The appeal to the Federal Court
15 On 25 May 2006 the appellants filed a notice of appeal to the Federal Court which framed three grounds of asserted error on the part of the Federal Magistrate, the same being supported by particulars. During the hearing of the appeal to this Court on 9 November 2006, the appellants sought to rely on an amended notice of appeal. That comprehensively amended notice of appeal contained the following grounds and particulars thereto:
'1. His Honour committed an error of law in dismissing the appeal from a decision of the Second Respondent in circumstances where the Second Respondent failed to comply with section 430(1)(c) of the Migration Act 1958, thereby committing jurisdictional error by not having regard to probative material.
Particulars:
(a) The Tribunal found "there is no credible evidence to support the Applicant's claim that either the assault on him in 1997, or the assault and theft in 1999, or the alleged assault in March 2004, was politically (rather than criminally) motivated".
(b) The Second Respondent had regard to the "Department's file…, which includes the protection visa application and… other material, including that supplied by the Applicant".
(c) The Applicant supplied "various media reports" including a newspaper article in The Island entitled "Stage director assaulted by gang", in which it was reported that the Appellant "had been mercilessly assaulted by an armed gang alleged to be supporters of an organiser of the people's alliance" who allegedly said to the Appellant "… what was done to Laxshr (sic) would be done to you".
(d) In making a finding that there is no credible evidence to support the allegation of "politically motivated" attack on the Appellant the Tribunal either failed to have regard to such information and/or, if it did, it did not give reasons why that particular piece [of] critical corroborative evidence was not credible (cf section 430(1)(c) of the Act).
2. His Honour further erred in upholding the Second Respondent's decision in circumstances where the Second Respondent constructively failed to exercise jurisdiction and act judicially when making a critical finding as to the nature of persecution faced by the Appellant.
Particulars:
(a) The Appellant repeats particulars to Ground 1.
(b) By its failure to take into account relevant material corroborating the Appellant's claim of a politically motivated attack on him in 1999 the Second Respondent constructively failed to consider the Appellant's claim.
(c) The Second Respondent also failed to act judicially by interpreting the proper test of what amounts to persecution too narrowly by limiting its assessment of the nature of the1999 assault on the Appellant by reference to the Appellant's political opinion as opposed to whether the attack on the Appellant was politically motivated.
3. His Honour further erred in upholding the Second Respondent's decision in circumstances where the Second Respondent failed to consider an integer of the appellants' claim.'
Particulars:
(a) At the hearing before the Tribunal the appellant said that "the real death threats took place after the former Foreign Minister changed political parties. The Applicant said that he was seen on television on 1 May 2004, and from that moment he received "real threats".
(b) The Tribunal then reminded the Appellant that "the only matter raised by him in the complaints he had lodged with the police, related to the threats arising from the 1999 videotaping incident… and that his claimed fear of persecution arising from his political opinion was difficult to accept".
(c) However, in his Statutory Declaration dated 27 January 2005 sent to the Tribunal after the hearing, the appellant referred to his evidence at the hearing and reiterated that the alleged death threat he received was "not a criminal act, because I received threats since I [changed] my parties and political opinion".
(d) In the preceding circumstances it was incumbent on the Tribunal to consider the claim that arose from the evidence, whether or not explicitly pleaded.
(e) It appears the Tribunal considered the claim as articulated in the police complaints report in relation to the 1999 videotaping incident.
(f) The Tribunal therefore constructively failed to consider an integer of the appellant's claim.'
16 In the context of the grounds the subject of that amended notice of appeal, counsel for the Minister submitted that the 'Minister does not consent to the appellant lodging an amended notice of appeal but accepts that the prejudice [the Minister] has suffered could be remedied by a costs order'. The Minister therefore requested that leave to amend be subject to an order that the appellants pay the Minister's costs thrown away. Counsel for the Minister further submitted that s 430 of the Migration Act 1958 (Cth) ('the Act') was now being relied upon in substitution for the s 424A ground contained in the original notice of appeal, and 'that being so, all I'm asking for...is that having put in their submission late we did the reasonable thing to make our submission to be prepared on time; they changed the case and we should get costs thrown away'. That submission is correct in principle, but whether or not any significant amount of legal costs were in effect 'thrown away' may well be in reality debateable, and would be a matter for the Court's assessment officer who undertakes the taxation process. In the somewhat complex circumstances of this case, the submission would not be a necessary 'given'.
17 Counsel for the Minister emphasised further complaint in particular in relation to the third ground the subject of the amended notice of appeal, which the Minister contended to be a new ground, and submitted that leave should be refused as it 'was not run below' and was a 'weak ground'. However both parties addressed the Court on the merits or lack of merit thereof. In any event the view I have reached is not anchored to that third ground.
18 In relation to the first ground of appeal, the appellants submitted that the Tribunal did not pay 'realistic regard' to the relevant newspaper article, 'in that [the Tribunal failed to] give reasons why it did not find material contained in that article to be of probative value to the appellant's claim'. The newspaper article, which appeared in the Sri Lankan newspaper The Island, is reproduced, in part, below:
'Stage director assault by gang
A prominent stage play producer and director…had been mercilessly assaulted by an armed gang alleged to be supporters of an organiser of the Peoples Alliance at Galle Road close to Waldya road junction in Dehiwela at about 11.55 pm, when the play director was engaged in pasting posters with two of his assistants of the stage play "Prana appakaruwa".
…
Speaking to "The Island" [he] said that the gang had with them firearms: "The persons who assaulted me shouted out loudly saying what was done to Laxshr would be done to you".
Dehiwela police sources, in this connection, said investigations were being pursued to take suspects into custody.'
19 The appellants further submitted that 'it may strongly be inferred that the Tribunal failed to consider an issue and overlooked the material in the newspaper article', the appellants relying on the following dicta of the Full Court decision (French, Sackville and Hely JJ) in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47], in principled support of that proposition:
'[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.'
20 Though I am not required to make any observation upon the extent of the potential persuasiveness of any segment of the evidence adduced to the Tribunal, I would observe nevertheless that the evident nature and implications of that assault upon a person having a public and at least quasi-political profile would have had inherent potential to be as unforgettable as they would allegedly have been significantly intimidating.
21 Counsel for the Minister drew attention to Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 52 at [36] (O'Connor J), Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 at [24] (Spender, O'Connor and Emmett JJ), and Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [64]-[66] (McHugh J sitting as a single justice of the High Court), in support of the contention that s 430 of the Act does not impose any duty to deal with adverse material. Counsel submitted in that regard that '[t]he significance of these authorities is that it is not open to a court to infer from the fact that evidence adverse to the findings made by a Tribunal has not been mentioned that it has not been properly considered'.
22 In Durairajasingham 168 ALR 407 at [64]-[66], McHugh J observed as follows:
'[64] There is some authority in the Full Court of the Federal Court for the proposition that s 430(1) requires the reasons of the tribunal to refer to evidence contrary to findings of the tribunal. However, the contrary view was taken by differently constituted Full Courts in Ahmed v Minister for Immigration and Multicultural Affairs, Addo v Minister for Immigration and Multicultural Affairs and Sivaram v Minister for Immigration and Multicultural Affairs. In Addo, the court said:
Section 430 (1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act.
…
It is not necessary, in order to comply with s 430(1), for the tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made.
[65] In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d). However, the obligation to set out "the reasons for the decision" (s 430(1)(b)) will often require the tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons. But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal… .
[66] In this case, the tribunal made an express finding that it did not accept the prosecutor's wife's evidence. That was sufficient to comply with the requirements of s 430(1).'
23 His Honour's qualifications the subject of para [65] above have a material bearing upon the somewhat unusual circumstances of this case, 'unusual' in the sense of the extent of public profile of the putative refugee and of the evidentiary basis for his fear of persecution. His Honour's observations do not provide sufficient support for the Minister's submission. As I would read the thrust of the foregoing dictum of McHugh J in Durairajasingham,his Honour's emphasis appears to be on the need for the Tribunal to make clear the nature and extent of its reasons for rejection of evidence placed before it going to material issues in the proceedings, which, if accepted, would be susceptible to producing an ultimate outcome different to that which was reached. Counsel for the Minister further submitted in any event that the Tribunal did have 'regard to the "material supplied by the appellant" and specifically referred to "various media reports from Sri Lanka" submitted by the appellant', and reliance was placed in that regard by the Minister upon page seven of the Tribunal member's reasons for decision, which included the following observations:
'[t]he applicant also submitted other documents to the delegate, including:
…
4. Various media reports from Sri Lanka
…
The delegate found that the threats that the Applicant alleged he had received were not politically-motivated and therefore not Convention related.'
However, the issue remains as to adequacy or otherwise of the consideration afforded to the specific evidentiary material.
24 Counsel for the appellants referred me to NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [212], where Madgwick J found as follows, and with which I expressed substantial agreement:
'There was no independent requirement on the delegate so to check. Nevertheless, given the potential importance of the letter and the delegate's fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. A decision-maker cannot be said to "have regard" to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at [58], a "decision-maker may be aware of information without paying any attention to it or giving it any consideration". In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration - had in Black CJ's phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in "an active intellectual process" in relation to the letter - yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so.'
Upon the footing of that dictum, counsel for the appellants contended that whenever the Tribunal states that it will have regard to something of significance, it must engage in an '… active intellectual process… you can't make a fleeting reference'. It was further submitted that the Tribunal erred by not considering the particular social group to which the appellant husband belonged in order to be able to properly assess the nature and extent of the appellant husband's subjective fear of persecution. That particular social group was said on behalf of the appellants to include 'a person who is professionally and visibly associated with a prominent politician who had changed parties'.
25 In relation to the appellant's reliance on NAJT 147 FCR 51, counsel for the Minister submitted that unlike the circumstances of the present proceedings, the Court in NAJT was there addressing a situation where the Tribunal 'was asserting in effect that [the applicant had] given nothing in support of [his] claim when in fact he had put something in support of his claim…[and] not surprisingly it was open to the Court to say…where there is a [matter] directly relevant to a critical issue of your claim, then the failure to deal with it was a jurisdictional error'.
26 For reasons apparent from what I have already pointed out or else determined, I have reached the view, after giving the issues arising at the instance of the appellants and the Minister much thought, that there is sufficient basis for the operation here of those principles adversely to the Minister's case, in the sense of failure to deal with a matter of relevance sufficiently or adequately in the particular circumstances of this case. The appellants' case the subject of par 1(c) of the appellants' amended notice of appeal above, does not appear to have been sufficiently addressed in the presentation of the Minister's case, at least largely for the reasons the subject of par 1(d) above.
27 The Minister's submissions upon the first and second grounds raised in the appellants' amended notice of appeal seem to me to have been somewhat too clinical in approach, and to fall short of coming adequately to issue with the nature and contextual significance of the events purportedly addressed by the Minister in that regard, being events, viewed in terms of their physical occurrence, the credibility whereof was not to my understanding the subject of dispute.
28 In relation to the third ground of appeal raised in the amended notice of appeal, counsel for the appellants submitted that the Tribunal's finding, to the effect that the threats the appellant husband received were not attributable to political reasons, was made 'in relation to the threats arising from [the] 1999 videotaping incident and not from the fact that, after appearing at the media conference on 1 May 2004… the appellant received "real threats"'. Counsel for the appellants further submitted that 'it was incumbent on the Tribunal to consider whether the appellant had a well-founded fear of persecution by reason of the 1 May 2004 media conference and after which the appellant claimed that is when the "real death threats took place" by reason of the fact that he was perceived as changing parties in concert with…the former Foreign Minister of Sri Lanka'. It was contended that jurisdictional error arose out of the Tribunal's failure to consider whether there was a real chance the appellant would be persecuted by reason of his affiliation and association with the former Foreign Minister.
29 Summarising the significance of the findings of the Tribunal, counsel for the Minister submitted that the Tribunal found the 1999 incident to have been criminally rather than politically motivated. Counsel further submitted that the 'Tribunal asked the appellant husband to elaborate on the threats he had received in 2004 and, in relation to the threat received on 1 May 2004, it transpired that what was said could not be characterised as a threat'; and that the 'Tribunal indicated that even if it accepted that he had received the death threats as he claimed, they referred back to the 1999 incident and did not have a political motive'. I have encountered considerable difficulty as to the viability of that indication on the Tribunal's part, for reasons I have already foreshadowed.
30 Counsel for the Minister proceeded in any event to contend that the appellant husband had asked the 'Tribunal to believe that the threats occurred for reasons of his changing political parties', an emphasis of his case said to have occurred after his original claims were found to be wanting a Convention nexus. However, so the Minister's contention continued, none of the threats supported this allegation and the Tribunal impliedly rejected that claim in observing that the evidence did not support it.