SZWCC v Minister for Immigration and Border Protection

The application to the Federal Circuit Court 19 The appellant filed an application for judicial review in the Federal Circuit Court of Australia (the Federal Circuit Court). This application set out three grounds, two of which relate to the way in which the Tribunal dealt with the appellant's position if he were to return to Sri Lanka as a failed migration claimant having illegally departed from that country (including a claim of the kind considered in Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 which was not pressed in the present appeal and, given the facts of the present case, I do not consider available in any event) and one relating to complementary protection provisions. No ground relating to the Tribunal having failed to consider the 2007 and 2012 police reports was raised. 20 The appellant was not represented before the Federal Circuit Court. The Federal Circuit Court dismissed the application.

The application to this Court 21 The appellant was not represented at the time his notice of appeal to this Court was filed. The notice of appeal raised three grounds. However, by the time the written submissions were filed the appellant was legally represented. In the written submissions two of the grounds of appeal were abandoned. The submissions stated that the remaining ground should be amended so that it read: The Court below erred in failing to find that the AAT [the Administrative Appeals Tribunal which is now the relevant body rather than the Refugee Review Tribunal] failed to ensure that the hearing was conducted fairly and in accordance with law. 22 In the written submissions this alleged failure was put in various ways. First, it was said that the Tribunal relied on trifling inconsistencies to reach a conclusion adverse to the appellant. Second, it was said that the Tribunal failed in its duty to "test the evidence submitted", meaning that the Tribunal did not ask the appellant anything about the police reports but subsequently rejected them even though they were contemporaneous with the events in issue. Third, it was said that the Tribunal failed to take into consideration the police reports. The Minister did not raise an objection to the appellant relying on the new ground even though it was not raised before the Federal Circuit Court. I consider this to be appropriate as the issue is one of law only and does not involve any prejudice to the Minister. Insofar as necessary, I grant the appellant leave to rely on the new ground of appeal. 23 Before the hearing I referred the parties to Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) and requested that they consider the relevance, if any, of this decision to the appeal. At the commencement of the hearing I indicated to the parties that I did not consider that any issue other than the allegation of a failure to consider the police reports was capable of giving rise to any jurisdictional error in this case. I remain of this view. Nothing in the decision record (the transcript of the hearing before the Tribunal not being in evidence) supports the contention of any unfairness to the appellant in the way in which the Tribunal relied on inconsistencies in the appellant's case to found its conclusions. Nor can it be said that the Tribunal rejected the police reports as incredible or fabricated. This is because the Tribunal did not say what it did, if anything, with the police reports when it came to deal with the applicant's claims about events in July 2007 and May 2012. I do not accept that the Tribunal was bound to make inquiries about the police reports. It is for this reason, in my view, that the real issue is whether the Tribunal failed to consider the 2007 and 2012 police reports and, if so, whether that failure constitutes jurisdictional error. 24 In SZRKT the Tribunal decided that it did not believe the applicant "because it believes he has not been truthful about his former study in that country" (at [9]). The applicant had said he studied at university between 2006 and 2008. The Tribunal disbelieved the applicant because while he said he studied Persian for this period he could not recall a word of Persian. However, there was a transcript which, on its face, purported to show that the applicant had been enrolled at university as claimed. This document was on the file which was forwarded by the Department to the Tribunal. The Tribunal made no reference to the transcript in its reasons. 25 Justice Robertson was satisfied that the Federal Circuit Court had not erred in deciding that the Tribunal failed to consider the transcript when it made its adverse findings (at [71]). His Honour then considered the legal consequences of this factual finding of a failure to consider the transcript. He said: [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 Corporation v National Labor Relations Board 340 US 474 (1951) 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 (NSW) [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. … [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" (1957) 70 Harvard Law Review 953 at 963 cited with approval in Kirk v Industrial Relations Commissioner 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 Relations Commission 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. … [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: … [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 … 26 Justice Robertson summarised a review of the relevant authorities in these terms: [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 and Multicultural and 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 Migration 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. 27 Justice Robertson concluded in these terms: [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. 28 Jurisdictional error was thus established. 29 In Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 (MZYTS) the Full Court held that the Tribunal's failure to consider current country information involved jurisdictional error. At [62] the Full Court said: … the Tribunal's reasons do not disclose any consciousness, nor any consideration, of those prevailing circumstances in any part of 2011, nor of the effect of the election cycle in Zimbabwe. They disclose no consciousness, nor any consideration, of what were submitted to be increasing incidents of political violence directed not at high-profile people but at "ordinary" MDC supporters or members. The absence of these matters from the reasons, combined with the centrality of them to the visa applicant's claimed fear of persecution as clearly articulated to the Tribunal before, during and after the hearing, allow us comfortably to infer that the Tribunal did not consider these matters, or consider these matters material to the task of asking whether or not the visa applicant had a well-founded fear of persecution. For the Tribunal to form the latter view reveals a misunderstanding of its statutory task on review at the most fundamental level. A failure to consider the claim advanced by a visa applicant is plainly and uncontroversially a failure to perform the statutory task imposed on the Tribunal. 30 This conclusion followed the Full Court's observation at [15] that: It is clear from the matters raised by the Tribunal, and the visa applicant's responses during the hearing that, with the prospect of new elections in the foreseeable future, the question of how volatile and dangerous the situation was "on the ground" in Zimbabwe for people who were actual or perceived supporters of the MDC - but not leaders or persons with a high profile - was a key question in assessing whether the visa applicant was owed protection obligations by Australia for the purposes of Art 1 of the Refugees Convention and s 36(2)(a) of the Migration Act 1958 (Cth). 31 In Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 (SZSRS) the Full Court held that a letter was "centrally important to the Tribunal's decision-making process" (at [56]). This was because the letter was about an issue (whether the applicant had been baptised) which was the foundation for the Tribunal rejecting the applicant's claims and was capable of corroborating the evidence that she had been baptised. Again, accordingly, jurisdictional error was established. 32 What then of the present case? I am satisfied that the Tribunal did not consider the police reports of 2007 and 2012 when it rejected the appellant's claims relating to incidents in those years. Although the Tribunal referred to these police reports when it summarised the appellant's claims (at [6] and [9]) it made no reference to these reports when it came to assess the credibility of the appellant's claims about these events (see the Tribunal's reasons at [29], [31] and [32]). This may be contrasted with the Tribunal's acceptance of the corroborating effect of the 2003 police report at [28]. If the Tribunal had considered the 2007 and 2012 police reports then, given its treatment of the 2003 police report (which was in precisely the same form, that is, untranslated but bearing a date proximate to the claimed events and consistent with the date the appellant said he or his wife went to the police), it would be expected that the Tribunal would mention those reports. This is particularly so given that the Tribunal accepted that the events in 2003 occurred and found the untranslated police report corroborated these events whereas it found that the events in 2007 and 2012 did not occur, its conclusion being that the appellant was not of adverse interest to anyone after 2007 (which, in context, I understand to mean in and from 2007). Further, the Tribunal's lack of reference to the 2007 and 2012 police reports, and acceptance of the 2003 police report as corroborative of one part of the appellant's claims, reflects the way in which the delegate dealt with the case. The delegate also accepted the 2003 police report as corroborative but made no reference to the 2007 and 2012 police reports. 33 Does the failure of the Tribunal to consider the 2007 and 2012 police reports mean that the Tribunal failed to consider the claim that the appellant advanced? The authorities disclose that this question is to be answered not as a matter of principle but in a fact specific context. The issue is the importance or centrality of the evidence to the claim and the Tribunal's resolution of the claim, which calls for consideration of the cogency of the material and its place in the appellant's claims. 34 I do not find the question easy to resolve in the circumstances of the present case. This is for a number of reasons. 35 It might ordinarily be thought that untranslated material lacks the necessary cogency to form a central plank in the reasoning process of the Tribunal. In the present case, however, the Tribunal accepted that the untranslated 2003 police report corroborated the appellant's claims about events in 2003. In other words, by its treatment of the 2003 police report the Tribunal accepted that the document was cogent evidence supportive of the appellant's claims relating to that period. I do not consider this approach by the Tribunal to the 2003 police report to be irrational. Although the document was untranslated so that its content remains unknown, the appellant put the document forward as proof that he went to the police on a particular date about his friend's disappearance. The document appears to be a police report on its face. It bears the date that the appellant said he went to the police. Insofar as the Minister suggested some confusion about the 2003 police report (because there is a second page which bears an issue date in 2012) I do not think the confusion is borne out. It is reasonably clear that the 2003 police report is a two page document which bears a date on which the report was made and an issue date of the copy obtained by the appellant. 36 The 2007 and 2012 police reports are in the same form as the 2003 police report. They appear to be police reports on their face and bear the date on which the appellant said his wife went to the police. Given the Tribunal's treatment of the 2003 police report it is difficult to escape the conclusion that, in the scheme of the Tribunal's reasoning process, the 2007 and 2012 police reports were equally capable of being found to corroborate the appellant's claims about the events he said his wife went to the police about in 2007 and 2012. The Minister submitted the documents lacked cogency not only because they were not translated but also because the 2012 report might have been about the "Greaseman" incident, given the rather jumbled nature of the index to the documents attached to the appellant's statement. I do not accept this submission because there is no suggestion in the material that the appellant or his wife went to the police about the "Greaseman" incident. The appellant's statement of 27 August 2012 identifies the occasions on which the appellant or his wife went to the police and the incident about which they went. The dates of the attached police reports are consistent with the appellant's claims. 37 There is, however, a difference between the events in 2003 and those claimed to have occurred in 2007 and 2012. In 2003 the appellant said he went to the police about the disappearance of his friend and then became of adverse interest to those involved in the disappearance. The 2007 and 2012 events related to persons unknown. The source of the threat against the appellant in 2007 and 2012 incidents remained unidentified, and the appellant did not proffer any suggestion as to who the armed men in question might have been or even why they were targeting him as claimed. It remained unclear how the events were related to his fear of persecution for a relevant, Convention-related, reason. In these circumstances it is difficult to accept that the 2007 and 2012 police reports have the necessary quality of cogency to be a central plank of the appellant's claims. 38 If this characterisation of the 2007 and 2012 police reports is incorrect then, in any event, another perhaps more fundamental difficulty for the appellant arises. It is clear that in the pre-hearing and the post hearing submissions to the Tribunal, and in his further statement, the appellant did not raise any issue about the fact that the 2007 and 2012 police reports which corroborated his claim had been overlooked by the delegate in contrast to the 2003 police report. The inconsistency in the delegate's treatment of the police reports is the kind of matter where, had they been centrally important to the appellant's claims, it would be expected that the appellant or his agent would raise the issue in some form with the Tribunal. Despite being represented by a migration agent and having the opportunity to make a further statement and put in further submissions both before and after the Tribunal hearing it is apparent that this inconsistency in treatment was not raised. 39 Insofar as the hearing before the Tribunal is concerned, at which the appellant was also represented by a migration agent, it is possible also to infer that the 2007 and 2012 police reports were not raised. The Tribunal's reasons give no indication that the appellant or his agent referred to the 2007 and 2012 police reports. Moreover, the transcript of the hearing before the Tribunal is not in evidence. In other words, the way in which the review was conducted before the Tribunal gave no hint that the 2007 and 2012 police reports were central to the appellant's claims in circumstances where the inconsistency in the delegate's treatment of the 2003 police report would ordinarily be expected to call for some response from the appellant or his migration agent given the detailed further information each submitted as part of the process before the Tribunal. 40 Finally, the Tribunal's reasons do not support the conclusion that the claimed events in 2007 and 2012 were of central importance to the Tribunals' decision-making process. The Tribunal reached a conclusion adverse to the appellant's credibility by reference to five matters, none of which relate to the events in 2007 and 2012 said to be the subject of the police reports. The Tribunal did not accept the events after 2007 occurred as claimed by the appellant, including the incident said to be the subject of the police report in 2012, but it did so having already reached a view adverse to the credibility of the appellant on other unrelated grounds. 41 For these reasons, although I am satisfied that the Tribunal failed to consider two pieces of evidence on which the appellant had relied to support his claims, I am unable to conclude that this failure of consideration amounts to a jurisdictional error. While every such failure gives rise to some level of disquiet about the Tribunal's discharge of its legal duties, the particular factual circumstances of the present case do not persuade me that the Tribunal, in failing to consider the 2007 and 2012 police reports, failed to consider the appellant's claims. 42 There being no other argument in support of jurisdictional error which I consider open, it follows that the appeal must be dismissed with costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.