Consideration
70 As to the question of fact, in my opinion there was an insufficient basis in the evidence before him for the Federal Magistrate to conclude, at [38], [40] and [42], that the Tribunal had been unaware of the existence of the Punjab University transcript, in the sense that the document had become separated from the balance of the material and had therefore, in fact, never been seen by the Tribunal. The reasoning of the Federal Magistrate centres upon the absence of any reference to the document in either the course of the hearing or in the reasons of the Tribunal, with that inference being supported by the likely folio numbering of the Department's file in which the document was at the bottom and separated from the visa statement and attachments. Further, to draw the conclusion which the Tribunal did without adverting to the critically relevant corroborative evidence showed, in the opinion of the Federal Magistrate, that the Tribunal probably ignored the available extrinsic evidence through inadvertence. In my opinion the folio numbering provides no basis for any inference as to the precise whereabouts of the document. As I have said, the Federal Magistrate noted at [9] that it was common ground before him that the Punjab University transcript was in fact contained in the file of documents reaching the Tribunal from the Secretary. The original file was not, I understand, in evidence before the Federal Magistrate.
71 However, in my opinion the Federal Magistrate did not err in concluding that the Tribunal had given no consideration to the Punjab University transcript when it made its adverse findings. The reasoning of the Federal Magistrate was founded on the following. First, the absence of any reference to the document in either the course of the hearing or in the reasons of the Tribunal. Second, the finding of the Tribunal was based entirely upon the Tribunal's opinion of the intrinsic [im]plausibility of the applicant's oral evidence. Third, the Punjab University transcript was critically relevant corroborative evidence but was not referred to by the Tribunal. Fourth, there was not a skerrick of specific evidence showing that the Tribunal had given consideration to the document. Fifth, the Federal Magistrate was not persuaded otherwise by the Tribunal's general and formulaic statement that it had regard to the material on the Department and Tribunal files.
72 I am not persuaded that there was any error on the part of the Federal Magistrate in this respect. The relevance of the Punjab University transcript to the question of the nature of the applicant's study at that university was so high that the obvious inference that the absence of reference to the document, either by putting its falsity to the applicant or by seeking an explanation of how his evidence should or could be reconciled with the transcript, supported the conclusion that the Tribunal did not take it into account is not outweighed by general references to material on the files. This is a matter of ordinary fact-finding rather than depending on some special tenet of administrative law. Neither, in my opinion, is it outweighed by a general statement by the Tribunal that it had a range of documents about the circumstances of the applicant. Similarly, I would not draw from the Tribunal's question whether the applicant had any other written documents that the Tribunal had already relevantly considered, that is, had in mind at the time of the decision, the Punjab University transcript. Nothing, in my opinion, can be made from whether the file was large or small.
73 Because, as I have said, this is an issue of ordinary fact-finding, I am not persuaded by the submissions on behalf of the Minister that the Tribunal was not under a legal duty to mention the academic transcript at the hearing or to mention it in its statement of reasons. Neither is it persuasive on this aspect of the case that the document did not itself go to any of the facts on which the applicant relied to claim that he was a refugee.
74 The real issue is whether or not the Tribunal took the applicant's academic transcript into account: the central issue is not the basis, whether inadvertence or otherwise, upon which it may be inferred that the Tribunal did not do so.
75 I therefore reject grounds 1 and 2 of the Minister's appeal.
76 I turn then to ground 3, the legal consequences of the finding that the Tribunal had given no consideration to the Punjab University transcript when it made its adverse findings.
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 Corp v National Labor Relations Board (1951) 340 US 474 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 [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.
79 In Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [54]-[55] described as jurisdictional errors the errors of construction of s 15 of the Occupational Health and Safety Act 1983 (NSW) and the failure to comply with the rules of evidence (by permitting a person accused of crime to give evidence on behalf of the prosecution). At [64] and [71] and following their Honours said:
64 As Jaffe rightly pointed out [Judicial Review: Constitutional and Jurisdictional Fact", Harvard Law Review, vol 70 (1957) 953, at pp 962-963], it is important to recognise the use to which the principles expressed in terms of "jurisdictional error" and its related concept of "jurisdictional fact" are put. The principles are used in connection with the control of tribunals of limited jurisdiction on the basis that a "tribunal of limited jurisdiction should not be the final judge of its exercise of power; it should be subject to the control of the courts of more general jurisdiction". Jaffe expressed the danger, against which the principles guarded, as being that "a tribunal preoccupied with special problems or staffed by individuals of lesser ability is likely to develop distorted positions. In its concern for its administrative task it may strain just those limits with which the legislature was most concerned". It is not useful to examine whether Jaffe's explanation of why distorted positions may develop is right. What is important is that the development of distorted positions is to be avoided. And because that is so, it followed, in that author's opinion, that denominating some questions as "jurisdictional"
"is almost entirely functional: it is used to validate review when review is felt to be necessary … If it is understood that the word 'jurisdiction' is not a metaphysical absolute but simply expresses the gravity of the error, it would seem that this is a concept for which we must have a word and for which use of the hallowed word is justified."
…
71 It is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error. Professor Aronson has collected authorities recognising some eight categories of jurisdictional error: Aronson, "Jurisdictional Error without the Tears", in Groves and Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (2007) 330, at pp 335-336. It is necessary, however, to make good the proposition stated earlier in these reasons that the two errors that have been identified as made by the Industrial Court at first instance (and not corrected on appeal to the Full Bench) were jurisdictional errors. The Court in Craig explained the ambit of jurisdictional error in the case of an inferior court in reasoning that it is convenient to summarise as follows.
72 First, the Court stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error "if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist" (emphasis added). Secondly, the Court pointed out that jurisdictional error "is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers" (emphasis added). (The reference to "theoretical limits" should not distract attention from the need to focus upon the limits of the body's functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court's functions or powers by giving three examples: (a) the absence of a jurisdictional fact; (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case. The Court said of this last example that "the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern" and gave as examples of such difficulties R v Dunphy; Ex parte Maynes, R v Gray; Ex parte Marsh and Public Service Association (SA) v Federated Clerks' Union.
73 As this case demonstrates, it is important to recognise that the reasoning in Craig that has just been summarised is not to be seen as providing a rigid taxonomy of jurisdictional error. The three examples given in further explanation of the ambit of jurisdictional error by an inferior court are just that - examples. They are not to be taken as marking the boundaries of the relevant field. So much is apparent from the reference in Craig to the difficulties that are encountered in cases of the kind described in the third example.
(footnotes omitted)
80 Turning then to the legislation, by s 36 of the Migration Act there is a class of visas to be known as protection visas. A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol: see s 36(2)(a).
81 By s 54, the Minister must, in deciding whether or not to grant or refuse to grant a visa, have regard to all of the information in the application, including, by s 54(2)(c), additional relevant information given under s 55.
82 Section 65(1) is, relevantly, in the following terms:
65(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted, 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
83 The provisions directly relating to the powers and functions of the Tribunal are in Part 7 as follows.
84 Section 411 identifies which decisions are RRT-reviewable decisions. Here there was a decision to refuse to grant a protection visa and the relevant paragraph was s 411(1)(c).
85 By s 414, if a valid application is made under s 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.
86 By s 415(1), the Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions conferred by the Act on the person who made the decision. By s 415(4), to avoid doubt, the Tribunal must not purport to make a decision that is not authorised by the Act or the regulations.
87 By s 418, if an application is made to the Tribunal, the Registrar must give the Secretary of the Department written notice of the making of the application and the Secretary must give to the Registrar a statement about the decision under review that (a) sets out the findings of fact made by the person who made the decision; (b) refers to the evidence on which those findings were based; and (c) gives the reasons for the decision. The Secretary must also, as soon as practicable after being notified of the application for review to the Tribunal, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision.
88 Division 4 is, by s 422B, taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. In applying the Division, the Tribunal must act in a way that is fair and just.
89 By s 430, where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that (a) sets out the decision of the Tribunal on the review; (b) sets out the reasons for the decision; (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based.
90 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 primarily concerned the content of the obligation imposed on the Tribunal by s 430 and the relationship between s 430 and s 476(1)(a) as it then stood, being the ground of review of failure to observe procedures required by the Act or the regulations to be observed.
91 However, at [82]-[84], McHugh, Gummow and Hayne JJ, with whose reasons for judgment Gleeson CJ, at [1], agreed, considered an argument by the Minister that the use of overarching concepts, such as "jurisdictional error", was not consistent with the statutory scheme which enumerated both specific grounds of review that were available and others that were not. It was in that context, the relationship between the general law and the provisions of the Migration Act dealing with the grounds of judicial review in the Federal Court and the light cast by the former on the meaning of the latter, that their Honours said it was necessary to understand what was meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error.
92 It is to be recalled that s 476 then provided:
Application for review
476(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
(b) that the person who purported to make the decision did not have jurisdiction to make the decision;
(c) that the decision was not authorised by this Act or the regulations;
(d) that the decision was an improper exercise of the power conferred by this Act or the regulations;
(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
(f) that the decision was induced or affected by fraud or by actual bias;
(g) that there was no evidence or other material to justify the making of the decision.
(2) The following are not grounds upon which an application may be made under subsection (1):
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.
(3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:
(a) an exercise of a power for a purpose other than a purpose for which the power is conferred; and
(b) an exercise of a personal discretionary power at the direction or behest of another person; and
(c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
but not as including a reference to:
(d) taking an irrelevant consideration into account in the exercise of a power; or
(e) failing to take a relevant consideration into account in the exercise of a power; or
(f) an exercise of a discretionary power in bad faith; or
(g) any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c).
(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.
93 It was in that context that their Honours first addressed jurisdictional error and said, in relation to it, that the different kinds of error may well overlap. Their Honours said the circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What was important, however, was that if an error of those types was made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Migration Act suggested that the Tribunal was given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law: Craig v South Australia (1995) 184 CLR 163 at 179.
94 Their Honours then returned to the Minister's submission I have referred to at [91] above, and said, at [83]-[85]:
No doubt full weight must be given to s 476(3) and the limitations which it prescribes in the construction of improper exercise of power in par (d) of s 476(1). Equally, however, it is important to recognise that these limitations, unlike those prescribed by s 476(2), are limitations on only one of the grounds specified in s 476(1). All this being so, there is no reason to give either par (b) or par (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs. In particular, it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it "exceeds its authority or powers". If that is so, the person who purported to make the decision "did not have jurisdiction" to make the decision he or she made, and the decision "was not authorised" by the Act.
Moreover, in such a case, the decision may well, within the meaning of par (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That it cannot be said to be an improper exercise of power (as that expression is to be understood in s 476(1)(d), read in light of s 476(3)) is not to the point. No doubt it must be recognised that the ground stated in par (e) is not described simply as making an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That qualification emphasises that factual error by the Tribunal will not found review. Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which par (e) deals. That having been said, the addition of the qualification to par (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language. If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out.
Paragraphs (b), (c) and (e) would thus each be engaged in such a case and the Federal Court would have jurisdiction under Pt 8 of the Act to review the Tribunal's decision. This Court would also have original jurisdiction in the matter and could grant relief under s 75(v).
95 Nevertheless, their Honours, although at times using shorthand expressions, were not, in my opinion, saying that ignoring material relevant only to fact-finding of itself constitutes jurisdictional error. To the extent that the Federal Magistrate in the present appeal was proceeding on that basis then, with respect, I disagree with his Honour.
96 To bring the statutory context up to date I refer to Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [27]-[28] where French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said:
On 1 September 1994, Pt 8 of the Migration Act was introduced. The new Pt 8 scheme for judicial review differed significantly from the provisions of ss 5 and 6 of the AD(JR) Act; it contained provisions which sought to exclude judicial review of migration decisions on numerous grounds, which included the grounds of failing to take relevant considerations into account and a breach of the rules of natural justice . Whilst recognising that statutory limits were then prescribed which bore upon the construction of improper exercise of power, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351-352 [82]-[84], McHugh, Gummow and Hayne JJ observed that jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power.
It is sufficient for present purposes to note that from October 2001 , Pt 8 as discussed above was repealed and replaced with the current Pt 8, including the privative clause provisions of s 474, which do not protect decisions involving jurisdictional error or oust the jurisdiction conferred by s 75(v) of the Constitution: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 508 [83].
(some footnotes omitted)
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", Harvard Law Review, vol 70 (1957) 953 at 963 cited with approval in Kirk v Industrial Court 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 Court 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.
99 I should refer here to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 relied on by the applicant. The case was brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and concerned the interpretation of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). It does not therefore provide a sound basis for considering questions of jurisdictional error either at all or under the Migration Act. Further, the emphasis of the case was whether the Minister was bound to make his decision on the basis of the most current material available to him which updated and corrected the view of the facts taken by the Commissioner as to detriment to the respondents which was a matter which the Minister was bound by the legislation to take into account. Because he had not taken into account the material submitted to him updating and correcting the Commissioner's material on detriment, the Minister was held to have failed to take into account a consideration required by the Act to be taken into account, being the detriment to the respondents. The duty of the Minister was to consider the matters mentioned in s 50(3) in the light of the actual facts as disclosed by the material in his possession at the time he made his decision under s 11 that certain land be granted to a Land Trust: see the report at 30 and 44-45 and 71. In my opinion the decision does not assist in the resolution of the present appeal.
100 I refer also to the other Full Court of the Federal Court decisions relied on by the parties.
101 Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 is of no present assistance. It was a case about medical reports and where the Tribunal did consider the reports. The grounds of appeal related solely to the manner in which the Tribunal dealt with two reports that were before it, one a report of a doctor and the other a report from a psychologist. However the majority did, at [29], approve the statement in Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 explaining Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323: see the passage referred to at [48] above. So also did the Full Court in MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 at [25] and at [26]-[28].
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:
[44] It is central to the exercise of the dispositive powers conferred by s 415 that the Tribunal has first conducted a review. That is to say it must have considered the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself. So much is contemplated by s 423, s 424, s 425 and s 426 of the Act.
[45] In conducting its review the Tribunal must have regard to the criteria for the grant of a protection visa and in particular the criterion that the applicant for a visa is:
'… a non-citizen in Australia to whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol,' (s 36(2)(a) read with s 415(1))
The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision.
[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.…
103 I turn now to consider decisions of the Full Court of the Federal Court over the last 10 years where the Court has expressly considered material said to be corroborative but which the Tribunal did not consider.
104 I do not include those cases where the Tribunal expressly dealt with the material said to be corroborative, whether by way of forming the opinion that the evidence was not of sufficient weight or giving the material no weight. For example WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 involved the rejection of documentary evidence proffered to the Tribunal by the applicant: see also Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427. Likewise, SAAF v Minister for Immigration and Multicultural Affairs [2002] FCA 343 concerned corroborative material which was not before the Tribunal
105 The present appeal is unlike the example given by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49]:
In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.
106 In W412/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 99; [2002] FCA 432, the Full Court held that the Tribunal did not consider evidence which was relevant and cogent and was corroborative of the appellant's claim to have been detained in the circumstances he alleged for a Refugees Convention reason. It was material independent from the appellant which corroborated his claims that: (a) he was in detention; (b) his release from detention was procured by his father; (c) his father put up surety for the performance of his bail conditions; (d) his release from detention was for a limited period and that he was required to return as a condition of his bail; and (e) the surety was forfeited for his failure to return to detention.
107 In W360/01A v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 449, a Full Court, at [30], applied W412/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 432 saying that on the facts in W360/01A the Tribunal deprived itself of the opportunity to consider relevant evidence having the capacity to corroborate the appellant's claims in a material respect, cf W412/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 432 at [19], and thereby so misconducted itself as to have fallen into jurisdictional error.
108 WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568, [2004] FCAFC 74 was decided by the majority on procedural fairness grounds. Justice RD Nicholson dissented on the basis that the Tribunal had considered the corroborative material.
109 Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 was a case where the Tribunal did take into account the material, a baptism certificate, provided by the applicant and said to be corroborative. For that reason it casts no particular light on the facts of the present appeal. I will consider more fully below the dicta at [28] of the reasons of North and Lander JJ, with whom Katzmann J agreed, on which the Minister relied: see [45] above.
110 Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485, [2010] FCAFC 50 was another case where the Tribunal did take into account the material provided by the applicant and said to be corroborative. For that reason it casts no particular light on the facts of the present appeal: see the joint judgment, with which Katzmann J agreed, at [13]. The Federal Magistrate had held that the Tribunal fell into jurisdictional error in the manner in which it reached its decision by its failure to give consideration to the corroborative evidence produced by the applicant prior to its conclusion as to her credibility. The Full Court held that the Federal Magistrate had erred in this respect. At [33], North and Lander JJ said that consistently with Applicant S20/2002 (2003) 198 ALR 59 it was open to the Tribunal to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement.
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 & Multicultural & 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 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.
114 As to Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 at [28] North and Lander JJ observed that an error of fact based on a misunderstanding of evidence in considering an applicant's claims is not jurisdictional error so long as the error does not mean that the Tribunal has not considered those claims. First, however, the present appeal is not a case of mere misunderstanding but of failure to take into account corroborative material. Second, I agree with the Federal Magistrate at [32] that the case is not authority for the proposition that it could never be a jurisdictional error to ignore a critical piece of corroborative evidence.
115 Thus their Honours were not speaking inconsistently in Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485, [2010] FCAFC 50 at [37]-[38] set out at [23] above, that judgment being given with the judgment in Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51. Nevertheless I observe that what their Honours said in Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485, [2010] FCAFC 50 at [38] is expressed more widely than is necessary for the disposition of the present appeal if it were read as applying to all corroborative material or evidence.
116 Returning to what the Tribunal said in the present case, the applicant expressed fears of harm, as a Muslim citizen of Pakistan, from, broadly, Pakistani militants, including those who had close contacts with the Taliban, the LEJ and the LET. According to the applicant much of this militancy centred on the Lal Masjid mosque and Maulana Abdul Aziz who controlled it. He also referred to police officers working for the Taliban. He referred to efforts which had been made by the militants to recruit him over time and to his being taken by them to the North West Frontier Province (NWFP) in 2011.
117 As I have set out above, the Tribunal, at [44]-[46], did not believe the applicant had given a truthful account of his circumstances and concluded that the applicant had fabricated claims of past events and experiences and fears of return to Pakistan in order to try to obtain a protection visa. If he held fears of harm for reasons of race, religion, nationality, membership of a particular social group or political opinion, in the Tribunal's view he would have presented a credible and consistent account of any relevant fears, which he had failed to do. The Tribunal believed that the applicant had been untruthful about his past experiences in Pakistan because it believed he had not been truthful about his former study in that country.
118 The Tribunal went on, at [48]-[53], to deal with a further matter which it did not accept, the close and ongoing relationship with senior leaders of the Red Mosque and the applicant's duties associated with the Red Mosque, and its disbelief of the applicant's account of past events in Pakistan because he had offered different reasons for his release by militant forces when taken to the NWFP in 2011. At [53] the Tribunal said it did not believe the claims made by the applicant. It therefore found there was no evidence which would support a conclusion that he held a well-founded fear of being persecuted by reason of race, religion, nationality, membership of a particular social group or political opinion in Pakistan at the current time or in the foreseeable future. Thus he was not a refugee.
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.
120 The Court is not involved in traversing findings of fact about the corroborative evidence because the Tribunal did not deal with it. The unexplored possibilities include that the transcript was false, that the applicant had studied the Persian language but was a bad student or had a bad memory, and that there was an ambiguity in what studying Persian meant, whether it was language or culture and history. It is for the Tribunal to deal with the material before it and to resolve any conflicts in it.
121 To adopt the language of Buchanan J in Minister for Immigration and Citizenship v SZCOQ [2007] FCAFC 9 at [61], relied on by the Minister, these considerations bear upon the material elements which must be satisfied, or rejected, when dealing with an applicant's claims.
122 For these reasons, although I do not agree with the reasoning of the Federal Magistrate I find that his Honour's conclusion and orders were correct. In particular, the proposition that it is always a jurisdictional error to ignore 'relevant material' is too widely expressed as is the reasoning in [36] of the Federal Magistrate's reasons that it is always jurisdictional error unconsciously to ignore corroborative evidence.
123 I therefore reject ground 3 of the Minister's appeal.
124 For these reasons I dismiss the Minister's appeal.