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[2010] FCA 469
Federal Court of Australia
2010-05-13
Marshall J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The appellant appeals from a judgment of the Federal Magistrates Court which dismissed his application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the respondent Minister to refuse to grant a protection visa to the appellant. 2 The appellant is a citizen of Bangladesh. He claimed to fear persecution if returned to Bangladesh in the reasonably foreseeable future on account of his religion and imputed political opinion. 3 The appellant is a Buddhist and was a monk in Bangladesh. The Tribunal was not satisfied that the appellant faced a real chance of persecution in Bangladesh, simply for being a Buddhist or a Buddhist monk. It relied on independent country information to find that it was rare in Bangladesh for Buddhists to face serious harm motivated by discrimination. Such instances of harm, the Tribunal considered, are isolated and not tolerated by the authorities in Bangladesh. 4 At [3] of the reasons for judgment below, his Honour said: It is not necessary to go into great detail about the applicant's claims because the ground upon which he seeks the court's confirmation that the Tribunal fell into jurisdictional error is a simple and single one. It is that the Tribunal did not consider what he claims is the corroborative evidence contained in the medical report which is appropriately set out below: Dear Ms Gray, Thank you for referring Mr Applicant for psychological assessment. I met with Mr Applicant on 8 August 2008. During the assessment, Mr Applicant briefly described experiences of persecution he experienced in Bangladesh. Mr Applicant reports and displays a number of symptoms that are consistent with those of Post Traumatic Stress Disorder and Dysthymic Disorder. These being]; sleep disturbance, nightmares, memory and concentration difficulties, avoidance of reminders of past events, hyper-vigilance, persistent intrusive thoughts, headaches, body pain, fatigue, sweating and an exaggerated startle response. The symptoms experienced by Mr Applicant are having a significant impact on many areas of his functioning. As a result, he is presently unable to perform paid employment. Mr Applicant is in need of whatever financial assistance can be provided of him [sic]. Please do not hesitate to call if you require any further information regarding this client. Yours Sincerely Angela Dossetor Intern Clinical Psychologist
The reasoning below 5 The Court rejected the sole ground of review relied on by the appellant. It found that the Tribunal did not ignore the letter from the psychologist. It pointed to the Tribunal's observation that it had considered the evidence before it and that the letter was on the Tribunal's file. It observed that there was no obligation for the Tribunal, in its decision, to refer to each particular piece of evidence before it and that failure to do so does not amount to evidence that it has not been considered. 6 His Honour observed that the appellant did not rely on the letter in support of his claims. The Court below noted that the Red Cross forwarded the letter to the first respondent's department in support of gaining some financial assistance to the appellant. His Honour considered that the letter was not particularly relevant to any claim advanced before the Tribunal and may have been treated in that way by it. 7 The Court below observed that the letter did not raise any claim on behalf of the appellant separate from those advanced by him and considered by the Tribunal. It noted that the letter merely suggests that the appellant may have been the victim of some adverse conduct. It held that no jurisdictional error had been established.
Reasoning 8 The sole ground of appeal before this Court repeats the sole ground of review below. Nothing has been advanced by the appellant to identify any error in the approach of his Honour to that ground. 9 The appellant submits that the Court below overlooked the evidence which might if accepted led the tribunal to make a different finding of fact. The appellant points to Minister for Immigration & Multicultural Affairs v Yusuf [206] CLR 323. At [82] McHugh, Gummow and Hayne JJ stated: As was said in Craig v South Australia (77) if an administrative tribunal … "falls into 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". 10 There is no basis for a conclusion that the letter was overlooked. I agree, with respect, with the views of the Court below on this issue. In any event, the letter is not directed to any matter of relevance to the Tribunal's assessment of a real chance of persecution for a Convention reason in addition to all those considered by the Tribunal. The letter does not assist the appellant in making out his claim for refugee status. It is a request for financial assistance based on the mental status of the appellant derived from harm which was said to have befallen him in Bangladesh. The letter begs the question whether that harm was inflicted for a Convention reason or whether such harm would be likely to occur if the appellant was returned to Bangladesh. This is not a case where the letter raised an issue, which if resolved one way, would have been dispositive of the review before the Tribunal; compare WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [47]. 11 As the judgment below is free of appealable error the appeal must be dismissed, with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.
SZNZX
Minister for Immigration & Citizenship
[2010] FMCA 127