutral fact in respect of the point that the reviewer was making. In other words, whether the brother had been held for several hours or several days when he gave the kidnappers the appellant’s home address, does not detract from the strength of the reviewer’s point that it was implausible that the kidnappers did not, on learning of the address, simply abduct the appellant from that address.

52    In our view, therefore, the Federal Magistrate did not err in finding that the reviewer would have made the same finding even if she had not made the mistaken reference to the length of the brother’s detention.

53    The next erroneous reference is in [143] of the reviewer’s reasons. In that paragraph, the reviewer said that she rejected the appellant’s claim “in relation to his brother ever having being kidnapped and detained for seven days”. Also, in the preceding sentence, in support of that finding, the reviewer found that it was implausible for the brother to have been detained for “seven days” and for the kidnappers not to have stated why they were targeting the appellant.

54    The Federal Magistrate characterised the findings made by the reviewer in [143] of her reasons, as supplementary and effectively irrelevant to the decision-making process of the reviewer. In our view, the Federal Magistrate did not err in so doing. The finding made in [143] that the brother had not been kidnapped nor detained for “seven days” was unnecessary and was subsumed by the reviewer’s earlier finding in [140], at a higher level of generality, that there had never been an incident involving three kidnappers coming to the family shop. The same reasoning applies also to the reviewer’s attendant finding of implausibility.

55    Further, it is apparent from the other paragraphs of her reasons, referred to at [8] above, that the reviewer understood that on the appellant’s version of events, his brother had been detained by the kidnappers for hours, not days. It is also apparent that the reviewer, fully aware of the appellant’s version of events, put to the appellant, during the interview, the same concerns as to the plausibility of that version of events as find expression in relation to the reviewer’s impugned erroneous statements.

56    In our view, the reviewer’s error did not amount to a failure to consider a claim, or an integer of a claim made by the appellant. It is plain that the reviewer considered, and rejected, the appellant’s claims and, in particular, the integer of those claims (of which the period of the alleged detention was but one part of the narrative) that his fear of persecution stemmed from the threats made to his brother whilst in the captivity of three kidnappers. Rather, the error made by the reviewer in this case is to be characterised in the same way as the error in the MZXSA, namely, as an instance of errant fact-finding which occurred in the course of considering the appellant’s claims, and which was relied on only in a peripheral way. In other words, this was an error in fact-finding which could not have materially affected the decision nor have deprived the appellant of the possibility of a successful outcome.

57    The error in this case is to be distinguished from that in VAAD. In VAAD, the Tribunal’s error went directly to a core element of the claim made by the visa applicant, namely, to have been preselected as a candidate for the UNP in a local provincial council election. The Full Court found that the error “had an adverse effect” on the Tribunal’s assessment of the visa applicant’s credibility, that the error “tainted” the further consideration of the evidence in the review, and “greatly influenced” the Tribunal’s finding that the UNP support letter was fabricated. In other words, the error was such as to undermine the integrity of the review process. By contrast, the reviewer’s error in this case was relied on only in a peripheral way, did not obscure the reviewer’s understanding of the claims made by the appellant, and was an error which could have had no material influence on the reviewer’s conclusion.

58    It follows that these grounds of appeal are dismissed.

Ground 3

59    The third ground of appeal is founded on the premise that the reviewer’s impugned error amounted to a failure by the reviewer to address a claim of the appellant, and thereby amounted to a denial of natural justice. This ground fails because we have found that the impugned error did not amount to a failure of the reviewer to address the appellant’s claims, or an integer of the claims.

60    The appeal is dismissed with costs.

notice of contention

61    For the sake of completeness, we mention that the Minister sought leave to rely upon a notice of contention that was not filed within the time prescribed by the Federal Court Rules 2011. The notice of contention relied upon one ground:

1.    His Honour ought to have found that the reference to “days” by the Second Respondent was a typographical error (see [39] of SZQRW v Minister for Immigration and Anor [2012] FMCA 191).

62    The appellant strongly objected to the Court granting leave for the Minister to rely on its notice of contention. In light of our findings it is not necessary to consider this issue.

Associate:

Dated:    19 November 2012