FEDERAL COURT OF AUSTRALIA

BHW16 v Minister for Immigration and Border Protection [2019] FCA 2168

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 1 and 2 of the Federal Circuit Court of Australia made on 7 May 2019 be set aside and in lieu thereof it be ordered that:

(a)    the decision of the second respondent made on 6 May 2016 be set aside; and

(b)    the matter be remitted to the second respondent for redetermination according to law.

3.    Subject to any application in respect of costs to be made on or before 4.00 pm on 28 January 2020, the first respondent pay the appellant’s legal costs, if any, of the hearing in the Federal Circuit Court.

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

REASONS FOR JUDGMENT

YATES J:

Introduction

1    The appellant is a citizen of Bangladesh, who entered Australia on 8 April 2014 under a visitor visa. On 2 May 2014, he applied for a protection visa. On 3 December 2014, a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), refused the application.

2    The appellant sought review of the delegate’s decision before the second respondent, the Administrative Appeals Tribunal (the Tribunal). The appellant was represented throughout the review by a migration agent. On 6 May 2016, the Tribunal affirmed the decision under review.

3    The appellant then commenced proceedings in the Federal Circuit Court of Australia (the Federal Circuit Court) seeking judicial review of the Tribunal’s decision. He appeared in person at the hearing of his application, although post-hearing submissions, prepared by counsel, were subsequently filed on his behalf. On 7 May 2019, the Federal Circuit Court dismissed the application. The appellant appeals from that judgment.

The Tribunal’s Decision

4    The appellant claimed to fear harm from fanatical Islamists in Bangladesh, in particular persons affiliated with Jamat-E-Islam, students from a particular Madrasa in Dhaka and persons affiliated with the religious cult associated with Delwar Hossain Sayedee. In this connection, he claimed that there had been a number of incidents in 2013 and 2014 in which he and/or members of his family had been threatened or attacked.

5    The Tribunal had “a number of credibility difficulties” with these claims. It discussed these concerns at [33] – [60] of its Decision Record. It is not necessary for me to summarise these concerns. It is sufficient for me to note that the Tribunal was not satisfied that the appellant “was a truthful witness in relation to key aspects of his claims”. In that regard, the Tribunal said:

62.    In making this assessment the Tribunal has taken note of the country information concerning the waves of attacks that occurred against Hindus in 2013 and again in early 2014. Notwithstanding this independent information, the Tribunal remains unpersuaded with the truth of the applicant's claims that he was systematically hunted in the way that he has described over a period of 6 to 7 months.

63.    The Tribunal notes that the applicant has claimed allowance should be made for the fact that his original statement was prepared with the assistance of a volunteer solicitor and that he was not represented in hearing (sic). The original statement is a very detailed and precise recording of claims. The applicant is educated. The Tribunal is not satisfied that the failure of the applicant being represented in the interview with the delegate or issues relating to the preparation of the original statement explain the cumulative impact of the inconsistencies in the applicant's evidence and the plausibility issues identified.

64.    The cumulative impact of the deficiencies in the evidence are such that the Tribunal cannot be satisfied that the applicant has been threatened, attacked, followed, phoned, by anti-Hindu militants, or that his family have been phoned, threatened and have had their house ransacked by anti-Hindu militants seeking to extract information about the location of the applicant. The Tribunal is not satisfied that the applicant relocated on various occasions within Dhaka for the reasons claimed. The Tribunal is not satisfied that the applicant's family relocated on various occasions for the reasons claimed.

65.    Given that the Tribunal is not satisfied that the applicant has been the target of any anti­Hindu groups, or individuals, or has suffered harm or threats at the hands of such groups or individuals, the Tribunal is not satisfied that there is a real chance of serious harm or a real risk of significant harm to the applicant based on previously being targeted either on the basis of his religion, membership of a particular social group as a member of a Hindu organisation, his imputed political opinion in opposition to the political views of militant Muslims, or for any other reason.

6    The appellant also claimed to fear harm because of his Hindu faith and his volunteer work with Jago Hindu, an organisation that works for the rights of Hindus and which seeks to raise awareness about Hinduism in Bangladesh. The Tribunal was prepared to accept that the appellant was of Hindu faith and that he had had some involvement in Jago Hindu as an ordinary member who did not have a leadership role. The Tribunal therefore considered the risk of harm to the appellant on that basis but, in light of the adverse credibility findings it had made, not as a person who had been subjected to prior targeting or harm based on his religion, imputed political opinion, or for any other reason.

7    In considering this aspect of his claim, the Tribunal had regard to certain country information (DFAT Country Report – Bangladesh, 20 October 2014) (the DFAT report) and to statistics provided by an NGO concerning deaths, injury and violence in Bangladesh in 2014 and 2015. The Tribunal noted that, whilst there were reports of sizeable numbers of attacks and other harm against Hindus, these matters were to be seen in the context that there were 13.5 million Hindus living in Bangladesh, constituting 8.5% of the population. The Tribunal also noted that there were no restrictions on Hindus practising their religion and that Hindus made significant contributions to Bangladeshi public life, including in politics, academia and the arts. The Tribunal further noted that no information was before the Tribunal which would suggest any greater risk of harm to Hindus who were members of Jago Hindu.

8    In light of these matters, the Tribunal indicated to the appellant that it would not be inclined to accept that there was a real chance of serious or significant harm to him on the basis of his Hindu faith or his membership of a Hindu group.

9    In light of this indication, and following the hearing, the appellant raised additional matters for the Tribunal’s consideration which, he contended, the Tribunal should take into account in this regard. The additional matters were contained in a written response and a statutory declaration made by the appellant.

10    The Tribunal then made the following findings:

75.    The Tribunal does accept that the DFAT report paints a more benign picture than other independent information. The Tribunal is prepared to accept that the declining numbers of Hindus in Bangladesh may reflect their minority status. The Tribunal is prepared to accept that there may be some underreporting of instances of harm. However, the Tribunal is not inclined to accept that the independent information, including by reputed NGOs and the US government, does not give a reasonably accurate indication of the situation faced by Hindus on the ground in Bangladesh.

76.    The issue before the Tribunal remains whether there is a real chance of serious or significant harm to the applicant based on being a Hindu practitioner and the member of a Hindu organisation. The Tribunal is conscious of the dangers of the 'safety in numbers argument'. In this respect it notes the decision in SZSSM v Minister for Immigration and Anor [2013] FCCA 1489 (11 November 2013) in which the Driver J cautioned that the assessment of risk may be real notwithstanding a low probability of harm facing any individual. MZAKC v Minister for Immigration and Anor [2016] FCCA 834 (14 April 2016) suggests that a statistical analysis is not impermissible provided that the applicant's particular circumstances were also properly considered.

77.    The Tribunal is not persuaded that the numbers of reported instances of harm to Hindus, either in terms of deaths, injury, or damage to homes (which would be relevant to the applicant in the context of serious or significant harm) in the context of a population of 13.5 million Hindus leads to a real chance of serious or significant harm for any Bangladeshi Hindu. Even if these reported figures in these categories (as compiled by Ain o Salish Kendra as outlined in this decision) were to be multiplied by 10, it would lead to a statistical chance of harm of less than one tenth of one per cent in any given year. Even considering the risk several years into the future would lead to a risk of well less than one per cent.

78.    Considering all evidence before it, the Tribunal considers the risk to the applicant of serious or significant harm based on being a Hindu in Bangladesh is remote.

79.    Any assessment must also consider factors particular to the applicant. As indicated, the Tribunal has not accepted applicant [sic] has been specifically targeted as he has described. The Tribunal is of the view that the applicant is a practitioner of the Hindu faith, as part of which he belongs to a Hindu organisation. The Tribunal is not satisfied that the applicant has a high profile or is a religious leader or a leader within the Hindu organisation to which he belongs. The Tribunal is not satisfied that there is anything in the applicant's particular circumstances which would raise the risk of serious or significant harm to the level of a real chance of such harm.

80.    The Tribunal is not satisfied that the applicant faces a real chance of serious significant [sic] harm due to being a practising Hindu or an ordinary member of the Jago Hindu.

81.    Whilst not explicit, it might be inferred that the applicant was indicating that he faced harm on the basis of discrimination due to being a Hindu. The Tribunal accepts that Hindus are a minority in Bangladesh. However, the Tribunal is not satisfied that the independent evidence establishes that Hindus in Bangladesh are discriminated against to such an extent that could be said to constitute serious harm, or would fall within any definition of significant harm. The DFAT report refers to Hindus making significant contributions to public life including in politics, academia and the arts. There is no evidence that the applicant was significantly hampered in terms of his education, employment or ability to earn a living. The Tribunal is not satisfied on the evidence before it that the applicant would face a real chance of discriminatory treatment being Hindu that would constitute serious harm, or fall within any definition of significant harm.

11    For these reasons, the Tribunal was not satisfied that the appellant was a person in respect of whom Australia owed protection obligations under s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (the Migration Act).

The Federal Circuit Court

12    The appellant appeared in person at the hearing of the judicial review application. The primary judge recorded that he did not file “pre-hearing written submissions”. However, her Honour made orders for “post-hearing submissions” to address additional issues that arose from the grounds of review on which the appellant relied. After the Minister filed his post-hearing submissions, the appellant emailed further written submissions to the court. These had been prepared by counsel who was retained by the appellant on a direct access basis for the purpose of preparing that response. Although not filed or served, the primary judge recorded the fact that a copy of the additional submissions was provided to the Minister’s solicitors. On that basis, the primary judge considered that it was appropriate to take them into account.

13    The appellant relied on four grounds. Only two of them are relevant to the appeal.

14    The first relevant ground was:

The Administrative Appeal Tribunal made a jurisdictional error when it failed to consider each integer of his claim and or failed to take into account the whole of the oral and written evidence in determining whether he feared persecution claimed amounted to persecution and serious harm within the meaning of s 91 R of the Migration Act. The decision was infected with error and consequently the AAT acted contrary to law, resulting in constructive failure to exercise jurisdiction.

Particulars:

The Applicant is a truthfull witness. He gave all the details of his past activities with an Hindu Organisation in Bangladesh - Jago Hindu. He was targated by the fanatical Islamists (in particular, persons affiliated with Jamat-E-Islam) because of his association with the Hindu Organisation in Bangladesh. He received several telephone threats from the fanatical Islamists because they alleged that the applicant had distributed cartoons of Prophet Mohammad and working against the Muslim faith in Bangladesh.

In October 2013, the applicant was stopped by armed Islamic HUZUR and other extremists Muslim Students. They threatened the applicant and clearly told him that if applicant stayed in Bangladesh he will be killed. They also threatened to burn applicant's father's house and father's shop. Later on they (fanatical Islamists ransacked and damaged father's house. His father complained to the Police but the Police refused to give genuine protection.

In January 2014 the applicant received a phone call from unknown number in which the caller told the applicant that he is 'On death row' and he should count days. They said that they are going to kill applicant. The applicant claims that the Tribunal did not account the applicant's oral and written evidence of his claim and made decision without considering the circumstances in which the applicant left Bangladesh

The applicant claim that the Tribunal failed to comply with the risk factors prescribed by the Migration Act in assessing the fear of persecution.

The applicant claims that the Tribunal failed to consider more recent information with regards to the attacks on Hindus by the extremist and fanatics. The applicant gave a credible evidence of persecution which occurred his suburb [. ..] and Dhaka.

The applicant believes the Tribunal made error or path leading to error, error is itself is failure to person the statutory task imposed on AAT by the Migration ACT.

(Errors in original.)

15    The second relevant ground was:

4. Grounds The Tribunal made a jurisdictional error when it discarded all the oral and written submission without giving any solid evidence of cumulative credibility concern in the finding of reasons.

Particulars .In the decision the Tribunal found that there were some inconsistency between he gave at the Tribunal hearing and his written claims and the statements he made at the protection interview. Applicant claims that he misunderstood the questions at the time of interview because the Banglai Language interpreter did not say the whole thing what the Tribunal said to the applicant.

The applicant claims that there was miscommunication between the applicant, the Tribunal member and the interpreter.

(Errors in original.)

16    The primary judge noted that the first of these grounds raised a variety of issues. To the extent that the particulars simply repeated the appellant’s claims to have been targeted by fanatical Islamists, the primary judge held that the Tribunal had, in fact, addressed the claims. The primary judge noted that, in relation to the asserted targeting, the Tribunal had made credibility findings adverse to the appellant. The primary judge noted that simple disagreement with the Tribunal’s factual findings cannot give rise to jurisdictional error.

17    As to the allegation that the Tribunal failed to comply with the “risk factors prescribed by the Migration Act”, the primary judge noted that the Migration Act does not prescribe “risk factors”. Her Honour held:

73.    ... The Tribunal correctly referred to and considered the applicable tests in relation to persecution and serious harm. It has not been established that the Tribunal misapplied or misunderstood the law in that respect. As it correctly observed, the mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is “well founded” or that it is for the reason claimed.

18    As to the allegation that the Tribunal failed to consider more recent information in relation to attacks by extremists and fanatics, the primary judge recorded that, in post-hearing submissions, counsel for the appellant accepted that, in the circumstances of this case, the Tribunal had not failed to consider more recent country information so as to give rise to jurisdictional error.

19    There were, however, two further issues arising under this ground. The first concerned the Tribunal’s “statistical analysis”, which compared the number of reported attacks and harm against Hindus with the number of Hindus living in Bangladesh. In his post-hearing submissions, the appellant submitted that, on the authority of DZADQ v Minister for Immigration and Border Protection [2014] FCA 754, it was not open to a decision-maker to find that the chance or risk of an applicant being harmed was remote simply because the relevant target group was numerous and the number of reported instances of harm to members of that target group was low. The appellant submitted that, in his case, the Tribunal had ignored his particular circumstances and had simply applied a mathematical or formulaic approach to determine whether he faced a real chance or real risk of serious or significant harm should he return to Bangladesh.

20    The primary judge did not accept that submission. First, the primary judge noted that the Tribunal did not simply rely on the fact that the target group was numerous. Her Honour found that the Tribunal had also had regard to the absence of restrictions on Hindus practising their religion, and on the evidence that Hindus had made significant contributions to Bangladeshi public life. Thus, the percentage figure calculated by the Tribunal was only part of the contextual material by reference to which the Tribunal made its assessment of the risk of harm arising from the fact of the appellant’s Hindu faith and his membership of Jago Hindu. Further, the primary judge noted that the Tribunal had had regard to the fact that there had been no independent information before it to suggest that membership of Jago Hindu posed any greater risk of harm for Hindus in Bangladesh.

21    The primary judge found that the Tribunal had also taken the appellant’s personal circumstances into account. In this connection, the primary judge noted that the Tribunal was not satisfied that the appellant had a high profile, was a religious leader, or was a leader within Jago Hindu itself. These findings were not based on the Tribunal’s earlier credibility findings (in relation to whether the appellant had been targeted, as he had claimed).

22    The primary judge was satisfied, therefore, that the Tribunal had not confined itself to a mere quantitative analysis. The primary judge concluded that no jurisdictional error had been established by the appellant in this regard.

23    The second issue was the appellant’s contention that the Tribunal had failed to take into account the whole of the oral and written evidence. This contention focused on a letter from the Secretary of Jago Hindu, dated 8 April 2014. The letter, as quoted in the primary judge’s reasons, was:

TO WHOM IT MAY CONCERN

Dear Sir / Madam

I am writing on behave of [the Applicant], village: [address]. He is by born in Bangladeshi and Hindu religion ... He is the member of JAGO HINDU Organisation and work for Hindus right and publicity of Hinduism. But in September and October 2013 [the Applicant] and his family faced several killing attempt and threaten from unknown number by the ISLAMI HUZUR and Madrasa Student. The Islamic HUZUR and Madrasa student issuing a false claim against him that he abuse Mohammed and holly Quran. Also [the Applicant] refused to get any assistance from local police station. After all thus happening he feel very scared and unsafe to live in Bangladesh. On 07 April 2014 he leaves for Australia to survive his life.

Therefore we would like to request the Australian Government that please allow [the Applicant] to stay permanently in your country.

Yours sincerely ...

    (Errors in original.)

24    In a nutshell, the appellant contended that the Tribunal did not refer to this letter in its Decision Record; therefore, it appeared that the Tribunal did not turn its mind to the letter or have regard to its relevance when assessing the appellant’s credibility or when assessing whether the appellant’s membership of Jago Hindu placed him at greater risk of harm than other Hindus. Relatedly, the appellant contended that the letter was corroborative of the harm he claimed to have suffered and feared.

25    The primary judge reasoned that it could not be inferred that the Tribunal had overlooked the letter insofar as it corroborated the appellant’s claim to membership of Jago Hindu. The primary judge reasoned further that, even if the Tribunal had overlooked the letter in this regard, that failure did not constitute a failure to deal with the appellant’s claims to be a Hindu and to be a member of Jago Hindu because the Tribunal had stated its preparedness to accept those very facts.

26    However, the primary judge said that she was not satisfied that the Tribunal had taken the letter into account in respect of its corroboration of the appellant’s claims to have been previously attacked. In this connection, the primary judge noted that the letter repeated the appellant’s claims that in September and October 2013 he and his family had faced several killing attempts and threats and that he refused to get any assistance from the local police station. Her Honour continued:

120.    …This was inferential support for the Applicant’s claim that he reported to Jago Hindu some claimed September and October 2013 incidents and threats. However, the letter does not purport to address all the incidents claimed by the Applicant or, importantly, his claim that he was systematically targeted in a premeditated and sustained way by members of an anti-Hindu group over a period of 6 to 7 months.

27    On my initial reading of the primary judge’s reasons, it was not clear to me what her Honour meant when expressing her non-satisfaction that the letter had been taken into account in this regard. At the hearing, I suggested to counsel appearing for the Minister that this may have been an infelicitous way of her Honour stating that the Tribunal did have regard to this part of the letter, but that she did not think that it added to the material already before it. On reflection, I think that her Honour meant precisely what she said: that in reaching its findings, the Tribunal did not take this part of the letter into account.

28    The primary judge held that this failure was not such as to amount to a constructive failure on the part of the Tribunal to exercise its jurisdiction. Thus, at [122] – [124], the primary judge said:

122.    However the letter did not directly address any of the issues which cumulatively led the Tribunal to reject the Applicant’s claims about past events. The letter did not relate to the inconsistencies in the Applicant’s evidence or the Tribunal’s concerns about Mr Ison’s evidence referred to in its credibility findings. Importantly, it did not address or support, even inferentially, his claim that he was systematically hunted and targeted in a sustained and co-ordinated effort. The Tribunal understood and took into account the Applicant’s claim that he was working as a member of a pro-Hindu group (as an ordinary member) in considering his claim that there had been a premeditated and sustained attempt by members of an anti-Hindu group to track him down. However, his claim was that he was systematically targeted over 6 to 7 months (a matter not addressed in the Jago Hindu letter). The Tribunal was unpersuaded by this claim, even having regard to the Applicant’s involvement in Jago Hindu as an ordinary member. It was not satisfied that the Applicant had a high level profile or was a leader in Jago Hindu “such as to attract the sustained and co-ordinated efforts to locate him that are claimed'”. There was nothing in the letter to the contrary.

123.     The Tribunal dealt with the Applicant’s claims to have been targeted, threatened and attacked in September to October 2013 on the basis of its adverse credibility finding. In circumstances where the letter merely repeated such claims, but did not relate to or address any of the issues of concern that resulted in the Tribunal’s credibility findings, it has not been established that the letter could have materially affected the Tribunal’s assessment of the Applicant’s credibility.

124.    Given the absence of any suggestion in the Jago Hindu letter that the Applicant had any high profile or leadership role in the organisation or of any link between his role and the claimed targeting and also the limited description of some of the claimed past harm (but not the incidents addressed in the credibility findings and with no indication as to the source of the information or support for the Applicant’s claims that these incidents were part of a sustained and systematic targeting), the letter was not cogent evidence of importance to the Tribunal’s credibility findings. In particular it did not go to any matter relevant to the credibility of the Applicant’s claims about past systematic targeting for 6 to 7 months of the sustained and premeditated nature he claimed he had experienced. The letter was not of such potential significance in the assessment of the credibility of those claims that it was so plainly relevant or of such materiality or importance to the exercise of the Tribunal’s function that the Tribunal’s failure to refer to it in reaching its adverse credibility findings amounted to a constructive failure to exercise its jurisdiction (see SZRKT at [111] – [112] and also see Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67).

29    For these reasons, the primary judge concluded that this ground of review was made out.

30    In relation to the second relevant ground (see [15] above), the appellant informed the primary judge at the hearing that he did not press any concern in relation to the adequacy of the interpretation and translation at the Tribunal hearing. However, in his post-hearing statutory declaration he explained that he had been extremely nervous and anxious at the Tribunal hearing and was not able to concentrate on the questions he was asked.

31    Insofar as this ground covered a wider miscommunication concern, the primary judge said:

141.     Insofar as there is a wider miscommunication concern, the Tribunal conducted a de novo review at a time when the Applicant had representation by a solicitor/migration agent. In making its findings the Tribunal had regard to the Applicant’s claim that allowance should be made for the fact he had no representation before the delegate. However it found that the Applicant’s original statement was very detailed and precise and that the Applicant was educated. It was not satisfied that the absence of representation in the departmental interview or issues relating to the preparation of the original statement explained the cumulative impact of the inconsistencies in the Applicant's evidence or overcame the plausibility issues it identified.

32    At [143], the primary judge said:

143.    In addressing the discrepancy between his evidence at the Tribunal hearing and his interview with the delegate, while the Applicant sought to provide a reason to the Tribunal as to why the information he had given to the delegate was inaccurate in relation to where he moved to at particular times, he did not raise any issue about translation. Rather he agreed (having listened to the recording of the interview with the delegate) that he had given clearly inaccurate information about his first move to the delegate and raised the possibility that he had not paid attention because he had assumed the delegate was referring to his second move and that his response indicated a lapse in concentration during the interview.

33    Insofar as this ground took issue with the Tribunal’s adverse credibility findings, the primary judge found that the Tribunal considered the appellant’s claims, and his oral and written submissions; the Tribunal gave detailed reasons for its findings, which were not limited to inconsistencies in the appellant’s oral evidence and were articulated properly; the Tribunal took into account the implausibility of the appellant’s claims; and the Tribunal recognised and took into account that great care must be taken in making adverse findings based on plausibility. The primary judge recognised that, while credibility findings are not immune from review, in this case the Tribunal’s findings were reasonably open to it and that no jurisdictional error was established on this score. Finally, the primary judge noted that, even if a different decision-maker might have reached a different decision, the Tribunal’s decision was not one that no rational or logical decision-maker could have arrived at on the same evidence.

34    For these reasons, the primary judge considered that this ground was not made out.

The appeal

35    The appellant’s notice of appeal contains two grounds. They simply reproduce the two grounds I have quoted at [14] and [15] above.

36    As expressed, these grounds are not competent grounds of appeal. They do not allege appealable error in the judgment below. They are liable to be dismissed for this reason: SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771 at [6] – [7]; BSQ16 v Minister for Immigration and Border Protection [2018] FCA 469 at [28] – [29]. However, the appellant is unrepresented in this appeal. At the hearing of the appeal, I informed him that I would treat these grounds as alleging that the primary judge erred in failing to find that the Tribunal’s decision was affected by jurisdictional error for the reasons stated in the grounds.

37    However, I also informed the appellant that he would need to identify how the primary judge had erred. In this connection, the appellant had not complied with the Court’s orders to file and serve a written outline of submissions.

38    The appellant’s initial response was to ask for further time so that he could consider and obtain legal advice on the Minister’s written submissions. The appellant also asked me to take into account a number of documents he wished to rely on. The documents comprised a letter by the appellant to me as the presiding judge, and testimonials and similar documents attesting to his work history and training while in Australia. The appellant drew my attention to the fact that he had moved to a regional area to live and work as a chef and that he intended to apply for a subclass 482 visa that would be sponsored by his current employer. There was a written statement on what appears to be the letterhead of his employer confirming this fact.

39    I was not prepared to grant the adjournment which the appellant sought. Insofar as he wished to obtain legal advice and assistance, the appellant should have taken this step some time ago. Insofar as the appellant wanted time to lodge a further visa application, I was not persuaded that this provided a principled basis on which the appeal should be adjourned. I will, nevertheless, admit the documents into evidence as the evidence relied upon by the appellant in seeking an adjournment.

Consideration

40    I have considered the primary judge’s reasons in conjunction with the Minister’s written and oral submissions. Her Honour’s reasons are, with respect, detailed and thorough. There is, however, one matter in respect of which I have reached the conclusion that her Honour erred, namely her finding (at [124]) that the Tribunal’s failure to take into account the letter from Jago Hindu did not amount to a constructive failure to exercise jurisdiction.

41    In this regard, her Honour’s reasoning was that the statements made in the letter about the attempts and threats to harm the appellant and his family in September and October 2013 could not have materially affected the Tribunal’s assessment of the appellant’s credibility because the letter did not address the specific issues which cumulatively led the Tribunal to reject the appellant’s claims about past events.

42    However, as her Honour also noted, the Tribunal assessed the appellant’s claims to have been targeted, threatened and attacked in September and October 2013 on the basis of the adverse credit findings it had made—that is, without reference to the letter itself. This was so even though the letter provided support for the appellant’s claim that he reported some claimed incidents and threats, which occurred in September and October 2013, to Jago Hindu.

43    Whether the Tribunal is obliged to consider a document—so that the failure to consider the document will amount to a failure to exercise jurisdiction—will depend not only on the specific circumstances of the case but on the nature of the document itself: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77]; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [112]. Here, the letter was not of peripheral significance. It went directly to the appellant’s claims that he had been targeted, threatened and attacked. It also went to his credibility. No contention appears to have been advanced before the primary judge that the letter was not genuine. Certainly, no such contention was advanced on appeal.

44    It is, of course, for the Tribunal to reach its own view of the facts. But even so, I am satisfied that the letter was of sufficient importance to the exercise of the Tribunal’s function in assessing the appellant’s claims that it could not be ignored, as the primary judge found the Tribunal had done. With respect, I do not think that it can be concluded that, had the letter been taken into account, it could not have affected the Tribunal’s assessment of the appellant’s claims and his credibility simply because it did not address the specific issues which cumulatively led the Tribunal to reject the appellant’s claims about past events. The cogency and reliability of the matters stated in the letter, and the weight to be given to the letter itself, were really for the Tribunal to determine, not the primary judge.

Conclusion and disposition

45    For these reasons, I would allow the appeal and set aside the Tribunal’s decision. The matter should be remitted to the Tribunal for redetermination according to law.

46    As to the question of costs, I note that the appellant was self-represented at the hearing of the appeal. He was also self-represented in the Federal Circuit Court. However, as I have also noted, post-hearing submissions were made on his behalf by counsel.

47    In the circumstances, I will order that, subject to the filing of any application in respect of costs on or before 28 January 2020, the Minister pay the appellant’s legal costs, if any, of the application for judicial review in the Federal Circuit Court.

Associate:

Dated:    20 December 2019