FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v MZYZA [2013] FCA 572

THE COURT ORDERS THAT:

1.    The appeal be allowed.

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

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

REASONS FOR JUDGMENT

1    This is an appeal from a decision of the Federal Magistrates Court (now the Federal Circuit Court of Australia) granting an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”): see MZYZA v Minister for Immigration and Citizenship [2013] FMCA 15.

2    The first respondent is a citizen of India who arrived in Australia on 3 October 2008 on a student visa. His application for a second student visa was refused by a delegate of the Minister. This decision was subsequently affirmed by the Migration Review Tribunal. On 4 October 2011 he applied to the Department for a protection visa. On 22 November 2011, a delegate of the Minister refused the application.

3    On 22 December 2011, the first respondent sought a review of the delegate’s decision by the Tribunal. The Tribunal affirmed the decision of the delegate on 1 June 2012. The first respondent successfully sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. The Minister appeals from that decision.

background

4    In his application for a protection visa, the first respondent claimed that he was a Christian and a member of the Democratic Youth Federation of India (“DYFI”), which is a subsidiary of the Communist Party of India (Marxist) (“CPI(M)”). He claimed that he joined the DYFI when he was in year 10 at school and became “Local Area Secretary” when he finished year 12. He claimed that, during this time, he received threats against his life from members of the opposition Bharathiya Janthadal Party (“BJP”).

5    The first respondent said that he led protests against the BJP’s attempts to convert people to Hinduism and, as a result, was targeted by the BJP. He claimed to have been attacked on several occasions and hospitalised with severe injuries. He then moved to Bangalore to escape the BJP. There he successfully completed a nursing course. He was, however, located by the BJP and attacked again. He claimed that, whilst in Bangalore, he was unable to return to his home to attend the funeral of his brother. The first respondent alleged that the BJP had attacked his family on several occasions and that he was scared to return home.

6    An interview with a delegate of the Minister was scheduled but the first respondent did not attend. The delegate considered that the claims lacked substance and were not supported by independent evidence. The application was refused. The first respondent appealed to the Tribunal.

proceedings before the tribunal

7    The first respondent submitted a number of documents to the Tribunal including, relevantly, a letter dated 26 March 2012 purportedly signed by the Secretary of the DYFI Kottiyoor East Village Committee which stated that:

“This is to certify that [MZYZA, of a particular address] is an active member and spokes person (sic) of DYFI (Democratic youth federation of India) since 1995 till now. His character and conduct are good. I wish him all success in his future endeavours.”

    (“the letter”).

8    During the course of the hearing, the Tribunal asked the first respondent to comment on, among other things, the letter. In particular, the Tribunal asked him to comment on country information obtained from the Department that suggested that “it is very easy to obtain false documentation in India”. The first respondent told the Tribunal that the letter had been obtained by his parents on his behalf and that, accordingly, he was not in a position to comment.

9    The submission of the letter by the first respondent, and the exchange between the Tribunal and the first respondent in relation to it (outlined at paragraph [8] above), were referred to by the Tribunal in the part of its reasons headed “Claims and Evidence”.

10    In the part of its reasons headed “Findings and Reasons”, the Tribunal accepted that the first respondent was born in Kunnur and was a Christian. The Tribunal did not, however, accept any of the other claims made by the first respondent and ultimately found that he was not a person to whom Australia owed protection obligations.

11    The Tribunal did not accept that the first respondent had suffered harm in the past, or would do so in the future, because of his religious beliefs, his political opinion or his membership of the DYFI or CPI(M). The Tribunal harboured concerns about his evidence and did not find him to be a credible witness. The Tribunal cited the first respondent’s inability to recall dates and a number of inconsistencies in his evidence, including some relating to his brother’s death and the injuries he had sustained. Among other things, the Tribunal found it inconsistent that the first respondent could have completed a nursing degree from 2001 to 2004 in Bangalore at the same time that he was claiming to have been in hiding. It also had regard to the delay between the time when the first respondent arrived in Australia and when he filed his protection visa application.

12    Further, and relevantly for present purposes, the Tribunal found that the first respondent’s evidence regarding his involvement in the DYFI was vague and lacking in detail. The Tribunal rejected the first respondent’s claims that he was a member of the DYFI or CPI(M). The Tribunal did not make reference to the letter when rejecting these claims.

the proceeding before the federal magistrate

13    The first respondent’s application for judicial review relied upon the following broad grounds:

“1. The Tribunal constructively failed to exercise its jurisdiction.

Particulars:

The [first respondent] provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents (sic). The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents (sic). It was an error for the Tribunal to assess the [first respondent’s] credit without first assessing whether the substance of the documents corroborated his claims.

2. The Refugee Review Tribunal denied the [first respondent] procedural fairness by reaching adverse conclusions that certain aspect (sic) of his claims were implausible, being conclusion (sic) that were not obviously open on the known material, without giving the [first respondent] the opportunity to be heard in respect of those matters.”

14    The Federal Magistrate rejected the second of these grounds. This finding has not been challenged in this Court.

15    The Federal Magistrate held that the first ground had been made out. She accepted that the Tribunal had put to the first respondent the proposition that it is very easy to obtain false documents in India but placed emphasis on the Tribunal’s failure to mention the letter in the “Findings and Reasons” section of its reasons and the absence of a finding that the letter was fraudulent. The Federal Magistrate continued at [13]-[15] that:

“[a]t the hearing before this court, it appeared that the Tribunal may have decided, without saying so, that the letter was a forgery. The letter was significant because, if authentic, it gave some credence to the applicant’s claims to have been a member of the DYFI and to have been attacked for that reason.

…

It is a very serious matter to find that a document is a fraud or a forgery. The mention of document fraud during the hearing before the Tribunal is insufficient to lead to a conclusion that the Tribunal actually decided that the letter was fraudulent. There is nothing else in the Tribunal’s reasons that supports a view that the Tribunal actually decided that the letter was not genuine.”

16    The Minister had argued that the Tribunal did, in fact, consider the letter, even though the Tribunal did not mention it in the “Findings and Reasons” part of the decision. It had mentioned the letter in the list of documents submitted by the first respondent and it had raised with him the possibility that the letter was false. In so arguing, the Minister relied on Reece v Webber (2011) 192 FCR 254. The Federal Magistrate held that:

“[18]    Reece v Webber makes it clear that a failure to mention material is not conclusive that it was not taken into account. However, Reece v Webber certainly countenances cases in which a failure to mention a particular matter would properly lead to the conclusion that the matter had been overlooked. Indeed, Reece v Webber refers to matters of ‘central relevance’, and suggests that such matters should be addressed explicitly.

[19]    In the present case, the letter was of ‘central relevance’ because it supported the applicant’s claim to have been persecuted as a member of the DYFI. In the circumstances of the case, and in the absence of any mention of the letter in the “Findings and Reasons” section of the Tribunal’s reasons, I am not persuaded that the Tribunal did consider the letter while actually weighing up the evidence and making its decision.”

17    Her Honour continued:

“[20]    [The Minister] argued that it was open to the Tribunal to give little or no weight to the letter: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]. That, of course, is correct. However, the question is whether the Tribunal actually decided to give the letter little or no weight, or whether the Tribunal overlooked the letter when it came to make its decision, and, if the latter, whether the Tribunal thereby fell into jurisdictional error.

[21]    The first respondent argued that the Tribunal had implicitly decided to give the letter little or no weight. The first respondent said that such an approach did not disclose jurisdictional error, for the reasons explained in Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 … at [26]. That paragraph is as follows:

‘Neither does the RRT fall into jurisdictional error if it fails to express its reasons for rejecting corroborative evidence with full clarity. In the present case, the RRT dealt with the evidence of a baptismal certificate by saying that it was “not prepared to give this document sufficient weight to overcome its concerns with the applicant’s evidence”. It would have assisted if the RRT had explained its rejection in greater detail. As we have said, it was implicit in the reasoning of the RRT that it did not regard the baptismal certificate as genuine. It was desirable that the RRT set out the basis of the doubts concerning the baptismal certificate beyond simply its doubts concerning the first respondent’s evidence generally. This deficiency in the way the RRT articulated its reasoning may explain why the federal magistrate said the RRT failed to engage in “an active intellectual process of considering the corroborative material”, and that the RRT “failed to engage in any meaningful consideration of the purported baptismal certificate”. The brevity with which the RRT dealt with the corroborative evidence is unsatisfactory, but does not justify the conclusion drawn by the Federal Magistrate that the RRT fell into jurisdictional error.’

[22]    However, the present case is quite different. In the present case, the Tribunal did not articulate any reason at all for giving the letter little or no weight. I do not consider that SZNPG assists in the present case.

[23]    I do not accept the submission that the Tribunal implicitly decided to give the letter little or no weight. There is no indication in the Tribunal’s reasons for decision of any cognisance of the letter in the part of the Tribunal’s reasons that records its reasons for decision, as opposed to its summary of the background. It seems to me that the Tribunal overlooked the letter while weighing up the evidence and formulating its decision, as opposed to setting out the background to the case.”

18    The Federal Magistrate found that the Tribunal “apparently, did not consider the letter at all” and that the “inescapable conclusion” was that the Tribunal “overlooked the letter”.

19    The Minister further contended that, even if the Tribunal did fail to consider the letter, this failure did not constitute a jurisdictional error. In the view of the Federal Magistrate, the letter, if genuine, constituted an “overwhelming piece of evidence in relation to the applicant’s membership of the DYFI”. Her Honour said at [32] that:

“It seems to me that, if the Tribunal had considered the letter, it may have decided that it was genuine, and it may then have found that the [first respondent] was a member and spokesperson of the DYFI, and may have then considered that the implausibility’s (sic) it identified were not of any great moment. Consequently, the letter ‘might have’ affected the result.”

20    The Federal Magistrate held that the Tribunal should have had regard to the letter when assessing the applicant’s credibility as it was not a case in which “the well was so poisoned that corroborating evidence could be blandly dismissed or … overlooked entirely”.

the appeal proceeding

21    The Minister appeals to this Court from the decision of the Federal Magistrate on two grounds:

“1.    [The] FM erred in finding that [the Tribunal] failed to consider a particular document provided by the [first respondent] in support of his application for a protection visa, being a document that purported to be a certificate issued by the Secretary of the ‘DYFI Kottiyor East Village Committee” dated 26 March 2013 (sic) (the Certificate).

2.    Alternatively, assuming that the Tribunal did fail to consider the Certificate, [the] FM erred in holding that the Tribunal thereby committed a jurisdictional error as described in ground 1 of [the first respondent’s] application to the Federal Magistrates Court.”

The First Ground of Appeal

The parties’ submissions

22    The Minister submitted the Federal Magistrate was wrong to conclude that the Tribunal “overlooked” the letter because:

    The letter was not expressly mentioned in the “Findings and Reasons” section of the Tribunal’s statement of reasons;

    The Tribunal had not made an express finding that the letter was fraudulent; and

    The Tribunal had not expressly stated that it gave little or no weight to the letter.

23    The Tribunal’s obligations to provide reasons for its decisions was imposed by s 430(1) of the Migration Act 1958 (Cth) (“the Act”). It stipulated that:

“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; and

(b)    sets out the reasons for the decision; and

(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.”

24    The Minister submitted that this provision only required the Tribunal to “set out its decision, its reasons for the decision, the findings on questions of fact it considers to be material, and the evidence on which those findings of fact were based” and that “[w]here a s 430 statement does not include a finding on a question of fact, a court may infer that the Tribunal did not consider that question of fact to be material”. It was submitted that it could be inferred from the absence of reference to the letter and its contents that the Tribunal did not consider the certification to be material to its deliberations. Accordingly, the Minister contended that the Tribunal was not obliged to refer to the letter in the “Findings and Reasons” section of its reasons or, for that matter, at all, and that the Federal Magistrate had, in those circumstances, erred in drawing the conclusion that the letter had been overlooked by the Tribunal.

25    Furthermore, the Minister submitted that the Tribunal’s findings in relation to the first respondent’s evidence as to his membership of the DYFI were sufficiently general to demonstrate that it dealt with the evidence in the letter even though there was no explicit reference to it.

26    Counsel for the first respondent contended that the Federal Magistrate had correctly concluded that the Tribunal had failed to consider the letter and that, in light of the Tribunal’s failure to entertain and deal with the possibility of the genuineness of the letter, it was likely that the Tribunal had made no finding at all on this issue. It was further contended that there was insufficient support in the reasons of the Tribunal for the conclusion that the Tribunal considered the letter but gave it little or no weight.

27    The first respondent submitted that, in the absence of a determination as to whether or not the letter was genuine, it was not possible for the Tribunal to consider the letter in deciding whether the first respondent was a member of the DYFI. Counsel submitted that the letter was indeed of “central relevance” as the claim to fear of persecution for political reasons turned upon the first respondent’s membership of the DYFI and that, in light of this, the inference that the Tribunal failed to consider the material should more readily be drawn.

Consideration

28    Legislation which governs the operation of statutory tribunals often requires a tribunal to provide reasons for its decisions. When a tribunal which is required to provide reasons does so and it is alleged, by reference to those reasons, that the tribunal has failed to have regard to what is said to be a relevant consideration or some important piece of evidence which is supportive of a party’s case, it will often be difficult to assess the validity of the complaint.

29    The failure by a tribunal, in its reasons, to refer to a particular consideration or piece of evidence will not necessarily lead to the conclusion that that consideration or evidence was disregarded or overlooked. At the other extreme, a statement by a tribunal that it has had regard to a particular consideration or item of evidence will not necessarily lead to a conclusion that it has done so or done so in an appropriate manner.

30    A reviewing Court will not lightly infer that relevant considerations or material have been overlooked by a decision-maker. In forming a judgment the Court will have regard to a range of factors. They include:

    The terms of the relevant statutory requirement to provide reasons.

    Whether what the Tribunal has supposedly failed to consider is a relevant consideration or an item of evidence.

    The relative importance of the consideration or the evidence to the party’s case.

    Whether any reference is made to the consideration or the evidence in the tribunal’s reasons.

    The reason reliance is placed on the consideration or evidence by the party who asserts its significance.

    The relative significance of the absence of reference to the consideration or evidence having regard to the tribunal’s reasons as a whole.

31    The Tribunal was required, by s 430 of the Act, to provide reasons for its decision. The terms of s 430 have been set out above at [23]. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 McHugh, Gummow and Hayne JJ held that s 430(1) required the Tribunal to “set out its findings on those questions of fact which it considered to be material to the decision which is made and to the reasons it had for reaching that decision.” (Emphasis in original). Their Honours held that if, in its reasons, the Tribunal fails to refer to particular material, a reviewing Court may infer that that “matter … was not considered by the Tribunal to be material.”

32    That does not mean, as French CJ and Kiefel J pointed out in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 605-6, that, simply because a matter is not mentioned in the reasons, it was not considered. The “matters” referred to by McHugh, Gummow and Hayne JJ in Yusuf were “matters of fact” or “findings of fact” made or not made by the Tribunal and not “matters generally”: see SZGUR at 617 (Gummow J).

33    The principal claim made by the first respondent when he appeared before the Tribunal was that he feared persecution in India by reason of his political and religious beliefs. His fears had arisen because of threats made to him by members of the BJP. The threats had been made because of his leading role in the DYFI and because he was a Christian.

34    Shortly before the hearing the first respondent forwarded a number of documents to the Tribunal. As noted at paragraph [9] above, in the section of its reasons headed “Claims and Evidence”, the Tribunal recorded that one of these documents was: “[c]orrespondence purporting to be signed by the Secretary of the DYFI, Kottiyoor East Village Committee, claiming that the [first respondent] is an active member and spokes-person of the DTFI since 1995.”

35    At the hearing the Tribunal questioned the first respondent about his participation in the affairs of the DYFI. The first respondent confirmed that he was an active member who had organised other members and was a spokesperson. The Tribunal asked the first respondent to explain what he actually did for the DYFI. The first respondent gave a non-responsive answer about Christians being in a minority and them being pressured to convert to Hinduism. As a result the Tribunal noted that the first respondent “was unable to provide an explanation of his role and duties [in the DYFI].”

36    In one of his written statements the first respondent had said that he was “a local village leader” and the “Local Area Secretary” of the DYFI. The Tribunal drew these statements to the first respondent’s attention and observed that it would expect that a person who was claiming such a high profile would be able to provide more information about his duties and role in the organisation. The first respondent responded that he had only been the Local Area Secretary for a few days. He had had to resign and go into hiding very soon after he was appointed to the role because of threats to his life. When asked about those threats the first respondent was, according to the Tribunal, “evasive and unable to provide detail of what threats were made towards him.”

37    Later in the hearing, as noted at paragraph [8] above, the Tribunal directed the first respondent’s attention to the letter. Its reasons record that:

“The Tribunal asked the [first respondent] to comment on the letter from the DYFI secretary dated 26 March 2012 which he submitted to the Tribunal. The [first respondent] said that he asked his parents in India to obtain confirmation of his membership in the DYFI and they sent him the letter. The Tribunal asked the [first respondent] to comment on country information obtained from the Department that suggests that it is very easy to obtain false documentation in India. The first respondent told the Tribunal that he could not comment because the document was provided by his parents.”

38    This passage suggests that the Tribunal harboured doubts about the authenticity of the document. So much is also suggested by the earlier reference to the document “purporting” to be signed by the local secretary of the DYFI. The Tribunal did not, however, proceed to make any finding about the authenticity of the document or the accuracy of its contents.

39    In the section of its reasons headed “Findings and Reasons” the Tribunal restated the first respondent’s central claim to fear serious harm upon return to India because of his political opinions, membership of the DYFI and his Christian beliefs. The Tribunal found that the first respondent was “not a credible witness” and that he had not been truthful in his evidence about his experiences in India, his reasons for leaving that country and his fear about what might occur upon his return. The Tribunal explained its reasons for forming this assessment. One of these reasons, as noted at paragraph [12] above, related to the first respondent’s evidence about his involvement with the DYFI. The Tribunal said (at [61]) that:

“The Tribunal found the [first respondent’s] evidence regarding this involvement in the DYFI to be vague and lacking in detail. In his written claim the [first respondent] stated that he was an “active member” of the DYFI which was a subsidiary of the CPI(M). He described himself as a “local village leader” and “Local Area Secretary”. The [first respondent] said that he arranged meetings, demonstrations and was a local spokes person and as a result of these activities his life was in danger. However, when asked to provide details of his activities and duties the Tribunal found the [first respondent’s] answers vague and evasive. The Tribunal found the [first respondent] was only able to make general statements about the DYFI and the activities of the BJP. The Tribunal found the [first respondent’s] answers were not consistent with someone who claims to have played an active role in the DYFI since becoming involved at as a young man in year 10. For example, when questioned about his duties as “Local Area Secretary”, the [first respondent] was unable to provide an answer and stated that he was only in the role for a few days.”

40    The Tribunal’s adverse assessment of the first respondent’s credibility led it to reject his claim to have been a member of the DYFI and the related claim that he had been threatened or harmed as a result of that membership.

41    Nowhere in this section of its reasons did the Tribunal make specific reference to the letter or its contents.

42    It is evident from the Tribunal’s reasons that it rejected the first respondent’s claim to have been a member of the DYFI as a result of forming an adverse assessment of his credibility at the hearing. In particular, the Tribunal was impressed by the first respondent’s inability to provide any detail about what the role of Local Area Secretary of the DYFI required him to do. The contents of the letter (even assuming it to have been authentic) would have done little to mitigate the Tribunal’s adverse credit assessment. The letter did not assert that the first respondent had been the local area secretary and it said nothing about the role and duties of that office. It did, however, certify that the first respondent “is an active member and spokesperson of DYFI … since 1995 till now.” (Emphasis added). This certification was made on 26 March 2012 despite the fact that the first respondent had been in Australia since 3 October 2008. The certification continued that the first respondent’s character and conduct “are good,” again using the present tense.

43    The letter constituted a piece of evidence which, had it been accepted, would have supported the first respondent’s claim to have been a member of the DYFI. It may, however, be doubted that it could be characterised as “overwhelming” evidence to this effect. The first respondent had claimed to be much more than a mere member. What had drawn him to the attention of his alleged BJP persecutors was his high profile as a village leader and Local Area Secretary of the DYFI. These were the claims which were rejected by the Tribunal.

44    Section 430(1) of the Act did not impose an obligation on the Tribunal to give reasons for rejecting evidence which was inconsistent with the adverse findings which it had made on credibility grounds: see Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 at [24] per Spender, O’Connor and Emmett JJ. This dictum was approved by McHugh J in the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 422-3. See also: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [11] (Heerey, Moore and Goldberg JJ).

45    In SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 a Full Court of this Court (Heerey, Branson and Emmett JJ) considered a case in which a lawyer, acting for an applicant, sent three letters to the Tribunal. In its reasons the Tribunal specifically referred to two of the three letters. On review, the applicant argued in the Federal Magistrates Court that the Tribunal had erred by failing to have regard to the contents of the third letter which was said to contain relevant considerations. The Federal Magistrate rejected these contentions.

46    On appeal to the Full Court, their Honours said (at [25]) that:

“It is regrettable that the Tribunal referred to only two of the three letters sent to it under cover of the letter from the appellants’ lawyers … We agree that the express reference to two only of the three letters is capable of supporting an inference that the Tribunal did not consider the Police letter. However, the appellants are obliged to do more than point to material capable of supporting an inference that the Tribunal did not consider the Police letter. It is necessary for the appellants to demonstrate that, having regard to all of the evidence and other material before the Court, it would be appropriate to draw that inference; that is, the appellants must demonstrate, on the balance of probabilities, that the Tribunal did not consider the Police letter.”

47    In my view the first respondent, in the present matter, has failed to establish that it would be appropriate to draw the inference that the Tribunal did not consider the letter. On the contrary, the Tribunal’s reasons make it tolerably clear that it did so. The Tribunal referred to the fact that the letter had been sent and received. The Tribunal member must have read it because he questioned the first respondent about its contents. There could be a number of reasons why the member did not thereafter again refer to the letter. One of these may have been that he did not consider it necessary to do so having regard to authorities such as Addo, Iyer and SZDXZ. Whatever the reason, it cannot be inferred that the contents of the letter had not been considered. Furthermore, the statements in the letter did not support any new claim or any integer of a claim.

48    For these reasons I do not consider that the failure of the Tribunal to refer to the letter or make a finding as to its authenticity or the accuracy of its contents leads necessarily to the conclusion that the Tribunal did not consider the letter. Nor is the drawing of such an inference supported, in the circumstances of the present case, by the fact that the Tribunal, in other contexts, did refer in its reasons to some other documents.

49    This ground must fail.

The Second Ground

50    Having regard to my conclusion on the first ground it is not strictly necessary to consider the second ground. That ground was, however, ably argued on both sides. I will, therefore, express my views on the developed arguments, albeit more briefly than might otherwise have been necessary.

The parties’ submissions

51    The Minister submitted that, even if the Tribunal had overlooked the letter, that failure did not constitute jurisdictional error. Although the Minister accepted that the Tribunal has a duty to consider each integer of an applicant’s claim (see Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244), he argued that the letter was not a piece of evidence which made a new and separate claim. Rather, the letter was advanced to corroborate the first respondent’s broader claim – which was considered by the Tribunal – to have a well founded fear of persecution by reason of his membership in the DYFI.

52    Counsel for the first respondent contended that the material allegedly overlooked was fundamental to his case. The Tribunal concluded that the first respondent did not have a well-founded fear of persecution for political reasons in large part because it did not believe he was a member of the DYFI. The letter, if genuine, demonstrated that the First Respondent was a member of the DYFI. It was submitted that consideration of the certificate may, therefore, as the Federal Magistrate had held, have led the Tribunal to a different result.

Consideration

53    It is well established that the failure, by an administrative decision maker, to have regard to a relevant consideration may give rise to a jurisdictional error. It is important, however, to bear in mind that this ground will not be made out unless the consideration was one that the decision maker was bound to take into account in making the decision: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39.

54    In their joint judgment in Yusuf McHugh, Gummow and Hayne JJ appeared to broaden the ground by extending it to evidentiary material which relates to a relevant consideration. Their Honour’s said (at 351) that:

“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, 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.” (Emphasis added).

55    Although their Honours did not say so in terms, the references to ignoring “relevant material” may be understood, implicitly at least, as referring to relevant material that the Tribunal is bound to take into account. Were it otherwise the ground would comprehend all relevant material before a decision-maker regardless of its significance or lack thereof in an applicant’s case and regardless of whether or not the decision-maker was bound, by the governing legislation, to take it into account.

56    It may also be observed, as Griffiths J pointed out in SZQGC v Minister for Immigration and Citizenship [2012] FCA 598 at [28], that in the passage from Craig which was quoted in the joint judgment in Yusuf, jurisdictional error was said to arise when a tribunal makes an error of law which causes it to ignore relevant material. The failure to have regard to relevant material is a consequence of an antecedent error of law. Such an error could occur, for example, if the decision-maker misdirects him or herself as to the proper scope of the relevant inquiry. Whilst it is true, as counsel for the first respondent submitted, that the joint judgment spoke of “ignoring relevant material” as one of a number of free standing errors rather than one which is consequential upon a different and antecedent error, that statement must be read in context. It appears immediately after their Honour’s had quoted with approval from Craig and must be read and understood having regard to what appeared in the quoted passage.

57    Various formulations have been developed, in the context of migration law, to distinguish between relevant material which a decision maker is bound and is not bound to have regard in making determinations.

58    In WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319 at [21] a Full Court of this Court (Lee, Carr and Tamberlin JJ) held that “a failure to have regard to relevant material, which is so fundamental that it goes to jurisdiction”, is an error of law. (Emphasis added) In that case the Tribunal had, according to the Court, made an adverse finding principally on the basis that the applicant had said (by ticking a box) in his original visa application that he had left Sudan legally and because of adverse findings about the applicant’s credibility. It had not, in its reasons, referred to statements which the applicant had made at the first opportunity when he was interviewed with the assistance of an adviser and an interpreter that he had left the country illegally and provided surrounding facts which the Court considered strongly corroborated that statement. This omitted material was described by the Court (at [19) as “important relevant material going to a central consideration in [the] matter, namely, the legality of the appellant’s departure from Sudan.” (Emphasis added)

59    In SXRB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1222 at [32]-[33] Lander J said that:

“The failure to consider a piece of evidence does not necessarily amount to a failure to consider an integer of an applicant’s claim for an entitlement to a visa. Whether it will or not will depend upon whether it is the only or the overwhelming evidence relating to that integer.

Any integer of any applicant’s claim may well be made up of various pieces of evidence; sometimes direct, sometimes circumtancial. The failure to consider any one piece of evidence does not necessarily amount to a failure to consider the integer itself. It will only mean a failure to consider the integer if that evidence, either by itself or coupled with other evidence whether direct or circumstantial, would have affected or might have affected the result of which (sic) the RRT arrived.” (Emphasis added).

60    Inevitably, value judgments are involved in determining whether material can be regarded as so “fundamental” or so “important” or so “overwhelming” that a failure to have regard to it constitutes jurisdictional error. The difficulty to which such formulations give rise was emphasised in Minister for Immigration and Multicultural v SBAA [2002] FCAFC 195. In that case the principal issue considered by the Tribunal was whether the applicant was an Afghan national. The Tribunal gave various reasons for concluding that it could not be satisfied that he was. There was evidence before the Tribunal, to which it did not refer in its reasons, from a linguist who opined that the applicant “has obviously his language background in Afghanistan.” Wilcox and Marshall JJ held (at [44]) that it could be inferred that the Tribunal had failed to have regard to this evidence and that this had given rise to a failure to exercise its jurisdiction. This was because the evidence was “of pivotal importance to the only real issue the Tribunal had to determine” and because of its “significance”. (Emphasis added).

61    Branson J dissented. Her Honour was prepared to assume that the Tribunal had ignored the linguist’s opinion. Nonetheless, she said (at [67]-[68]) that:

“However, it is not in every case that an administrative tribunal ignores relevant material that it makes a jurisdictional error. It is necessary that the Tribunal’s failure to have regard to the relevant material should affect its exercise or purported exercise of power in the sense of causing it to exceed its authority or power. Its authority or power is limited to making decisions in accordance with law (see Yusuf at [82]).

In this case the Tribunal rightly identified the issue for its determination as being, relevantly, whether it was satisfied that the respondent was a national of Afghanistan. Its approach to this issue does not suggest that it misunderstood in any way the concept of nationality or that it mistook the relevant country. As Kenny J pointed out in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146], the Tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning. Similarly, in my view, the Tribunal does not commit an error of law merely because it disregards or fails to treat as probative, material which objectively appears probative. With respect to Wilcox and Marshall JJ who have taken a contrary view, I do not think that the apparently probative nature of the linguistic opinion is sufficient to render the Tribunal’s failure to deal with it a failure to exercise its jurisdiction. Rather, it seems to me, the error, if any of the Tribunal, was an error within the Tribunal’s jurisdiction. The approach adopted by their Honours and the learned primary judge, is an approach which, with respect, seems to me to intrude into the forbidden area of seeking to cure perceived administrative injustice or error.”

62    Another touchstone for assessing the significance of evidence which is referred to in some cases is whether or not the material which has been ignored was of such importance that it might have led the trier of fact to a different result: see, for example, SXRB at [33] and SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ (Hayne J agreeing) and [85] per Kirby J.

63    Another distinction which has been drawn has been between an item of evidence and an integer of an applicant’s claim. In Minister for Immigration and Citizenship v MZYHS (2011) 119 ALD 534 Kenny J dealt with a case in which the Tribunal was alleged to have failed to consider a psychological report which was said to be corroborative of an applicant’s claims. Her Honour summarised the relevant principles (at [24]):

“The Minister drew a distinction between a failure to consider an integer of a claim to be a refugee (or a contention that, if accepted, might establish a well-founded fear of persecution) and a failure to take into account evidence that, if accepted, might have led to a different finding of fact. As the Minister submitted, and I accept, a failure to refer to, or adequately to consider, evidence, whether or not it might be thought probative, does not give rise to jurisdictional error, even though it may have led to an erroneous finding of fact. The authorities for this proposition are numerous: see, for example, Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at 308-9 at [27]-[28] (North and Lander JJ, with whom Katzmann J agreed (see at [35])); Htun at 259 [42] (Allsop J, with whom Spender J agreed); WAEE at 641 [46]; and Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 423 [79] (Allsop J, with whom Heerey J agreed). Related propositions are that the weight to be given evidence is a matter for the decision-maker and that a wrong finding of fact does not of itself give rise to jurisdictional error. Furthermore, making findings on credibility is the function of the decision-maker; and they are not ordinarily open to challenge in a court on a judicial review application …”

Her Honour did not accept that the Tribunal had failed to have regard to the report. She found further that, in any event, the report was a piece of evidence relating to, amongst other things, the applicant’s claims to have suffered torture and trauma at the hands of the authorities in his home country. The report constituted evidence which served “a purely corroborative function”: see at [29].

64    The first respondent emphasised that the Minister’s submission, which was accepted by Kenny J, was that a failure, by a decision-maker, “adequately to consider … evidence” did not give rise to jurisdictional error. Her Honour was not, therefore, to be taken as holding that a total failure to consider evidence could not give rise to jurisdictional error. It was not necessary for her Honour to deal with a total failure to advert to evidence because she had found that the Tribunal had had regard to the psychological report. In those circumstances it is understandable that the Minister’s submissions may have been confined to the adequacy of the consideration given to the report. Whatever the reason, it is clear from the authorities cited by her Honour, that, even a total failure by the Tribunal to consider evidence, as distinct from integers of an applicant’s claim, will not give rise to jurisdictional error.

65    One of those authorities to which her Honour referred was Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396. In that case Allsop J (with whom Heerey J agreed) said (at 423) that:

“Whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction (as to which issue see generally and not exhaustively, Minister for Immigration and Multicultural Affairs v X [2001] FCA 858; Minister for Immigration and Multicultural Affairs v Tedella [2001] FCA 832; Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 736; Chhour v Minister for Immigration and Multicultural Affairs [2001] FCA 911; Iyer v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 9 and Thirukkumar v Minister for Immigration and Multicultural Affairs [2001] FCA 864) they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed. It may be that if the element of the appellant’s claim for asylum based on her Tamil ethnicity was not addressed at all, that is if the Tribunal had only directed its attention to her claim based on her association with her husband, then in those circumstances relevant considerations might not have been addressed because an element of integer of the claim put forward by her would not have been dealt with. In such circumstances it may be that, in a jurisdictional sense, a relevant consideration had not been addressed. However, it is unnecessary to decide this given that the Tribunal did address the elements or integers of her claim.”

66    The first respondent claimed that he faced persecution in India because of his political and religious beliefs. A central integer of that claim was that he had been a member of the DYFI. The letter was tendered to support his claim to membership of the DYFI. The main body of evidence supporting the first respondent’s claim to membership of the party, however, came from the written submissions and oral evidence of the first respondent himself. The contents of the letter corroborated his claim to membership.

67    The Tribunal considered the claim and tested it by questioning the first respondent about his activities as a member and Local Area Secretary. His answers were evasive and lacking in detail. As a result the Tribunal did not accept the first respondent’s claim to have been a member of the DYFI.

68    Even if it is accepted that the Tribunal failed to have regard to the contents of the letter, I do not consider that such a failure constituted jurisdictional error. The Tribunal was bound to have regard to and assess the first respondent’s claim to have been persecuted because of the political and religious beliefs attributed to him as a member of the DYFI. It did so. It was not suggested that the failure (if there was one) to refer to the contents of the letter occurred because the Tribunal had misdirected itself as to the proper scope of its deliberations or by failing to identify the relevant claims and integers of the claims raised by the first respondent. It was not bound to consider each and every piece of evidence which related to those claims. The certification, in 2012, that the first respondent was and had been, since 1995, an active member and spokesperson of the party did not, in my view, amount to evidence of pivotal importance, or as being so fundamental to the first respondent’s claim, that a failure to give consideration to its contents caused jurisdictional error. The certification was equivocal: it provided no details of the first respondent’s activities as a member of the DYFI or how he could have maintained an “active” membership and been a spokesperson in the four years he was in Australia. Moreover, as has already been observed, it did not deal with the first respondent’s claims to have been persecuted because he was a village leader and Local Area Secretary of the DYFI.

DISPOSITION

69    The appeal must be allowed with costs.

Associate:

Dated:    14 June 2013