MZYIA v Minister for Immigration - [2010] FMCA 734

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYIA v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 734

MIGRATION – Whether the giving of an earlier consistent statement is information within s.424A – information given by applicant during the process that led to the decision to cancel the applicant’s student visa.

Migration Act 1958 (Cth), s.424A
Migration Amendment (Review Provisions) Act (No 100) 2007
Migration Legislation Amendment Act (No 1) 1998

Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1
Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682
Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27
MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314
MZYER v Minister for Immigration and Citizenship and Refugee Review Tribunal [2010] FCA 522
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
SHUB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 137 FCR 43
SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389
SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
SZLSM v Minister for Immigration and Citizenship [2009] FCA 537
SZMSC v Minister for Immigration & Anor [2009] FMCA 413
SZNQR v Minister for Immigration and Citizenship [2010] FCA 152
Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361
Toro Martinez v Minister for Immigration & Citizenship [2009] FCA 528
VQAB v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 104
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184

Applicant:

MZYIA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG446 of 2010

Judgment of:

Turner FM

Hearing date:

18 August 2010

Date of Last Submission:

18 August 2010

Delivered at:

Melbourne

Delivered on:

11 October 2010

REPRESENTATION

Counsel for the Applicant:

Ms Burt

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Ms Symons

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application filed 26 March 2010 and amended application filed

24 June 2010 are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG446 of 2010

MZYIA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) dated 26 February 2010. The Tribunal affirmed the decision of the delegate on 22 September 2009 to refuse to grant the applicant a Protection (Class XA) visa.
The grounds of the application for judicial review are set out in the amended application filed on 24 June 2010 as follows;
(1)The Tribunal acted without or in excess of jurisdiction, in that it failed to comply with the requirements of procedural fairness.
(a)The Tribunal failed to comply with s.424A of the Migration Act 1958 (the “Act”) as a result of failing to give the applicant clear particulars of information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review, namely information provided to a Departmental officer in connection with the proposed cancellation of the applicants student visa. In paragraph [38] of the Tribunal’s decision [Court Book (“CB”) 247-265] it stated that the applicant gave evidence to a Departmental officer that he had not been able to continue his studies because there had been a problem on the farm that had led to reduced income. At paragraph [91] this information appears to form part of the reason for the Tribunal’s finding that the applicant exaggerated his uncle’s influence power over the family. This finding, along with findings in paragraph [89] that the applicant exaggerated or constructed a political profile for his uncle, ultimately led to the Tribunal’s conclusion that the applicant does not have a well founded fear of persecution at the hands of his uncle [paragraph 93 and 104].
(2)The Tribunal acted without or in excess of jurisdiction, in that it identified a wrong issue, asked a wrong question, relied on irrelevant material or ignored relevant material.
(a)The Tribunal made an error of fact in misunderstanding or misconstruing the claim advanced by the applicant, namely the strength of his religious and political views. At paragraph [102] the Tribunal stated that the applicant’s evidence indicated that “he wanted to be left alone in relation to religion”. This is an error of fact amounting to a misconstruction of the applicant’s claim, and is tantamount to a failure to consider the claim and on that basis constitutes jurisdictional error.
(i)During the hearing the applicant gave evidence about the reasons why he had denounced Islam and his strong anti-Islamic views. At paragraph [52] the applicant’s evidence clearly establishes his intention not to keep quiet about his religious and political beliefs. The Tribunal stated that the applicant gave evidence that “his non practice of Islam, as well as his speaking against the Taliban and the extremists, would lead him to be harmed by other fundamentalists. The applicant said at the hearing that he would not change his views about Islam and the prophet Mohammed.
(ii)The applicant’s statutory declaration provided evidence of his religious and political opinion and his expression of such views [paragraph 17 and 18 of statutory declaration dated 19 June 2009 at CB 74-81]. This evidence does not support the Tribunal’s finding in paragraph [102].
(b)The Tribunal failed to consider an integer of the applicant’s case, namely his fear of persecution as a result of his political opinion or imputed political opinion.
(i)At paragraphs [18] to [22] of the applicant’s statutory declaration dated 19 June 2009 [CB 76-77], the applicant clearly articulated his political opinion and his fear of persecution as a result of his actual and imputed political opinion. This is also articulated in legal submissions at [CB 104-105]
(ii)The Tribunal does not deal with these claims in any meaningful way and found that the applicant has not raised any claims as a result of his political opinion nor the opinion of his mother [CB 264, paragraph 110].
(c)The Tribunal failed to take into account relevant information, namely oral evidence given by the applicant to a Departmental delegate in relation to the cancellation of his student visa [CB 68-71].
(i)In considering the extend of power exerted by the applicant’s uncle in paragraph [91][CB 260] the Tribunal completely ignored earlier evidence given by the applicant that his uncle was a member of the Muthida Majlise-Ammal (MMA) It was also ignored by the Tribunal in its finding at paragraph [89], namely that the “applicant has either exaggerated or constructed the profile he claims for his uncle.’ [CB 259-260]
(ii)The Tribunal failed to take into account evidence of the applicant’s family’s finances in finding that he was not vulnerable to homelessness or destitution as a result of his mental health [CB 263-264]
(d)The Tribunal found that the applicant had either exaggerated or constructed a political profile for his uncle [CB 260]. There was no evidence to support this finding.
(e)The Tribunal erred in applying the ‘well founded fear’ test by relying too heavily on an absence of past persecution [CB 260 and 261]
At the hearing before the Court Ms Burt appeared for the applicant and Ms Symons for the first respondent. Ms Burt stated that ground one particular (a) should be amended to s.424A of the Act, and that the applicant was not pressing ground two particular (c)(ii) or ground two particulars (d) and (e).
The grounds the applicant relies on are:

Ground One – Amended application ground one (a) (the s.424A ground).

Ground Two – Amended application ground two (a) (i) and (ii) being:

That the Tribunal made an error of fact in misunderstanding or misconstruing the applicant’s claims, namely the strength of his religious and political views, as in para.102 the Tribunal stated that the applicant’s evidence indicated that “he wanted to be left alone in relation to religion”.
It is contended that this is an error of fact and a misconstruction of the applicants claim.
It is contended that during the hearing the applicant gave evidence about why he denounced Islam and about his strong anti-Islamic views, and that the evidence in his statutory declaration dated 19 June 2009 (CB 74-81 at [17] and [19]) do not support the Tribunal’s finding at [102] that “Overall… he wanted to be left alone in relation to religion and not practise as a Muslim or attend Mosque”.
It is alleged that the applicant made a specific claim of persecution because of religion, which was misapprehended by the Tribunal (see applicant’s contentions paras.14 and 36).

Ground 3 - Amended application ground 2(b)(i) and (ii) being:

That the Tribunal failed to consider an integer of the case, namely the applicant’s fear of persecution as a result of his political opinion or imputed political opinion. Paragraphs18 to 22 of the applicant’s statutory declaration articulate his political opinion and his fear of persecution. Refer also legal submissions (CB [104 –105]).
It is alleged that the Tribunal does not deal with these claims in any meaningful way and found that the applicant had not raised any claims as a result of his political opinion nor the opinion of his mother

(CB 264 at [110]).

Ground 4 - Amended application ground 2(c)(i) and (ii) being:

That the Tribunal failed to take into account relevant information, namely oral evidence given by the applicant to a Departmental delegate in relation to the cancellation of his student visa (CB 68-71).
It is alleged that in considering the extent of power exerted by the applicant’s uncle in (CB 260 at [91]) the Tribunal ignored earlier evidence by the applicant that his uncle was a member of the MMA, and ignored that also, in its finding in [89] that the applicant has either exaggerated or constructed the profile he claims for his uncle

(CB 259-260).

Ground One

Ms Burt submits that this is the applicant’s main ground. She referred to para.38 of the Tribunal’s decision which states:
“The Department’s file includes a record of interview by a Departmental officer with the applicant in connection with the proposed cancellation of his student visa. It records that there had been difficulties on the farm which had led to reduced income”.
Ms Burt submits that it does not matter if information (similar to that contained in the second sentence of [38]) was given by the applicant for the purpose of the application for review (statutory declaration CB 73-81 at [35]). She contends that a s.424A(1) letter should have been sent stating:
“At the interview with the Department in connection with the proposed cancellation of your student visa, you said that there have been difficulties on the farm which led to reduced income.”
Ms Burt referred to a statement by Justice Merkel in the Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 at [40] about an applicant not having a record of information provided and not being aware of the significance, and about taking a narrow view of the exceptions in s.424A(3) of the Act.
Because of the decision of the Court (post) that the detail of where information was given is not, in itself “information” within s.424A(1) of the Act, the passages in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 (post) are not determinative of this matter.
Ms Burt referred to the decision in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 that the reasoning in Al Shamry as cogent and persuasive. The Court accepts that proposition, but for the reasons stated, the reasoning in Al Shamry is not determinative of this matter.
Ms Burt submits that the applicant had no knowledge that the Tribunal was going to take into account statements made in the student visa cancellation interview. However, the questions here are whether detail of when the statement was made was in itself “information” within s.424A of the Act?, and “whether the actual information” relied on by the Tribunal was given by the applicant, and exempted under s.424A(3) of the Act?
Ms Burt made submissions as to what constitutes “information” in this case. She submits that the content of para.38 of the Tribunal’s decision is “information”. She submits that:
“its not merely the fact of there being reduced income on the farm, but the fact that that was said at an earlier point in time, at the cancellation interview, that we say constitutes information for the purposes of s.424A” (Transcript “T” p.6, l.20).
By extension, that argument is that “it is not what was said but when it was said that is information”.
Ms Burt submits next that often in s.424A cases, earlier statements are used to show inconsistencies with later evidence (T p.6, l.35). That is not the case here as the statement to the Department and in the statutory declaration about reduced farm income, are consistent.
Ms Burt refers to a finding of Justice Weinberg in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCAFC2 at [177]. That reference is to a situation of inconsistent information and is not relevant here.
Ms Burt then referred to “information” as being “knowledge of relevant facts or circumstances communicated (sic “to”) or received by the Tribunal”. The Court accepts that definition.
Ms Burt again refers to SZEEU (supra) to the effect that inconsistencies with prior statements, or the information itself, need only be a subsidiary or minor part of the reason for affirming the decision.
Ms Burt referred again to Al Shamry (supra) about whether details of inconsistencies in a record of interview taken upon arrival at an airport, should be provided under s.424A of the Act.
It was held there that an interview at the airport:
“cannot be deemed as information that the applicant provided for the purpose of his visa application”.
Here the statutory declaration (CB 74) was information that the applicant gave during the process that led to the decision of the delegate. The question is whether that comes within s.424A(3)(ba) of the Act?. The Court notes that the High Court did not decide this issue in SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609 at [16], where the High Court stated that:
“it was accepted by both sides that information “that the applicant gave for the purpose of the application” did not refer back to the application for the protection visa itself, and thus did not encompass the appellants’ statutory declaration. In this regard, the parties were content to assume the correctness of the Full Federal Court decisions in Minister for Immigration and Multicultural Affairs v Al Shamry - 12#12 (2001) 110 FCR 27 and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs.13 Accordingly, no occasion now arises for this court to determine whether that assumption was correct”.
In Al Shamry (supra) Justices Ryan and Conti (with whom Merkel J agreed [40]-[41]) decided at [17] and [18]:
(17)“Counsel for the Minister accepted that a failure to observe the procedure laid down by s 424A is a reviewable error under s 476(1)(a). It was also accepted that where there is information of the kind described in s 424A(1)(a) particulars of that information must be given to the applicant for the purpose of obtaining his or her comments. However, it was said that the information constituted by the airport interview came within the exception created by s 424A(3)(b) in respect of information given by the applicant for the purpose of the application. "Application" in that context, was said to mean "all information given by the applicant to officials in the Department (including that provided to the Tribunal) for the purpose of determining whether to grant a protection visa to the applicant". We disagree. In our view, "applicant" wherever appearing in s 424A means "applicant for review by the Tribunal of a Ministerial decision" and "application" correspondingly means the proceeding before the Tribunal which is the vehicle for such a claim for review.
(18)Section 424A(3)(b) finds its place in Div 4 of Pt 7 of the Act. That Division, as its heading indicates, is concerned with the conduct of a review. Accordingly, s 423, which is the first section in the Division, commences with the words "An Applicant for review by the Tribunal may give the Registrar". All subsequent references in the Division are to "the applicant" or "an applicant" which must, we consider, be taken to be shorthand expressions for "applicant for review by the Tribunal" as first appearing in the Division in s 423. Moreover, the word "application" appears alone only once in Div 4 of Pt 7 in s 424A(3)(b) in close conjunction with "the applicant". Consistency, therefore, demands that "application" where there appearing be taken to mean "application for review by the Tribunal" which is the full expression used in s 429 where "application" occurs for only the second time in Div 4. This construction is also consistent with Div 5 of Pt 7 which is concerned with decisions of the Tribunal and refers in
ss 430A(1)(b) and 430B(1)(b) to "a decision on the application of a person who is in immigration detention", and in s 430D(1) to "an oral decision on an application for review”.”
In SZEEU (supra) Justice Moore held at [8] that the Full Court there was bound to follow Al Shamry unless it is convinced that it should not…and that:
“It is certainly not clearly, plainly or manifestly wrong. Accordingly, this Full Court should follow the construction of s 424A(3)(b) adopted by the Full Court in Al Shamry”.
Justice Weinberg held at [154] that:
“the contention that Al Shamry should not be followed must be rejected”;
Justice Allsop agreed with Moore and Weinberg JJ that the Court should not depart from the construction of s.424A(3)(b) of the Act in Al Shamry and that the word “application” in s.424A(3)(b) of the Act means “the proceeding before the Tribunal which is the vehicle for such a claim for review” [184].
Consistent with the reasoning in Al Shamry that “applicant” wherever appearing in s.424A of the Act, means “applicant for review by the Tribunal of a Ministerial decision”, s.424A(3)(ba) of the Act becomes “that the applicant for review by the Tribunal of a Ministerial decision gave during the process that led to the decision that is under review…”. Thus the contents of a statutory declaration given by the applicant for the purposes of applying for a visa, would be “given during the process that led to the Ministerial decision that is under review”. Further, the words in the exception at the end of s.424A(3)(ba) of the Act show the intention to exempt information given in writing to the Department, not the Tribunal.

The decisions in Al Shamry and SZEEU pre date the enactment of s.424A(3)(ba) of the Act and therefore are not determinative of the interpretation of s.424A(3)(ba). The interpretation in Al Shamry relates to s.424A(3)(b) of the Act.
Clearly sub-s.(ba) of the Act is intended to cover different circumstances than those covered by sub.s.(b). Otherwise sub.s.(ba) would be no more than a duplication of sub-s.(b). That would be absurd and could not be the intention of Parliament.
Section 424A(3)(b) of the Act was enacted by the Migration Legislation Amendment Act (No 1) 1998.
Section 424A(3)(ba) was enacted by the Migration Amendment (Review Provisions) Act (No 100) 2007.
The second reading speech [for (No 100) 2007] explains that the new provisions, including s.424A(3)(ba), will provide that the Tribunals are not obliged to provide an applicant with information already given by the applicant to the Department, as part of the process leading to the decision under review. Whereas the current exemption in s.424A(3)(b) of the Act, relates to information that has been given to the applicant for the purposes of “the application”. It is explained that:
the courts have strictly interpreted this exception (s.424A(3)(b)) to apply only to information provided to the tribunals, and not to information provided by the applicant to my department during the process leading to the decision under review.
It is stated that this exception in s.424A(3)(ba):
“will not extend to information that the applicant orally gave to my department, such as information provided during an interview with a departmental officer for a visa application. Such information is typically not recorded verbatim, and the tribunals will still be required to give the particulars of that information to the applicant for comment”.
The Court reads this as saying that s.424A(3)(ba) of the Act exempts information given to the department in support of a visa application, unless it is given orally.
The Court relies on that intention in support of its decision that s.424A(3)(ba) of the Act exempts information given to the Department in support of a visa application, unless the information is given orally.
Therefore the Court finds that the “information” in the statutory declaration (CB 74-81) is covered by the exception of s.424A(3)(ba) of the Act.
The Court finds support for that interpretation in SZLSM v Minister for Immigration and Citizenship [2009] FCA 537 per Cowdroy J at

[38] –[40]; and in SZNQR v Minister for Immigration and Citizenship [2010] FCA 152 per Rares J at [34] and MZYER v Minister for Immigration and Citizenship and Refugee Review Tribunal [2010] FCA 522 per Dodds-Streeton J at [50] – [51].
Ms Burt referred to SZMSC v Minister for Immigration & Anor [2009] FMCA 413 where the applicant sent a letter to the Minister after being interviewed. There Barnes FM found that the Court:
“Could not discount the possibility that the letter formed part of the adverse credibility finding in that case”.
Here, there is no issue of inconsistency between the statements that led to an adverse finding on credibility. The issue here is whether notification should have been given under s.424A of the Act of when the earlier statement was made. SZMSC v Minister for Immigration & Anor [2009] FMCA 413 is of no relevance here. As the information was included in the statutory declaration, the issue, is of diminished relevance.
Ms Burt submits that the Tribunal took into account statements made at the cancellation interview about the extent of the influence of uncle Saeed. It is clear from reading the applicant’s statutory declaration

(CB 74-81) that much information about his uncle was given by the applicant in that statutory declaration. It is therefore exempted under s.424A(3)(ba) of the Act.
Ms Symons made the following submissions for the first respondent on the s.424A ground.
Ms Symons submits, and the Court accepts, that the Tribunal did not look at inconsistencies in a prior statement by the applicant.
Ms Symons notes that the Tribunal uses the same language used by the applicant in para.35 of his statutory declaration (CB 79) when referring to reduced income from the farm (CB 247 at [41]).
Ms Symons submits that the Tribunal relied on the information given by the applicant in his statutory declaration. She submits that the information is covered by s.424A(3)(ba) of the Act. The Court accepts that submission.

“Information”

The primary question in this matter is whether the failure of the Tribunal to give to the applicant clear particulars in a s.424A(1) letter, that the Department’s file includes a record of interview by a Department officer with the applicant in connection with the proposed cancellation of his student visa (CB 247 [38]) was a breach of s.424A(1) of the Act?
The details of when and where the interview was conducted is not “information” as the detail did not contain in its terms a rejection, denial or undermining of the applicant’s claims to be a person to whom Australia owes protection obligations SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ at [17].
The Court refers to the whole of [17] Ibid as follows:
“Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review”.
The Court finds that the existence of an earlier record of interview was not, in itself, information that contained in its terms a rejection, denial or undermining of the applicant’s claims.
Details about the earlier interview was therefore not “information” covered by s.424A(1) of the Act. There was therefore no obligation on the Tribunal to give to the applicant particulars about it.
Ms Burt contends that s.424A of the Act should be construed beneficially so that the applicant does not suffer unfairness. However, it is clear that the applicant knew that the material in his statutory declaration was before the Tribunal. No unfairness results from the construction determined by the Court.
The information about reduced farm income in para.38 of the Tribunal’s decision is consistent with the evidence about reduced farm income referred to by the applicant in his statutory declaration (CB 79 at [35]) and with the reference by the Tribunal to the “drop in the income available from the family’s farm” (CB 260 at [91]).
The fact that the Tribunal was aware that at an earlier time a consistent statement has been made by the applicant to the Department could not be “information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review”. Such consistent information would be a reason for rejecting the decision of the delegate.
“Information” is that of which one has been “told or appraised or informed” (SZEEU supra).
The Court rejects the submission that the fact that the applicant gave consistent information on a previous occasion, is information in itself. In any event the fact that the information was given at an earlier time was not information that would be the reason or part of the reason for affirming the decision that is under review. The reasons for decision include the actual information of a drop in the income from the family’s farm (CB 260 at [91]).
The applicant’s previous consistent statement does not contain in its terms a rejection, denial or undermining of the applicant’s claim to be a person to whom Australia owes protection obligations. Indeed, if believed, the statement would go towards rejecting, not affirming the decision under review (SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609 at [17]). It is therefore not information for the purposes of s.424A(1) of the Act.
Further, the meaning of “information” in the context of s.424A of the Act is related to the existence of evidentiary material or documentation (SZBYR supra at [18]).
Identifying where and when the statement was made is not “information that could be the reason, or part of the reason… for affirming the decision under review”; that detail is no more that the locus and time that information was given.
Ground one is dismissed.

Ground Two

This ground alleges that the Tribunal made an error of fact in misconstruing the claim advanced by the applicant being the “strength of his religious and political beliefs”. The applicant complains about the Tribunal’s finding at CB 262 [102] that:
“Overall, the applicant’s evidence indicated to me that he wanted to be left alone in relation to religion and not practise as a Muslim or attend Mosque”.
The applicant alleges that there was no evidence to support this finding.
The Court accepts the submissions for the first respondent that the Tribunal was cognisant that the applicant had strong views about how Islam is bad and that if he returned to Pakistan “he could lash out and let his views regarding Islam be known publicly” (CB 248 [45]).
At Court Book 259[87] the Tribunal stated that:
“the focus of my deliberations” had been on “the applicant realising that he is not only not interested Islam but he is opposed to it; his uncle learning that he had spoken against Islam and threatening to harm him; and the rise in the activities and influence of fundamentalist Islamic groups in Pakistan and the associated increased risk that he would be harmed because of his views”.
The Tribunal identified and referred to the information pertaining to the applicants religious and political convictions (CB 247[39]–[42],
CB 248[46] and CB 249[52]).
The Tribunal accepted that “the applicant was born into a Muslim family, long ago abandoned the religion and is very critical of its many tenets” (CB 259[85]).
It is clear that the Tribunal was cognisant of the applicant’s religious and political views. The finding that “overall the applicant’s evidence indicated to me that he wanted to be left alone in relation to religion and not practice as a Muslim or attend Mosque” was a finding of fact that was open to the Tribunal and is not amenable to review.
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal”.
Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, RD Nicholson J, 23 November 1995, unreported) at [24]:
“It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible”.
As stated in Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]:
“The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234)”.
The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41].
The Court does not make that finding in this case.
The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:
“Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors”.
The Court refers to the following passages in Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.
There is one limitation, “Wednesbury unreasonableness” (the nomenclature comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined”.
The Court does not find the decision to be so unreasonable that no repository of the power could have taken it.
A faulty inference of fact does not show an error of law: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [9].
The issue the applicant seeks to agitate is no more than an impermissible attack on the factual finding of the Tribunal. The challenge is no more than an invitation to review the merits. The authorities make clear that the making of findings of fact is uniquely a matter for the decision-maker. In SHUB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 137 FCR 43, the Full Court (at [12] quoted a passage from the decision of Selway J at first instance, where his honour had said:
“16 I have considered all of the matters put to me. The relevant principle is clear. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal is analysing the factual material before it, the assessments of the material was a matter for the Tribunal, not for this Court. The appellant asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]:
“A tribunal such as the RRT does not commit an error of law merely because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999 197 CLR 611]…at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Road Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Affairs v Epeabaka (1999) 160 ALR 543 (FC)…agree with the remarks of Katz J in [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391 at 399] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal”.
Ms Burt referred to the applicant’s Contentions at page 15 paras.40 to 46. It is contented that the Tribunal did not consider material showing that the applicant’s uncle was exerting influence to prevent the applicant’s mother selling her land. That contention is factually incorrect as at CB 246 [37] the Tribunal referred to evidence that if the applicant’s mother had tried to “sell the land Saeed… will kill her”. The Tribunal concluded at CB 260 [89] that the applicant has either exaggerated or constructed the profile he claims for his uncle, for the reasons it set out in [89] – [92].
That finding of fact was open to the Tribunal on the material before it and is not amenable to review. The Tribunal found that the applicant’s evidence about what Saeed does to the applicant’s mother has not been convincing.
As stated in Lee vMinister for Immigration and Multicultural and Indigenous Affairs (supra):
“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”.
As stated in Tefonu supra at [54]:
“The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234)”.
The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41].

The Court does not make that finding here.
Clearly the Tribunal considered the applicant’s claims about the extent of Saeed’s influence over the applicant’s family and did not accept them. That rejection is not amenable to review (Lee supra).
Ms Burt complains incorrectly that the Tribunal made no finding as to the uncle’s financial influence over the family. The Tribunal considered the issue at CB 260 at [91] and concluded that the applicant has exaggerated Saeed’s power over the family. That finding of fact is not amenable to review.
Having found that the applicant exaggerated Saeed’s influence over the family it was not necessary for the Tribunal to make a finding on the claim that Saeed prevented the applicant’s mother from selling the farm.
As stated in SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 at [58]:
“It is well established that the Tribunal is not obliged to refer in its reasons to every item of evidence that was before it: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 593; Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at [79]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (‘Applicant WAEE’) at [46]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]. It follows that the omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 per Fox J; Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 at 173.
Failure to take a relevant consideration into account can only be made out where the Tribunal failed to take into account a consideration which it is bound under the Act to consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. Where the elements of the claim have been considered, the failure to mention expressly part of the applicant’s evidence does not show jurisdictional error: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79] per Allsop J; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68]; MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314 at [13]-[15] per Middleton J”.
In MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314, Middleton J said at [13]–[15]:
“It is clear that the ground of failure to take into account a relevant consideration is made out only if the decision-maker fails to take into account a consideration that he or she is bound to take into account in making the decision (Minister for Aboriginal Affairs v Peko Wallsend [1986] HCA 40; (1986) 162 CLR 24 at 39 per Mason J).
A failure to deal with a particular piece of evidence is neither a failure to take into account a relevant consideration nor a failure to deal with a claim.
The Tribunal found that the appellant was a Muslim who spoke Tamil, and relied on country information, which the Tribunal found included material that there are no Tamil Muslims in Sri Lanka. However, one piece of country information sourced from the Documentation, Information and Research Branch (‘DIRB’) of the Immigration and Refugee Board (Ottowa) referred to by the Tribunal does indicate that there are Tamil Muslims in Sri Lanka. It seems to me, however, that this does not demonstrate an error of law, and clearly no jurisdictional error, merely because the Tribunal, in this respect, may have made a wrong finding of fact (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ)””
In VQAB v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 104, the Full Court decided at [25]:
“The primary judge had another basis for rejecting this first ground. He concluded that the failure to make a finding regarding the passport claim could not amount to a jurisdictional error. That was because there was no claim that being refused a passport amounted to persecution. The claim that he had been refused a passport was merely a piece of evidence to bolster the claim of persecution by reason of the appellant’s political opinion. His Honour referred to a passage in the judgment of Allsop J in Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79] in which a distinction was drawn between an element or integer of a claim, and a mere piece of evidence”.
And at [31]:
“The first ground is singularly uninformative. The primary judge dealt with the complaint that the Tribunal had not addressed the passport claim correctly, and to the extent that this ground seeks to agitate that point, it is without merit. In addition to Paul, and the cases cited therein, regard should be had to Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [46]- [47], VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 447, Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 509, and Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533..”
It was unnecessary for the Tribunal to make a finding on this particular claim as it was subsumed in a finding of greater generality: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [47]. The finding of greater generality is that Saeed exercised influence over the family, but it was exaggerated by the family.
Ms Burt referred to the following passage in Toro Martinez v Minister for Immigration & Citizenship [2009] FCA 528 at [46]:
“The tribunal is not required to address every piece of evidence before it, provided that is considers the integers of the claim: Paul v Minister for Immigration and Multicultural Affairs (2201) 113 FCR 396 at 342 [79] per Allsop J with whom Heerey J agreed. But as French, Sackville and Hely JJ observed in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641 [47] “the inference that the tribunal had failed to consider an issue may be drawn from its failure expressly to deal with that issue in its reasons.” However, they said that where the reasons are otherwise comprehensive and the issue at least has been identified at some point the inference will not be drawn too readily and continued:
“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”.
The complaint that the Tribunal failed to make such a finding about Saeed’s influence over the family is rejected.
Ms Burt alleges that the Tribunal’s description of the applicant’s claims of religious belief are a “vast misstatement” as:
“He’s clearly denounced Islam, he’s defied religious expectations; he’s got deep concerns about the treatment of women in Islam; an ideological objection to the legitimisation of violence in Islam; and he’s made statements that he would definitely speak out about those concerns about Islam” (T p.25, l.11).
The Tribunal gave extensive consideration to the applicant’s claims that he opposed many tenets of Islam:
a)That he long ago abandoned the religion and is very critical of many of its tenets (CB 259 [85]).
b)That he has developed a more western lifestyle and ideas since he has been in Australia (CB 259 [85]).
c)That the applicant is not only not interested in Islam but is opposed to it (CB 259 [87]).
d)That his uncle had learned that he had a problem against Islam and is threatening to harm him (CB 259 [87]).
e)That the rise in support for fundamentalist Islam in Pakistan will place him, as a person who strongly disagrees with aspects of it, at risk of serious harm (CB 261 [94]).
f)That he will speak out about what he thinks of Islam (CB 261 [96] and [102]) and his lack of belief in Islam (CB 263 [104]).
g)His westernisation (CB 263 [105]).
h)That he supports equal rights for women (CB 247 [39]).
i)That he has also been concerned about acts of terror committed by extremists (CB 247 [39]).
j)That he has not been to a mosque since 2006 (CB 247 [40]).
k)That he has strong views about how Islam is bad… and he could lash out and let his view regarding Islam be known publicly
(CB 248 [45]).
The Court finds that the Tribunal had a comprehensive picture of the applicant’s views on Islam. It has not been established that the Tribunal misunderstood or misconstructed the applicant’s claims.
There was evidence before the Tribunal to support its finding of fact that “Overall…he wanted to be left alone in religion and not practice as a Muslim or attend mosque”. That finding of fact is not amendable to review.
Ms Burt relied on NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 per curiam at [63] about the failure by the Tribunal to deal with a claim raised by the evidence. It has not been established that the Tribunal here failed to deal with a claim raised by the applicant. Ms Burt referred to WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FMCA 186 on the same basis.
Ground two is dismissed.

Ground Three

Ground three is that the Tribunal failed to deal with an integer of the case namely the applicant’s fear of persecution as a result of his political opinion or imputed political opinion.
It is alleged that the Tribunal did not deal with the claims in any meaningful way and that it found that the applicant had not raised any claims as a result of his political opinion nor the opinion of his mother (CB 264 at [110]).
The Court accepts the following written submissions for the first respondent:
(44)The Tribunals reasons for decision demonstrate an awareness of the applicant’s claims concerning fear of persecution arising from an actual or imputed political opinion. They were expressly acknowledged at the following references:
(a)The claim of persecution based on actual and imputed political opinion (anti Taliban/anti Islamic state): CB 249 [54].
(b)The claim of persecution based on the Westernisation of the applicant: CB 249 [52] and [54] and CB 250 [57]
(c)The claim of persecution based on the applicants profile as a failed asylum seeker: CB 249 [54].
(45)Further, the Tribunal in its decision, correctly set out evidence concerning the applicant’s views on the interrelationship between religion and the State, religious extremist (sic “extremists”) (including the Taliban) and the extend (sic “extent”) of his Westernisation: see for example CB 247 [39], CB 248 [46] and CB 249 [52].
(46)The Tribunal ultimately made findings which reflected the disparate manner in which the applicant’s claims based upon political opinion had been put and the extent to which claims converged with those concerning the applicant’s attitude to religion.
(47)The Tribunal made express findings concerning the applicant’s potential exposure as a person who has adopted a western lifestyle and appearance and who supports military actions taken against the Taliban and express findings concerning the applicant’s profile as a failed asylum seeker (see CB 263 [105] and CB 263 [106], respectively).
The Court finds the Tribunal dealt with the claims in issue.
The applicant alleges in ground three that the Tribunal found that the applicant had not raised any claims as a result of his political opinion nor the opinion of his mother and refers to CB 264 [110].
As stated above, the Tribunal dealt with claims about the applicant’s political opinions. The particular refers to the submissions made for the applicant before the Tribunal. Those submissions do not refer to a claim relating to the “opinion of the applicant’s mother”.
The particular refers to paras.18 to 22 of the applicant’s statutory declaration (CB 74-77). That statutory declaration does not raise a claim that results form the “opinion of his mother”. In para.10 the applicant states that:
“my mother does not support a definite party, but she favours PML(Q) (Pakistan Muslim League Quaid”)…;
and in para.11:
“Apart from that my mother always liked PPPP (Pakistan’s People’s Party Parliamentarian)”…;
and in para.18:
“My mother used to try and keep me away from political activities as she was fearful of what might happen to me. For this reason I have never been a member of a political party however in recent years I attended a few meetings of the People’s Youth Organisation”;
and in para.41:
“My mother is terribly scared as my uncle has said he will kill me if I return to Pakistan.”
The Court finds that the applicant did not make a claim that results from “the opinion of his mother”. The Tribunal therefore did not err when it concluded (at CB 264 [110]) that “No claims were made in respect of the views of the applicant’s mother who has supported the PML(Q) and the PPPP”.
The Tribunal however dealt with the alleged claim by finding:
“From the evidence before me, I do not consider that these matters will give rise to a risk of coming to serious harm upon the applicant’s return to Pakistan” (CB 264 [110]).
Ground three is dismissed.

Ground Four

This ground alleges that the Tribunal failed to take into account relevant information, namely oral evidence given by the applicant to a Departmental delegate in relation to the cancellation of his student visa (CB 68-72).
The Court has regard to the written contentions by the applicant.
The Court accepts the submission for the first respondent that “A failure to expressly mention a part of the (competing) evidence does not give rise to jurisdictional error where as here, the Tribunal addressed the applicant’s claims” see Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at [79].
As stated in SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 at [58]:
“It is well established that the Tribunal is not obliged to refer in its reasons to every item of evidence that was before it: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 593; Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at [79]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (‘Applicant WAEE’) at [46]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]. It follows that the omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 per Fox J; Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 at 173”.
Failure to take a relevant consideration into account can only be made out where the Tribunal failed to take into account a consideration which it is bound under the Act to consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. Where the elements of the claim have been considered, the failure to mention expressly part of the applicant’s evidence does not show jurisdictional error: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79] per Allsop J; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68]; MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314 at [13]-[15] per Middleton J.
In MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314, Middleton J said at [13]–[15]:
“It is clear that the ground of failure to take into account a relevant consideration is made out only if the decision-maker fails to take into account a consideration that he or she is bound to take into account in making the decision (Minister for Aboriginal Affairs v Peko Wallsend [1986] HCA 40; (1986) 162 CLR 24 at 39 per Mason J).
A failure to deal with a particular piece of evidence is neither a failure to take into account a relevant consideration nor a failure to deal with a claim.
The Tribunal found that the appellant was a Muslim who spoke Tamil, and relied on country information, which the Tribunal found included material that there are no Tamil Muslims in Sri Lanka. However, one piece of country information sourced from the Documentation, Information and Research Branch (‘DIRB’) of the Immigration and Refugee Board (Ottowa) referred to by the Tribunal does indicate that there are Tamil Muslims in Sri Lanka. It seems to me, however, that this does not demonstrate an error of law, and clearly no jurisdictional error, merely because the Tribunal, in this respect, may have made a wrong finding of fact (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ)”.
In VQAB v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 104, the Full Court decided at [25]:
“The primary judge had another basis for rejecting this first ground. He concluded that the failure to make a finding regarding the passport claim could not amount to a jurisdictional error. That was because there was no claim that being refused a passport amounted to persecution. The claim that he had been refused a passport was merely a piece of evidence to bolster the claim of persecution by reason of the appellant’s political opinion. His Honour referred to a passage in the judgment of Allsop J in Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79] in which a distinction was drawn between an element or integer of a claim, and a mere piece of evidence”.
The Tribunal took into account Saeed being “the right-hand man of Maulana Fazalul Rehman” and that Saeed “is involved with Jamiat-e-Ulema which is one of the parties that forms the MMA” (CB 259 [89]). The Tribunal noted that the applicant “knew little about Saeed’s political profile” (Ibid). The Tribunal then set out its reasons for finding that the applicant has exaggerated or constructed the profile he claims for his uncle. Those findings of fact are not amenable to review.
The claim that the Tribunal failed to take relevant information into account has not been established. Ground four is dismissed.
All grounds pressed before the Court are dismissed.
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
The application and amended application are dismissed.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate:

Date: 11 October 2010