the proceeding before this court
19 The only point raised by Mr Kissane, on behalf of the appellant, was his submission that although the Tribunal had accepted that the appellant's passport had been used by the LTTE, and that he would be questioned about this, it had not dealt with the fact that the passport had been found at an LTTE camp. That was said to be a matter of significance, and to amount to an integer of the appellant's claim.
20 It has long been recognised, in public law, that a constructive failure to exercise jurisdiction can amount to jurisdictional error. In Paul v Minister for Immigration and Multicultural Affairs, Allsop J discussed the concept of an "integer" in connection with an alleged failure to deal with all aspects of a claim. His Honour said at [79]:
"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 or 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."
21 Several months later, in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, Allsop J clarified the distinction between a failure to consider an element or integer of a claim, and an errant finding of fact. His Honour said at [42]:
"The "participation in the Karen community and the political groups" could be said to have been dealt with by the tribunal dealing with the appellant's activities in Australia. The friendships (of the appellant, as a Karen) with people in organisations such as the KNLA were not. This is not merely one aspect of evidence not being touched. It is not a failure to find a "relevant" fact. The tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 …and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323…. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287… at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act, for example ss 54, 57, 65, 414, 415, 423, 424, 425, 427 and 428 and the express reference in reg 866 to the "claims" of the applicant for example 866.211, make it clear that the tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant. If there is a sur place claim made in addition to a claim based on conduct or experiences elsewhere both must be dealt with. If the sur place claim is, or is to be seen as, based on more than one foundation - that is, what has been done by way of political activity and also because of friendships made with other Karen people of arguably seriously subversive background, both bases of the claim must be dealt with. The tribunal did not deal with the latter basis of the appellant's sur place claim based on imputed political opinion. It was not a failure merely to attend to evidence, even probative evidence, and by such route commit a factual error. It was a failure to deal with one part of the claim for asylum on the basis of his imputed political opinion. It is true that when called on at the hearing to articulate orally his fears he did not expressly identify his friendships as distinct from his activities in Australia. However, given the clarity of the expression of this fear in his application for review and the existence of objective material put forward by him to support it, I do not see this basis for the claim as having been abandoned. Conceptually, and in a common sense way, it was quite distinct from his claim based on his activities of the kind referred to earlier."
22 More recently, in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 a Full Court comprising French, Sackville and Hely JJ, in a joint judgment, said at [46]-[47]:
"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. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked."
23 The issue to be resolved in this appeal is simply whether the Tribunal dealt adequately with all elements or integers of the appellant's claim. Dr Donaghue, for the Minister, submitted that it was plain that the Tribunal had done all that was required of it. Having found that the appellant's passport had somehow come into the possession of the LTTE, and that he would almost certainly be questioned about how that had occurred, the Tribunal concluded that any suspicion on the part of the authorities that the appellant might have given the passport to the LTTE would be easily allayed.
24 Mr Kissane, in his written submissions, added a gloss to his contention that an integer of the appellant's central claim had not been considered. He submitted that the Tribunal had been bound to take into account the fact that the passport had not just been found in possession of the LTTE, but that it had been found at an LTTE camp. This was said to constitute an aspect of the claim that required separate consideration, but that had been entirely ignored.
25 In my opinion, the Federal Magistrate did not err in concluding that the Tribunal had considered all elements or integers of the appellant's claim. The Tribunal devoted a great deal of time to demonstrating just why the appellant would easily be able to rebut the suggestion that he knowingly allowed the LTTE to use his original passport. There was no point in addressing these issues unless it had in mind precisely that suggestion, and intended to put it to rest. Moreover, the fact that the passport was found at an LTTE camp was not, in my view, an integer of the appellant's claim. It was rather, simply, a piece of evidence upon which he relied in support of his more general claim of imputed political opinion based upon what had happened to his passport. It was unnecessary to make any finding regarding this particular matter because, in the language used in Applicant WAEE, it was "subsumed in findings of greater generality".
26 It follows that no error of any kind has been shown in either the reasoning of the Tribunal, or that of the Federal Magistrate. The appeal will be dismissed, with costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.