VMAJ v Minister for Immigration & Multicultural & Indigenous Affairs

Grounds of Appeal 25 The only ground of appeal which is now pursued was expressed as follows: 'Her Honour erred in finding that the Tribunal considered all of the integers of the appellant's claim and in particular erred in finding:- … (b) It had considered and/or dealt with the psychological evidence before it, relevant to the appellant.' Whether the Tribunal Committed a Jurisdictional Error 26 The argument in support of the sole ground of appeal was directed to the failure of the Tribunal to refer, in the conclusionary section of its reasons, to the psychologist's observations and conclusions about the appellant in relation to her recounting and recollecting the alleged detention and torture which she had undergone in 1990. The Tribunal, as appears from the passage cited earlier in these reasons, rejected the claim of detention and, by implication, the claim of associated torture. It did so because it did not accept that the appellant was a known political opponent of the LTTE. Nor was it persuaded of the sufficiency of the allegation that the LTTE would simply systematically round up anyone who had moved from Kilinochchi and detain them on suspicion of providing information to the IPKF. It also observed that the appellant did not give clear evidence about what information, if any, she would have been able to give the IPKF and the Tribunal did not accept that she gave any such information. This is a finding of fact which was on the face of it based on the Tribunal's assessment of the appellant's evidence and its own rejection of the proposition that the appellant was a known political opponent of the LTTE. 27 The argument advanced on behalf of the appellant involved a suggestion that the Tribunal should, in the conclusionary part of its reasons, have expressly referred to and dealt with the psychologist's observations about the appellant's manifestation of 'fearfulness that bordered on terror' in giving her account of having been detained and tortured. No doubt related to that is the psychologist's proposition that if the events that she described were true that would explain the presence of her symptoms. 28 While it may have been desirable, in the interests of fully exposing the reasoning process, for the Tribunal to have made express reference to that aspect of the evidence in making its findings about detention and torture, its failure to do so does not amount to jurisdictional error vitiating the decision which it made. It is at worst an omission to deal with an aspect of the evidence before it which could logically have had a bearing on the question whether the appellant had been detained and tortured. The Tribunal had sufficient basis in the evidence to support its conclusions about the unlikelihood of that occurrence. The psychologist's observations were based upon the appellant's demeanour at the time of her interviews with him. While they may have been informed by professional expertise, it is to be remembered that the Tribunal also had the opportunity of observing the appellant when she was speaking of these matters. 29 In order to succeed the appellant must show that there was a jurisdictional error on the part of the Tribunal. The appellant's case of jurisdictional error relies solely upon the Tribunal's omission to refer to the psychologist's evidence in the conclusionary section of its reasons, this being characterised as a failure to take into account a mandatory relevant consideration. However, it is clear from the Tribunal's reasons that it was very conscious of the terms of this evidence. Omission to discuss one aspect of it in making conclusions of fact is not enough. 30 While it may be that on an appeal de novo, against the Tribunal's findings of fact, the omission of the Tribunal to make reference to the psychological evidence might constitute appealable error, it does not rise to the level of jurisdictional error for the purposes of the judicial review that is now available in relation to decisions taken under the Migration Act. 31 No other argument of substance was advanced in support of the appeal. In the circumstances, the appeal must be dismissed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 24 February 2005 Counsel for the Appellants: Mr JA Gibson with Mr P Pentony

Date of Judgment: 16 February 2005 Date of Publication of Reasons: 24 February 2005