Minister for Immigration and Citizenship v MZYHS

Federal Court of Australia|2011-01-31|Before: Kenny J

BACKGROUND 3 The Tribunal found that the first respondent was a citizen of Bahrain, who entered Australia on 9 May 2007. The first respondent lodged an application with the appellant's Department for a protection visa on 20 June 2007, claiming that he would be persecuted for reasons of his political opinion and religion if he returned to Bahrain. The first respondent claimed to be a Shiite Muslim, with a history of political activism in Bahrain and consequential punishment, including detention, by the authorities in that country. 4 In a statutory declaration accompanying his protection visa application, the first respondent made a number of claims, including that: (1) he was detained "for about 14 months, from June 1996 to August 1997" following his participation in a peaceful demonstration for the release of detainees; (2) during this detention, he was tortured and "subjected to humiliation and inhumane treatment" and, as a result, continued to suffer psychologically and physically after his release; (3) after his release, he was "under constant surveillance by authorities" and was terrorised by authorities coming to his house at night; (4) he had difficulty in obtaining employment on account of his political detention and on account of being a Shiite Muslim; (5) he was arrested and detained in 2002 for his participation in a demonstration; (6) as a result of this political detention, he was "effectively banned from accessing employment through the employment ministry so it became even harder to look for work"; (7) since 2002, he had been actively involved in protesting against his situation and that of others in Bahrain; (8) he obtained a visa to visit Australia in 2006 because he was "worried that [his] situation might become dangerous"; (9) he was involved in a demonstration against detention and torture in April 2007, as a consequence of which he was arrested and beaten; (10) friends subsequently took him to hospital and his father advised him that he was wanted by the authorities; (11) an uncle arranged for him to leave Bahrain; and (12) he continues to suffer from "nightmares and flashbacks" and fears for his family and that, if returned to Bahrain, he would be arrested, harmed or killed. 5 In addition to Convention-based claims that the first respondent faced a real chance of persecution on political and religious grounds, in a letter from the Refugee & Immigration Legal Centre Inc dated 29 April 2009, a further claim was made on the first respondent's behalf that he faced persecution on the basis of "his membership of the [social] group 'survivors of torture in Bahrain'". 6 On 17 September 2007, a delegate of the Minister refused to grant the first respondent a protection visa. The Tribunal affirmed the delegate's decision on 22 April 2008. On 12 August 2008, a Federal Magistrate ordered that writs of certiorari, prohibition and mandamus issue to the Tribunal, amongst other things, quashing its decision and requiring it to re-determine the first respondent's review application according to law. 7 The Tribunal, differently constituted, conducted another hearing on 15 April and 9 October 2009, at which the first respondent was represented by his registered migration agent. The first respondent and another person gave evidence. The first respondent presented various documents in support of his refugee claim, including the following reports from psychologists or social workers: (1) a report of Ms Angela Dosseter, New Service for the Treatment and Rehabilitation of Torture and Trauma Survivors, dated 2 August 2007; (2) a report of Mr Hend Saab, Hurstville Psychology & Therapy Centre, dated 27 August 2007; (3) a report of Mr Rui Santos, Foundation House, dated 23 April 2009; and (4) a report of Ms Andrea Stewart, Co-ordinator, North West Generalist Team, Foundation House, dated 6 October 2009 ('the Stewart Report'). The Stewart Report is central to this appeal. 8 By a letter dated 6 January 2010, the Tribunal informed the first respondent that it affirmed the original decision of the Ministerial delegate to refuse to grant him a protection visa. The first respondent applied to the Federal Magistrates Court for judicial review of the Tribunal's January 2010 decision on 1 February 2010. In April 2010, the Federal Magistrates Court ordered that writs of certiorari and mandamus issue to the Tribunal quashing the decision of the Tribunal and requiring the Tribunal to determine the first respondent's review application according to law. The Minister appealed against the judgment of the Federal Magistrates Court on 14 July 2010. I am concerned with that appeal.

THE APPEAL 9 At the hearing of the appeal, the appellant appeared by counsel, who relied on written submissions dated 17 November 2010, as well as on oral submissions. The first respondent was also represented by counsel, who relied on oral submissions, as well as written submissions dated 23 November 2010. The Tribunal entered an appearance, without advancing argument. 10 Also, in accordance with orders made at the hearing on 25 November 2010, the first respondent filed a notice of contention and additional submissions dated 1 December 2010. The Minister filed supplementary submissions dated 6 December 2010. 11 In particulars in the notice of appeal, the Minister set out the principal argument for the appeal. The notice of appeal relevantly stated: His Honour erred in holding that: 1. The Second Respondent (the "Tribunal") failed to take into account a relevant consideration; and 2. As a result, the Tribunal's decision handed down on 6 January 2010 (the "Tribunal's decision") was affected by jurisdictional error. Particulars There was evidence before the Tribunal relating to the First Respondent's psychological condition. This evidence included a report of Ms Andrea Stewart, Foundation House, dated 6 October 2009. In her report, Ms Stewart stated, among other things, that the First Respondent "exhibits a cluster of severe trauma and depressive symptoms that have reportedly persisted without remittance since his experience of torture and trauma and forced separation from his family in 2007". Her report also contained a recital of the First Respondent's claims of past persecution in Bahrain. In its decision, the Tribunal referred to the evidence about the First Respondent's psychological condition, including the report of Ms Stewart. However, the Tribunal found that the First Respondent was not a credible witness. On the basis of its adverse credibility finding, it rejected the First Respondent's claims of past persecution. At first instance, Burchardt FM found at [9] that "the report from Ms Stewart would on any view be reasonably interpreted as saying, at the very least, that the mental state exhibited by the applicant [the First Respondent] was consistent with post-traumatic stress disorder consistent with the treatment he alleges". His Honour held that, in its decision, the Tribunal did not deal with any consistency between the First Respondent's psychological condition and his claims of past persecution: [26] to [28]. His Honour held that, in doing so, the Tribunal failed to take into account a relevant consideration and this failure amounted to jurisdictional error affecting the Tribunal's decision. His Honour was incorrect to reach these conclusions. Firstly, the Tribunal took into account the evidence about the First Respondent's psychological condition, including the report of Ms Stewart. Secondly, a fair reading of the Tribunal's reasons for its decision shows that it was aware of any purported corroborative effect of this evidence. Thirdly, a fair reading of the Tribunal's reasons shows that it gave this evidence less weight as a result of its adverse credibility finding in respect of the First Respondent. Fourthly, and in any event, it was a matter for the Tribunal to determine what weight it would give to this evidence. Fifthly, and in any event, a failure by the Tribunal to consider expressly in its decision any purported corroborative effect of this evidence could not amount to a failure to address the First Respondent's claims to be a refugee or the component integers of those claims. It could not constitute a failure to take account a relevant consideration which, in turn, gave rise to jurisdictional error affecting the Tribunal's decision. 12 This appeal concerns the nature and scope of the Tribunal's obligations with respect to psychologists' reports, especially the Stewart report. The central questions are whether the Tribunal was bound to consider the report as corroborative of the first respondent's claim to be a refugee; and whether there was jurisdictional error in the event the Tribunal failed to do so, or in the event the Tribunal gave the report little or no weight.

THE TRIBUNAL'S DECISION 13 In its reasons, under the heading "Claims and Evidence", the Tribunal set forth the first respondent's claims and evidence, both as understood by the Tribunal as previously constituted and as understood by it. The Tribunal specifically referred to reports about the first respondent's psychological condition, including the Stewart report. 14 The Tribunal stated that it had "weighed all the evidence anew" and found that, on balance, "major concerns in the applicant's story remain". These concerns led the Tribunal to find that the first respondent was not a credible witness. 15 The Tribunal accepted that the first respondent may have taken part in demonstrations in Bahrain, but the Tribunal did not accept that he was detained and mistreated, either in 1996 or in 2002. The Tribunal did not accept the first respondent's claim that he was beaten and hospitalized following a demonstration in April 2007. 16 The Tribunal considered the fact that the first respondent did not leave Bahrain for nearly a year after being granted a visa to Australia was incompatible with evidence that the first respondent was living in fear of persecution. The Tribunal did not accept that the first respondent had been "tortured, raped and in general mistreated in detention". 17 The Tribunal concluded that there was no real chance that the first respondent would face persecution in future in Bahrain for a reason set out in the Refugees Convention as amended by the Protocol, and affirmed the delegate's original decision to refuse him a protection visa. 18 In the course of setting out its findings with respect to the first respondent's claims, the Tribunal stated: The Tribunal has considered the various reports from psychologists about the applicant's mental health. While the Tribunal respects the opinions of the psychologists and has taken them into account, their assessment has not extended to pronouncements that the applicant has ever been unfit to give evidence to the Tribunal. The format of these reports follows the usual pattern of recording the applicant's version of events and this version of events is subject to scrutiny by the Tribunal. That is, the Tribunal considered that, in so far as the psychologists' reports (including the Stewart report) recorded the first respondent's version of events (including that he was a torture victim), they were subject to the Tribunal's independent examination and assessment.

THE FEDERAL MAGISTRATE'S DECISION 19 In his judicial review application in the Federal Magistrates Court, the first respondent asserted various bases for imputing jurisdictional error to the Tribunal. The Federal Magistrate accepted only one of them - concerning the Stewart report. Under the heading of "particulars", the first respondent had asserted that the Tribunal: … misunderstood the basis and the purpose for which the Psychologist's Report was produced - which was as evidence of the manner in which the Applicant presented (as someone who had experienced torture) - and dealt with the evidence and claims therein so misunderstood by taking the report into account only on the question of the Applicant's capacity or fitness to give evidence to the Tribunal. It failed to take account of a relevant consideration or relevant material being the Psychologist's Report which tended to corroborate the Applicant's account of past persecution and/or failed to take it into account in any meaningful sense. It failed to give genuine or real consideration to the report and its contents. In circumstances where the "well was not poisoned beyond redemption" it failed to pay due regard to corroborative evidence provided by the Psychologist's Report of incarceration and torture experienced by the Applicant in the past. It made a finding of lack of credibility without more based on "incongruence" between certain matters leading to rejection of incarceration in 1996 and 2002 before it began to consider the Report. The Federal Magistrate rejected the first respondent's other grounds of challenge and, in so far as they were not the subject of the appeal, they may be put to one side. 20 The Federal Magistrate accepted the first respondent's submission that the Tribunal had not considered, as it was bound to do, that the Stewart report was evidence "which tended to corroborate the [first respondent's] account of past persecution". His Honour agreed with the first respondent that "the Tribunal appears to have misunderstood what the evidence was designed to achieve": see MZYHS v Minister for Immigration [2010] FMCA 417 at [20]. His Honour said (at [25]-[28]): In my view, the finding that the account given by Ms Stewart of the facts followed the recitation given to her by the applicant, while true, does not deal with the basis upon which the evidence was put forward. The Tribunal being seized of the fact (or at least as it should have been) that the applicant [first respondent] was saying that his mental state now gives probative force to his assertions of the historical events he asserted is simply not dealt with by the Tribunal in its decision. Given that the evidence of Ms Stewart was uncontradicted expert evidence, this was a matter that the Tribunal, being seized of, should have dealt with. In my view, the failure to address this relevant consideration and relevant evidence falls squarely within the ambit of jurisdictional error. In other words, the Federal Magistrate held that the Tribunal had misunderstood the significance of the Stewart report and, in so doing, had failed to take into account a consideration that it was bound to take into account. Hence, his Honour made a finding of jurisdictional error.

THE PARTIES' SUBMISSIONS 21 The Minister argued that there was no jurisdictional error made by the Tribunal with respect to the Stewart report; and the Federal Magistrate erred in reaching a contrary conclusion. 22 The first respondent sought to maintain the judgment of the Federal Magistrate on the basis that his Honour's reasons were correct, and on a further basis mentioned below.

CONSIDERATION 23 The basic principles as to when jurisdictional error will arise for failure to consider a relevant consideration are well-accepted. Jurisdictional error may be shown where a statutory decision-maker disregards a relevant consideration, in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 ('Peko-Wallsend'): see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ('Yusuf') at 351 [82], citing Craig v South Australia (1995) 184 CLR 163 at 179. That is, the ground of failure to take into account a relevant consideration is only made out if the decision-maker failed to take into account a consideration that the decision-maker was bound to take into account in making the decision: Peko-Wallsend at 39-41. Governing legislation may expressly state all these considerations, although often it does not. In this latter case, relevant considerations in this limited sense are to be determined by reference to the subject-matter, scope and purpose of the governing legislation, which, in the current context, includes the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth): see, e.g., Yusuf at 347-8 [73] (McHugh, Gummow and Hayne JJ), citing Abebe v Commonwealth (1999) 197 CLR 510 at 579 [195]. Their Honours went on to say in Yusuf (at 348 [74]): What is important … is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts. 24 Referring to Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 ('Htun') at 259 [42], the Minister accepted that, having regard to the statutory framework governing applications for protection visas, an applicant's claim to be a refugee and the integers of that claim are considerations that a decision-maker is bound to take into account. See also Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 ('WAEE') at 641 [46]; and NABE v Minister of Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 ('NABE') at 20 [63]. 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 [21]-[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: NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9]; Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 58 ALD 609 at 624-5 [64]-[67] (McHugh J); Abebe v Commonwealth (1999) 197 CLR 510 at 560 [137] (Gummow and Hayne JJ); and Enfield City v Development Assessment Commission (2000) 199 CLR 135 at 153-4 [44] (Gleeson CJ, Gummow, Kirby and Hayne JJ). 25 In the proceeding in the Federal Magistrates Court, the first respondent argued that the Tribunal had failed to take into account the Stewart report. The Tribunal's statement of reasons shows that this is incorrect. The Tribunal plainly had regard to the psychologists' reports, including the Stewart report: see [18] above. 26 On this appeal, the first respondent accepted the Federal Magistrate's characterization of the Stewart report as evidence "to show that his mental state was consistent with his claims of past abuse": see [20] above. In written submission, the first respondent contended that the Stewart report was presented to the Tribunal on a "quite specific basis", namely: The [r]eport provides an assessment of the manner in which the Applicant presented in his sessions with the Psychologist - i.e. as someone who has experienced torture. Thus, the first respondent's primary argument was that the relevance of the Stewart report was not confined to the issue of his fitness to give evidence, but corroborated his account of past persecutory events. That is, the report was, so the first respondent said, relevant to show that his psychological condition was consistent with his account of what had happened to him in Bahrain. Referring particularly to the passage from the Tribunal's reasons set out at [18] above, the first respondent contended that the Tribunal considered the Stewart report only in relation to the issue of fitness to plead and had thereby overlooked the primary purpose for which the Stewart report was presented to it. In this context, at the hearing of the appeal, counsel also drew a distinction between corroborative evidence in the nature of expert opinion and non-expert corroborative evidence. 27 Further, at the hearing of the appeal, referring to NABE at 20 [63], SZKHD v Minister for Immigration and Citizenship [2008] FCA 112 ("SZKHD"), and Illankovan v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 220 ('Illankovan'), counsel for the first respondent developed two further submissions with respect to the issue of the Stewart report, arguing, first, that the report was not simply corroborative (or consistent with) the first respondent's account of past events, but was evidence of his psychological presentation, to which the Tribunal had failed to advert. Thus, the first respondent submitted that the Stewart report was evidence that he presented as someone with a history of torture and trauma; and, for this reason, the authorities relied on by the appellant were distinguishable. Secondly, the Stewart report was, so the first respondent's counsel submitted, more than merely corroborative of the first respondent's claims, it was itself an integer of the claims being made. 28 1 would reject the first respondent's submissions for the reasons stated below. 29 First, I would reject the first respondent's submission that such evidence of his psychological presentation as is contained in the Stewart report can be regarded as an integer of the first respondent's claims. Accepting that the Stewart report was relevant to evidencing the first respondent's psychological condition, this condition was relevant either as to fitness to give evidence or as corroborative of the first respondent's claims to have suffered torture and trauma at the hands of the authorities in Bahrain on account of his political opinion and activities, and religion. The focus in this appeal was on this latter aspect, since this was the focus of the Federal Magistrate's reasons for judgment. From this perspective, the Stewart report was a piece of evidence with a purely corroborative function. It did not give rise to a new claim. 30 Secondly, I am not persuaded that the Tribunal failed to consider the corroborative effect of the Stewart report. Whilst not absolutely clear, the better view is that the Tribunal recognized that the psychological reports, including the Stewart report, were prepared on the basis that their authors accepted the first respondent's account of what had happened to him in Bahrain and that his psychological condition was consistent with his account. I do not consider that the first respondent's argument that the report evidenced his psychological presentation added anything to this analysis. As already noted, evidence as to the first respondent's psychological presentation was relevant either as to his fitness to give evidence or as corroborative of the first respondent's account. This evidence did not have any further relevance. The question of capacity did not arise; and, from the Tribunal's perspective, the corroborative effect of the psychological reports about the first respondent's condition was dubious once the Tribunal was minded to conclude, as it did for separate reasons, that it should reject the first respondent's account in material respects. 31 In substance, the Tribunal rejected the first respondent's claims because of its "major concerns" with the first respondent's account, which led the Tribunal to conclude that the first respondent was not a credible witness. Although I have not set out these concerns in these reasons, the Tribunal in fact explained them in some detail. In this circumstance, it was open to the Tribunal to determine that, in so far as the Stewart report and the other psychological reports tended to corroborate the first respondent's account, they were to be accorded little, if any, weight. Put another way, it was for the Tribunal to determine the weight to be given an expert psychologist's opinion, having regard to the other evidence before it that supported or undermined the supposed facts on which the opinion was said to be based: see Cong Tam Dang v Minister for Immigration & Multicultural Affairs (2000) 61 ALD 29 at 47- 48; [2000] FCA 73 at [83]-[87] (Drummond, Matthews and Mansfield JJ). In this case, the corroborative effect of the evidence constituted by the Stewart report (and the other psychological reports) was significantly diminished by the Tribunal's "major concerns" about the first respondent's account and, most particularly, its adverse finding about the first respondent's credibility. Such an approach does not disclose jurisdictional error: compare Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 at 491- 492 [35]-[40] (North and Lander JJ); and Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 at 63 [12] (Gleeson CJ) and 70 [49] (McHugh and Gummow JJ). 32 In any case, even if the Tribunal had failed to take into account that the first respondent's claims of past persecution were consistent with the psychological condition set out in the Stewart report, there would have been no jurisdictional error. This failure would not amount to a failure to take into account a consideration that the Tribunal was bound to take into account. Rather, it would constitute a failure to address a piece of evidence before the Tribunal. As North and Lander JJ said in SZNPG at 309 [28] and [29]: [A]n error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant's claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant's claim. In our opinion, the RRT did not fall into jurisdictional error in this case. It weighed a particular piece of evidence against other evidence, but was not persuaded by that particular piece of evidence enough to alleviate its concerns in relation to the whole of the first respondent's evidence. (Citations omitted) 33 The same approach had generally been adopted on other occasions where a failure to consider an expert psychologist's report has been alleged. For instance, in Subramaniam v Minister for Immigration and Multicultural Affairs [2002] FCAFC 255, a Full Court (constituted by Drummond, Cooper and Finkelstein JJ) considered whether an almost identical failure on the Tribunal's part in that case amounted to reviewable error and concluded that it did not. See also Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; VMAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 21 at [27]-[29]; VGAP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1607 at [34]; and Rezaei v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1294 at [57]. 34 In this context, I note that the first respondent relied on SZKHD v Minister for Immigration and Citizenship [2008] FCA 112. I am inclined, however, to consider that SZKHD turned very much on matters peculiar to it; and, in any event, stands outside the general run of authorities. It is relevant to note that, in SZKHD in contrast to this case, the Tribunal stated that it did not "question the conclusions of the applicant's mental health issues and [did] not question the conclusions of the treating psychologist", although it went on to reject the claims that were contained in the report: see SZKHD at [10]. In the current case, the Tribunal never accepted the conclusions of the Stewart report about the cause of the first respondent's psychological condition. 35 Further, I consider that the first respondent's reliance on Illankovan was misplaced. That case is clearly distinguishable from the present case. First, Illankovan concerned a Special Eligibility (Residence) (Class AO) visa, for which the Migration Regulations stipulated certain eligibility criteria. The Minister conceded that, if his Honour decided (as his Honour ultimately did) that the Tribunal had overlooked a particular report dealing with one criterion, then there was a constructive failure to exercise jurisdiction. This was presumably because it might reasonably be inferred that the Tribunal had failed to consider a statutorily-mandated criterion: see Illankovan at [55]. There was no failure to consider a statutorily-mandated criterion in this case.

Notice of Contention 36 At the hearing of the appeal, the first respondent was given leave to file and serve a notice of contention in order to support the judgment of the Federal Magistrate on a ground other than that relied on by the Federal Magistrate. The ground as stated in this notice of contention was: In relation to the basis and the purpose for which the Psychologist's Report was produced (which was as evidence of the manner in which the Applicant presented as someone who had experienced torture) and in its approach to the Report whose assessment of the Applicant's mental state tended to corroborate the Applicant's account of past persecution, the Tribunal filed to give proper, genuine and realistic consideration to the merits of the case. 37 The notice of contention was designed to support an argument that, by misunderstanding the purpose of the first respondent's reliance on the Stewart report, the Tribunal failed to give proper, genuine and realistic consideration to the first respondent's claims. That is, the claimed failure on the Tribunal's part to consider the report as evidence that the first respondent was a torture survivor meant, so the first respondent said, that the Tribunal had committed jurisdictional error of the kind found by Rares J in SZJSS v Minister for Immigration and Citizenship (2009) 113 ALD 270 ('SZJSS'). 38 In SZJSS Rares J held (at 280 [43]) that the Tribunal's statement that it gave "no weight" to letters corroborating the appellants' claims in the circumstances of that case was inconsistent with "any rational, reasonable approach to the evaluation of that evidence"; and, because of this, his Honour concluded that the Tribunal "was not genuinely considering the appellants' claims as corroborated by the letters on the material before it". His Honour explained (at 280-1 [43]) that: [The Tribunal] used the formula of giving material "no weight" as a basis on which it might ignore probative, relevant and highly supportive material corroborating the factual basis of the fears which the husband claimed. It did this simply as a basis for putting the evidence to one side, having said that it had looked at it. In Telstra Corporation Limited v Australian Competition and Consumer Commission (2008) 176 FCR 153 at 1818-182 [106]-[107] (approved in Telstra Corporation Ltd v Australian Competition Tribunal (2009) 175 FCR 201 at 24 [242 [267] per Jacobson, Lander and Foster JJ and Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 at [47] per Lingren, Foster JJ and myself) I said: A decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 367 [138] per Kirby J; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at 92-93 [212] per Madgwick J, 96 [229] per Conti J; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39], [60] where I applied this principle. In Tickner v Chapman (1995) 57 FCR 451 at 462C-D, Black CJ said that where a decision-maker was required to consider material, the process of consideration "… involves an active intellectual process" directed at the nominated subject-matter: see too per Burchett J at 476F-477E, per Kiefel J at 495F-G and Tobacco Institute of Australia v National Health & Medical Research Council (1996) 71 FCR 265 at 277G per Finn J; Australian Retailers Association 148 FCR at 577 [526] per Weinberg J. Where a decision-maker must consider matters prescribed by law, generally, he or she cannot jettison or ignore some of those factors or give them cursory consideration only in order to put them to one side: East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229 at 244 [52] per Gleeson CJ, Heydon and Crennan JJ. As Gummow and Hayne JJ, in concurring observed (East Australian Pipeline 233 CLR at 256 [102]): It was not enough for the ACCC to say in its final determination that it had considered those matters in the sense of having looked at but discarded them. 39 In SZJSS Rares J acknowledged (at 281 [44]) that the use of the "proper, genuine and realistic consideration" formula had been criticized upon the basis that it tended to turn judicial review of administrative decision-making into second-guessing the merits of an administrative decision. In his Honour's view, however, the formula was an expression of the legitimate power of the court to "consider the way in which an administrative decision-maker has used its powers to evaluate evidence". 40 In supplementary submissions, the Minister noted that SZJSS was the subject of a High Court appeal and was "plainly wrong and should not be followed". The Minister also argued, and I accept, that the first respondent's use of the "proper, genuine and realistic consideration" formula encompassed the same relevant consideration argument, which I have already considered and rejected. The use of the formula as merely another label to cover existing grounds of review without constituting a separate ground was noted by Basten JA (with whom Allsop P agreed) in Swift v SAS Trustee Corporation [2010] NSWCA 182 ('Swift') at [47]. 41 In any case, a unanimous judgment of the High Court of Australia in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 overturned the judgment of Rares J in this Court. The High Court held that the Tribunal's failure to accord weight to three letters that the visa applicants had produced in support of their visa application could not be characterised as a jurisdictional error. Essentially, the High Court characterised this Court's decision as a review of the factual findings of the Tribunal and as therefore being in error. French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ agreed with Basten JA in Swift that the epithets "proper, genuine and realistic consideration" "[t]aken out of context and without understanding their original provenance … are apt to encourage a slide into impermissible merit review". 42 Their Honours went on to observe (at [32]-[37]) that: The Minister contended that the weight to be accorded to the letters, and the factual matters to which they gave rise, were entirely matters for the Tribunal as they concerned the merits of the application. It was submitted that the Federal Court employed the language of "proper, genuine and realistic consideration" to register the Court's response to a weighing of the evidence with which the Court disagreed. This, it was said, does not amount to jurisdictional error of the kind discussed by this Court in Minister for Immigration and Citizenship v SZMDS [(2010) 240 CLR 611]. The Minister's submissions on the letters issue must be accepted as on a fair reading of the whole of the Tribunal's decision, when the Tribunal said that it gave the letters "no weight" it was referring to the fact that it did not accept the letters as evidencing that the first respondent was in some danger from the Maoists in Kathmandu. This was in large part because of social and political changes which had occurred since the letters were written. The evidence given by the first respondent, including his evidence about the effect of those changes, undermined his claim of political and social activism, thereby contradicting the support which the letters gave to his assertion that Maoists were continuing to pursue him in Kathmandu. The weighing of various pieces of evidence is a matter for the Tribunal. It has been recognised that to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it. In referring to "any rational, reasonable approach to the evaluation" and the need for "a proper, genuine or realistic evaluation" of the letters, the Federal Court was registering emphatic disagreement with the Tribunal's assessment of the factual matters to which the letters were relevant. It appears the Federal Court would have weighed the letters differently which seems to suggest that, on the basis of the letters, the Federal Court would have been satisfied that Maoists were pursuing the first respondent in Kathmandu. When employing the formula "proper, genuine and realistic evaluation" in respect of the letters, the Federal Court did not appear to consider that one of the matters against which the Tribunal weighed the letters was the first respondent's evidence of the effects of social and political changes in Nepal. Whether the letters were "highly supportive"" or "powerfully corroborative" (as they appeared to the Federal Court) of the first respondent's claim that Maoists were pursuing him in Kathmandu was a question upon which reasonable minds might come to different conclusions. The Tribunal's preference for other evidence, including the first respondent's own evidence about numerous matters, including the effect of social and political changes from, and since, 2006, over the evidence of the letters written during the first half of 2006, could not be said to constitute a failure to take into account a relevant consideration as canvassed in PekoWallsend or Yusuf's case. Nor could it be said to be a failure to respond to a substantial argument thereby giving rise to the kind of error identified in Dranichnikov v Minister for Immigration and Multicultural Affairs [(2003) 77 ALJR 1088; 197 ALR 389]. The conclusion that the Tribunal erred in giving "no weight" to the letters, with the implication that it should have given different, presumably determinative, weight to them, depended on the Federal Court reviewing the factual findings of the Tribunal rather than the process by which it arrived at its conclusions. Further, the Federal Court's conclusion that the Tribunal erred in this way did not, in the light of the whole of the evidence, require the further conclusion that the result in the Tribunal was manifestly irrational or unreasonable. Nor did it support a finding of any other failure which might be characterised as jurisdictional error. 43 Here, in so far as the first respondent's "proper, genuine and realistic consideration" argument invited a second-guessing of the merits of the Tribunal's decision, it must be rejected on the basis that judicial review of administrative decisions does not permit merits review. In so far as this argument encompassed an accepted ground of failure to take into account a relevant consideration, it must be rejected for the reasons already stated. The recent decision of the High Court in SZJSS apparently rules out any other basis for review of the Tribunal's decision in this case. 44 For the reasons stated, this appeal should be allowed. The orders of the Court will be: 1. The appeal be allowed. 2. The orders made by the Federal Magistrates Court on 23 June 2010 be set aside and, in lieu thereof, order: (a) the application for judicial review be dismissed; (b) the first respondent pay the appellant's costs of the proceeding in the Federal Magistrates Court. 3. The first respondent pay the appellant's costs of the appeal. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

ticultural Affairrs [2002] FCAFC 268 VGAP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1607 Rezaei v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1294 SZJSS v Minister for Immigration and Citizenship (2009) 113 ALD 270 Swift v SAS Trustee Corporation [2010] NSWCA 182 Minister for Immigration and Citizenship v SZJSS [2010] HCA 48

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