MZYGC v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court of Australia given on 9 April 2010 dismissing an application for constitutional writs made pursuant to the jurisdiction of that court under section 476 of the Migration Act 1958 (Cth). The applicant in the Magistrates' Court, the appellant in this court, had his application for a review of a rejection of his application for a protection visa under the Migration Act rejected by a decision of the Refugee Review Tribunal on 30 July 2009. In that decision, the Tribunal affirmed an earlier decision not to grant the appellant a protection Class 10A visa. 2 Both in the proceeding before the Federal Magistrate and in this appeal, there were five relevant parties. The party to whom I have referred as the appellant is the first appellant in a family of five, and the second, third, fourth and fifth appellants also claimed protection visas which they also failed to achieve. They too had their cases in the Federal Magistrates Court dismissed, and they too have appealed. Their cases depend upon the case of the first appellant, as their claims would arise by reason of the circumstance that they are family members of his. 3 In the reasons given by the Federal Magistrate, his Honour said that there was only one ground upon which the appellant submitted that the Tribunal had fallen into jurisdictional error. That ground, in effect, was that the Tribunal had failed to take into account corroborative evidence of the appellant's wife given in support of his case, and that that failure amounted to an omission which was a constructive failure to exercise jurisdiction. It was made clear in this appeal that the appellant's case was substantially based upon the circumstance that the tribunal had referred specifically to some aspects of the evidence given by the appellant's wife, but had made no specific reference to many other aspects of her evidence. The absence of any such specific reference, together with the limited form of specific reference, justified the inference, it was submitted, that the Tribunal had disregarded that other evidence of the appellant's wife. 4 There are certain features of the present case which should be mentioned. The first is that, in its reasons for decision, the Tribunal set out the evidence of the appellant's wife in full. Each aspect of that evidence which is now relied upon as constituting something which the tribunal disregarded was taken from the printed reasons of the Tribunal. The point made on behalf of the appellant was that, although the Tribunal had recited all of the evidence given by the wife - or at least all of the presently relevant evidence - when it came to undertake the deliberative part of its task, it disregarded very substantial amounts of that evidence, at least so far as its written reasons reveal. This is not, therefore, a case in which it can be said that the Tribunal simply overlooked, or forgot about, the evidence of a particular witness. Its reasons make it clear that it was conscious of that evidence and that it turned its mind to the content of it, even if there may be some debate as to whether it utilised that evidence for a corroborative purpose when it came to assess the credibility of the appellant himself. 5 The second thing is that this is not a case in which it could be said that the Tribunal had overlooked any of the elements, or integers as they are sometimes called, of the appellant's case. No such case was put on behalf of the appellant and, in my view, there is nothing in the material to suggest that any such case would be open. Therefore, I proceed on the basis that the circumstances claimed by the appellant to give rise to an entitlement to a protection visa were addressed and considered by the Tribunal. What is said to have happened is that the Tribunal failed to bring into its deliberations, upon issues which affected the credibility of the appellant himself, the corroborative evidence given by his wife. In this respect, it is important, in my view, to recognise that the Tribunal dealt with the appellant's own evidence in various ways. Some was accepted. Some was rejected, but then the Tribunal proceeded, as it were, to decide the case on an alternative basis. 6 The way in which the Federal Magistrate dealt with the case before him, which was substantially the same as the case advanced on appeal, was as follows. Referring to the evidence of the appellant's wife, his Honour said: Much of what the wife had to say by way of evidence was not strongly corroborative of what the applicant put. It was, in large part, hearsay and, where it touched directly upon matters in issue, it was in my view in some instances dealt with in terms. Having been directed by counsel for the appellant to the passages of the Tribunal's reasons which are presently contentious, I accept the characterisation of the appellant's wife's evidence as given by the Federal Magistrate. 7 Having referred to the matters of the wife's evidence upon which the Tribunal made direct comment, his Honour continued (at [20]-[22]): Insofar as the Tribunal dealt with the applicant's claims generally, the common thread running clearly through the decision was that, while the Tribunal accepted the applicant had had some level of political involvement, it was at a low level such that the severe responses asserted by the applicant were unlikely to be true. The Tribunal did not in fact accept them. All the Tribunal did in respect of the wife's evidence was not to set it out in detail. In most of the instances complained of by the applicant it involved no more than hearsay support for the applicant's contentions as to the levels of his political activity. Where it involved direct evidence eg hiding on return from Singapore, the inference is clear that it was rejected. 8 His Honour then referred to a number of the authorities which are said to bear upon this subject, including a passage from the judgment of French, Sackville and Hely JJ in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641 [47]: 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. The Federal Magistrate approached his task by reference to that advice. He concluded in the following terms (at [29]): In my view, the Tribunal's findings as to the applicant's level of political involvement encompassed both the evidence of the applicant and the wife. There is no logical reason why that should not be so, given that the decision sets out the wife's evidence in detail and mentions specific aspects of it in its conclusions. While it is true that the Tribunal might have expressed the matter more clearly than it did, I do not think that the Tribunal fell into jurisdictional error in this regard. In the present appeal, counsel for the appellant has pressed upon me the view that his Honour was mistaken in this conclusion. Counsel emphasised that the specific reference to some aspects of the evidence of the appellant's wife in the deliberative portions of the Tribunal's reasons raised a clear inference, so it was said, that the other more general observations made by the Tribunal about the state of the evidence before it were not to be taken as encompassing the evidence given by the wife. 9 Since the lodgement of the appeal in this matter, the Full Court has given two judgments, one of which came to occupy centre stage in the appellant's case. That was Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50, in which judgment North and Lander JJ, with the assent of Katzmann J, said at [38]: The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002 198 ALR 59 does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence. Consequently, the observation concerning the dicta of McHugh and Gummow JJ at [49] in Applicant S20/2002 198 ALR 59 made in SZDGC v Minister for Immigration and Citizenship (2008) 105 ALD 25 at [23]is probably misdirected. Those observations addressed the situation where the corroborative evidence was disregarded. I do not need to explore further the latter aspect of this paragraph in their Honours' reasons, since it was the first aspect upon which the appellant relied. 10 I was referred also to another judgment given by the same Full Court on the same day: Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51. In that judgment, North and Lander JJ, again with the assent of Katzmann J, said at [27] and [28]: Of course, if the RRT failed to consider an element of an applicant's claim, that would amount to jurisdictional error because Division IV of Part 7 of the Act requires a review of the whole of the applicant's claims. In that case, the RRT would have failed to discharge its "imperative duties": Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) CLR 597; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1. However, an 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: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; Thirukkumar v Minister for Immigration and Multicultural Affairs (2002) FCAFC 268 and Rezaei v Minister for Immigration and Multicultural Affairs (2001) FCA 1294. 11 In the course of submissions this morning, I was given cause to consider why a Tribunal's failure to consider, or its disregarding, of corroborative evidence would necessarily amount to jurisdictional error. On the face of it, such a circumstance would not amount to failure to take account of a required consideration in the sense considered in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. Normally, failure to consider evidence which would have the potential to change the course of things would speak as a deprival of natural justice but, in the present context, one must be aware of the provisions of Division IV of Part 7 of the Migration Act which deals with that subject. 12 The High Court decision in Applicant S20/2002 is not particularly on point, because it dealt with the question whether jurisdictional error may arise because of irrationality or illogicality in the Tribunal's reasoning process, as disclosed by its printed reasons. It may be that it is implicit in sections 414, 425 and 430 of the Migration Act that the Tribunal is required to take into account all the evidence that is laid before it by an applicant. I mention these matters more in passing than in any other sense, as the issues involved in them were neither explored in the present appeal nor relevant to the conclusion which I have reached. The judgment of the Full Court in SZNSP is binding on me, and counsel for the Minister did not propose that the Tribunal should be regarded as having avoided jurisdictional error if it did refuse to consider, or did disregard, corroborative evidence on an important question. 13 In the specific context of this case, I take the view that the following questions arise: 1. Did the evidence of the appellant's wife claimed to have been overlooked relate to a subject on which the appellant's evidence had been rejected? 2. Was the wife's evidence corroboratory? 3. Is it apparent that the evidence was sufficiently relevant and would have made a difference to the conclusions reached by the Tribunal? 4. Did the tribunal, in fact, refuse to consider or disregard the wife's evidence? 14 Counsel for the appellant laid out a series of 12 items of evidence given by the appellant's wife in the proceeding before the Tribunal, each one of which was said to be corroborative of the appellant's own evidence, and none of which was said to have been given consideration by the Tribunal in the deliberative section of its reasons. I will not refer to each of these 12 items in turn. I consider that the better course is to identify the categories into which they fall by reference to headings which are jurisprudentially relevant. In so doing, I do not intend that these categories are necessarily mutually exclusive, and it may be seen that some items of evidence fall into more than one category. 15 First, some of the evidence to which counsel for the applicant referred was, upon examination, not by way of corroboration of anything which the appellant himself had said at all. What appears to have been done in preparing this list is to gather up all of the elements of the wife's evidence which were not subject to specific reference by the Tribunal in the deliberative part of its reasons. The process appears to have thrown up some evidence which, upon examination, was simply evidence given by the wife, and was not corroborative of what the appellant himself said. In this category, I would put items (i), (ii) and (x). 16 Secondly, there was evidence which did corroborate the evidence given by the appellant, but it did so in respects in which the Tribunal found in the appellant's favour. The consequence of that, of course, is that the Tribunal's failure to make reference to the wife's evidence could not be regarded as having done a disservice to the appellant himself in relation to the Tribunal's assessment of his credibility. In this category, I would place items (iii) and (iv). I would also place item (vi) in a similar category but, in that case, it was not that the Tribunal found in the appellant's favour, it was more that the tribunal made no finding which was detrimental to him. 17 A third group is where the wife's evidence was very general, proceeded at a very high level, was usually by way of hearsay or second‑hand information and could only be regarded as having the most general tendency to corroborate. In this respect, I refer to some of the observations made by the Federal Magistrate mentioned earlier and, like his Honour, I would not regard the failure of the Tribunal to make specific reference to this evidence as indicative of a failure on its part to take it into account for such limited value as it clearly had. I would put items (iv) and (v) into this category. 18 A fourth category is where the Tribunal did reject the evidence of the appellant, but proposed an alternative basis for its decision which was that, if it had accepted the appellant's evidence at the primary factual level, it would not have been satisfied that that evidence was relevant to a claim of the kind involved in an application for a protection visa. Or, as the Tribunal commonly put it, whilst it accepted that the appellant may have suffered harm or encountered injury of various sorts, it was not satisfied that that harm or those injuries arose for Convention reasons. Item (viii) on the list would come into this category. 19 A fifth category is similar to the previous one, in that it relates to evidence which was rejected by the Tribunal at the level of the appellant himself, but where the evidence of the wife could corroborate only with respect to the primary facts. Even though the Tribunal may have rejected the appellant's evidence on those primary facts, that itself would not have been enough to sustain a claim under the Convention, and it was only to that extent that the wife's corroborative evidence travelled. The actual Convention element of the appellant's evidence was not such as was dealt with in the evidence of his wife. I would put items (ix) and (xi) in this category. 20 The sixth and final category relates to those areas where the Tribunal's reasons were expressed generally, such that I am not satisfied that the Federal Magistrate was in error to have formed the view which he did that the Tribunal's reasons had reference to all of the evidence before him, including that of the appellant's wife. I would put items (ii), (ix) and (xii) in this category. 21 I should also say that, in respect of a number of the items to which I have referred above, the view that the Tribunal was referring only to the evidence of the appellant in the way in which it expressed its reasons is, at times, a generous one in favour of the case now being made by the appellant. The Tribunal used such expressions as "the appellant's case" or "the appellant's evidence" and I have accepted that, generally speaking, it was referring only to the evidence of the appellant where it used those expressions, but that is by no means clear. These are questions of fact for a court exercising a constitutional supervisory jurisdiction, such as the Federal Magistrate was, and it is clear that his Honour was not persuaded that the Tribunal did not have proper regard to the evidence of the wife in relevant respects. Whilst I have taken a slightly different structural approach in these reasons, largely because of the appellant's reliance upon the recent judgments of the Full Court to which I have referred, I would also say that the reading of the Tribunal's reasons undertaken by the Federal Magistrate, and the conclusions which his Honour reached, were free of appealable error. In fact, other than running what was, effectively, the same case again before this court, little attempt was made to identify any specific point where his Honour fell into error. For my part, I could not see one. 22 For these reasons, I dismiss the appeal. I have dealt with this at the level of the first appellant but, for reasons earlier explained, the conclusion will flow through to the second, third, fourth and fifth appellants. I certify that the preceding twenty‑two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.