FEDERAL COURT OF AUSTRALIA

SZRBX v Minister for Immigration and Citizenship [2013] FCA 404

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first appellant pay the first respondent’s costs in the amount of $5000.

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

REASONS FOR JUDGMENT

1    The appeal raises a single issue as to whether Nicholls FM (as his Honour then was as a Member of the Federal Magistrate’s Court) erred in not accepting the appellants’ argument that the Refugee Review Tribunal (RRT) committed a jurisdictional error in allegedly failing to consider the totality of the appellants’ claims in their context.

2    For the reasons that follow, I consider that the appeal should be dismissed and the appellants ordered to pay the first respondent’s costs.

3    It is convenient to summarise the background matters, drawing extensively on both the reasons of the RRT and those of the primary judge, noting that in the appeal the appellants do not dispute the correctness of any findings of fact.

4    The appellants are both citizens of Sri Lanka. The first appellant is the second appellant’s father and is her litigation representative for the purposes of the appeal. The first appellant’s wife and other daughter remain in Sri Lanka.

5    The appellants arrived in Australia on 15 February 2011 after having been granted visas to visit Australia as sponsored family visitors. On 28 March 2011, the first appellant applied for a protection visa and provided a statement at that time setting out the reasons why he claimed to fear persecution. Other supporting documentation was also provided. The second appellant also sought a protection visa as a member of the family unit.

6    After the appellants’ claims were rejected by the Minister’s delegate on 26 May 2011, they applied to the RRT on 1 July 2011 for a review of the delegate’s decision.

7    The RRT conducted several hearings in respect of the review at which the first appellant gave evidence. He also provided two sets of written submissions dated 30 September 2011 and 23 November 2011.

8    On 22 December 2011, the RRT affirmed the delegate’s decision.

9    The first appellant’s claims may be summarised as follows (largely adopting what is set out in the appellants’ written outline of submissions filed in the appeal to the Court):

(a)    he and his family are from Batticoloa area of eastern Sri Lanka. They owned and cultivated rice and coconuts on several farms in the area, including at Sinna Urani, Valaichenai and Nasivantivu. After his father’s death the first appellant took over management of these farms;

(b)    he was also interested in drama. He acted at school and later joined a drama company registered in Colombo. The drama group performed in Colombo and in the northern and eastern provinces at religious and cultural festivals and at LTTE “Heroes Day” celebrations;

(c)    at some time prior to 2001 the LTTE infiltrated the areas where the first appellant’s farms were located. He was abducted by the LTTE and ordered to undertake military training. He escaped this by promising to give the LTTE coconuts on a regular basis;

(d)    he was suspected of LTTE involvement by the military, and he was subject to “continuous arrest”. He married in 1998, and this helped to allay suspicions of LTTE involvement at that time;

(e)    he also started a business selling garments, and did well because of the scarcity of the products. In about 2007 the first appellant registered a new business under his name for his wife who was qualified as a beautician;

(f)    in 2001 he and his labourers were arrested at his farm in Nasivantivu for suspected LTTE involvement. The first appellant was held for two months, interrogated about his involvement with the LTTE and was released with the aid of politicians. He had to register with the police at Batticoloa until a peace accord between the LTTE and the government was signed in February 2002;

(g)    during the period of the peace accord the first appellant was able to travel freely. Tourists came more frequently to the area (the Nasivantivu property was close to the beach), and Sri Lankan Army troops were stationed nearby to protect the tourists. During this time the LTTE ordered the first appellant to give work to their cadres on his farms. The LTTE cadres controlled the farms, and trained new recruits on the coconut estates. They also used the first appellant’s property and equipment to store and transport arms and ammunition;

(h)    the Batticoloa commander of the LTTE, a man nicknamed “Karuna”, broke with the LTTE leadership in early 2004. Fighting started between Karuna’s cadres and those loyal to the LTTE. The cadres on the first appellant’s farm at Nasivantivu joined Karuna, who joined with the Sri Lankan Army and another Tamil group, the EPDP, which had already sided with the government. The first appellant stopped travelling to Nasivantivu and concentrated on his garment business and his drama activities;

(i)    the situation in eastern Sri Lanka was deteriorating even while the peace accord was in existence, and in January 2007 the accord was completely scrapped. The Sri Lankan Army and the paramilitaries started to arrest Tamils who had given money and support to the LTTE. Around December 2009 the Army and the government handed over control of the administration of Batticoloa to the paramilitaries (of which Karuna’s group was one). The first appellant’s attempts to leave Sri Lanka with the drama group failed;

(j)    around December 2009 Karuna cadres ordered the first appellant to report at their camp, which was close to his home. They sought details of his businesses and told him that they knew that he had served the LTTE and allowed them to use his farm and equipment at Nasivantivu. They also told him that they had seen his drama performances for the LTTE Heroes Day condemning the government. The told him to start farming once more, to give the proceeds to them, and to pay them Rs 10,000 per month or they would have him prosecuted and imprisoned. The first appellant started working his farm at Nasivantivu again;

(k)    during this time Karuna himself was inspecting the first appellant’s farm and other farms in Nasivantivu. The Army was concentrating on developing the land for tourism, and hotels had been built near an army camp to accommodate the tourists who were “flocking” to the area after the defeat of the LTTE;

(l)    the first appellant’s farm at Nasivantivu had been devastated by the tsunami in 2004, and he had to plant many trees. Some died and had to be removed, and his workers left because he could not pay them. The vegetables that he planted were taken by the army. He fell behind with his payments to the Karuna Group, and they assaulted him and took him to the Batticoloa army camp where he was further assaulted as an LTTE accomplice. He was ordered to pay Rs 50,000 per month from his other businesses until he could make his farm profitable. He agreed to do so to escape detention. He tried to go abroad but failed;

(m)    around November 2010 the paramilitaries ordered that the first appellant should attend their office immediately. His statement continued:

When I went there they said that I had been found to have paid [the] LTTE more money than we paid them. When I refused to accept that accusation the paramilitaries told me that that they had been training along with the LTTE cadres in my coconut estate at Nasivantivu and had seen me treating the LTTE cadres with respect and had been supporting their policies. They further said that I had been giving my whole produce to them and even worked hard to assist the LTTE and gave food for the cadres at my farm. They further accused me of acting in dramas depicting the Tamil people’s sufferance during LTTE Heroes Day celebration and I could be sentenced to prison on that ground alone.

(n)    after the first appellant pleaded with them he was taken to see Karuna himself. Karuna had been to Nasivantivu when he was local LTTE commander and had met the first appellant there. Now, Karuna gave the appellant an ultimatum, if he wanted to stay out of prison he should transfer the land at Nasivantivu to him. The first appellant was forced to agree, and Karuna told him that if he were to tell anybody about this he would be shot on sight;

(o)    Karuna wanted the Nasivantivu land for sale for a tourist development. The first appellant was warned that once he transferred the property he would be sent to prison permanently so that he could not file a case against Karuna;

(p)    one of the first appellant’s brothers in Australia sponsored him to come here for the brother’s daughter’s coming of age ceremony. After he left, his wife told the paramilitaries that he had left without even telling her; and

(q)    at his Departmental interview of 26 May 2011 he claimed that three days beforehand, on 23 May, soldiers entered his home and threatened to shoot his wife. They had come searching for him because he had not complied with their demands. At that interview he also claimed that she was asked for money by those who were looking for him, and that she gave money.

Summary of RRT’s reasons for decision

10    In its reasons for decision dated 22 December 2011 and under a heading entitled “Claims and Evidence”, the RRT recited or summarised the material before it, including not only the written and oral material provided by the first appellant, but also material from the Department’s file or obtained from other sources (such as independent country information). In particular, the RRT recited or summarised various claims advanced by the first appellant concerning events which had happened to him in the past. Broadly speaking, those claims can be divided into two broad categories: first, those which occurred during the civil war in Sri Lanka which ended in 2009 and, secondly, those which occurred after the end of that war.

11    After describing each of those individual claims (and the appellants do not now dispute the correctness of those descriptions), in a section of the reasons headed “Findings and Reasons” the RRT provided the following broad summary in [102] of the claims leading up to the end of the civil war:

The applicant claims that he is a Tamil who was born in Batticaloa, Sri Lanka. He claims that he is a farmer/actor/businessman and that he owns a garment business, a beauty salon, and a couple of farms where he grows coconuts and other products. He claims that over the years, he and others encountered many problems with the various groups, including the LTTE. He claims that the LTTE took over his property is Nasavantivu, and on one occasion he was abducted by them until he promised to provide coconuts on a regular basis. He claims that he was arrested in 2001 with some of his labourers from his Nasavantivu farm and held in an army camp for nearly two months because he was suspected of LTTE involvement. He claims that he was released with the help of a politician from the Batticaloa area. He claims that in 2004 he stopped visiting Nasavantivu and concentrated on his garment business. He claims that he also travelled to Colombo for drama practise. He claims that the LTTE ordered him to provide money to remove dead bodies after the tsunami struck Nasavantivu. He claims that his drama company planned to perform overseas but he was unable to get a Tourist visa.

12    Then, in [103] of its reasons for decision, the RRT provided the following broad summary of the first appellant’s claims concerning events after the end of the civil war:

He stated that in December 2009, he was approached by Karuna cadres who asked him for details of his businesses. He claims that they accused him of serving the LTTE in Nasavantivu and also allowing their cadres to use his farm for military training. They also accused him of performing in an acting troupe which condemned the government. He claims they ordered him to pay 10,000 rupees per month. He claims he agreed to do so because he was in fear. He claims that in March 2010 he was assaulted for not making payments and was then ordered to pay 50,000 rupees per month. He claims that he made eight payments of 50,000 rupees, totalling 400,000, and the last payment was made in October 2010. He claims that in November 2010, he was taken to meet Minister Karuna who told him that if he wished to avoid prison he should transfer the property in Nasavantivu to Karuna’s name. He claims that he was told by Karuna that Karuna’s men would approach him for further directions regarding the transfer of the property. He claims that Karuna wants the property because it is worth a lot of money because there are plans to build hotels and tourist resorts in that particular area. He claims that since leaving Sri Lanka various parties have made inquiries about him at his home. He claims that on one occasion they demanded his wife pay 500,000 rupees and she gave them 100,000, and on another occasion they ransacked his family home searching for him. He claims that his wife was also threatened with harm. He claims that if he returns to Sri Lanka, he will be persecuted.

13    In [104], the RRT stated that it had considered all the evidence provided by the first appellant in his visa application, his evidence to the delegate, all the material provided in the RRT file and his evidence before the RRT. The RRT added that it also considered the material in the appellants’ tourist visa application.

14    The RRT then proceeded in [105] to [107] to state certain findings. Those findings may be summarised as follows.

15    The RRT accepted that:

(a)    the first appellant was a Tamil who had lived most of his life in Batticoloa, that he is married with two children (as claimed), that his wife and one child remain in Sri Lanka, and that he is the owner of businesses and farms, including one at Nasivantivu which was a valuable property;

(b)    he had “problems” over the years because of the ongoing strife in Sri Lanka, and that he had been “asked” to provide donations to various groups and to assist the LTTE some years ago to allow them to use his farm and “have access” to what was grown there; and

(c)    he belonged to a drama group and performed in some shows over the years.

16    The RRT did not accept that:

(a)    the first appellant was approached in December 2009 and ordered to pay Rs 10,000 per month, or that after not paying anything by March 2010 he was again approached and threatened and ordered to pay Rs 50,000 per month;

(b)    he was approached by Karuna and told that if he did not sign over his land at Nasivantivu he would be imprisoned or seriously harmed;

(c)    he was targeted as being a suspected LTTE supporter; or

(d)    his wife was threatened with death in May 2011 if he did not surrender.

17    The RRT found the first appellant not to be credible in “key aspects” of his claims, which it detailed in a series of dot points in [105] of its reasons as follows:

(a)    the first appellant gave evidence that he had not acted in plays that referred to political situations since 2004, and the RRT was therefore not satisfied that he had attracted adverse attention because of his acting;

(b)    despite the claimed threats against his wife (in May 2011), she had lived in the family home until August when she had left for fear of being attacked by unknown men who were targeting unprotected women in the area. In the RRT’s view, had the first appellant been threatened with serious harm, and had his wife been threatened, she would not have remained in the family home after he left Sri Lanka;

(c)    the first appellant had not mentioned at the delegate’s interview the alleged incident on 22 May 2011 when army personnel and the Karuna Group asked the first appellant’s wife for Rs 500,000, and that she had given them Rs 100,000. The RRT concluded that they did not go to his home on any occasion and demand money;

(d)    the RRT did not accept that the first appellant went into hiding after he had been forced to agree to transfer property first to Karuna because his evidence was that he visited his home once a week during this period, and the RRT did not believe that he would have continued to do this if he feared serious harm; and

(e)    the RRT did not believe that the appellant was ordered to pay money by the Karuna Group in December 2009, because it considered that he would have been pursued more vigorously than he claimed when he failed to pay.

18    The RRT stated that these matters, considered “collectively”, led it to reject his claims of the persecution. The delegate’s decision was affirmed.

Summary of Nicholls J’s reasons

19    Nicholls J’s reasons for dismissing the appellants’ judicial review application may be summarised as follows:

(a)    after referring to various authorities cited by the appellants in support of their contention that the RRT was obliged to address the totality of the case advanced (including Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 302 per Hill J), his Honour added that the requirement to consider all “information” must now be read in the light of provisions such as ss 420, 424 and 424A of the Migration Act 1958 (Cth) (the Act);

(b)    his Honour analysed other cases relied upon by the appellants, including SZGUW v Minister for Immigration and Citizenship [2008] FCA 91 per Jacobson J and SZGUW v Minister for Immigration and Citizenship (2009) 108 ALD 108 per Reeves J;

(c)    his Honour noted that the RRT had accepted some factual elements of the first appellant’s claims, including “that he had problems in the years of ongoing strife in Sri Lanka”, “had been asked to provide donations to various groups” and “asked to assist the LTTE years ago by allowing them access to his farm and crop” ([43]);

(d)    his Honour then noted that the RRT did not accept other key aspects of the first appellant’s claims and, in particular, his claims concerning events post-dating December 2009 (see [44]);

(e)    his Honour found that the appellants’ complaints before him boiled down to the proposition that the RRT committed jurisdictional error in not setting out in that part of its reasons headed “Findings and Reasons” the totality of the claims described in the previous section headed “Claims and Evidence”. His Honour commented at [51] that the structure of the RRT’s reasons effectively mirrored the distinction drawn in ss 430(1)(c) and (d) of the Act. He found at [52] that this was not a case where it could be inferred that the RRT did not give proper consideration to the claims set out in the earlier part of its reasons and that the RRT’s “comprehensive and careful analysis under the heading of “Findings and Reasons” is, when plainly read, clearly referrable to the claims set out, in detail, earlier in the decision record”;

(f)    his Honour proceeded to distinguish the circumstances here from the cases relied on by the appellants; and

(g)    Nicholls J concluded that the “simple and obvious” answer to the first appellant’s case was that the RRT rejected his claims of having been approached for the purpose of extortion and had been otherwise threatened with harm. In his Honour’s opinion, whether Karuna’s cadres knew of his previous involvement with the LTTE became irrelevant once those findings were made. His Honour found that in coming to this conclusion the RRT did not overlook or fail to deal with any aspect of the first appellant’s claims as to why he feared persecution and that the totality of his claims were considered in their context.

Outline of appellants’ submissions

20    Briefly stated, the appellants’ arguments were as follows:

21    First, their case as advanced below before Nicholls J was that:

(a)    the first appellant was known by the Sri Lankan army to have assisted the LTTE;

(b)    he was known by members of the Karuna Group (and by Karuna himself) to have materially assisted the LTTE because they had until 2004 been in the LTTE;

(c)    they knew that he had at least occasionally acted in dramas supportive of the LTTE;

(d)    Karuna himself knew that he had valuable property at Nasivantivu, because he had seen it, and met the first appellant there; and

(e)    these factors permitted Karuna and his henchmen to be able to accuse the first appellant of collaboration with the LTTE, and to threaten him with imprisonment and worse should he fail to comply with their extortionate demands.

22    Secondly, Nicholls J recognised that this was the case advanced by the appellants. His Honour found that the RRT dealt with that case by setting out the appellants’ claims in the course of its recording of the evidence.

23    Thirdly, the appellants say that Nicholls J erred in not finding that the RRT failed to consider the totality of their claims and that this failure involved jurisdictional error. Their contentions may be summarised as follows:

(a)    whether a tribunal has considered particular matters is a question of substance, not form (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 595 per Kirby J; SZOVB v Minister for Immigration (2011) 125 ALD 38 at [43]). The tribunal must also give “proper, genuine and realistic” consideration to the matters required to be considered (Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [30]);

(b)    the findings made by the RRT were that the first appellant owned a valuable property at Nasivantivu, he had other businesses, he had had “problems” over the years because of the ongoing strife in Sri Lanka, he had been “asked” to provide donations to various groups and to assist the LTTE some years before, and that he performed some shows in a drama group;

(c)    the Court should infer from:

(i)    the RRT’s abbreviated and unspecific findings as to the first appellant’s “problems” and his contacts with the LTTE;

(ii)    the lack of any further mention of the first appellant’s past problems in the assessment of his claims; and

(iii)    the lack of any consideration of what the consequences of any past assistance to the LTTE might have been,

that it did not consider the past “problems” as material to those claims; and

(d)    in circumstances where the first appellant gave a detailed history in which he explained the background and reasons for the persecution which he said that he fears, that history had to be considered in assessing the veracity of his claims to fear persecution as part of the RRT’s jurisdictional task. It is not enough for the RRT to simply record them; and

(e)    the RRT is required to consider the whole of the case put forward by an applicant (Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31]; W352 v Minister for Immigration [2002] FCA 398; MZWPD v Minister for Immigration and Citizenship [2006] FCA 1095 at [69]; SZGUW v Minister for Immigration and Citizenship [2008] FCA 91 (Jacobson J); SZGUW v Minister for Immigration and Citizenship (2009) 108 ALD 108 (Reeves J). This is so where claims are accepted and the issue is whether a fear of future persecution is well founded (as in MZWPD), or whether the issue is whether the applicant is to be believed (SZGUW per Reeves J).

Outline of Minister’s submissions

24    The Minister’s contentions can be summarised as follows.

25    First, the appellants effectively argue that the Tribunal failed to consider the post-war claims in the context of the wartime claims. In short, the argument is that the Tribunal should have considered the wartime claims in assessing the veracity of the first appellant’s claim to fear persecution. The Court below rejected that argument. It reasoned that the answer to it was the fact that the RRT found that, contrary to the first appellant’s evidence, there was no adverse interest in the first appellant from December 2009. In light of that, the reasons for which the first appellant claimed he had been harassed (and would, in the future, be harassed) became irrelevant.

26    Secondly, there is no issue that the RRT accurately and extensively recorded the claims made and the evidence given by the first appellant. This is not a case where the RRT has overlooked a claim or some critical evidence that supported a claim. Rather, the focus of the first appellant’s argument is on the way in which the RRT dealt with the wartime claims. The argument hinges on the following statement by the RRT in [105] of its reasons:

I accept that the applicant had problems over the years because of the ongoing strife in Sri Lanka. I accept that he has been asked to provide donations to various groups and to assist the LTTE some years ago by allowing them to use his farm and have access to what was grown there. I accept that he was part of a drama group and that he performed in some shows over the years.

27    Thirdly, the appellants suggest that these findings were abbreviated and were unspecified findings about the wartime claims, and that this, together with the lack of further mention of them or consideration of the consequences of those claims, shows that the RRT did not consider the past problems to be material to his claims.

28    Fourthly, the appellants’ case is based on, but misconceives, the obligation under s 430 of the Act. In particular:

(a)    the RRT made findings about the wartime claims and set them out in its written statement. That indicates that the RRT considered that those facts were material: s 430(1)(c);

(b)    the suggestion that the findings were unclear can only be made if they are viewed in isolation from the balance of the 31 page statement of reasons. After its extensive recitation of the evidence and claims, the RRT summarised the case put by the appellants in [102] and [103] of its reasons. These paragraphs summarise the more detailed account of the first appellant’s claim in the previous section of the reasons. The RRT’s findings about those problems in [105] must be seen in the context of both that summary and the RRT’s full recitation in the earlier part of its reasons;

(c)    whether the RRT sets out its consideration of the consequences of factual claims (as opposed to its finding whether they occurred) depends on the reasons for its decision. Here, the reasons for the RRT’s decision turned, essentially, on its analysis of the first appellant’s credibility in relation to the post-war claims. It set out those reasons in detail. Accordingly, the reasons do not support the conclusion that the RRT failed to assess all of the first appellant’s evidence and claims as a whole; and

(d)    the following statement by Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30, 77 ALJR 1165 is said to be apposite:

[14]    Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.

29    The Minister submitted that the approach of the Court below was to consider the RRT’s reasons as a whole in light of a proper understanding of the obligations imposed by s 430(1) of the Act. That approach led his Honour to correctly reject the first appellant’s argument.

Consideration

30    The Minister’s submissions should be accepted. Nicholls J did not err in rejecting the appellants’ contention that the RRT had committed jurisdictional error by not considering the totality of the appellants’ claims in their context.

31    As noted above, the RRT described at some length in that part of its reasons headed “Claims and Evidence” all of the first appellant’s claims, including detailed descriptions of various “problems” encountered by the first appellant in the period leading up to the end of the civil war (see, for example, the dual reference to “his problems” in [51]).

32    In that part of the RRT’s reasons under the heading “Findings and Reasons”, the RRT set out in [102] a broad summary of the first appellant’s claims relating to that period. In the next paragraph the RRT broadly summarised the claims relating to the subsequent period. Then in [105] the RRT made clear that it accepted the first appellant’s claims relating to the first period, but rejected the claims concerning the second period.

33    The reference in [105] to the first appellant having “had problems over the years because of the ongoing strife in Sri Lanka” is, as the Minister accepted, rather anodyne. Those “problems” (which the RRT accepted as having occurred) were not particularised by the RRT in [105]. But on a fair reading of the reasons, which should be read as a whole, there is little or no doubt in my mind that the “problems” being referred to are those which were broadly summarised by the RRT in [102] (where the very same term is used) and, in considerably more detail in the earlier part of the RRT’s reasons.

34    As is evident from [105] of the RRT’s reasons, the RRT made favourable findings in respect of the claims relating to events leading up to the end of the civil war, but then proceeded to make unfavourable findings concerning the first appellant’s claims concerning the subsequent period. The appellants failed essentially because the RRT rejected the first appellant’s credibility in relation to the post-war claims. Its reasoning in this regard is set out in the multiple dot-points in [105] which immediately follow its description of the post-war claims which were not accepted.

35    In my view, the primary judge did not err in rejecting the appellants’ argument that the RRT had failed to consider the totality of the appellants’ claims in their context.

36    In particular, I accept the Minister’s submission that in circumstances where the RRT found that, contrary to the first appellant’s evidence, there was no adverse interest in him from December 2009, the reasons why he claimed that he had been harassed (and would, in the future, be harassed) became irrelevant. The RRT accepted in effect that he had suffered harassment in the earlier period but it rejected his claims concerning the latter period. In those circumstances, the RRT’s acceptance of the fact that he had experienced “problems” during the earlier period became irrelevant. Having said that, however, it seems to me clear that the primary judge was correct in holding that the RRT did in fact consider and determine the totality of the appellants’ claims in their context.

37    Mr Karp (who appeared for the appellants) made clear in oral argument that the appellants were not contending that the RRT erred in not considering the war time claims independently from its consideration of the post-war claims. On the contrary, he emphasised that the various claims had to be considered in their totality and in the whole context. The burden of the appellants’ case was that the RRT failed to consider the consequences for the future of the problems encountered by the first appellant during the war period. That argument cannot be sustained if the RRT’s reasons are read fairly and reasonably. All the claims were considered in their totality and in their context; some were accepted but other central claims were rejected on credibility grounds. The rejection of those latter claims was fatal to the appellants’ applications. The primary judge was correct in holding that no jurisdictional error was established.

38    I also accept the Minister’s submission that this is not a case where the RRT has overlooked a claim or some critical evidence supporting a claim. The position here is quite different from those which arose in both the SZGUW cases decided by Jacobson J and Reeves J respectively. In the earlier of those decisions, Jacobson J found that the RRT had constructively failed to exercise its jurisdiction and committed a jurisdictional error because it failed to deal with the relevant claims in their totality. His Honour’s reasons for that finding are reflected in [65] to [69], which are as follows:

I do not see how the Tribunal could have proceeded to deal with the question of whether the appellant had a well-founded fear without first considering the full impact of the harm alleged by the appellant, taken in its full context.

Here, the context was not confined to the appellant's detention and mistreatment following the demonstration in 2003. The appellant's claim, taken as a whole, was that he was unable to obtain state protection for his right to protest against the illegal confiscation of his land because the state, or its authorities, were involved in the confiscation and in the appointment of the beneficiaries of the illegal act to determine the amount of the compensation. I do not consider that this approach wrongly conflates the concepts of “serious harm” and “well-founded fear”.

It is true that “overall, based on the evidence” the Tribunal was satisfied that the appellant's fear was not well-founded. But the difficulty with this statement is that it appears after the Tribunal had considered each step in the claim in isolation and without considering the impact of state involvement in the conduct: MZWPD at [72]-[73 ].

It follows in my view that the Tribunal failed to consider a substantial aspect or integer of the appellant's case that was sufficiently plain on the facts that were established: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 at [24]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]-[57].

This amounted to a constructive failure to exercise the Tribunal's jurisdiction: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; NABE at [48]-[49]; WAEE v Minister for Immigration and Multicultural and Indigenous Affairs  (2003) 75 ALD 630 at [44].

39    As Reeves J observed in the second SZGUW decision, at [20], Jacobson J had found that the Tribunal had failed to consider the whole of the appellant’s claims in their full context and, in particular, “his claims that he was unable to obtain state protection because of collusion between the state authorities to defeat his protests and his appeals for compensation for the illegal confiscation of his land”. Reeves J proceeded to find that, on the reconsideration of the matter as ordered by Jacobson J, the RRT had again failed to reconsider the matter according to law because it did not consider the appellant’s claims concerning collusion between state authorities as a whole and in their proper context.

40    In my opinion, the legal principle established by both the SZGUW cases is incontrovertible, but Nicholls J was correct in concluding that that principle was not dishonoured in the circumstances here. Reading the RRT’s reasons fairly and reasonably it seems to me plain that the totality of the appellants’ claims were not only considered, but were considered in their overall context.

41    For all these reasons the appeal should be dismissed and the appellants ordered to pay the Minister’s costs.

Associate:

Dated:    8 May 2013