VMAJ v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT THE COURT: Introduction 1 This appeal is brought by a mother and son who arrived in Australia on 19 February 2002 on Indian passports. They entered Australia on visitors' visas. VMAJ, the mother, was born on 9 May 1960. Her son, VMAK, was born on 9 June 1983. On 30 April 2002, VMAJ made an application for a protection visa and included her son in the application. Both claimed to be Sri Lankan nationals of Tamil ethnic origin. The application was supported by copies of the passports on which they entered Australia and certified copies of their certificates of birth. They asserted that the passports which they had used to enter Australia and which were on their face Indian passports were in fact forged. 2 On 3 July 2002, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused the application for protection visas. Both applicants sought review of that decision on 12 July 2002. On 29 November 2002, the Refugee Review Tribunal (the Tribunal) affirmed the decision of the Minister's delegate. 3 On 16 January 2003, VMAJ and VMAK lodged an application for judicial review of the Tribunal's decision. The application was purportedly lodged under Pt 8 of the Migration Act 1958 (Cth). In truth it could only proceed as an application under s 39B of the Judiciary Act 1903 (Cth). The provisions of Pt 8 which had conferred jurisdiction on the Court to entertain judicial review applications were repealed in 2001. 4 The appellant's application was remitted to, and then heard and determined in, the Federal Magistrates Court of Australia. On 12 May 2004, the Chief Federal Magistrate dismissed the application. On 31 May 2004, a notice of appeal was filed against the decision of the Chief Federal Magistrate. As the original application for a protection visa related entirely to protection claims made by the mother and as the appeal relates entirely to their disposition, she will be referred to in these reasons as 'the appellant'. 5 The only ground of appeal that is now pursued asserts that the Tribunal failed to consider or deal with psychological evidence which was before it relevant to the appellant and that the learned Chief Federal Magistrate erred in finding that the Tribunal had considered that evidence. 6 It is necessary in addressing this ground to have regard to the Tribunal's findings and the way in which the psychological evidence bore upon them. The Appellant's Claims 7 The appellant's claims made in support of the original application for a protection visa were conveniently summarised by the learned Chief Federal Magistrate. Important elements of those claims were as follows:

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.

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