FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

Introduction

1    This appeal concerns whether the Federal Magistrate was in error in finding that the decision of the Refugee Review Tribunal (the Tribunal) was affected by jurisdictional error.

2    The issues on the Minister’s appeal are whether the Federal Magistrate erred in finding that the Tribunal ignored evidence consisting of a certified copy of a record of the first respondent’s academic record and, if so, whether the Tribunal’s decision was affected by jurisdictional error.

3    The first respondent also relies on a notice of contention to the effect that the Tribunal’s reasoning in concluding that the first respondent had fabricated his account of past events was affected by irrationality or illogicality.

4    I shall refer to the appellant as the Minister and to the first respondent, where convenient, as the applicant or the visa applicant.

Procedural background

5    The Tribunal found that the applicant, a national of Pakistan, arrived in Australia on 17 March 2011 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 29 April 2011. The delegate of the Minister for Immigration and Citizenship refused to grant the applicant that visa on 5 July 2011. The Tribunal affirmed the decision not to grant the visa by decision dated 21 March 2012.

6    By his further amended application dated 28 September 2012 the applicant applied for orders that the decision of the Tribunal be quashed, and associated relief. By orders made on 12 October 2012 the Federal Magistrate ordered that a writ of certiorari issue to quash the decision of the Tribunal and a writ of mandamus issue directed to the Tribunal requiring it to determine according to law the application for review of the decision of the delegate of the Minister dated 5 July 2011. The Federal Magistrate also ordered the Minister to pay the applicant’s costs in the sum of $4,500.

The Notice of Appeal and Notice of Contention

7    By his notice of appeal dated 1 November 2012, the Minister appeals from the whole of the judgment of the Federal Magistrates Court on the following grounds:

1.    His Honour erred in finding that the Refugee Review Tribunal ignored the First Respondent’s academic transcript.

2.    His Honour should have found that the Tribunal considered the First Respondent’s academic transcript.

3.    In the alternative, His Honour erred in finding that, by ignoring the First Respondent’s academic transcript, the Refugee Review Tribunal fell into jurisdictional error.

8    The visa applicant, by his notice of contention dated 22 November 2012, as amended, contended that the judgment of the Federal Magistrates Court should be affirmed on the ground that the Tribunal fell into jurisdictional error by engaging in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds.

The proceedings before the Tribunal

9    The parts of the Tribunal’s statement of reasons relevant to the Minister’s appeal were as follows:

45.    Beyond the issue of his nationality, the tribunal does not believe the applicant has otherwise given a truthful account of his circumstances. Considered overall, the evidence leads the tribunal to the conclusion that the applicant has fabricated claims of past events and experiences and fears of return to Pakistan in order to try to obtain a protection visa. The tribunal does not believe that the applicant genuinely holds any fear of harm for reasons of race, religion, nationality, membership of a particular social group or political opinion. In the tribunal’s view if he held such fears he would have presented a credible and consistent account of any relevant fears, which he has failed to do.

46.    The tribunal believes the applicant has been untruthful about his past experiences in Pakistan because it believes he has not been truthful about his former study in that country. The applicant has claimed in his written application that during the period 2006 to 2008 he was involved in private study through Punjab University which he did at this [sic] home. His written statement indicates that this was in part motivated by his pleas to his father to undertake further education rather than enter study at madrassa associated with the Red Mosque. He claimed to the tribunal to have undertaken two years of tertiary level study in the Persian language during this period. When asked by the tribunal whether he could say or write any Persian word he was not able to do so. In the tribunal’s view this indicates that he is not being truthful about his study during this period and this indicates that he is prepared to be untruthful in respect of this application.

47.    In the tribunal’s view, had the applicant spent two years studying the Persian language at tertiary level so recently he would have been able to recall a Persian word, either in writing or in speech. He could not and his only explanation was completely implausible, that the study of the Persian language was undertaken in Urdu and he only had a small book with some Persian which he could not recall. The tribunal does not accept this explanation as plausible and finds instead that the applicant is not being truthful about his experiences in Pakistan.

10    These passages are at the beginning of the Tribunal’s “Findings and Reasons”.

11    The delegate of the Minister had not based his decision on such findings or reasons.

12    The Minister did not submit to this Court that these findings of the Tribunal were not material to the Tribunal’s decision or that, given the Tribunal’s other findings, these findings were insignificant.

13    The following document was set out by the Federal Magistrate as follows, omitting a crest or logo and an indistinct small photograph of a person:

UNIVERSITY OF THE PUNJAB

RESULT INTIMATION CARD

Bachelor of Arts, Annual Examination 2008

Pass Result Intimation

    Roll Number    [number]

    Registered Number    [number]

    Name of the Candidate    [applicant’s name]

    Father’s Name    [name]

    Institute/District    ISLAMABAD

    He has passed the Bachelor of Arts, Annual Examination 2008, held in Mar-Apr 2008 in the 2nd Division obtaining 372/800 marks. The examination was taken [illegible]

    Marks obtained by him in each paper are given below

The document bore a signature above the words “Assistant Controller/Admin. Officer (Examinations)”, a print date of “Aug 08, 2008” and a further date below “Senate Hall, Lahore”. It also bore a stamp, dated 29 April 2011, by a justice of the peace for New South Wales certifying the document to be a true copy of the document shown and reported to the justice of the peace as the original. The Federal Magistrate noted, at [9], that it was common ground that the bundle of personal academic documents, including the Punjab University transcript, was in fact contained in the file of documents reaching the Tribunal from the Secretary of the Department.

14    The Federal Magistrate also set out the relevant parts of the transcript of proceedings before the Tribunal as follows:

15    The Tribunal did not refer in the course of the hearing before it or in its reasons to the Punjab University document I have set out at [13] above. No reference was made to the authenticity or lack of authenticity of the document or to the truth or lack of truth of its contents.

The decision of the Federal Magistrates Court

16    Before the Federal Magistrates Court the following ground was heard and determined:

1.    In finding at [45] and [46] (CB141) that the applicant has not been truthful about his experiences in Pakistan, the Second Respondent failed to take into consideration a relevant consideration.

Particulars

The Tribunal placed primary emphasis on the fact that the applicant said that he had studied Persian but was not able to recall a Persian word at [47] (CB141).

No consideration was given by the Tribunal to independent corroborative material before the Tribunal, namely an academic transcript from the University of Punjab (CB70).

17    There were other grounds in the amended application to the Federal Magistrates Court but the Federal Magistrate said at [46] that he had concluded that it was unnecessary to address the other grounds of review. His Honour said that he considered that both counsel were correct when accepting that Ground 1 could be addressed separately, and that jurisdictional error identified under that ground was discrete, and not dependent upon a finding of error affecting subsequent parts of the Tribunal’s reasoning.

18    The essential reasoning of the Federal Magistrate on the question of fact raised by grounds 1 and 2 of the Minister’s appeal to this Court was as follows:

37.    As I recognised in SZMSD [v Minister for Immigration & Anor [2009] FMCA 96], there is an onus on an applicant to persuade the Court on judicial review that the existence of a piece of corroborative evidence which was among the documents forwarded by the Secretary to the Tribunal has, in fact, not been appreciated by the Tribunal when making critical findings. However, the Court is entitled to assess the course of the proceedings at the hearing, and the manner in which the Tribunal has written its reasons, when deciding whether this has in fact occurred.

38.    In the present case, the Punjab University student record appears to me to be of such obvious corroborative importance to the issue which ultimately became paramount in the Tribunal’s reasoning as to the applicant’s general credibility, as to point to a very high likelihood that, if the Tribunal had been aware of its existence, its possible falsity would have been raised by the Tribunal at or after the hearing. It also appears to me that the Tribunal would have expressly identified and discussed it in its statement of reasons, when making the applicant’s study of Persian the touchstone for his general credibility.

39.    I say this not only because of the document’s prima facie weight as a piece of evidence corroborating that the applicant had in fact undertaken a course of studies in a subject named “Persian (Optional)”, but also because of considerations of procedural fairness. It is not necessary to decide, and no ground has been taken concerning, the fairness of the Tribunal’s failure to advert at the hearing to the student record and to the possibility that it might be given no weight in relation to an issue of credibility whose significance to the credibility of the applicant’s refugee claims was by no means obvious, i.e. whether or not the applicant had studied a course called ‘Persian’. Even if raising this prospect was not required under the procedures of the Tribunal, it would be usual and fair to expect that the Tribunal would have referred to the student record, if it had been aware of it at the hearing or subsequently. Particularly, since a reading of the transcript suggests that the applicant’s description of his studies and examination in his Persian course was open to other interpretations. These included that the applicant was a less than perfect student, who had managed to pass a correspondence or internet course in Persian which was of a cultural nature, and from which he might emerge without gaining knowledge of Persian words which would be available for instant recall three years later. Certainly, a reader of the Tribunal’s subsequent decision is left wondering why, if the Tribunal had been aware of the student record, it was not put to him that the student record was false, and explained why that piece of evidence might not be given weight when the reasons were written.

40.    In my opinion, the absence of any reference to this document in either the course of the hearing, or in the reasons of the Tribunal, points towards the likelihood that the Tribunal was unaware of its existence on the file of the Department, when it came to decide the matter based on an adverse finding that the applicant had not studied a course of Persian in the manner he described at the hearing. The evidence as to the likely folio numbering of the Department’s file, in which this document was at the bottom and separated from the applicant’s visa statement and attachments, tends to support that inference.

41.    More important to this inference, in my opinion, is the manner in which the Tribunal reasoned in paragraphs 45 to 47. Its reasoning focused entirely on the applicant’s oral evidence about his studies at Punjab University, and assessed its veracity upon an assumption that this exercise was to be performed without any assistance from any available extrinsic and possibly corroborative evidence. The adverse finding was based entirely upon the Tribunal’s opinion of the intrinsic plausibility of the applicant’s oral evidence. This is shown in its final sentence, which rejected the applicant’s explanation for his inability to recall a Persian word: “the tribunal does not accept this explanation as plausible and finds instead that the applicant is not being truthful about his experiences in Pakistan”. To draw this conclusion without adverting to the critically relevant corroborative evidence shows, in my opinion, that the Tribunal ignored the available extrinsic evidence, and probably did so through inadvertence.

42.    Considering all the evidence which is before me, there is, in my opinion, not a skerrick of specific evidence showing that the Tribunal was aware of the critical document when it made this finding, or was aware that the document was in the papers which had reached it from the Department. In view of the points I have made above, I am not persuaded otherwise by the Tribunal’s general and formulaic statement that it had regard to the material on the Department and Tribunal files. On the balance of probabilities, I conclude that the Tribunal overlooked and gave no consideration whatsoever to the document, when it made its adverse findings.

19    On the question of law whether these facts established jurisdictional error, the Federal Magistrate set out at [30] passages from his earlier decision in SZMSD v Minister for Immigration & Anor [2009] FMCA 96, and said the jurisdictional error relied upon had been described as that of ‘ignoring relevant material’.

23.     … In a well known passage in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ said at [82]:

82    It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia (1995) 184 CLR 163 if an administrative tribunal (like the Tribunal)

“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it”.

“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.

(citations omitted)

    24.    The error of ‘ignoring relevant material’ is related to the jurisdictional error of ‘failing to take into account a relevant consideration’, which was explained by Mason J in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39 and following. However, as their Honours in Yusuf suggested at [74], the latter is more concerned with how a decision-maker has identified legal and factual issues which were required to be addressed when the relevant legislation is applied to the particular matter for decision, than with “the process of making the particular findings of fact upon which the decision-maker acts”.

25.    In relation to a decision-maker’s consideration of the evidence, it is well established that no jurisdictional error occurs, if the decision-maker makes a ‘mere’ error of fact when considering or weighing a piece of evidence in the course of deciding an issue of fact or law arising in the matter (cf. NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [52]-[54] and [68]). Moreover, the Full Court has warned against drawing an inference that either an issue has been overlooked, or that evidence was overlooked, merely because a piece of evidence was not expressly discussed in the course of a decision-maker’s stated reasons, since “it is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons” (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [46]). However, an error in the assessment of a material piece of evidence is one thing, and failing to be aware of evidence which is material to the decision, and of which the decision-maker should be aware, is another.

    26.    The jurisdictional error of ‘ignoring’, or failing to be aware of, or totally disregarding, relevant evidence has been traced to a general duty implicit in a statutory power of decision, that the decision-maker “is required to make his decision on the basis of material available to him at the time the decision is made” (see Mason J in Peko-Wallsend (supra) at 45, also Gibbs CJ at 30, Dawson J at 71, Brennan J at 67 and Deane J at 70).

27.    It has been suggested that a statutory duty to be aware of the evidence submitted by an applicant is subject to a qualification that the evidence is material to the issues to be decided and is not ‘insignificant or insubstantial’ (cf. Gibbs CJ in Peko-Wallsend (supra) at 31). To the same practical effect, are suggestions that the materiality and significance of allegedly overlooked evidence should be considered, before drawing conclusions from the decision-maker’s reasons as to whether, in fact, the decision-maker was unaware of, or uninformed as to, that evidence (cf. Sackville J in Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 152 at 165 and following). These tests also come into play at a discretionary level, since relief will be refused if the Court is satisfied that the overlooking of evidence was of no possible significance to the decision which was made (cf. SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26 at [28]-[29], [55]-[59], [91], Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1 at [85]-[86]).

28.    In the present case, I have considered the need to be cautious before concluding that the Tribunal overlooked a piece of evidence which was in the documents which the Secretary forwarded as “relevant to the review” pursuant to s.418(3) of the Migration Act. I must also read the Tribunal’s statement of reasons so as to give it the benefit of doubts (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277 and 291). However, the Tribunal was under a statutory duty both to be aware of those documents, and to include in its statement of reasons its findings on what it thought was the material evidence. An inference can be drawn, if appropriate, from the absence of reference to significant evidence forwarded by the Department, that it was overlooked (see Yusuf (supra) at [10], [35], [69], and [75]).

20    At [31], the Federal Magistrate said he remained of the opinion that his discussion in SZMSD v Minister for Immigration & Anor [2009] FMCA 96 reflected a proper understanding of High Court authority and he did not consider that it was inconsistent with subsequent Federal Court authority.

21     The Federal Magistrate, at [32], did not accept the submission of counsel for the Minister relying upon the statement of the Full Court in Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303, [2010] FCAFC 51 at [27]-[28], that it could never be a jurisdictional error to ignore a critical piece of corroborative evidence.

22    The Federal Magistrate said, at [34], a general proposition that “overlooking an item of evidence … is not jurisdictional error” was manifestly inconsistent with the well-known statement of principle from Craig and Yusuf, quoted above, and required qualification. Taken out of context from their Honours’ statement in SZNPG, it was inconsistent with previous authority of Full Courts, which had accepted the existence of jurisdictional error where evidence is overlooked in some circumstances (see VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [68]-[79]).

23    Moreover, the Federal Magistrate said, at [35], North and Lander JJ had said in a judgment delivered with SZNPG, Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485, [2010] FCAFC 50:

37.    Several further observations should be made concerning the type of situation addressed in Applicant S20/2002 77 ALJR 1165; 198 ALR 59. The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.

38.    The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002 77 ALJR 1165; 198 ALR 59 does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence. Consequently, the observation concerning the dicta of McHugh and Gummow JJ at [49] in Applicant S20/2002 77 ALJR 1165; 198 ALR 59 made in SZDGC 105 ALD 25 at [23] is probably misdirected. Those observations addressed the situation where the corroborative evidence was disregarded.

24    I set out [36] of the Federal Magistrate’s reasons in full as the Minister submitted that it contained the clearest statement of the error the subject of his appeal:

36.     These observations [in SZNSP] are consistent with other judgments in the Full Court, which have found jurisdictional error where a Tribunal consciously ignored, or put out of mind entirely, a consideration of a piece of corroborative evidence which was relevant to a finding on credibility (see WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568, [2004] FCAFC 74 at [49]-[52], and distinguish WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [70], and Minister for Immigration & Citizenship v SZMOK (2009) 257 ALR 427, [2009] FCAFC 83 at [59]). If, on these authorities, it is a jurisdictional error for a decision-maker deliberately to refuse to weigh the evidentiary significance of a piece of evidence relevant to a material issue of credibility, then it must also be such an error unconsciously to ignore corroborative evidence by reason of inadvertence or other reason. It may be difficult to conclude that a total ignoring or overlooking of evidence has occurred, as distinct from an error of fact when weighing relevant evidence, but the distinction is, in my opinion, well established on good authority binding this Court.

25    The Federal Magistrate said, at [43], he accepted the applicant’s submissions that this was a case within the principles identified in Craig and Yusuf, where a piece of evidence which the Tribunal was required by law to take into consideration has been ignored.

26     The Federal Magistrate said, at [44], that he was also satisfied that the piece of evidence was of significance to the decision that was made, and therefore material to the Tribunal’s purported exercise of its jurisdiction. In his opinion, the reasoning followed by the Tribunal showed that the applicant’s undertaking of a course in Persian did achieve significance in the reasoning of the Tribunal, so as to come within the principle he had identified above. Its disbelief of this fact provided its principal reason for totally disbelieving all of the applicant’s case for refugee status. His Honour said he was, at least, unable to be persuaded that it was not possible to say that the error could not have affected the outcome, referring to VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [79].

27    At [46], the Federal Magistrate said it was clear, in his opinion, that the reasoning relevant to Ground 1 provided an indispensible element, if not the chief foundation, for the Tribunal’s general conclusion that the applicant’s claimed history should be rejected in its entirety, and that he should be regarded generally as a person who had “fabricated claims of past experiences in Pakistan”.

Submissions of the Minister

28    On grounds 1 and 2 of his appeal, the factual question, the Minister submitted before this Court that the Tribunal was aware of and did consider the academic transcript. This was because the Tribunal stated in its reasons that it had had regard to material contained on the Tribunal case file and the Departmental file and that must have included the transcript, combined with a statement by the Tribunal at the hearing that the witness statement provided to the Department had with it a range of documents about the applicant’s circumstances.

29    The Minister submitted that the Federal Magistrate was wrong to conclude that the Tribunal had simply overlooked the transcript. Contrary to the Federal Magistrate’s reasons the Minister submitted: first, the document was not of obvious corroborative importance to an issue that became paramount in the Tribunal’s reasons; second, although the transcript was not mentioned at the hearing there was no obligation on the Tribunal to raise the transcript at the hearing; third, although the transcript was not expressly mentioned in the Tribunal’s reasons for decision there was no obligation on the Tribunal to do so; and fourth, insofar as the Federal Magistrate relied on the likely folio numbering on the Department’s file, this point was made on an incomplete understanding of the evidence. The Minister submitted that the proper inference to be drawn from the material before the Federal Magistrate was that either the Tribunal did have regard to the transcript or that the Federal Magistrate erred in being satisfied that the Tribunal did not have regard to it.

30    On this factual question, the Minister began with the application for the protection visa received on 29 April 2011. There was, at item 12, provision for a list of “all the documents you need to provide with this application, and indicate when you will be providing them.” It was there indicated that a number of documents would be provided with the application, among them a “bachelors mark sheet (attested by JP)”, which the Minister submitted might be the Punjab University transcript, but it appeared that none of the documents were so provided with the application and that any which were provided were provided at a later time. In answer to item 42 “Why did you leave that country?” and item 43, “What do you fear may happen to you if you go back to that country?”, the applicant said that he would send a detailed statement as soon as possible. The next document, chronologically, was an “Advice by a migration agent … of providing immigration assistance”, stamped received by the Department on 17 May 2011. There was then on the file a statement made by the applicant dated 12 May 2011 which said that it listed 22 documents in relation to his claims. Those documents do not appear to be specific to the circumstances of the applicant. A further series of documents was the applicant’s birth certificate, stamped received 13 May 2011, a copy of pages from his passport and a number of documents dealing with his education. These bore handwritten numbering 1 to 8, the Punjab University transcript having a handwritten notation “1”.

31    The next relevant document was the decision of the delegate made on 5 July 2011 referring to the claims of the applicant being found at folios 9-19 of the Departmental file. In the Minister’s submission that reference made it difficult to draw any inference from the numbers at the top of the page of the statement as it appeared in the Court Book, and in particular any inference from the distance between those folio numbers and the folio numbers on the documents including the Punjab University transcript. There was also a reference in the delegate’s decision under the heading “Material before the decision-maker” to item 1 “Departmental file … relating to the applicant.”

32    Turning to the statement of decision and reasons of the Tribunal, the Minister’s submissions referred to [19] of the Tribunal’s reasons where the Tribunal said it had had regard to material contained on its case file, the departmental file and oral evidence given at the hearing before it. This, the Minister submitted, was an implied reference to the Punjab University transcript. The submissions on behalf of the Minister also referred to the transcript of the hearing before the Tribunal on 25 January 2012 where the Tribunal member said:

Now, when we receive an application for review we ask the Department of Immigration to send us any material they have about somebody’s case.

And in your case the Department of Immigration provided this file here.

And that has on it the application form that you gave to the Immigration Department.

And I understand that that was given to the Department on the 29th April 2011.

There is also a copy of the witness statement which was provided to the Department on the 13th May 2011.

And er – that statement had with it a range of documents about your circumstances.

33    The Minister submitted that this material provided the clear inference that at that point the Tribunal had already looked at all of the material in the Department’s file.

34    The Minister also submitted that the statement to which the Tribunal referred as having been provided on 13 May 2011, that being a date which only appeared stamped on the birth certificate at folio 8, and the reference in the delegate’s decision to the applicant’s statement as being folios 9 to 19, provided the clear inference that the statement was received together with the other documents on 13 May 2011 and, being contiguous with them in the file, the result was that the express reference to the copy of the witness statement and “the range of documents about your circumstances” must be a reference to or include a reference to the birth certificate, the passport, the secondary school results and the Punjab University transcript.

35    Turning to the decision of the Federal Magistrate, the Minister referred to the Federal Magistrate’s statement at [40] that the “evidence as to the likely folio numbering of the Department’s file, in which this document was at the bottom and separated from the applicant’s visa statement and attachments” tended to support the inference that the Tribunal was unaware of the existence of the Punjab University transcript on the file of the Department. The Minister submitted that the folio numbers were not a safe basis upon which to draw any inferences, particularly in light of the fact that the entire file was not there but also in light of the reference in the delegate’s reasons to different folio numbers for the statement, folios 9 to 19, which was contrary to one of the inferences drawn by the Federal Magistrate. Further, the only place the Tribunal could have got the date of 13 May 2011 was from the birth certificate which was close in time and in folio numbering to the Punjab University transcript. Further, the Tribunal had the file before it and a reference to the 13 May 2011 supported the inference that the Tribunal had had regard to all of the documents that had been received at that time, which must have included the academic transcript.

36    As to the lack of express reference to the Punjab University transcript in the reasons of the Tribunal, the Minister submitted that there was an implied reference and that was sufficient. The obligation on the Tribunal under s 430 of the Migration Act 1958 (Cth) did not include any obligation to make findings or set out any findings or any material that went, if accepted, contrary to the findings actually made so that the inference that may be drawn from the absence of reference to a material finding of fact did not arise so readily.

37    The Minister submitted that any difference between misplacing the transcript and not taking it into account was not of legal significance to his case.

38    The Minister submitted that if he succeeded on the factual question, then the legal issue of any consequence of the failure to have regard to the transcript did not arise.

39    In the alternative therefore, the Minister submitted that even if the Tribunal had failed to consider the Punjab University transcript in making its finding, it did not fall into jurisdictional error so long as that did not mean that it overlooked the claim made by the applicant.

40    The Minister submitted that the Federal Magistrate failed to apply the distinction that, to found jurisdictional error, the material which is not taken into account has to be significant to the decision to be made, the issues to be decided, rather than relevant to or probative of a fact that was actually found: his Honour overlooked that qualification. The Minister submitted that it was insufficient for the corroborative evidence to be in respect of either credibility or, in this case, a claim which did not go directly to the claims upon which the applicant relied for his claim to be a refugee. In the present case, the immediate factual question was whether the applicant had studied Persian: that was not material to the claim to be a refugee on the proper understanding of the Convention. It followed that evidence that was corroborative of the claim to have studied Persian did not found jurisdictional error, as evidence that did directly relate to a claim to be a refugee could. Where there is evidence that is corroborative of the statement or evidence of the visa applicant that does not directly relate to his claim to be a refugee and does not directly support it, a failure to consider that evidence was not jurisdictional error.

41    The Minister relied on Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303, [2010] FCAFC 51 at [28]; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 at [57], and Minister for Immigration and Citizenship v SZCOQ [2007] FCAFC 9 at [61] per Buchanan J. He also relied on Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [13] and [30]-[32]; and MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 at [26]-[28].

42    The Minister submitted that two of the decisions referred to by the Federal Magistrate at [36] had no bearing on the relevant proposition and the third, WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568, [2004] FCAFC 74, did not support it.

43    In WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568, [2004] FCAFC 74 at [49]-[52], the premise was that the letters in question went to the very claims themselves.

44    As to the other two decisions referred to by the Federal Magistrate at [36], WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [70], and Minister for Immigration & Citizenship v SZMOK (2009) 257 ALR 427, [2009] FCAFC 83 at [59], I note that the Federal Magistrate himself said that he distinguished those cases.

45    In Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303, [2010] FCAFC 51, North and Lander JJ said:

28     However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.

46    This paragraph in Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303, [2010] FCAFC 51 was most recently applied in the Federal Court in MZYNA v Minister for Immigration and Citizenship (2012) 127 ALD 276, [2012] FCA 159 at [36] and also in MZYOB v Minister for Immigration and Citizenship [2012] FCA 139 at [18] and Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [54].

47    The Minister submitted that the Federal Magistrate found that the proposition in [28] of Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303, [2010] FCAFC 51 was inconsistent with Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323. It was in that context also that the Minister referred to Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 at [57], and Minister for Immigration and Citizenship v SZCOQ [2007] FCAFC 9 at [61] per Buchanan J.

48    In Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 at [57], Allsop J, as his Honour then was, said that Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 did not stand for the proposition that a relevant consideration had not been taken into account and the decision-maker thereby had failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the court thought was relevant in the evidential or probative sense can be seen not to have been weighed or discussed. “Relevant” for this purpose meant that the decision-maker was bound by the statute or by law to take this into account.

49    In Minister for Immigration and Citizenship v SZCOQ [2007] FCAFC 9, Buchanan J said:

[61]    It is, of course, necessary to make a distinction between considerations which go merely to the findings of fact to be made in a case and those considerations which bear upon the material elements which must be satisfied, or rejected, when dealing with an applicant’s claims. When read in the full context of his judgment, and the paragraph in which the passage relied upon appears, I do not understand the observations of Allsop J to be inconsistent with the approach which I have taken.

Submissions of the visa applicant

50    On the question of fact, the visa applicant responded to the Minister’s four submissions, set out at [29] above, as follows.

51    First, the applicant submitted that the Tribunal’s indication that it had had regard to material contained on the Departmental file did not mean that the Tribunal had had regard to all of the material contained in the Departmental file. Rather, the Tribunal was saying that the material it had considered had three sources, being located on a particular Departmental file as well as on the Tribunal file and in the oral evidence from the hearing. The applicant submitted that this conclusion was fortified by the fact that this statement by the Tribunal was not made in the process of stating its reasoning but under the heading “Claims and Evidence” at the beginning of the Tribunal’s summary of the evidence.

52    The applicant also submitted it was relevant that there was a gap in the folio numbering between pages 89 and 90 of the Appeal Book: if the folio references reflected the order in which the documents were put onto the Departmental file, those numbers would have been continuous.

53    The applicant also submitted that the documents referred to under item 12 of the application for a visa resembled the documents that were at pages 90 to 103 of the Appeal Book and it was highly likely that those documents were the bundle which had been stamped received on 13 May 2011. It was those documents which were intended to be the identity documents and this was the more likely inference to draw rather than that they had been attached to the statement in support of the applicant’s claims for refugee status, as submitted by the Minister.

54    As to the Minister’s second point which involved the academic transcript being referred to by the Tribunal as one of the documents “about the [applicant’s] circumstances”, the applicant submitted that the Tribunal’s reference to “circumstances” was a reference to his eligibility under the Convention and it was therefore unlikely that the Tribunal would consider an academic transcript as being included in that material about his circumstances. Further, the applicant submitted that the academic transcript was unlikely to have been one of the documents lodged with his statement. It was highly likely that, rather than accompanying the statement, the academic transcript was submitted after his application.

55    Thirdly, the applicant submitted that the Tribunal’s question “Did you have any other written documents that you wanted me to look at today?” did not involve the Tribunal saying anything about what it had already done but was asking the applicant whether he wanted the Tribunal to consider further documents that day.

56    Fourthly, the applicant took issue with the Minister’s submission that the material before the Tribunal was not extensive.

57    The applicant submitted the Federal Magistrate was correct in concluding that there was not a skerrick of specific evidence showing the Tribunal was aware of the academic transcript and in holding that the Tribunal overlooked and gave no consideration to that document when making its findings. Even when the Tribunal purported to summarise the evidence and material before it at AB185 and at AB167 [21] the Tribunal made no specific reference to the academic transcript.

58    The applicant submitted that there was a relevant distinction for the purposes of jurisdictional error between the Tribunal being completely unaware of the Punjab University transcript, on the one hand, and the Tribunal not taking into account matters that the legislation required to be taken into account, on the other hand. He referred to Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [39]; Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630 at [46]; Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303, [2010] FCAFC 51 at [26]-[28]; and MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 at [25] and [28] as being cases where the Tribunal was aware of the evidence.

59    As to whether a failure to consider the academic transcript constituted jurisdictional error, the applicant submitted that it was true that the academic transcript did not itself establish an essential integer of his claim under the Convention but the Tribunal’s decision was one based solely on credibility. The Tribunal gave no independent consideration to the elements required for the Minister to be satisfied that the applicant was a person to whom Australia owed protection obligations. The Tribunal simply concluded that because the applicant was not a credible witness there was no evidence to support his claim. Further the finding of implausibility of the applicant having studied Persian was the keystone to the Tribunal’s general finding that he was not a credible witness.

60    The applicant further submitted that, as the Federal Magistrate found, the Minister’s proposition that it can never be jurisdictional error to ignore a critical piece of corroborative evidence was inconsistent with High Court authority. The applicant submitted that Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303, [2010] FCAFC 51 was a case where the Tribunal had in fact taken into account the baptismal certificate which was said to be corroborative evidence. The same was submitted by the applicant about Minister for Immigration and Citizenship v SZCOQ [2007] FCAFC 9. The applicant submitted that failing to be aware of evidence which is material to a decision and of which the decision-maker should be aware involved breach of an implicit duty of a decision-maker to make his decision on the basis of material available to him at the time the decision is made: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 45.

61    The applicant submitted that the Federal Magistrate did not find that the passage in Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303, [2010] FCAFC 51 at [28] was inconsistent with Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323. To the contrary, the Federal Magistrate drew the distinction between the error of “ignoring irrelevant material”, referred to in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, and that of “failing to take into account a relevant consideration”, considered in such cases as Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303, [2010] FCAFC 51, Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630 and Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294, and concluded at [31] that there was no inconsistency. What the Federal Magistrate did find to be inconsistent with High Court authority, at [32]-[33], was the Minister’s submission that it could never be jurisdictional error to ignore a critical piece of corroborative evidence. The Minister had relied in support of this proposition upon the statement in Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303, [2010] FCAFC 51 that “overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error”, however the Federal Magistrate held that this had to be seen in context.

62    The applicant submitted that Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303, [2010] FCAFC 51 was distinguishable because in that case, as North and Lander JJ said at [29], the Tribunal weighed a particular piece of evidence against other evidence but was not persuaded by that particular piece of evidence enough to alleviate its concerns in relation to the whole of the first respondent’s evidence.

63    Similarly, Minister for Immigration and Citizenship v SZCOQ [2007] FCAFC 9, in the applicant’s submission, was a case where the Tribunal had referred to the corroborative evidence but its consideration of the contents of the document was impugned.

64    The applicant submitted that, as stated by the Federal Magistrate at [30], an error in the assessment of a material piece of evidence is one thing, and failing to be aware of evidence which is material to the decision, and of which the decision-maker should be aware, is another. The applicant submitted that the latter category involved breach of an implicit duty of a decision maker to make his decision on the basis of material available to him at the time the decision is made: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 45.

65    The applicant submitted that Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485, [2010] FCAFC 50 at [37]-[38] and VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] were authority for the proposition that corroborative evidence is to be taken into account.

66    The relevant paragraphs from Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485, [2010] FCAFC 50 are set out at [23] above.

67    In VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 the Court said:

77    These comments [in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] 190 ALR 601 at [19], [24] and [55]] 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].

68    The applicant submitted that if the relevant question was whether the Tribunal, by overlooking the academic transcript, had not considered the applicant’s claim, if the Tribunal “considered the claim” by dismissing all of his evidence simultaneously, then the academic transcript was material which bore upon all of the elements which needed to be satisfied to establish the applicant’s claim. Further, the Tribunal never independently considered each of the integers of the applicant’s claim but, instead, simply said that the applicant’s evidence was not credible and therefore there was no evidence to support his claim.

69    The applicant referred to Aronson and Groves Judicial Review of Administrative Action (now the fifth edition (2013) [4.770] at page 264) referring to the cases drawing a line of sorts where the nub of the complaint was that the decision-maker overlooked or profoundly misunderstood material evidence. That line sought to distinguish between overlooking (or misunderstanding) mere items of evidence on the one hand, and overlooking (or misunderstanding) whole categories of evidence on the other hand. The distinction is sometimes expressed as being between failing to understand some evidence, even if it was important, and failing to understand the claim (or an integer of the claim) for which the evidence was adduced. The learned authors say: “This is a difficult distinction to operate in practice, and not always convincingly drawn, but it does make sense.” (footnotes omitted). The authors refer to the reasons in SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24]. There Selway J said:

[24]     A distinction can be drawn between the claim made by the applicant and the applicant’s evidence in support of that claim. However, it is not a ‘bright line’ distinction. The distinction between evidence supporting a claim, and the claim itself is often difficult to draw even in the context of a judicial proceeding. It is likely to be very difficult in the context of a Tribunal proceeding which is necessarily attended by considerable informality and where applicants rarely have the advantage of legal assistance. Significant aspects of the claim are likely only to be revealed in the evidence or information put before the Tribunal by the applicant. In such circumstances the difference between the claim itself and the evidence supporting it will often be blurred at least where the relevant factual issue involves an essential step in the applicant satisfying the Tribunal that he or she is a refugee: see Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196 at [79] per Allsop J (with whom Heerey J agreed) and see discussion of the relevant principles by Weinberg J in Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533.

Consideration

70    As to the question of fact, in my opinion there was an insufficient basis in the evidence before him for the Federal Magistrate to conclude, at [38], [40] and [42], that the Tribunal had been unaware of the existence of the Punjab University transcript, in the sense that the document had become separated from the balance of the material and had therefore, in fact, never been seen by the Tribunal. The reasoning of the Federal Magistrate centres upon the absence of any reference to the document in either the course of the hearing or in the reasons of the Tribunal, with that inference being supported by the likely folio numbering of the Department’s file in which the document was at the bottom and separated from the visa statement and attachments. Further, to draw the conclusion which the Tribunal did without adverting to the critically relevant corroborative evidence showed, in the opinion of the Federal Magistrate, that the Tribunal probably ignored the available extrinsic evidence through inadvertence. In my opinion the folio numbering provides no basis for any inference as to the precise whereabouts of the document. As I have said, the Federal Magistrate noted at [9] that it was common ground before him that the Punjab University transcript was in fact contained in the file of documents reaching the Tribunal from the Secretary. The original file was not, I understand, in evidence before the Federal Magistrate.

71    However, in my opinion the Federal Magistrate did not err in concluding that the Tribunal had given no consideration to the Punjab University transcript when it made its adverse findings. The reasoning of the Federal Magistrate was founded on the following. First, the absence of any reference to the document in either the course of the hearing or in the reasons of the Tribunal. Second, the finding of the Tribunal was based entirely upon the Tribunal’s opinion of the intrinsic [im]plausibility of the applicant’s oral evidence. Third, the Punjab University transcript was critically relevant corroborative evidence but was not referred to by the Tribunal. Fourth, there was not a skerrick of specific evidence showing that the Tribunal had given consideration to the document. Fifth, the Federal Magistrate was not persuaded otherwise by the Tribunal’s general and formulaic statement that it had regard to the material on the Department and Tribunal files.

72    I am not persuaded that there was any error on the part of the Federal Magistrate in this respect. The relevance of the Punjab University transcript to the question of the nature of the applicant’s study at that university was so high that the obvious inference that the absence of reference to the document, either by putting its falsity to the applicant or by seeking an explanation of how his evidence should or could be reconciled with the transcript, supported the conclusion that the Tribunal did not take it into account is not outweighed by general references to material on the files. This is a matter of ordinary fact-finding rather than depending on some special tenet of administrative law. Neither, in my opinion, is it outweighed by a general statement by the Tribunal that it had a range of documents about the circumstances of the applicant. Similarly, I would not draw from the Tribunal’s question whether the applicant had any other written documents that the Tribunal had already relevantly considered, that is, had in mind at the time of the decision, the Punjab University transcript. Nothing, in my opinion, can be made from whether the file was large or small.

73    Because, as I have said, this is an issue of ordinary fact-finding, I am not persuaded by the submissions on behalf of the Minister that the Tribunal was not under a legal duty to mention the academic transcript at the hearing or to mention it in its statement of reasons. Neither is it persuasive on this aspect of the case that the document did not itself go to any of the facts on which the applicant relied to claim that he was a refugee.

74    The real issue is whether or not the Tribunal took the applicant’s academic transcript into account: the central issue is not the basis, whether inadvertence or otherwise, upon which it may be inferred that the Tribunal did not do so.

75    I therefore reject grounds 1 and 2 of the Minister’s appeal.

76    I turn then to ground 3, the legal consequences of the finding that the Tribunal had given no consideration to the Punjab University transcript when it made its adverse findings.

77    In my opinion, recent High Court authority shows that this is a case specific inquiry and it is not one which should be analysed by reference to fixed categories or formulas, to the effect that a decision within a category or formula is always or is never affected by jurisdictional error: compare Universal Camera Corp v National Labor Relations Board (1951) 340 US 474 at 489 per Frankfurter J, delivering the opinion of the Supreme Court. Useful for analysis though categories or formulas are, they should be seen as servants rather than masters. To proceed otherwise in the area of jurisdictional error is to look for more precision than the nature of the subject admits. In each case what the decision-maker has decided must be analysed in detail in order to arrive at the correct description of conclusion, “jurisdictional error”. The recent decision of the New South Wales Court of Appeal in Goodwin v Commissioner of Police [2012] NSWCA 379 provides an example in relation to judicial decision-making.

78    It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.

79    In Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [54]-[55] described as jurisdictional errors the errors of construction of s 15 of the Occupational Health and Safety Act 1983 (NSW) and the failure to comply with the rules of evidence (by permitting a person accused of crime to give evidence on behalf of the prosecution). At [64] and [71] and following their Honours said:

64    As Jaffe rightly pointed out [Judicial Review: Constitutional and Jurisdictional Fact”, Harvard Law Review, vol 70 (1957) 953, at pp 962-963], it is important to recognise the use to which the principles expressed in terms of “jurisdictional error” and its related concept of “jurisdictional fact” are put. The principles are used in connection with the control of tribunals of limited jurisdiction on the basis that a “tribunal of limited jurisdiction should not be the final judge of its exercise of power; it should be subject to the control of the courts of more general jurisdiction”. Jaffe expressed the danger, against which the principles guarded, as being that “a tribunal preoccupied with special problems or staffed by individuals of lesser ability is likely to develop distorted positions. In its concern for its administrative task it may strain just those limits with which the legislature was most concerned”. It is not useful to examine whether Jaffe’s explanation of why distorted positions may develop is right. What is important is that the development of distorted positions is to be avoided. And because that is so, it followed, in that author’s opinion, that denominating some questions as “jurisdictional”

“is almost entirely functional: it is used to validate review when review is felt to be necessary … If it is understood that the word ‘jurisdiction’ is not a metaphysical absolute but simply expresses the gravity of the error, it would seem that this is a concept for which we must have a word and for which use of the hallowed word is justified.”

…

71     It is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error. Professor Aronson has collected authorities recognising some eight categories of jurisdictional error: Aronson, “Jurisdictional Error without the Tears”, in Groves and Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (2007) 330, at pp 335-336. It is necessary, however, to make good the proposition stated earlier in these reasons that the two errors that have been identified as made by the Industrial Court at first instance (and not corrected on appeal to the Full Bench) were jurisdictional errors. The Court in Craig explained the ambit of jurisdictional error in the case of an inferior court in reasoning that it is convenient to summarise as follows.

72     First, the Court stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error “if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist” (emphasis added). Secondly, the Court pointed out that jurisdictional error “is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers” (emphasis added). (The reference to “theoretical limits” should not distract attention from the need to focus upon the limits of the body’s functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court’s functions or powers by giving three examples: (a) the absence of a jurisdictional fact; (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case. The Court said of this last example that “the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern” and gave as examples of such difficulties R v Dunphy; Ex parte Maynes, R v Gray; Ex parte Marsh and Public Service Association (SA) v Federated Clerks' Union.

73    As this case demonstrates, it is important to recognise that the reasoning in Craig that has just been summarised is not to be seen as providing a rigid taxonomy of jurisdictional error. The three examples given in further explanation of the ambit of jurisdictional error by an inferior court are just that – examples. They are not to be taken as marking the boundaries of the relevant field. So much is apparent from the reference in Craig to the difficulties that are encountered in cases of the kind described in the third example.

(footnotes omitted)

80    Turning then to the legislation, by s 36 of the Migration Act there is a class of visas to be known as protection visas. A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol: see s 36(2)(a).

81    By s 54, the Minister must, in deciding whether or not to grant or refuse to grant a visa, have regard to all of the information in the application, including, by s 54(2)(c), additional relevant information given under s 55.

82    Section 65(1) is, relevantly, in the following terms:

65(1)     After considering a valid application for a visa, the Minister:

(a)    if satisfied that:

(i)    the health criteria for it (if any) have been satisfied; and

(ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)    the grant of the visa is not prevented by section 40 (circumstances when granted, 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)    any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

83    The provisions directly relating to the powers and functions of the Tribunal are in Part 7 as follows.

84    Section 411 identifies which decisions are RRT-reviewable decisions. Here there was a decision to refuse to grant a protection visa and the relevant paragraph was s 411(1)(c).

85    By s 414, if a valid application is made under s 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.

86    By s 415(1), the Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions conferred by the Act on the person who made the decision. By s 415(4), to avoid doubt, the Tribunal must not purport to make a decision that is not authorised by the Act or the regulations.

87    By s 418, if an application is made to the Tribunal, the Registrar must give the Secretary of the Department written notice of the making of the application and the Secretary must give to the Registrar a statement about the decision under review that (a) sets out the findings of fact made by the person who made the decision; (b) refers to the evidence on which those findings were based; and (c) gives the reasons for the decision. The Secretary must also, as soon as practicable after being notified of the application for review to the Tribunal, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.

88    Division 4 is, by s 422B, taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. In applying the Division, the Tribunal must act in a way that is fair and just.

89    By s 430, where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that (a) sets out the decision of the Tribunal on the review; (b) sets out the reasons for the decision; (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based.

90    Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 primarily concerned the content of the obligation imposed on the Tribunal by s 430 and the relationship between s 430 and s 476(1)(a) as it then stood, being the ground of review of failure to observe procedures required by the Act or the regulations to be observed.

91    However, at [82]-[84], McHugh, Gummow and Hayne JJ, with whose reasons for judgment Gleeson CJ, at [1], agreed, considered an argument by the Minister that the use of overarching concepts, such as “jurisdictional error”, was not consistent with the statutory scheme which enumerated both specific grounds of review that were available and others that were not. It was in that context, the relationship between the general law and the provisions of the Migration Act dealing with the grounds of judicial review in the Federal Court and the light cast by the former on the meaning of the latter, that their Honours said it was necessary to understand what was meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error.

92    It is to be recalled that s 476 then provided:

Application for review

476(1)    Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a)    that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

(b)    that the person who purported to make the decision did not have jurisdiction to make the decision;

(c)    that the decision was not authorised by this Act or the regulations;

(d)    that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e)    that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

(f)    that the decision was induced or affected by fraud or by actual bias;

(g)    that there was no evidence or other material to justify the making of the decision.

(2)    The following are not grounds upon which an application may be made under subsection (1):

(a)    that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)    that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

(3)    The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

(a)    an exercise of a power for a purpose other than a purpose for which the power is conferred; and

(b)    an exercise of a personal discretionary power at the direction or behest of another person; and

(c)    an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

but not as including a reference to:

(d)    taking an irrelevant consideration into account in the exercise of a power; or

(e)    failing to take a relevant consideration into account in the exercise of a power; or

(f)    an exercise of a discretionary power in bad faith; or

(g)    any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c).

(4)    The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a)    the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)    the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

93    It was in that context that their Honours first addressed jurisdictional error and said, in relation to it, that the different kinds of error may well overlap. Their Honours said the circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What was important, however, was that if an error of those types was made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Migration Act suggested that the Tribunal was given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law: Craig v South Australia (1995) 184 CLR 163 at 179.

94    Their Honours then returned to the Minister’s submission I have referred to at [91] above, and said, at [83]-[85]:

No doubt full weight must be given to s 476(3) and the limitations which it prescribes in the construction of improper exercise of power in par (d) of s 476(1). Equally, however, it is important to recognise that these limitations, unlike those prescribed by s 476(2), are limitations on only one of the grounds specified in s 476(1). All this being so, there is no reason to give either par (b) or par (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs. In particular, it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it “exceeds its authority or powers”. If that is so, the person who purported to make the decision “did not have jurisdiction” to make the decision he or she made, and the decision “was not authorised” by the Act.

Moreover, in such a case, the decision may well, within the meaning of par (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That it cannot be said to be an improper exercise of power (as that expression is to be understood in s 476(1)(d), read in light of s 476(3)) is not to the point. No doubt it must be recognised that the ground stated in par (e) is not described simply as making an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That qualification emphasises that factual error by the Tribunal will not found review. Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which par (e) deals. That having been said, the addition of the qualification to par (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language. If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out.

Paragraphs (b), (c) and (e) would thus each be engaged in such a case and the Federal Court would have jurisdiction under Pt 8 of the Act to review the Tribunal's decision. This Court would also have original jurisdiction in the matter and could grant relief under s 75(v).

95    Nevertheless, their Honours, although at times using shorthand expressions, were not, in my opinion, saying that ignoring material relevant only to fact-finding of itself constitutes jurisdictional error. To the extent that the Federal Magistrate in the present appeal was proceeding on that basis then, with respect, I disagree with his Honour.

96    To bring the statutory context up to date I refer to Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [27]-[28] where French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said:

On 1 September 1994, Pt 8 of the Migration Act was introduced. The new Pt 8 scheme for judicial review differed significantly from the provisions of ss 5 and 6 of the AD(JR) Act; it contained provisions which sought to exclude judicial review of migration decisions on numerous grounds, which included the grounds of failing to take relevant considerations into account and a breach of the rules of natural justice . Whilst recognising that statutory limits were then prescribed which bore upon the construction of improper exercise of power, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351-352 [82]-[84], McHugh, Gummow and Hayne JJ observed that jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power.

It is sufficient for present purposes to note that from October 2001 , Pt 8 as discussed above was repealed and replaced with the current Pt 8, including the privative clause provisions of s 474, which do not protect decisions involving jurisdictional error or oust the jurisdiction conferred by s 75(v) of the Constitution: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 508 [83].

(some footnotes omitted)

97    In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, the passage cited by McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed, from Craig v South Australia (1995) 184 CLR 163 at 179 shows that the High Court was concerned with the results or consequences of an error of law:

If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

Thus merely to ignore “relevant material” does not establish jurisdictional error. This is consistent with proper limits on judicial review so that fact-finding is a matter for the tribunal of fact while the Court is concerned with whether the tribunal has acted so as to warrant the conclusion that it was not performing the task conferred on it by the legislation.

98    While accepting that ignoring material relevant only to fact-finding does not of itself found jurisdictional error, is it the case, as contended for by the Minister, that to be “relevant” it must be possible to see, in effect a priori, that the material is in terms part of the claim to be a refugee? Is it only that which, in the present statutory context, adequately delineates and demonstrates the “gravity of the error” referred to by Professor Jaffe in his article “Judicial Review: Constitutional and Jurisdictional Fact”, Harvard Law Review, vol 70 (1957) 953 at 963 cited with approval in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [64]? If it is so, it must be because it is only the claim which the Migration Act requires to be considered and because disregarding a relevant consideration which the Migration Act requires to be considered, at least where that Act’s requirements are construed to go to validity, answers the description of jurisdictional error: see Craig v South Australia (1995) 184 CLR 163 at 177-179, and Professor Aronson’s “Jurisdictional Error without the Tears” in Groves and Lee (eds), Australian Administrative Law, Fundamentals, Principles and Doctrines (2007) 330 at 336, cited with approval in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [71]. In my opinion the answer to the questions I have posed is ‘No’ because otherwise the identification of jurisdictional error would put out of account the actual course of decision-making by the Tribunal and would proceed impermissibly by reference to categories or formulas. Although ultimately it is the claim which the Migration Act requires to be considered, there are many ways, actual or constructive, of failing to consider the claim.

99    I should refer here to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 relied on by the applicant. The case was brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and concerned the interpretation of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). It does not therefore provide a sound basis for considering questions of jurisdictional error either at all or under the Migration Act. Further, the emphasis of the case was whether the Minister was bound to make his decision on the basis of the most current material available to him which updated and corrected the view of the facts taken by the Commissioner as to detriment to the respondents which was a matter which the Minister was bound by the legislation to take into account. Because he had not taken into account the material submitted to him updating and correcting the Commissioner’s material on detriment, the Minister was held to have failed to take into account a consideration required by the Act to be taken into account, being the detriment to the respondents. The duty of the Minister was to consider the matters mentioned in s 50(3) in the light of the actual facts as disclosed by the material in his possession at the time he made his decision under s 11 that certain land be granted to a Land Trust: see the report at 30 and 44-45 and 71. In my opinion the decision does not assist in the resolution of the present appeal.

100    I refer also to the other Full Court of the Federal Court decisions relied on by the parties.

101    Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 is of no present assistance. It was a case about medical reports and where the Tribunal did consider the reports. The grounds of appeal related solely to the manner in which the Tribunal dealt with two reports that were before it, one a report of a doctor and the other a report from a psychologist. However the majority did, at [29], approve the statement in Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 explaining Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323: see the passage referred to at [48] above. So also did the Full Court in MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 at [25] and at [26]-[28].

102    In Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630, [2003] FCAFC 184 at [44]-[46] the Full Court, French, Sackville and Hely JJ said:

[44]     It is central to the exercise of the dispositive powers conferred by s 415 that the Tribunal has first conducted a review. That is to say it must have considered the application which is the subject of 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. So much is contemplated by s 423, s 424, s 425 and s 426 of the Act.

[45]     In conducting its review the Tribunal must have regard to the criteria for the grant of a protection visa and in particular the criterion that the applicant for a visa is:

‘… a non-citizen in Australia to whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol,’ (s 36(2)(a) read with s 415(1))

The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. 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.

[46]     It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an 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 (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.…

103    I turn now to consider decisions of the Full Court of the Federal Court over the last 10 years where the Court has expressly considered material said to be corroborative but which the Tribunal did not consider.

104    I do not include those cases where the Tribunal expressly dealt with the material said to be corroborative, whether by way of forming the opinion that the evidence was not of sufficient weight or giving the material no weight. For example WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 involved the rejection of documentary evidence proffered to the Tribunal by the applicant: see also Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427. Likewise, SAAF v Minister for Immigration and Multicultural Affairs [2002] FCA 343 concerned corroborative material which was not before the Tribunal

105    The present appeal is unlike the example given by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49]:

In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.

106    In W412/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 99; [2002] FCA 432, the Full Court held that the Tribunal did not consider evidence which was relevant and cogent and was corroborative of the appellant’s claim to have been detained in the circumstances he alleged for a Refugees Convention reason. It was material independent from the appellant which corroborated his claims that: (a) he was in detention; (b) his release from detention was procured by his father; (c) his father put up surety for the performance of his bail conditions; (d) his release from detention was for a limited period and that he was required to return as a condition of his bail; and (e) the surety was forfeited for his failure to return to detention.

107    In W360/01A v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 449, a Full Court, at [30], applied W412/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 432 saying that on the facts in W360/01A the Tribunal deprived itself of the opportunity to consider relevant evidence having the capacity to corroborate the appellant’s claims in a material respect, cf W412/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 432 at [19], and thereby so misconducted itself as to have fallen into jurisdictional error.

108    WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568, [2004] FCAFC 74 was decided by the majority on procedural fairness grounds. Justice RD Nicholson dissented on the basis that the Tribunal had considered the corroborative material.

109    Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 was a case where the Tribunal did take into account the material, a baptism certificate, provided by the applicant and said to be corroborative. For that reason it casts no particular light on the facts of the present appeal. I will consider more fully below the dicta at [28] of the reasons of North and Lander JJ, with whom Katzmann J agreed, on which the Minister relied: see [45] above.

110    Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485, [2010] FCAFC 50 was another case where the Tribunal did take into account the material provided by the applicant and said to be corroborative. For that reason it casts no particular light on the facts of the present appeal: see the joint judgment, with which Katzmann J agreed, at [13]. The Federal Magistrate had held that the Tribunal fell into jurisdictional error in the manner in which it reached its decision by its failure to give consideration to the corroborative evidence produced by the applicant prior to its conclusion as to her credibility. The Full Court held that the Federal Magistrate had erred in this respect. At [33], North and Lander JJ said that consistently with Applicant S20/2002 (2003) 198 ALR 59 it was open to the Tribunal to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement.

111    In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

112    As the Full Court said in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] 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 my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal’s reasons I do not agree.

113    In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, referred to in MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441, [2010] FCAFC 123 at [83], the Full Court discussed extensively errors of fact and jurisdictional error in the Tribunal. The Court said at [63] that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error was tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. I do not regard that decision as stating or attempting to state exhaustively the circumstances in which error may or does go to jurisdiction.

114    As to 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. First, however, the present appeal is not a case of mere misunderstanding but of failure to take into account corroborative material. Second, I agree with the Federal Magistrate at [32] that the case is not authority for the proposition that it could never be a jurisdictional error to ignore a critical piece of corroborative evidence.

115    Thus their Honours were not speaking inconsistently in Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485, [2010] FCAFC 50 at [37]-[38] set out at [23] above, that judgment being given with the judgment in Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51. Nevertheless I observe that what their Honours said in Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485, [2010] FCAFC 50 at [38] is expressed more widely than is necessary for the disposition of the present appeal if it were read as applying to all corroborative material or evidence.

116    Returning to what the Tribunal said in the present case, the applicant expressed fears of harm, as a Muslim citizen of Pakistan, from, broadly, Pakistani militants, including those who had close contacts with the Taliban, the LEJ and the LET. According to the applicant much of this militancy centred on the Lal Masjid mosque and Maulana Abdul Aziz who controlled it. He also referred to police officers working for the Taliban. He referred to efforts which had been made by the militants to recruit him over time and to his being taken by them to the North West Frontier Province (NWFP) in 2011.

117    As I have set out above, the Tribunal, at [44]-[46], did not believe the applicant had given a truthful account of his circumstances and concluded that the applicant had fabricated claims of past events and experiences and fears of return to Pakistan in order to try to obtain a protection visa. If he held fears of harm for reasons of race, religion, nationality, membership of a particular social group or political opinion, in the Tribunal’s view he would have presented a credible and consistent account of any relevant fears, which he had failed to do. The Tribunal believed that the applicant had been untruthful about his past experiences in Pakistan because it believed he had not been truthful about his former study in that country.

118    The Tribunal went on, at [48]-[53], to deal with a further matter which it did not accept, the close and ongoing relationship with senior leaders of the Red Mosque and the applicant’s duties associated with the Red Mosque, and its disbelief of the applicant’s account of past events in Pakistan because he had offered different reasons for his release by militant forces when taken to the NWFP in 2011. At [53] the Tribunal said it did not believe the claims made by the applicant. It therefore found there was no evidence which would support a conclusion that he held a well-founded fear of being persecuted by reason of race, religion, nationality, membership of a particular social group or political opinion in Pakistan at the current time or in the foreseeable future. Thus he was not a refugee.

119    The key features of the present case therefore are, first, that the Tribunal did not consider the Punjab University transcript and, second, the matter to which that transcript went founded the Tribunal’s rejection of the applicant’s claims, on the basis that he had been untruthful. This was not a case where the Tribunal took a nuanced approach to questions of credit by considering whether its disbelief of the applicant in one respect nevertheless did not mean that it disbelieved him generally: rather, the Tribunal’s approach was to disbelieve the applicant generally. In the former case it may more readily be seen that such a finding on credit goes only to a matter of fact and thus is quintessentially the province of the Tribunal.

120    The Court is not involved in traversing findings of fact about the corroborative evidence because the Tribunal did not deal with it. The unexplored possibilities include that the transcript was false, that the applicant had studied the Persian language but was a bad student or had a bad memory, and that there was an ambiguity in what studying Persian meant, whether it was language or culture and history. It is for the Tribunal to deal with the material before it and to resolve any conflicts in it.

121    To adopt the language of Buchanan J in Minister for Immigration and Citizenship v SZCOQ [2007] FCAFC 9 at [61], relied on by the Minister, these considerations bear upon the material elements which must be satisfied, or rejected, when dealing with an applicant’s claims.

122    For these reasons, although I do not agree with the reasoning of the Federal Magistrate I find that his Honour’s conclusion and orders were correct. In particular, the proposition that it is always a jurisdictional error to ignore ‘relevant material’ is too widely expressed as is the reasoning in [36] of the Federal Magistrate’s reasons that it is always jurisdictional error unconsciously to ignore corroborative evidence.

123    I therefore reject ground 3 of the Minister’s appeal.

124    For these reasons I dismiss the Minister’s appeal.

The Notice of Contention

125    For completeness, I next consider the applicant’s notice of contention.

126    As I have indicated at [8] above, by his amended notice of contention the applicant contended that the judgment of the Federal Magistrates Court should be affirmed on the ground that, in finding that it was not satisfied that the applicant was a person in respect of whom Australia has protection obligations, the Tribunal fell into jurisdictional error by engaging in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds.

127    The applicant submitted that central to the Tribunal’s reasoning in concluding that he had fabricated his account of past events was the proposition that, had the applicant or his father had a close association with the Lal Masjid (the Red Mosque) and Moulana Abdul Aziz, the applicant would have known of two facts: the first was that Jamia Hafsa was a “girl’s seminary” and the second was the Jamia Faridia was the madrassa for men associated with the Lal Masjid. Reference was made to the reasons of the Tribunal at [48].

128    The applicant noted that he never claimed to have a close association with the Lal Masjid and Moulana Abdul Aziz. His statement said only that his father had such a close association.

129    Further, at the hearing, the applicant was asked the name of the madrassa he attended and he responded “Jamia Hafsa”. The Tribunal put to the applicant that media reports referred to Jamia Hafsa as “a seminary for women” and he responded “Jamia Hafsa is a school for females but at different times and different place at different times there is also some activity for some men also”. The Tribunal’s reasons, the applicant submitted, focused on the inference that the applicant was unaware that Jamia Hafsa was a girl’s seminary. At [48] the Tribunal said:

While the jamia hafsa was located next door to the Red Mosque, this is consistently referred to as a girl’s seminary and that the applicant appeared unaware of this is inexplicable if he spent the amount of time and was as involved in activities there as claimed.

The first respondent submitted that that inference of fact was not supported by the evidence.

130    Similarly, in relation to Jamia Faridia, the applicant’s evidence at the hearing was not that he had not heard of Jamia Faridia and did not know that it was associated with Lal Masjid. Rather, the applicant said that he had heard of Jamia Faridia but Jamia Hafsa was the madrassa that he had attended. The Tribunal’s decision focused on the inference that the applicant had not heard of Jamia Faridia. At [48] the Tribunal said:

The applicant in giving his evidence to the tribunal made no reference to the jamia faridia when given the opportunity to do so, referring only to his involvement with the jamia hafsa.

The applicant submitted that that factual finding was not supported by the evidence.

131    Further, it was submitted, the Tribunal’s reasoning was not logical because it relied on the proposition that, if the applicant’s father had a close relationship with the Lal Masjid and Moulana Abdul Aziz, then the applicant would have known of Jamia Faridia and would have known Jamia Hafsa was a “girl’s seminary”. It was submitted that the applicant would not be expected to have knowledge of the Lal Masjid when it was his father who had the close connection. Even if the applicant was unfamiliar with the operational or geographical features of the Lal Masjid, he never claimed that he had that familiarity and in any event it did not logically lead to the conclusion that his father did not have any close connection to it or Moulana Abdul Aziz.

132    The applicant submitted that the Tribunal’s reasons were not only infected with illogicality but there was no evidence to support the factual inferences which underpinned its finding on the applicant’s general credibility.

133    The applicant referred to the transcript of the hearing before the Tribunal at pages 200-201 and 203-204 of the Appeal Book.

134    The applicant submitted that the Tribunal fell into jurisdictional error where its decision could be shown to be illogical, irrational and lacking a basis in findings or inferences of fact supported on logical grounds. Reference was made to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78], [87], [130] and [52]-[53] and SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 at [85]. In the latter case, the applicant referred to the judgment of McKerracher J as follows:

85     What was said by Heydon J [in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611] at [78], … in my view, while differently expressed, is not at odds with what was said by Crennan and Bell JJ. Illogicality such as to amount to jurisdictional error will not be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based. Illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision. See, for example, SZOCT (at [84]) per Nicholas J and SZMWQ (at [55]) per Rares J.

The applicant also referred to the judgment of Rares J at [15] and the judgment of Reeves J at [84]-[85].

135    The applicant submitted that he did not have to contend that the ultimate decision was wrong: the ultimate decision was the finding of jurisdictional fact that the Minister or Tribunal had not been satisfied that the applicant met the requirements for refugee status. The applicant did not accept that ultimate decision. Further the Federal Magistrates Court proceeds by way of affidavits, rather than pleadings, and so it was not necessary for the applicant to have actually pleaded every factual allegation supporting the grounds of review.

136    The Minister submitted, on the notice of contention, that Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 raised a test of whether there was a rational and probative basis for an adverse assessment upon which reasonable minds might differ. The point was that illogicality must touch at the point of the decision rather than any anterior findings of fact: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]-[131]; SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1; Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577; and SZLSP v Minister for Immigration and Citizenship (2010) 187 FCR 362. What must be found was that the decision itself must be impugned directly by the illogicality. In that respect it was important to note that the Tribunal’s decision did not rest solely upon whether or not the applicant was aware of the Jamia Faridia or whether he was aware or not of the fact that the Jamia Hafsa was primarily for women.

137    On that basis, the applicant’s focus on the particular reasoning behind one of the Tribunal’s factual findings was misguided and, as he did not assert that the ultimate decision was not one on which reasonable minds could differ, the ground should be rejected.

138    In any event, the Minister submitted, properly understood the Tribunal’s reasons did not contain any illogicality. The applicant claimed not only that his father had a close connection with the Lal Masjid but also that the applicant himself spent a considerable time there and was involved in activities there. Also the knowledge of the father was imputed to some extent in the Tribunal’s mind because the applicant himself had related what his father had told him about various events at the mosque. It might be logically inferred therefore that the applicant might have heard other things, including about the layout of the mosque and the madrassa. It was on this basis that the Tribunal found, at [48], the applicant’s knowledge of the two madrassa ought to have been better. Secondly, the Tribunal, at [48], relied partly on the fact that “in giving his evidence [the applicant] made no reference to the jamia faridia when given an opportunity to do so”. It was open to reason from the fact that the applicant claimed to have spent considerable time at the Lal Masjid and had been in training with extremist Muslim organisations at madrassas connected to that mosque that he would be able to name one of those madrassa. Similarly, it was open to reason that a male Muslim in those circumstances might have gone to a male madrassa or at least to have known that one madrassa was for women and the other was for men.

139    The Minister submitted there was no illogicality in the Tribunal’s decision in either the narrow sense required by Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 or the broader sense of deductive reasoning. He submitted that the ground should be rejected.

Consideration

140    Rather than going directly to the authorities I prefer first to consider the findings and reasoning of the Tribunal in order to judge whether there is any irrationality or illogicality and, if there is, the nature and degree of that irrationality or illogicality.

141    The Tribunal said, relevantly:

48.     The tribunal also does not accept that the applicant or any member of his family has had the close and ongoing relationship with senior leaders of the Red Mosque as he has claimed. In the tribunal’s view, were the applicant’s father so connected with those at the Red Mosque and were the applicant required to undertake duties associated with the mosque and arising from an intense interest in his joining jihad he would have known the distinction between the jamia faridia and jamia hafsa. The applicant in giving his evidence to the tribunal made no reference to the jamia faridia when given the opportunity to do so, referring only to his involvement with the jamia hafsa. While the jamia hafsa was located next door to the Red Mosque, this is consistently referred to as a girl’s seminary and that the applicant appeared unaware of this is inexplicable if he spent the amount of time and was as involved in activities there as claimed. Likewise, the fact that was [sic] not able to independently identify the jamia faridia was [sic] being associated with the Red Mosque is likewise inexplicable if he had the level of involvement with those associated with the Red Mosque as claimed. While the reports of the attack by the armed forces on the Red Mosque in 2007 indicate that students from both madrassa defended the mosque in the battle, the distinction between the madrassa was clear even to those reporting on events. That the applicant did not have this level of knowledge indicates to the tribunal that he only had a passing acquaintance with arrangements at the mosque, such as might be expected from a person who simply lived in the same city.

49.     The applicant explained his apparent lack of knowledge by suggesting that he had a role only in the Red Mosque in terms of cleaning and making arrangements for cushions there. His statement also suggests that due to some suspicions about his commitment he was not allowed to be involved in detailed discussion of militant plans. The tribunal does not believe, however, that if the applicant’s father had the level of involvement with those associated with the Red Mosque over time and plans were made for the applicant's education and involvement in jihad as claimed that he would not have been aware that there was a male and female madrassa associated with the Red Mosque and been able to clearly identify them. The tribunal, therefore, does not believe that the applicant or his family have ever been of interest to people associated with the Red Mosque in Pakistan.

The Tribunal had earlier referred to similar matters at [29]-[32].

142    The first element of the notice of contention was that the inference of fact in the following sentence:

While the jamia hafsa was located next door to the Red Mosque, this is consistently referred to as a girl’s seminary and that the applicant appeared unaware of this is inexplicable if he spent the amount of time and was as involved in activities there as claimed.

was not supported by the evidence.

143    In my opinion, it was open to the Tribunal to infer, from the oral evidence given at the hearing before it, that the applicant appeared unaware that the Jamia Hafsa is, or is consistently referred to as, a girl’s seminary. It was for the Tribunal to evaluate the answer the applicant gave, in the course of his oral evidence, to the proposition put to him that the Jamia Hafsa is a seminary for women and his answer to that proposition. If the expression “was not supported by the evidence” means that there was no evidence to support the inference or the finding of fact as to the applicant’s state of knowledge, it cannot therefore succeed. If the expression “was not supported by the evidence” means something less than that then it impermissibly invites the Court, on an appeal in judicial review proceedings, to involve itself in choosing between contestable facts. This first element of the notice of contention therefore fails.

144    The second element of the notice of contention was that the inference of fact in the following sentence:

The applicant in giving his evidence to the tribunal made no reference to the jamia faridia when given the opportunity to do so, referring only to his involvement with the jamia hafsa.

was not supported by the evidence.

145    In my opinion, the sentence from the Tribunal’s reasons, relied on by the applicant, must be read in context. The point the Tribunal was making was that the applicant appeared unfamiliar with the Jamia Faridia and was not able independently to identify it as being associated with the Red Mosque. Again, it was for the Tribunal to evaluate the answers the applicant gave, in the course of his oral evidence, to the questions: “I understood from the information that I have read with the Lal Masjid that there was one other particular Madrassa”, “Have you heard of the Jamia Ferida [sic]”, “What’s the difference between those two?”, “And that one of the report [sic] I have read suggests that the men’s religious school associated with the Red Mosque is called the Jamia Faridia. Have you heard of the Jamia Jamia [sic] Faridia?” I repeat the analysis of the expression “was not supported by the evidence” which I have given in relation to the first element of the notice of contention. This second element of the notice of contention therefore fails.

146    As to the alleged illogicality in the Tribunal’s reasoning, in my opinion the contention involved a less than beneficial reading of the Tribunal’s reasons and the putting to one side of any level of relevant communication between father and son, contrary to the balance of the material. The substance of what the Tribunal said at [48] was “were the applicant’s father so connected with those at the Red Mosque and were the applicant required to undertake duties associated with the mosque and arising from an intense interest in his joining jihad he would have known the distinction between the jamia faridia and jamia hafsa”. Also, contrary to the submission that the applicant would not be expected to have knowledge of the Lal Masjid, the evidence showed that, at least in the applicant’s view, the madrassa he attended was in or near the Lal Masjid. I agree that the words, at [48] “The tribunal also does not accept that the applicant or any member of his family has had the close and ongoing relationship with senior leaders of the Red Mosque as he has claimed” are too loosely expressed in their reference to the applicant. I do not accept the applicant’s submission that the Tribunal simply reasoned, as a matter of bare logic, that if the applicant’s father had a close relationship with the Lal Masjid and Moulana Abdul Aziz, then the applicant would have known of Jamia Faridia and would have known Jamia Hafsa was a “girl’s seminary”. This third element of the notice of contention therefore fails.

147    It is therefore necessary to refer only briefly to the submissions as to the law founding the applicant’s notice of contention.

148    In my opinion, the ground of “engaging in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds” is to be taken to refer to extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal.

149    In Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [23] the High Court unanimously said that general principles governing the limited role of the courts in reviewing administrative error have long been identified and cited the observation by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 48, “mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions” is not a sufficient reason for overturning a judicial decision upon a review. The High Court applied the same approach to judicial review of administrative decision-making at [34]-[36].

150    Must it always be the case, as submitted by the Minister, that illogicality or irrationality are to be considered only in relation to the end result, the decision itself?

151    The Minister referred for this contention to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]-[131]. But in my opinion the reasons of Crennan and Bell JJ do not support a focus limited to the end result, albeit the overarching question is whether the decision was affected by jurisdictional error. Similarly, I do not read the reasons for judgment of the third member of the majority, Heydon J, as limiting the enquiry to the end result.

152    Their Honours said, at [96], that case concerned the availability and scope of “illogicality” and “irrationality”, as a basis for judicial review, of a decision as to a jurisdictional fact. At [130]-[131], their Honours then elaborated on the meaning of “illogicality” or “irrationality” in the context of that Tribunal’s decision.

153    Their Honours went on to consider the issue at [132]-[136], under the heading “Was the Tribunal’s fact-finding ‘illogical’ or ‘irrational’”. Their Honours took into account not only the Tribunal’s conclusion about the state of satisfaction required by s 65 but also its findings on the way to that conclusion and asked whether illogicality or irrationality amounting to jurisdictional error was revealed. Their conclusion referred again to the decision that the first respondent did not fear persecution and the findings upon which that decision was based.

154    In SZLSP v Minister for Immigration and Citizenship (2010) 187 FCR 362, the judgment of Kenny J at [40]-[41], which refers to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, does not support the limitation contended for by the Minister.

155    In Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 neither the judgment of Jacobson J at [10] (noting that his Honour was dissenting in relation to the application of the relevant principles to the facts), the judgment of Buchanan J especially at [64] nor the judgment of Nicholas J especially at [71] limit the consideration of illogicality or irrationality to the ultimate decision.

156    Lastly, in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1, neither the judgment of Rares J especially at [2]-[4] and [15], nor the judgment of McKerracher J at [82]-[85] nor the judgment of Reeves J at [113] was so limited.

157    It may be that the Minister’s submission on this aspect of the notice of contention is no more than a pleading point. If so, I do not regard the point as one of substance given the terms of ground 2 of the notice of contention.

158    It may be of course, that irrationality in respect of one finding is immaterial given other findings, as adverted to, for example, by Nicholas J in Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [83]-[84]. It is unnecessary for me to explore this aspect given my earlier conclusions on the notice of contention.

159    For these reasons the notice of contention fails.

Orders

160    The appeal is dismissed, with the appellant to pay the first respondent’s costs, as agreed or taxed. The notice of contention did not substantially extend the length of the hearing.

Associate:

Dated:    12 April 2013