FEDERAL COURT OF AUSTRALIA

SZWCC v Minister for Immigration and Border Protection [2015] FCA 1402

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

The issue

1    In this appeal I have identified one issue of concern. It is whether the Refugee Review Tribunal (the Tribunal) made a jurisdictional error by failing to consider two police reports which the appellant had submitted in support of his claims of a well-founded fear of persecution if he had to return to Sri Lanka. To explain the basis for this concern it is necessary to identify the appellant’s claims over time and the reasons of the Tribunal.

The appellant’s claims

2    The appellant is a Sri Lankan national who arrived by boat at Christmas Island on 18 May 2012. He was interviewed on 25 June 2012 (a so-called irregular maritime arrival entry interview). The appellant was asked why he left Sri Lanka and gave a long answer beginning with events surrounding the abduction of a friend of his in 2003. The interviewer repeatedly attempted to focus the appellant on why he had left Sri Lanka in 2012 but the appellant continued with events from 2003 onwards. Ultimately, in response to a question directed at circumstances in 2012, the appellant said, amongst other things, that people had come to his house and asked for him and told his wife he should come to their office but he hid and then did not go to work for two days while he was in hiding. He also said that his wife went to the police on his behalf and told them his life was under threat, that police report having been made on 12 July. The year in which this occurred is not identified.

3    He also said that a “Greaseman” problem started in 2011 and on one occasion a “Greaseman” came to his house but they ran away. He did not say that he or his wife reported this to the police.

4    When asked what he thought might happen if he returned to Sri Lanka he said he would have problems with the government and “my wife has already lodged a complaint with the police about it” but they could not complain every time when there are armed groups operating because then he would have been in more trouble with the police.

5    The appellant gave a detailed statement in writing on 27 August 2012. He described himself as a citizen of Sri Lanka and a Christian Tamil. He said he left Sri Lanka because of events starting with the abduction of his friend in 2003. The appellant said he made a report to the police about the abduction of his friend on 8 December 2003. He then started receiving threatening phone calls from 2004. He was then abducted and questioned about his friend. He believes this questioning took place in an LTTE camp where he was taken after being abducted. He was warned and threatened by an armed group again in June 2007 but thought he would have more issues if he went to the police. Then on 10 July 2007 an armed group came to his house. He saw them and escaped. They abused his wife and told her to tell him to report to their office. He hid for two days and returned on 12 July 2007 and his wife went to the police and reported this incident saying his life was being threatened. The statement then states “(evidence provided)”. After describing more events in 2008 and thereafter the appellant described problems relating to his work leading up to his decision to come to Australia. He said that if he returned to Sri Lanka he would be in danger from the people associated with his friend’s disappearance who had been threatening him for years and from people threatening him in relation to his work (at a university). He said that on 10 May 2012 after he left Sri Lanka people came to his house and poured engine oil around the gate and were calling his name and asking for him. His wife also went to the police about this incident.

6    He attached a handwritten index of attachments to his statement which include references to “Tsunami E Police Report” (his statement refers to the 26 December 2004 tsunami which hit Sri Lanka and how he got compensation for the damage it caused) and “Grees man Attack in our place”. The attachments to his statement included:

(1)    A document bearing a date 8 December 2003 headed “Extract from the Information Book of … Police Station”. Apart from these references the document is not in English. No translation of the handwriting on the document is available. It will be recalled, however, that the appellant said that he went to the police to report the abduction of his friend on 8 December 2003.

(2)    Another document which I consider it can be inferred is a continuation of the first document. It bears an issue date of 14 August 2012 and a stamp in the space provided for a signature of the officer in charge.

(3)    A document of two pages bearing a date 12 July 2007 in the same form as the first document (that is, headed “Extract from the Information Book of … Police Station”) which bears a stamp and a signature above the space “Officer-in-Charge”. It too is otherwise untranslated. It will be recalled that the appellant said in both his initial interview and his statement that his wife went to the police on 12 July 2007 about an incident which occurred on 10 July 2007.

(4)    A document bearing a date 11 May 2012 in the same format as the other documents, also untranslated. It will be recalled that the appellant said that on 10 May 2012 after he left Sri Lanka people came to his house and poured engine oil around the gate and were calling his name and asking for him, and his wife went to the police about this incident.

7    A migration agent made a submission to the Department on 21 September 2012 which attached the application for a protection visa and supporting documents (including, I infer, the appellant’s statement of 27 August 2012 and the various attachments to it). This submission is in general terms relating to the position of Tamils in Sri Lanka and makes no reference to the information in the appellant’s statement.

8    The appellant was notified on 10 July 2013 that his application for a protection visa had been refused. The attached decision record accepted that the appellant was a Sri Lankan Tamil. The factual summary refers to the events in 2003 and 2007 which the appellant said were the subject of reports to the police but not the event in May 2012. The delegate accepted that the appellant’s friend was abducted in 2003, noting that the appellant had provided the police statement of 8 December 2003 in this regard. Otherwise the delegate referred to the claim of an incident where armed men came to the appellant’s home in July 2007 but rejected this claim. In so doing the delegate did not refer to the 12 July 2007 police report. Given that the delegate makes no reference to the claim of an incident on 10 May 2012, there is also no reference to the police report dated 11 May 2012.

9    The appellant applied to the Tribunal for review in July 2013 via a migration agent. The migration agent made a submission to the Tribunal dated 30 April 2014 (the pre-hearing submission) which, by a letter, the appellant said had been explained to him and that he understood accurately represented his claims. In an attached document, which appears to record a further statement by the appellant, reference is made to the appellant already having made a detailed statement before his Departmental interview in September 2012 which I take to be a reference to his 27 August 2012 statement. He said that this previous statement included details of events from 2002 until he left Sri Lanka in 2012 and that he wanted now to include some further details including correcting some assumptions the delegate had made. There is no reference in this further statement to the police reports. In the submission from the migration agent to the Tribunal reference is made to this further statement. In addition, the submission refers to the “statements” provided by the appellant as confirming his fears. The submission also does not refer to the police reports.

10    The appellant, represented by his migration agent, attended a hearing of the Tribunal on 16 December 2014.

11    Following the Tribunal hearing the migration agent for the appellant made a further submission in writing said to be “in addition to the [oral] submissions made by the claimant’s representative during the RRT hearing”. This further submission makes no reference to the police reports.

12    On 21 January 2015 the Tribunal published its decision to affirm the decision not to grant the appellant a protection visa. In its reasons for decision the Tribunal referred to the appellant’s claims including the events in 2003 which the appellant said he reported to the police, the incident in July 2007 which the appellant said his wife reported to the police, and the event on 10 May 2012 after the appellant had left Sri Lanka which his wife had reported to the police. It also referred to the appellant’s written statement of 27 August 2012 and noted a number of inconsistencies between this statement and the oral evidence. The Tribunal concluded that the appellant was not a credible witness. It then identified five inconsistencies between his written statement of 27 August 2012 and the appellant’s oral evidence, none of which relate to the events of July 2007 or May 2012 which the appellant said had been the subject of reports to the police.

13    In answering the question posed for itself, does the appellant have a well-founded fear of being persecuted, the Tribunal said it had considered all of the evidence before it. It noted its conclusion that the appellant was not a witness of truth in relation to critical aspects of his claims. It accepted that his friend had disappeared in 2003 and that the appellant reported this to police. The Tribunal also said this at [28]:

The Tribunal accepts as evidence of this the police report provided to the department and the applicant’s consistent evidence.

14    At [29] the Tribunal said:

Given the tribunal’s concerns in relation to the applicant’s credibility and the reliability of some of his evidence discussed above, the tribunal does not accept that the applicant continued to receive any threats after 2007.

15    At [31] the Tribunal said:

The tribunal does not accept that after the applicant left Sri Lanka people knocked on his door (in Sri Lanka) calling his name and poured oil over his gate.

16    At [32] the Tribunal reiterated that it did not accept that the appellant had been of adverse interest to anyone since 2007.

17    The Tribunal did not accept that there was a real chance the appellant would be persecuted for any reason if he were to return to Sri Lanka.

18    In making the findings at [29], [31] and [32] that the events claimed by the appellant to have occurred in 2007 and 2012 did not in fact happen the Tribunal did not refer to the police reports of 12 July 2007 (two days after the claimed incident and when the appellant said he returned home after having hidden) and 11 May 2012 (the day after the appellant said people came to his house in Sri Lanka looking for him and poured oil everywhere).

The application to the Federal Circuit Court

19    The appellant filed an application for judicial review in the Federal Circuit Court of Australia (the Federal Circuit Court). This application set out three grounds, two of which relate to the way in which the Tribunal dealt with the appellant’s position if he were to return to Sri Lanka as a failed migration claimant having illegally departed from that country (including a claim of the kind considered in Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 which was not pressed in the present appeal and, given the facts of the present case, I do not consider available in any event) and one relating to complementary protection provisions. No ground relating to the Tribunal having failed to consider the 2007 and 2012 police reports was raised.

20    The appellant was not represented before the Federal Circuit Court. The Federal Circuit Court dismissed the application.

The application to this Court

21    The appellant was not represented at the time his notice of appeal to this Court was filed. The notice of appeal raised three grounds. However, by the time the written submissions were filed the appellant was legally represented. In the written submissions two of the grounds of appeal were abandoned. The submissions stated that the remaining ground should be amended so that it read:

The Court below erred in failing to find that the AAT [the Administrative Appeals Tribunal which is now the relevant body rather than the Refugee Review Tribunal] failed to ensure that the hearing was conducted fairly and in accordance with law.

22    In the written submissions this alleged failure was put in various ways. First, it was said that the Tribunal relied on trifling inconsistencies to reach a conclusion adverse to the appellant. Second, it was said that the Tribunal failed in its duty to “test the evidence submitted”, meaning that the Tribunal did not ask the appellant anything about the police reports but subsequently rejected them even though they were contemporaneous with the events in issue. Third, it was said that the Tribunal failed to take into consideration the police reports. The Minister did not raise an objection to the appellant relying on the new ground even though it was not raised before the Federal Circuit Court. I consider this to be appropriate as the issue is one of law only and does not involve any prejudice to the Minister. Insofar as necessary, I grant the appellant leave to rely on the new ground of appeal.

23    Before the hearing I referred the parties to Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) and requested that they consider the relevance, if any, of this decision to the appeal. At the commencement of the hearing I indicated to the parties that I did not consider that any issue other than the allegation of a failure to consider the police reports was capable of giving rise to any jurisdictional error in this case. I remain of this view. Nothing in the decision record (the transcript of the hearing before the Tribunal not being in evidence) supports the contention of any unfairness to the appellant in the way in which the Tribunal relied on inconsistencies in the appellant’s case to found its conclusions. Nor can it be said that the Tribunal rejected the police reports as incredible or fabricated. This is because the Tribunal did not say what it did, if anything, with the police reports when it came to deal with the applicant’s claims about events in July 2007 and May 2012. I do not accept that the Tribunal was bound to make inquiries about the police reports. It is for this reason, in my view, that the real issue is whether the Tribunal failed to consider the 2007 and 2012 police reports and, if so, whether that failure constitutes jurisdictional error.

24    In SZRKT the Tribunal decided that it did not believe the applicant “because it believes he has not been truthful about his former study in that country” (at [9]). The applicant had said he studied at university between 2006 and 2008. The Tribunal disbelieved the applicant because while he said he studied Persian for this period he could not recall a word of Persian. However, there was a transcript which, on its face, purported to show that the applicant had been enrolled at university as claimed. This document was on the file which was forwarded by the Department to the Tribunal. The Tribunal made no reference to the transcript in its reasons.

25    Justice Robertson was satisfied that the Federal Circuit Court had not erred in deciding that the Tribunal failed to consider the transcript when it made its adverse findings (at [71]). His Honour then considered the legal consequences of this factual finding of a failure to consider the transcript. He said:

[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 Corporation v National Labor Relations Board 340 US 474 (1951) 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 (NSW) [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.

…

[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” (1957) 70 Harvard Law Review 953 at 963 cited with approval in Kirk v Industrial Relations Commissioner 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 Relations Commission 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.

…

[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:

…

[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 …

26    Justice Robertson summarised a review of the relevant authorities in these terms:

[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 and Multicultural and 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 Migration 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.

27    Justice Robertson concluded in these terms:

[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.

28    Jurisdictional error was thus established.

29    In Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 (MZYTS) the Full Court held that the Tribunal’s failure to consider current country information involved jurisdictional error. At [62] the Full Court said:

… the Tribunal’s reasons do not disclose any consciousness, nor any consideration, of those prevailing circumstances in any part of 2011, nor of the effect of the election cycle in Zimbabwe. They disclose no consciousness, nor any consideration, of what were submitted to be increasing incidents of political violence directed not at high-profile people but at “ordinary” MDC supporters or members. The absence of these matters from the reasons, combined with the centrality of them to the visa applicant’s claimed fear of persecution as clearly articulated to the Tribunal before, during and after the hearing, allow us comfortably to infer that the Tribunal did not consider these matters, or consider these matters material to the task of asking whether or not the visa applicant had a well-founded fear of persecution. For the Tribunal to form the latter view reveals a misunderstanding of its statutory task on review at the most fundamental level. A failure to consider the claim advanced by a visa applicant is plainly and uncontroversially a failure to perform the statutory task imposed on the Tribunal.

30    This conclusion followed the Full Court’s observation at [15] that:

It is clear from the matters raised by the Tribunal, and the visa applicant’s responses during the hearing that, with the prospect of new elections in the foreseeable future, the question of how volatile and dangerous the situation was “on the ground” in Zimbabwe for people who were actual or perceived supporters of the MDC — but not leaders or persons with a high profile — was a key question in assessing whether the visa applicant was owed protection obligations by Australia for the purposes of Art 1 of the Refugees Convention and s 36(2)(a) of the Migration Act 1958 (Cth).

31    In Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 (SZSRS) the Full Court held that a letter was “centrally important to the Tribunal’s decision-making process” (at [56]). This was because the letter was about an issue (whether the applicant had been baptised) which was the foundation for the Tribunal rejecting the applicant’s claims and was capable of corroborating the evidence that she had been baptised. Again, accordingly, jurisdictional error was established.

32    What then of the present case? I am satisfied that the Tribunal did not consider the police reports of 2007 and 2012 when it rejected the appellant’s claims relating to incidents in those years. Although the Tribunal referred to these police reports when it summarised the appellant’s claims (at [6] and [9]) it made no reference to these reports when it came to assess the credibility of the appellant’s claims about these events (see the Tribunal’s reasons at [29], [31] and [32]). This may be contrasted with the Tribunal’s acceptance of the corroborating effect of the 2003 police report at [28]. If the Tribunal had considered the 2007 and 2012 police reports then, given its treatment of the 2003 police report (which was in precisely the same form, that is, untranslated but bearing a date proximate to the claimed events and consistent with the date the appellant said he or his wife went to the police), it would be expected that the Tribunal would mention those reports. This is particularly so given that the Tribunal accepted that the events in 2003 occurred and found the untranslated police report corroborated these events whereas it found that the events in 2007 and 2012 did not occur, its conclusion being that the appellant was not of adverse interest to anyone after 2007 (which, in context, I understand to mean in and from 2007). Further, the Tribunal’s lack of reference to the 2007 and 2012 police reports, and acceptance of the 2003 police report as corroborative of one part of the appellant’s claims, reflects the way in which the delegate dealt with the case. The delegate also accepted the 2003 police report as corroborative but made no reference to the 2007 and 2012 police reports.

33    Does the failure of the Tribunal to consider the 2007 and 2012 police reports mean that the Tribunal failed to consider the claim that the appellant advanced? The authorities disclose that this question is to be answered not as a matter of principle but in a fact specific context. The issue is the importance or centrality of the evidence to the claim and the Tribunal’s resolution of the claim, which calls for consideration of the cogency of the material and its place in the appellant’s claims.

34    I do not find the question easy to resolve in the circumstances of the present case. This is for a number of reasons.

35    It might ordinarily be thought that untranslated material lacks the necessary cogency to form a central plank in the reasoning process of the Tribunal. In the present case, however, the Tribunal accepted that the untranslated 2003 police report corroborated the appellant’s claims about events in 2003. In other words, by its treatment of the 2003 police report the Tribunal accepted that the document was cogent evidence supportive of the appellant’s claims relating to that period. I do not consider this approach by the Tribunal to the 2003 police report to be irrational. Although the document was untranslated so that its content remains unknown, the appellant put the document forward as proof that he went to the police on a particular date about his friend’s disappearance. The document appears to be a police report on its face. It bears the date that the appellant said he went to the police. Insofar as the Minister suggested some confusion about the 2003 police report (because there is a second page which bears an issue date in 2012) I do not think the confusion is borne out. It is reasonably clear that the 2003 police report is a two page document which bears a date on which the report was made and an issue date of the copy obtained by the appellant.

36    The 2007 and 2012 police reports are in the same form as the 2003 police report. They appear to be police reports on their face and bear the date on which the appellant said his wife went to the police. Given the Tribunal’s treatment of the 2003 police report it is difficult to escape the conclusion that, in the scheme of the Tribunal’s reasoning process, the 2007 and 2012 police reports were equally capable of being found to corroborate the appellant’s claims about the events he said his wife went to the police about in 2007 and 2012. The Minister submitted the documents lacked cogency not only because they were not translated but also because the 2012 report might have been about the “Greaseman” incident, given the rather jumbled nature of the index to the documents attached to the appellant’s statement. I do not accept this submission because there is no suggestion in the material that the appellant or his wife went to the police about the “Greaseman” incident. The appellant’s statement of 27 August 2012 identifies the occasions on which the appellant or his wife went to the police and the incident about which they went. The dates of the attached police reports are consistent with the appellant’s claims.

37    There is, however, a difference between the events in 2003 and those claimed to have occurred in 2007 and 2012. In 2003 the appellant said he went to the police about the disappearance of his friend and then became of adverse interest to those involved in the disappearance. The 2007 and 2012 events related to persons unknown. The source of the threat against the appellant in 2007 and 2012 incidents remained unidentified, and the appellant did not proffer any suggestion as to who the armed men in question might have been or even why they were targeting him as claimed. It remained unclear how the events were related to his fear of persecution for a relevant, Convention-related, reason. In these circumstances it is difficult to accept that the 2007 and 2012 police reports have the necessary quality of cogency to be a central plank of the appellant’s claims.

38    If this characterisation of the 2007 and 2012 police reports is incorrect then, in any event, another perhaps more fundamental difficulty for the appellant arises. It is clear that in the pre-hearing and the post hearing submissions to the Tribunal, and in his further statement, the appellant did not raise any issue about the fact that the 2007 and 2012 police reports which corroborated his claim had been overlooked by the delegate in contrast to the 2003 police report. The inconsistency in the delegate’s treatment of the police reports is the kind of matter where, had they been centrally important to the appellant’s claims, it would be expected that the appellant or his agent would raise the issue in some form with the Tribunal. Despite being represented by a migration agent and having the opportunity to make a further statement and put in further submissions both before and after the Tribunal hearing it is apparent that this inconsistency in treatment was not raised.

39    Insofar as the hearing before the Tribunal is concerned, at which the appellant was also represented by a migration agent, it is possible also to infer that the 2007 and 2012 police reports were not raised. The Tribunal’s reasons give no indication that the appellant or his agent referred to the 2007 and 2012 police reports. Moreover, the transcript of the hearing before the Tribunal is not in evidence. In other words, the way in which the review was conducted before the Tribunal gave no hint that the 2007 and 2012 police reports were central to the appellant’s claims in circumstances where the inconsistency in the delegate’s treatment of the 2003 police report would ordinarily be expected to call for some response from the appellant or his migration agent given the detailed further information each submitted as part of the process before the Tribunal.

40    Finally, the Tribunal’s reasons do not support the conclusion that the claimed events in 2007 and 2012 were of central importance to the Tribunals’ decision-making process. The Tribunal reached a conclusion adverse to the appellant’s credibility by reference to five matters, none of which relate to the events in 2007 and 2012 said to be the subject of the police reports. The Tribunal did not accept the events after 2007 occurred as claimed by the appellant, including the incident said to be the subject of the police report in 2012, but it did so having already reached a view adverse to the credibility of the appellant on other unrelated grounds.

41    For these reasons, although I am satisfied that the Tribunal failed to consider two pieces of evidence on which the appellant had relied to support his claims, I am unable to conclude that this failure of consideration amounts to a jurisdictional error. While every such failure gives rise to some level of disquiet about the Tribunal’s discharge of its legal duties, the particular factual circumstances of the present case do not persuade me that the Tribunal, in failing to consider the 2007 and 2012 police reports, failed to consider the appellant’s claims.

42    There being no other argument in support of jurisdictional error which I consider open, it follows that the appeal must be dismissed with costs.

Associate:

Dated:    9 December 2015