FEDERAL COURT OF AUSTRALIA

SZOJF v Minister for Immigration and Citizenship [2011] FCA 1384

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

1    The appellant is a citizen of India. He arrived in Australia in July 2009 and applied for a Protection (Class XA) Visa on 31 August 2009. On 24 November 2009, a delegate of the Minister for Immigration and Citizenship refused the appellant’s application for the grant of the Visa. The appellant applied for review of the decision before the Refugee Review Tribunal and the Tribunal affirmed the delegate’s decision on 30 March 2010. On 14 February 2011, the Federal Magistrates Court of Australia dismissed the appellant’s application for review.

2    By his original application and accompanying statement, the appellant made these claims.

3    In 1985, the appellant completed a Bachelor of Arts degree at a college in Kalady in the State of Kerala. After he completed the Bachelor of Arts degree, he became interested in the Bible and Bible studies. He began to attend lectures on the Bible and Christian doctrine. He began to proselytise in India. In doing so he went from home to home introducing the Christian Bible to those who were unaware of the elements of the Christian religion. In proselytising, he claimed that many people, especially Hindus, had turned to Christianity. He adopted the practice of questioning and exposing his perception of the limitations in Hindu faith with the result that he made enemies of Hindu religious extremists. He joined a group called the “Unity of Christian Fighters” which had been formed to resist attacks on Christians and he continued to be a member of that group until 8 September 1993.

4    He married on 14 November 1993 and in 1995 he and his wife joined the Emmanuel Mission Church and engaged in preaching and spreading the Christian faith. Attacks upon Christians in the State of Orissa occurred at Christmas in 2007. He said that he had organised a procession of Christians in his local area on 27 December 2007. The group was attacked by activists from the Vischwa Hindu Parishad (“VHP”). He said that he had been seriously injured. He contended that individuals had threatened him regularly. He said that on many occasions people had come to his home with the intention of killing him and he had escaped such an outcome only by luck. In February 2008, he fled to Karnataka State. He returned to the Emmanuel Mission Church. On the first anniversary of the incident in Orissa, he was attacked by activists from the VHP and the Bharatiya Janatha Party (“BJP”). He said that he had been injured. As a result of these various events he was encouraged by friends to leave India. He left India and contended that it would not be safe for him to return to India as he was sure he would be killed by Hindu extremists.

5    The delegate found that the appellant did not have a genuine fear of harm and did not face a real chance of persecution. The delegate placed emphasis upon aspects of the appellant’s evidence at an interview which suggested to the delegate that the probability of the appellant facing harm in India was not high. The delegate characterised the conduct that the appellant claimed he had suffered, as criminal conduct, and in the delegate’s view a complaint could be made to police without any serious likelihood of retaliation against the appellant.

6    In the course of the review proceedings before the Tribunal, the appellant attended a hearing on 11 February 2010. At the hearing, the appellant put before the Tribunal these reports. The first is a letter from Dr Noori Abdulla which is in these terms:

NAS

ADVANCED MEDICAL CENTRE

79 AUBURN RD, AUBURN NSW 2144

...

Dr Noori Abdulla

231158DF

11/1/2010

To Whom It May Concern

This is to certify

That Mr [SZOJF] is living alone, away from family, he is suffering from depression, he needs psychiatric consultation and I referred him to Auburn hospital for psychiatric assessment and counselling. [P]lease would you consider his situation and provide him some support.

Signature:

Dr Noori Abdulla

7    The second is a letter from Dr Abdulla also dated 11 January 2010 to the Auburn Hospital thanking the hospital for making arrangements to see “Mr [SZOJF] who presented with depression and sometime suicidal thought for further management”.

8    The third document is a letter dated 13 January 2010 written by Naome Madut under the letterhead of NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”). Ms Madut says this:

13/01/2010

To Whom It May Concern:

Dear Sir/Madam,

Re: Mr [SZOJF] …

I am writing to express my concerns for the emotional well-being, settlement and welfare of my client Mr [SZOJF].

Mr [SZOJF] was referred to STARTTS on 23/10/2009 due to his many symptoms and emotional difficulties that are a result of his highly traumatic experiences in his country of origin India. Mr [SZOJF] reported that he experienced severe torture (both physically, psychologically and financially). Furthermore, he reported that he has also witnessed many atrocities, caused by organised violence.

I have been providing counselling for Mr [SZOJF] on a weekly basis, since the beginning of the 2010 [13 days earlier]. At the present time, we are at the stage of initial assessment of his settlement needs physical and psychological health. At presentation, [he] was clinically observed to suffer from depression and anxiety, as a result [of] uncertain legal status in Australia. Further he described his anxiety as exacerbated due [to] no medical or working rights access in Australia. In addition to this [he] has complex long term traumatic experiences coupled with financial hardship.

[He] also suffers from complex Post Traumatic Stress Disorder symptoms such as intrusive recollection of traumatic events, nightmares and sleep disorders, memory impairment and difficulty concentrating; he also lacks social and financial support in Australia.

Based on the above clinical diagnosis and suggested treatment for [him], I believe it is difficult to state his prognosis given his recovery is dependent on his legal status in Australia. As such, I would recommend that you kindly consider [his] circumstances from a legal status.

It would be greatly appreciated if you would take this information into consideration for his case.

Yours sincerely

Naome Madut

Bi-Cultural Counsellor/Project Officer

STARTTS

9    The appellant also provided the Tribunal with certificates which speak to aspects of the appellant’s involvement in the Church and the threats facing him from Hindu extremists. One certificate is written under the letterhead of the “Emmanuel Believers Fellowship” under the authorship of a person described as “Bishop Thudian”. That certificate suggests that the appellant “contributed much to Christianity in India and was haunted many times by Hindu extremists and his life in India is not secure”. A second certificate is written under the authorship of Mr Polaschan who is said to be the Chairman of the Development Standing Committee of Mookkannur Grama Panchayat, which also attests to the appellant’s Christian activities and the threats he was facing to his life, from Hindu extremists.

10    The Tribunal reached these conclusions.

11    At [53], the Tribunal accepts that the appellant suffers from depression and anxiety as a result of his uncertain legal status in Australia and that he displayed symptoms of post-traumatic stress disorder as suggested in the letters. The Tribunal accepted that the appellant’s medical conditions were relevant to his ability to participate effectively in the hearing before the Tribunal. Having observed the appellant in the course of the hearing, the Tribunal noted that the appellant seemed able to give ready answers to questions although he expressed uncertainty with regard to dates. The Tribunal observed that “[h]aving taken account of the applicant’s medical conditions I consider that he was able to participate effectively in the hearing before the Tribunal”.

12    At [57], the Tribunal observes that it has great difficulty in accepting that the appellant is “telling the truth about the problems he claims to have had in Kerala”. The Tribunal notes at [57] that the appellant referred to attacks upon Christians in the State of Orissa at Christmas in 2007 and the appellants claim to have organised a procession in his local area on 27 December 2007. In terms of the chronology of events, the Tribunal noted that at the hearing the appellant said that the problems in Orissa had occurred at Christmas in 2006 and that due to attacks upon him by Hindu extremists (and other threats), and further threats, he had gone to Karnataka in February of the following year for six months after which he had returned to his village and had been attacked again by Hindu extremists when returning home after a day of fasting and prayer on the anniversary of the incident in Orissa. At [58], the Tribunal observed that there seemed to be real difficulty with the chronology of events.

13    By reference to country information, the Tribunal was satisfied that the events in Orissa occurred in December 2007. The Tribunal noted at [59] that the appellant had indicated correctly in his statement accompanying the original application that these events occurred in Orissa in December 2007. The Tribunal at [59] notes its concern, put to the appellant, that if the procession occurred in December 2007 then the timing given for the other events in his narrative did not seem to make sense. The Tribunal observed that “[i]t would mean that he went to Karnataka only in February 2008 and remained there for six months yet his passport was issued in Kerala in April 2008”.

14    It followed for the Tribunal that the incident on the first anniversary of the events in Orissa would then have occurred in December 2008. The Tribunal noted that the appellant contended that it had only been after this second incident that friends and relatives advised him to leave India which caused him to seek and obtain his passport. The Tribunal noted at [59] that the appellant’s passport was issued in 2008 which did not seem to fit the sequence of events.

15    At [60], the Tribunal said this:

… whichever of the alternative versions of events was accepted, [the appellant] would have spent a lengthy period of time after the second incident at his home in Kerala – either from around January 2008 until July 2009 or from around January 2009 until July 2009 – before leaving India which suggests that he was not really in any danger at all at his home. The [appellant] said that it had been difficult to get a visa and that he had been afraid of living there but … the fact that he remained at his home in Kerala prior to leaving India suggests otherwise.

16    At [61], the Tribunal expressed concern about apparent anomalies in the appellant’s understanding of the role and mission of the Emmanuel Mission Church. The Tribunal noted that the appellant said he had joined (with his wife) the Emmanuel Mission Church in 1995 although at the hearing the appellant said that he belonged to Jacobite Church in Kerala. The Tribunal noted that the appellant thought the Emmanuel Mission Church was “a wing of the Jacobite Church” and when the Tribunal put to him that that was not so, the appellant said that he had only attended Bible studies at the Emmanuel Mission Church. The Tribunal was concerned about the appellant’s lack of understanding of the proposition that the Jacobite Church is not related to the Emmanuel Mission Church.

17    At [62], the Tribunal concludes that it is unable to accept that a minor injury suffered by the appellant is consistent with a contended attack upon the appellant by people wielding machetes. At [63] and [64], the Tribunal identifies independent information (by reference to the relevant website) which suggested that the BJP had negligible support in the State of Kerala and that Hindu extremists posed no serious threat to Christians in that State. The Tribunal considered the letter from Bishop Thudian and the letter from Mr Polachan. However, the Tribunal elected to “give greater weight” to the independent evidence concerning the contended threats posed by Hindu extremists and placed weight upon the Tribunal’s perceived problems arising out of the appellant’s own evidence.

18    The Tribunal at [66] said this:

I do not accept that the applicant is telling the truth about the problems he claims to have had in Kerala. I do not accept, in particular, that he was attacked by activists from the VHP or the [Rashtriya Swayamsevak Sangh – RSS] when leading a procession in December 2006 or December 2007, nor that after this incident the Hindu extremists came to his home on many occasions and tried to attack him but he escaped. I do not accept that the applicant was attacked a second time in December 2007 or December 2008 by activists of the BJP, the VHP or the RSS armed with machetes, nor that after the Hindu extremists continued to threaten him until he left India in July 2009. … I accept that the applicant has at some time suffered an injury to his leg and a cut tendon in the right index finger but I do not accept that he suffered these injuries in the attacks he has described.

19    The Tribunal also said this at [67]:

I accept that the applicant is a Christian and that he is interested in Bible studies and in spreading the Bible. I accept that besides attending the Jacobite Church he attended Bible studies at the Emmanuel Mission Church in his village … but I do not accept that he had any greater involvement in that church. Having regard to the independent evidence regarding the threat posed by Hindu extremist groups to Christians in Kerala, I do not accept that there is a real chance that the applicant will be prevented from practising his religion as a Christian in the same way I have found that he has in the past, nor that he will be otherwise persecuted for reasons of his religion as a Christian, if he returns to his home in Kerala now or in the reasonable foreseeable future.

20    No content was identified in support of the grounds of review relied upon before the Federal Magistrates Court. Those grounds simply were that the decision was made in excess of jurisdiction; a breach of natural justice had occurred; and, further grounds would “be filed later”. None were filed. However, the appellant relied upon a number of oral submissions identified by Federal Magistrate Barnes at [20] of the reasons for judgment (SZOJF v Minister for Immigration & Anor [2011] FMCA 76) and they were these.

21    First, FM Barnes notes that the appellant contended that “the Tribunal had not considered his application ‘reasonably well’ and that ‘[o]n account of [his] health conditions, [he] was not able to present [him]self in an appropriate way’ and make himself understood”. Secondly, the appellant took issue with the Tribunal’s reliance upon independent country information rather than relying upon his particular claims. Thirdly, FM Barnes notes that the appellant contended that the medical certificate he provided to the Tribunal (which may be a reference to not only the STARTTS letter of Ms Madut dated 13 January 2010 but also the certificate from Dr Abdulla dated 11 January 2010) “… indicated that he ‘had problems connected with the sufferings [he had experienced] at the hands of [his] enemies’, but that the Tribunal had not taken this ‘as reasonable or strong evidence to support [his] case’”.

22    As to those contentions, FM Barnes reached these conclusions.

23    As to the appellant’s general contention that the Tribunal did not consider his application reasonably well, FM Barnes regarded that contention as an impermissible attempt to seek merits review of the decision. FM Barnes concluded that the Tribunal had considered the claims made by the applicant and it was open to the Tribunal to reach the conclusions reflected in the findings described at [11] to [19] of these reasons.

24    As to the contention regarding the appellant’s medical condition, FM Barnes notes that the Tribunal had referred to the letter dated 13 January 2010 from STARTTS and the letter from Dr Abdulla dated 11 January 2010, both tendered by the appellant. FM Barnes notes at [22] that in its account of the hearing, the Tribunal outlines the content of both letters and observes that the appellant contended that “he could not concentrate and he could not sit for long periods of time”. FM Barnes also notes that the Tribunal had told the appellant that he could request a break in the conduct of the hearing whenever he might need such a break. FM Barnes notes at [23] the appellant’s contention that he had received no assistance in the preparation of his “original application” and that there were some mistakes in the dates because he had experienced “problems with concentration”. FM Barnes notes that the appellant confirmed the accuracy of the handwritten statement accompanying his claims.

25    At [24], FM Barnes notes that the only further reference to the question of the appellant’s medical condition, referred to in the Tribunal’s description of the events that occurred at the Tribunal hearing, is that after the Tribunal put to the appellant that the timing of the events in India, as described by him, did not sit comfortably with the contended chronology of events, the appellant had said that there had been some confusion and that he had not been able to remember the dates. FM Barnes notes at [24] that the Tribunal explained in its reasons that the concern was not simply “one of dates” but that the “timing did not fit” in the sense that the contended chronology exhibited a number of internal inconsistencies.

26    At [25], FM Barnes analyses the treatment by the Tribunal of the evidence going to the appellant’s medical condition in the context of the appellant’s capacity to properly engage with the hearing and generally support his application for review. FM Barnes notes that the Tribunal took into account the elements of the appellant’s medical condition and the implications of that condition in terms of the appellant’s contended uncertainty about the dates when events occurred. FM Barnes notes that the concern for the Tribunal was not simply one of possible confusion about dates but a greater concern about consistency and reconciliation in the chronology of events having regard to either possible version.

27    FM Barnes was not satisfied, on the evidence before the Federal Magistrates Court, that the appellant’s medical condition had denied him an opportunity to give evidence and present arguments before the Tribunal and nor had the appellant’s condition denied him an opportunity to engage in a substantial way with the Tribunal in his own interests so far as the presentation of his case was concerned (applying the principles derived from Minister for Immigration and Citizenship v SZNVW and Another [2010] FCAFC 41; (2010) 183 FCR 575, per Keane CJ at [15]).

28    The more fundamental question concerned the appellant’s contention before the Federal Magistrates Court that the Tribunal had failed to regard the medical certificate as “reasonable or strong evidence to support his case”. At [33], FM Barnes notes the appellant’s reliance before the Tribunal on the medical certificate from Dr Abdulla set out at [6] of these reasons certifying that the appellant is “suffering from depression”, “needs psychiatric consultation”, and, had been referred to Auburn Hospital for psychiatric assessment and counselling. The referral letter to the Auburn Hospital was also put before the Tribunal. The referral letter describes the appellant as having presented to Dr Abdulla “with depression and sometime suicidal thought”. No psychiatric assessment was put before the Tribunal. However, a preliminary assessment (which might be regarded as the first step in counselling as referred to in Dr Abdulla’s certificate of 11 January 2010) by Ms Madut from STARTTS was put before the Tribunal. Ms Madut is described as a “Bi-Cultural Counsellor/Project Officer” providing services on behalf of STARTTS. The letter does not set out the professional qualifications of Ms Madut. The assessment is dated 13 January 2010 and is based upon weekly counselling provided to the appellant from the beginning of January (13 days earlier). The assessment is described as an initial assessment of the appellant’s “settlement needs physical and psychological health”.

29    At [40], FM Barnes notes that the Tribunal considered the relevance of the evidence of Dr Abdulla and Ms Madut in the context of the appellant’s ability to engage with the Tribunal and participate in the hearing in his own interests. FM Barnes notes that the Tribunal took this evidence into account in the context of the appellant’s claimed difficulty in remembering dates and in the Tribunal’s assessment of the credibility or reliability of the appellant’s evidence. The Tribunal accepted at [41] that the appellant was suffering from depression and anxiety as a result of his uncertain legal status in Australia and that the appellant displayed symptoms of Post-Traumatic Stress Disorder as described in the supporting letters.

30    The major question for determination in this appeal is whether Federal Magistrate Barnes fell into error by failing to find that the Tribunal fell into jurisdictional error by failing to treat the letter from Ms Madut and the certificate of Dr Abdulla as evidence corroborative of the appellant’s claim to hold a well-founded fear of persecution by reason of the practice of the Christian religion and the contended threats the appellant confronted from Hindu extremists or by the conduct of persons associated with the BJP, the VHP or the RSS.

31    The reasoning which might be thought to suggest that such a failure by the Tribunal gives rise to jurisdictional error derives from a decision of this Court in the exercise of the appellate jurisdiction in SZKHD v Minister for Immigration and Citizenship [2008] FCA 112 per Collier J (“SZKHD”). The notion at the centre of the point is that where a report written by an expert in the relevant discipline (or for that matter, oral evidence from such an expert) demonstrates that an applicant for a protection visa suffers from a clinical condition, and that condition is said by the expert to be referable to or consistent with events that are the reason for the applicant’s claim to hold a well-founded fear of persecution for the Convention reason relied upon, that report (or oral evidence) is to be regarded as corroborative of the factual contentions on which the claim rests.

32    In this case, the letter from Ms Madut expresses her concerns about the emotional well-being and emotional difficulties of the appellant that are a result of his “highly traumatic experiences” in his country of origin, India. Ms Madut notes that the appellant reported to her that he had experienced severe physical, psychological and financial torture and that he had witnessed “many atrocities, caused by organised violence”.

33    It follows, assuming that the circumstances evident in SZKHD are not relevantly distinguishable (and SZKHD is otherwise consistent with authority) that the Tribunal was required to not only have regard to the letter (and the references to Dr Abdulla’s certificate) on the question of the appellant’s capacity to engage with the Tribunal (that is, give evidence, present arguments and generally support his application) but also to treat the letter (and Dr Abdulla’s certificate) as evidence corroborative of the inquisitorial fact to be found (or not) on the merits, that is, whether the Tribunal could be satisfied of the appellant’s claims concerning the foundation events said to give rise to an asserted well-founded fear of persecution for a Convention reason thus giving rise to protection obligations by reason of s 36(2)(a) of the Migration Act 1958 (Cth) (the “Act”) (having regard to the Refugees Convention as amended by the Refugees Protocol).

34    In SZKHD, the Court considered the Tribunal’s treatment of a psychologist’s report which recorded a clinical diagnosis of the visa applicant’s condition which the Tribunal did “not question”. The Court at [27] found from a “plain reading of the report” that the clinical diagnosis was “inextricably linked” with the expert’s acceptance of the visa applicant’s factual claims grounding the application for the protection visa. Collier J concluded at [27] that one likely interpretation of the Tribunal’s findings concerning the report was that the Tribunal did not take the consultant psychologist’s report into account “in any meaningful sense”.

35    Her Honour concluded at [28] that “justice to the appellant warrants that [the report] … be given proper consideration by the Tribunal”. That conclusion must necessarily be understood as a conclusion that the Tribunal’s failure to take the report into account in any meaningful sense, by failing to recognise the inextricable relationship between the clinical condition as found and the expert’s acceptance of the facts giving rise to it, gives rise to jurisdictional error.

36    It may be that her Honour regarded the identified failure of meaningful treatment of the psychologist’s report as the expression of the Tribunal’s failure to discharge the statutory review function under s 414 of the Act. The precise basis upon which the identified failure is said to give rise to jurisdictional error is unclear.

37    The proper approach seems to me to be this.

38    By s 414(1) of the Act, if a valid application is made for review of a [RRT - reviewable decision], the Tribunal must review the decision. In doing so, the Tribunal may exercise all of the powers and discretions conferred by the Act on the person who made the decision and by s 415(2) the Tribunal may affirm the decision, vary the decision, remit the matter for reconsideration in accordance with particular directions or set aside the decision and substitute a new decision. Central to the exercise of the powers conferred by s 415 is the anterior conduct of a review in discharge of the statutory function under s 414. Before exercising the powers under s 415, the Tribunal must have considered the application, the subject of the review, “in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself” [emphasis added] (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 per French, Sackville and Hely JJ at [44]).

39    In conducting the review the Tribunal must have regard to the statutory criteria (that is, the statutory integers) for the grant of a protection visa and, in particular, the critical question of whether the applicant has a well-founded fear of persecution for one of the Convention reasons reflected in the Refugees Convention as amended by the Refugees Protocol thus giving rise to protection obligations having regard to s 36(2)(a) and the exercise of the powers under s 415(1) of the Act. As to the relationship between a contention or claim that an applicant fears persecution for a particular reason and evidence in support of such a claim, the Full Court in WAEE said this at [45]:

If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.

                                [emphasis added]

40    At [46], the Full Court in WAEE said this in relation to the forensic treatment of evidence by the Tribunal:

It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by the applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact … and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant has a well-founded fear of persecution for a Convention reason.

41    As to the question of whether inferences might be drawn that the Tribunal has failed to consider an issue (that is to say, an issue going to a contention as to a well-founded fear of persecution), by reason of a failure to expressly deal with that issue in the reasons, the Full Court in WAEE said this at [47]:

The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But this is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.

                                [emphasis added]

42    The critical question is whether the Tribunal has undertaken a consideration of the contention that the applicant fears persecution for the reasons identified, which, if accepted, would justify the Tribunal being satisfied that the appellant holds a well-founded fear of persecution for the Convention reasons asserted. If probative material is before the Tribunal and the Tribunal fails to consider the contention “in light of the evidence … relevant to the application … provided to it” (WAEE [44]), the Tribunal fails, as a matter of substance, (WAEE [45]), to discharge the duty imposed by s 414 of the Act to conduct a review of the reviewable decision.

43    However, provided the Tribunal’s reasons demonstrate that the contention has been addressed (that is to say, the contentions directed to the statutory integers which determine whether Australia owes protection obligations under the Act to the appellant), jurisdictional error does not arise out of a failure to advert to every piece of evidence relevant to a fact forming part of the matrix of fact upon which the contention rests. The question of the weight to be attributed to evidence is entirely a matter for the Tribunal. If, on the other hand, there is no evidence to support a finding or the Tribunal draws inferences from facts which are not open on those facts, an error of law arises (Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 per Sundberg, Emmett and Finkelstein JJ at [34]).

44    In the present case, the Tribunal considered the contentions of the appellant said to give rise to a well-founded fear of persecution for the identified Convention reasons. However, the Tribunal was not satisfied that the appellant held a well-founded fear of persecution for the identified Convention reason having regard to the difficulty in reconciling either of two postulated versions of the events with a chronology that gave integrity to the claims of the appellant, having regard to the matters described at [57] to [67] of the Tribunal’s reasons. The expression of those concerns are set out at [11] to [19] of these reasons.

45    The clinical condition suffered by the appellant as described in Dr Abdulla’s certificate (and the reference letter to the Auburn Hospital), and the emotional problems described by Ms Madut, are not matters which are statutory integers of the appellant’s contention that he holds a well-founded fear of persecution for a Convention reason. The certificate and the letter are evidence of a clinical condition suffered by the appellant that may (or may not) be consistent with the particular set of facts put to the Tribunal by the appellant in support of the review application. The Tribunal considered the appellant’s clinical condition on the question of his ability to engage with the Tribunal and the Tribunal accepted that the appellant was suffering from depression and anxiety by reason of his uncertain legal status in Australia. The reasons of the Tribunal make it plain that the Tribunal was fully conversant with the elements of Dr Abdulla’s certificate (and the reference letter) and the content of Ms Madut’s letter. The Tribunal was conscious of the statement contained in Ms Madut’s letter that the appellant’s emotional problems were referable to (as a “result of”) what Ms Madut describes as the appellant’s highly traumatic experiences in India. The Tribunal also understood that the appellant had “reported” to Ms Madut that he had experienced “severe torture” which Ms Madut described as having physical, psychological and financial components. The Tribunal was also conscious of the observation by Ms Madut that the appellant had “reported” that he had also witnessed “many atrocities caused by organised violence”.

46    In that sense, the Tribunal understood that the emotional problems briefly referred to by Ms Madut had, in the most general descriptive terms, a connection with the experiences of the appellant in India, as reported by the appellant to Ms Madut.

47    Put at its highest, the matters reported to Ms Madut represent an entirely unidentified series of factual assertions made by the appellant in the period between 1 January 2010 to 13 January 2010 that might be consistent with a version of the facts put to the Tribunal concerning the events said to give rise to a well-founded fear of persecution for the reasons identified. There is no recording in Ms Madut’s letter of any of the things the appellant actually said to Ms Madut. Nor is there a discussion of any particular facts put to Ms Madut and the relationship between those specific matters and the opinion that the appellant is suffering from emotional problems by reference to those relevant matters. Dr Abdulla does not identify any factual matters in his certificate.

48    The Tribunal was in no position at all to determine whether the facts reported to either Dr Abdulla or Ms Madut were consistent with the version put to the Tribunal (as no facts were identified by them) and thus the Tribunal had no basis for determining that the appellant’s clinical condition was consistent with the version of the facts put to the Tribunal or whether the condition might be referable to other experiences (perhaps related experiences) the appellant suffered in India.

49    In any event, even if the Tribunal failed to take into account that the appellant’s claims of persecution and harassment by Hindu extremists or by members of the BJP, VHP or RSS either were or may well have been consistent with the clinical condition identified by Dr Abdulla or Ms Madut (a matter that the Tribunal could not accept as Dr Abdulla’s certificate and Ms Madut’s letter failed to disclose any facts reported to either of them by the appellant), such a failure does not give rise to jurisdictional error.

50    At its highest, such a failure amounts to a failure to have regard to a piece of evidence put to the Tribunal, not a contention going to a statutory integer: Subramaniam v Minister for Immigration and Multicultural Affairs [2002] FCAFC 255; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; VMAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 21; and Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 per North and Lander JJ at [28] and [29], Katzmann J agreeing at [35].

51    There is no failure to take into account a relevant consideration as the particular matter (that is, assumed consistency between the facts relied upon by the appellant to support the statutory integers (as reported to the relevant expert) and a clinical condition referable to those facts) is not required to be taken into account as a statutory integer of the appellant’s claim: Minister for Immigration v Yusuf (2001) 206 CLR 323; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; see also Minister for Immigration and Citizenship v MZYHS and Another (2011) 119 ALD 534 per Kenny J. See also Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164.

52    With respect to the conclusion reached by the primary judge in SZKHD, it seems to me that the contention that a failure by the Tribunal to have regard to a demonstrated consistency between a clinical condition found to exist by a relevant expert and a version of the facts put to the expert which, in turn, is consistent with the facts put to the Tribunal in support of a claim to hold a well-founded fear of persecution for a Convention reason, does not give rise to jurisdictional error. It follows in my view that, with respect, SZKHD is incorrectly decided.

53    It is, of course, true that the consultant psychologist’s report in SZKHD concerned a report written by an expert with demonstrated expertise on the evidence (whereas the professional background of Ms Madut is not identified on the evidence in this proceeding) and the report considered in SZKHD engaged much more directly and in greater detail with the contended foundation facts relied on by the applicant in support of the central claims. In that sense, the decision is distinguishable from the present case. However, as to the point of principle, it seems to me that the contention in SZKHD that the Tribunal’s failure to give “proper consideration” to the report in the way described at [52] of these reasons resulted in jurisdictional error, is, with respect, inconsistent with well established authority on the point.

54    Accordingly, the Tribunal did not fall into jurisdictional error by failing to treat the certificate of Dr Abdulla or the letter from Ms Madut as reasonable or strong evidence corroborative of the claims made before the Tribunal in support of the appellant’s contention that he holds a well-founded fear of persecution for the reasons identified on the facts.

55    Apart from the matters already discussed, the appellant relies upon these grounds of appeal.

56    The first is that the Federal Magistrates Court erred in that it ought to have found on the evidence before the Tribunal that it was “open to the Tribunal to find that the appellant was a refugee within the meaning of the [Migration Act]”. Although it may have been open to the Tribunal to accept the evidence of the appellant and conclude that the version of the facts gave rise to no issues in terms of the chronology of events, the Tribunal took a different view of the facts and was unable to be satisfied of the statutory integers. There is no substance to ground 1 and the appellant did not provide any further elaboration of the ground at the hearing.

57    The second ground of appeal asserts that the Tribunal failed to comply with s 424A(1) of the Act. This contention was not advanced before the Federal Magistrates Court. The Tribunal’s decision (as the matters at [11] to [19] of these reasons reflect) was based upon a rejection of the appellant’s claims on the facts. The claims were rejected, firstly, based upon an analysis of the factual foundation for the claims and, secondly, having regard to references to country information concerning such matters as the date upon which general hostilities occurred in Orissa in December 2007. There is nothing in the material to suggest a failure on the part of the Tribunal to comply with s 424A as no obligation arose under that section in the circumstances of the appellant’s case.

58    The third ground of appeal recites that the Tribunal “made error of law and lack [of] procedural fairness and therefore committed jurisdictional error”. The contended error of law is not identified and nor is the contended lack of procedural fairness identified. Neither ground was argued before the Federal Magistrates Court having regard to the content of the submissions described by FM Barnes at [20] of the reasons for judgment in that Court.

59    The fourth ground of appeal is that the Tribunal denied the appellant natural justice because the Tribunal failed to provide the appellant with a “further opportunity before the tribunal”. This contention was not advanced before the Federal Magistrates Court either in terms of a ground of review before that Court or as part of the appellant’s oral submissions in support of any other ground.

60    It is also not clear what is meant by the reference to a “further opportunity” to agitate the appellant’s claims before the Tribunal, either by the submission of further evidence or by reason of the further opportunity to appear. It is clear that the appellant was provided with an opportunity to attend a hearing before the Tribunal and generally support his application for review. The reasons of the Tribunal show that the appellant’s claims were extensively reviewed. The Tribunal discharged its obligations under Division 4 of Part 7 of the Act and no failure to comply with any obligation arising under the Act is either identified or made out.

61    Having regard to these matters, the appeal must be dismissed with an order that the appellant pay the first respondent’s costs of and incidental to the appeal.

Associate:

Dated:    7 December 2011