MZYZA v Minister for Immigration

[2013] FMCA 15

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYZA v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 15

MIGRATION – Refugee Review Tribunal – failure to consider significant item of evidence – jurisdictional error.

Migration Act 1958 ss.36(2)(aa), 424AA

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] ALMD 6892; [2010] FCAFC 51
Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 77 ALRJ 1165; (2003) 73 ALD 1; (2003) 198 ALR 59; [2003] ALMD 5516; [2003] ALMD 5845; [2003] HCA 30
Reece v Webber (2011) 192 FCR 254; (2011) 276 ALR 196; [2011] FCAFC 33
SXRBv Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 14
SZDGC v Minister for Immigration and Citizenship (2008) 105 ALD 25; [2009] ALMD 1339; [2008] FCA 1638
SZOYH v Minister for Immigration and Citizenship (2012) 128 ALD 554; [2012] FCA 713
WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs, (2004) 80 ALD 568; [2005] ALMD 3263; [2004] FCAFC 74

Applicant: MZYZA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 795 of 2012

Judgment of: Riley FM

Hearing date: 6 December 2012

Date of last submission: 13 December 2012

Delivered at: Melbourne

Delivered on: 24 January 2013

REPRESENTATION

Counsel for the Applicant: The applicant appeared in person

Solicitors for the Applicant: The applicant was not represented

Advocate for the First Respondent: Nick Wood, until he was excused, when Ben Petrie appeared.

Solicitors for the First Respondent: Clayton Utz

Counsel for the Second Respondent: No appearance

Solicitors for the Second  Respondent: Clayton Utz

ORDERS

1. The decision of the Refugee Review Tribunal handed down on 1 June 2012 be set aside. 

2. The matter be remitted to the Refugee Review Tribunal for determination according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 795 of 2012

MZYZA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision of the Refugee Review Tribunal.  

2. The applicant is a citizen of India.  He arrived in Australia on

   
   

   3 October 2008 on a student visa.  After that visa expired, the applicant applied for another student visa, which was refused by a delegate of the Minister. The applicant then sought review by the Migration Review Tribunal, which affirmed the decision of the delegate. The applicant then sought ministerial intervention, which was unsuccessful. The applicant then applied on 4 October 2011 for a protection visa.

3. The applicant claimed that:

   a)he was a Catholic;

   b)he was a member of the Democratic Youth Federation of India (“DYFI”), which is a subsidiary of the Communist Party of India (Marxist) (“CPI(M)”);

   c)when he finished year 12, he was elected as Local Area Secretary of the DYFI;

   d)he was threatened with death by members of the Hindu Bharathiya Janthadal Party (“BJP”);

   e)the applicant led protests against the BJP’s attempts to convert people to Hinduism;

   f)he was targeted by the BJP and hospitalised with severe injuries;

   g)he moved to Bangalore to escape the BJP but they located him and attacked him;

   h)his brother and father have also been attacked by the BJP;

   i)the applicant came to Australia to escape his attackers;

   j)his brother died of a stroke but the applicant could not return to India for the funeral;

   k)the authorities in India have been of no assistance because of influence and money; and

   l)in August 2010, the applicant’s family home was attacked by unknown persons.

4. An interview with a delegate of the first respondent was scheduled.  However, the applicant did not attend.  The delegate considered that the applicant’s claims were brief, vague, lacking in detail and were not supported by independent evidence.  The delegate did not accept that the applicant was a member of the DYFI, had a genuine fear of persecution or faced a real chance of persecution in India for any reason.

5. The applicant submitted to the Tribunal:

   a)some newspaper reports about the murder of a Marxist leader in India;

   b)some medical documents;

   c)some letters from church officials in support of the applicant’s student visa application;

   d)some documents from the internet about violence against the CPI(M);

   e)

   a death certificate indicating that the applicant’s brother died on

   
   

   3 February 2007; and

   f)a letter dated 26 March 2012 on the letterhead of the DYFI stating that:

   This is to certify that [MZYZA, of a particular address] is an active member and spokes person (sic) of DYFI (Democratic youth federation of India) since 1995 till now. His character and conduct are good.  I wish him all success in his future endeavours.

6. During the hearing before the Tribunal, the member asked the applicant to comment on a number of matters pursuant to s.424AA of the Migration Act 1958.  In particular, the Tribunal referred to the letter from the DYFI and asked the applicant to comment on country information to the effect that it is very easy to obtain false documents in India.  The applicant replied that he could not comment, because the letter was provided by his parents.

7. The Tribunal accepted that the applicant is a Christian but otherwise did not accept any of the applicant’s claims. That is, the Tribunal did not accept that the applicant was a member of the DYFI or the CPI(M) or that he or his family were targeted for reasons of their political opinion or religion. Largely because of inconsistencies in the applicant’s claims, the Tribunal considered that he was not a credible witness. The Tribunal considered that the applicant is not a person to whom Australia owes protection obligations under either the Refugee Convention or s.36(2)(aa) of the Act.

Ground 1

1. The first ground of review in the application filed on 2 July 2012 is:

   The Tribunal constructively failed to exercise its jurisdiction.

   Particulars

   The applicant provided documents to the Tribunal to corroborate his claims.  The Tribunal failed to engage in an active intellectual process of these documents (sic).  The Tribunal ultimately gave the documents no weight on the basis of credit findings.  It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents (sic).  It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.

2. The applicant was not represented at the hearing before this court. 

   
   

   He did not file written submissions.  In oral addresses, he did not elaborate on his grounds of review.

3. The Tribunal noted at paragraphs 28 and 30 of its reasons, under the heading, “Claims and Evidence”, that the applicant had provided documents to it.  However, under the heading, “Findings and Reasons”, the only documents provided by the applicant to the Tribunal that the Tribunal mentioned were:

   a)a medical certificate about the applicant’s depression;

   b)his brother’s death certificate; and

   c)letters from Church leaders in relation to the applicant’s student visa application.

4. Significantly, the Tribunal did not mention, under the heading, “Findings and Reasons”, the letter on the letterhead of the DYFI which said that the applicant had been an active member and spokesperson of that organisation since 1995.  The Tribunal did mention that letter in its summary of the applicant’s claims, at paragraph 28 of its reasons, and in its summary of the hearing before it, at paragraph 52 of its reasons. Paragraph 52 is as follows:

   The Tribunal asked the applicant to comment on the letter from the DYFI secretary dated 26 March 2012 which he submitted to the Tribunal. The applicant said that he asked his parents in India to obtain confirmation of his membership in the DYFI and they sent him the letter. The Tribunal asked the applicant to comment on country information obtained from the Department that suggests that it is very easy to obtain false documentation in India. The applicant told the Tribunal that he could not comment because the document was provided by his parents.

5. Although the Tribunal put to the applicant the proposition that it is very easy to obtain false documents in India, the Tribunal did not proceed to make a finding to the effect that the letter was fraudulent.  Indeed, the Tribunal did not make any findings at all about the letter.  In particular, the Tribunal did not say that it gave the letter no weight, or very little weight.  The Tribunal simply did not mention the letter in the “Findings and Reasons” section of its reasons.

6. At the hearing before this court, it appeared that the Tribunal may have decided, without saying so, that the letter was a forgery.  The letter was significant because, if authentic, it gave some credence to the applicant’s claims to have been a member of the DYFI and to have been attacked for that reason.  In these circumstances, the court invited the parties to make further written submissions in relation to the letter.  The first respondent did so.  The applicant told the court that he did not wish to file any further material.

7. The first respondent argued that the court should not conclude that the Tribunal had implicitly found that the letter was a forgery.  The first respondent said that a finding of fraud should not be lightly made by the Tribunal[1] and a conclusion that the Tribunal had implicitly made a finding of fraud should not be lightly drawn by the court. 

   [1] WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; 77 ALD 1; [2004] ALMD 3697; [2003] FCAFC 171 at [53]

8. I accept that contention.  It is a very serious matter to find that a document is a fraud or a forgery.  The mention of document fraud during the hearing before the Tribunal is insufficient to lead to a conclusion that the Tribunal actually decided that the letter was fraudulent.  There is nothing else in the Tribunal’s reasons that supports a view that the Tribunal actually decided that the letter was not genuine.

9. The first respondent argued that the Tribunal did, in fact, consider the letter, even though the Tribunal did not mention it in the “Findings and Reasons” part of its reasons for decision.  The first respondent argued that the Tribunal did consider the letter because:

   a)it mentioned the letter in the list of documents the applicant had given it; and

   b)it raised with the applicant at the hearing before it the possibility that the letter was false. 

10. In this context, the first respondent relied particularly on Reece v Webber (2011) 192 FCR 254; (2011) 276 ALR 196; [2011] FCAFC 33 at [65] and the cases cited therein. The Full Federal Court said in Reece v Webber at [65] to [70]:

    [65]Equally, a failure to expressly mention particular material is not conclusive that it has not been taken into account. A decision-maker is not normally required in its reasons for decision to refer to “every item of evidence that was before it” and an “omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked”: cf SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 at [58] per Lindgren J. See also: SZHPI v Minister for Immigration and Citizenship [2008] FCA 306 at [15] per Branson J; Australian Postal Corporation v Sellick (2008) 48 AAR 108; 245 ALR 561  at [64], per Bennett J.

    [66]There are obvious differences between the relevant provisions of the Health Insurance Act presently in issue and (in particular) ss 106KD(1) and 106L(1) and those, for example, set forth in s 43 of the AdministrativeAppeals Tribunal Act 1975 (Cth) or s 430 of the MigrationAct 1958 (Cth). Section s 43(2B) of the Administrative Appeals Tribunal Act thus requires the Administrative Appeals Tribunal in its reasons for decision to “include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based”. Section 430 of the Migration Act is in similar terms. Notwithstanding such important differences, the following observations of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323 at [69] should be noted:

    [69] It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material ... This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error ... The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration ...

    (Emphasis in original.)

    Those observations serve to emphasise the “important work” served by a statutory obligation to provide “findings” and “reasons” for a decision.

    [67]Even in a statutory context where a tribunal is required to provide a statement of reasons referring to the evidence or other materials on which its findings of fact are based, however, it is recognised that there is no requirement for such a tribunal to refer to every piece of evidence and every contention that may be advanced: cf Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46], 75 ALD 630 at 641 per French, Sackville and Hely JJ. In such a statutory context it has been recognised that the question as to whether or not there has been a breach of the statutory obligation “is a question of degree”: Federal Commissioner of Taxation v Osborne (1990) 26 FCR 63 at 65. Pincus J (with whom Spender and French JJ agreed) there stated:

    A breach of that provision [s 43(2)(b) of the AAT Act] is not necessarily shown by pointing to matters which might, with advantage, have been the subject of fuller and more detailed discussion or to possible issues which have not been mentioned. Where there are (as is usual in the Tribunal) no pleadings or other documents formally defining the questions which the parties desire to have decided, subs (2B) does not necessarily and always require discussion of every point which might have been raised before the Tribunal, whether or not it has been argued.

    [68]But where particular material is to be taken into account – such as that contained within the August 2009 submission – it has been said that a decision-maker must give “proper, genuine and realistic” consideration to that material. That phraseology may be traced in part to the following observations in Khan v Minister for Immigration and Ethnic Affairs[2] at 292:

    [W]hat was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy ... The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense ...

    It is phraseology that has since been repeated and applied: eg, Williams v Minister for the Environment and Heritage (2003) 74 ALD 124 at [29] per Wilcox J.

    [69]So expressed, however, the phraseology has also attracted reservation. The formula of a “proper, genuine and realistic consideration”, it has been said, “creates a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any Tribunal decision can be scrutinized”: Minister for Immigration and Multicultural Affairs v Anthonypillai 106 FCR 426 at [65] per Heerey, Goldberg and Weinberg JJ. Most recently, in Minister for Immigration and Citizenship v SZJSS (2010) 85 ALRJ 306; 273 ALR 122 an appeal was allowed from a decision of the Federal Court. It was there contended that there had been a failure to “give proper, genuine and realistic evaluation” to objective credible material where it was said that such material had been given “no weight”. French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ concluded that the decision appealed from “depended on the Federal Court reviewing the factual findings of the Tribunal rather than the process by which it arrived at its conclusions”: Minister for Immigration and Citizenship v SZJSS at [36]. The formula, it has been said, “operates as an invitation to Courts to enter on the merits of administrative decision-making”: Lawyers for Forests Inc v Minister for Environment, Heritage and the Arts (2009) 165 LGERA 203 at [37] per Tracey J. See also: WAEH of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 364 at [12] - [13] per Wilcox, Nicholson and Downes JJ; Anderson v Director-General, Department of Environmental and Climate Change (2008) 163 LGERA 400 at [51] – [60] per Tobias JA (Spigelman CJ and Macfarlan J agreeing). See generally: John McMillan, “Judicial Restraint and Activism in Administrative Law” (2002) 30 Federal Law Review 335 at 361 - 364.

    [70] Whatever reservation must be exercised when considering whether “proper, genuine and realistic” consideration has been given to particular material, the importance of ensuring that proper consideration has been given to particular material is only heightened when it goes to a matter of central relevance and importance to the ultimate conclusions to be reached. (emphasis added)

    [2] [1987] FCA 457; (1987) 14 ALD 291

11. Reece v Webber makes it clear that a failure to mention material is not conclusive that it was not taken into account, and does not necessarily establish that it was overlooked.  However, Reece v Webber certainly countenances cases in which a failure to mention a particular matter would properly lead to the conclusion that the matter had been overlooked.  Indeed, Reece v Webber refers to matters of “central relevance”, and suggests that such matters should be addressed explicitly.

12. In the present case, the letter was of “central relevance”, because it supported the applicant’s claim to have been persecuted as a member of the DYFI.   In the circumstances of this case, and in the absence of any mention of the letter in the “Findings and Reasons” section of the Tribunal’s reasons, I am not persuaded that the Tribunal did consider the letter while actually weighing up the evidence and making its decision.

1. The first respondent argued that it was open to the Tribunal to give little or no weight to the letter: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]. That, of course, is correct. However, the question is whether the Tribunal actually decided to give the letter little or no weight, or whether the Tribunal overlooked the letter when it came to make its decision, and, if the latter, whether the Tribunal thereby fell into jurisdictional error.

2. The first respondent argued that the Tribunal had implicitly decided to give the letter little or no weight.  The first respondent said that such an approach did not disclose jurisdictional error, for the reasons explained in Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] ALMD 6892; [2010] FCAFC 51 at [26]. That paragraph is as follows:

   Neither does the RRT fall into jurisdictional error if it fails to express its reasons for rejecting corroborative evidence with full clarity. In the present case, the RRT dealt with the evidence of a baptismal certificate by saying that it was "not prepared to give this document sufficient weight to overcome its concerns with the applicant’s evidence". It would have assisted if the RRT had explained its rejection in greater detail. As we have said, it was implicit in the reasoning of the RRT that it did not regard the baptismal certificate as genuine. It was desirable that the RRT set out the basis of the doubts concerning the baptismal certificate beyond simply its doubts concerning the first respondent’s evidence generally. This deficiency in the way the RRT articulated its reasoning may explain why the federal magistrate said the RRT failed to engage in "an active intellectual process of considering the corroborative material", and that the RRT "failed to engage in any meaningful consideration of the purported baptismal certificate". The brevity with which the RRT dealt with the corroborative evidence is unsatisfactory, but does not justify the conclusion drawn by the Federal Magistrate that the RRT fell into jurisdictional error.

3. However, the present case is quite different.  In the present case, the Tribunal did not articulate any reason at all for giving the letter little or no weight.  I do not consider that SZNPG assists in the present case.

4. I do not accept the submission that the Tribunal implicitly decided to give the letter little or no weight.  There is no indication in the Tribunal’s reasons for decision of any cognisance of the letter in the part of the Tribunal’s reasons that records its reasons for decision, as opposed to its summary of the background.  It seems to me that the Tribunal overlooked the letter while weighing up the evidence and formulating its decision, as opposed to setting out the background to the case.

5. The ground of review presently under consideration includes the point that the Tribunal erred by assessing the applicant’s credit before assessing the letter.  The first respondent said that there was no jurisdictional error in so proceeding, as explained by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 77 ALRJ 1165; (2003) 73 ALD 1; (2003) 198 ALR 59; [2003] ALMD 5516; [2003] ALMD 5845; [2003] HCA 30 at [49]. That paragraph is as follows:

   In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.

6. In S20/2002, the Tribunal did in fact expressly deal with the corroborating evidence, and said that it gave it no weight because the applicant thoroughly lacked credibility.  That is not what happened in the present case.  In this case, the Tribunal was silent about the letter in the “Findings and Reasons” part of its decision.  That is to say, it may have been open to the Tribunal in the present case to say that it considered that the applicant’s credit was so damaged that it gave no weight to the letter, but it did not do so.

7. In any event, S20/2002 was considered in SZDGC v Minister for Immigration and Citizenship (2008) 105 ALD 25; [2009] ALMD 1339; [2008] FCA 1638. In that case, Finkelstein J said at [23] to [27]:

   [23]It is only necessary to deal briefly with the second ground. The complaint is that the tribunal failed to "consider the corroborative evidence in the form of the Summons against the husband of the applicant and the Administrative Penalty Order, before making the adverse credibility finding". I take it to be a trite proposition that a decision-maker required to find facts, whether the decision-maker be a judge or an administrative official, must consider the totality of the evidence that bears upon the facts to be found. That requires the decision-maker to consider any direct evidence of the existence of the fact in issue together with any corroborative evidence that bears on that issue. This is nothing more than common sense. There may be circumstances where it is not necessary to pay due regard to corroborative evidence. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [49] McHugh and Gummow JJ said "it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption". That proposition is no doubt true. But the circumstances for its application will be rare indeed. Even experienced advocates can only point to a handful of cases where a witness’ credit has been so badly destroyed in cross-examination that it is possible to make findings of fact based on that evidence alone and simply disregard any corroborative evidence.

   24 For example in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 568 the appellant complained that the tribunal failed to have regard to certain documents because the tribunal was not convinced that the documents could overcome the difficulties that it had with the appellant’s evidence. Lee and Moore JJ said at [27]:

   Such a circumstance may arise where an applicant's claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material: see S20/2002 at [49] per McHugh and Gummow JJ. Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied ... it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant's claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant's credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 ; 180 ALR 1 ; 62 ALD 225 at [82]- [85] per McHugh, Gummow and Hayne JJ. (emphasis added)

   25 The appellant submitted that the conclusion that she had lied to the tribunal was based on the operation of Chinese law relating to the exit and entry of citizens and the issue of passports in circumstances where she had told to the tribunal that (a) she had only been administratively detained after her request for permission to hold a work related protest; (b) she had given an undertaking to persuade those unemployed workers to not engage in any protests in the future; (c) she had not come under any further adverse notice and was not actively sought until after her departure; (d) her application for the second passport was filed before her detention through a friend and money was involved; (e) her Australian visa was obtained through a secret member in the Tourism Bureau of Qingdao City; (f) Chinese law provides for cancellation of the passports of those who have been involved in activities that are endangering the safely, the honour and the interest of the country; and (g) some of the country information speaks only of the probability that a person who has obtained a Chinese passport and exit permit would not be on wanted lists.

   26 I am in no doubt that, contrary to the views of the Magistrate, the tribunal should have had regard to the documents put forward by the appellant in order to assess her credibility. In its reasons the tribunal explained how it would have regard to the documents. It said:

   The applicant has claimed in her most recent submission that: The documentary evidences [sic] that I have previously submitted is true and important evidence in support of my claims. The Tribunal is not convinced that this statement is true as it finds that it does not accept her claims and it does not accept, therefore, that her documentary evidence is authentic.

   27 This is not a rational approach. Putting to one side the fact that the tribunal misunderstood the appellant’s claim, it is false reasoning to find that the corroborative evidence was not authentic because the tribunal without regard to that evidence found the appellant to be dishonest. The tribunal should have had regard to the documents when assessing the appellant’s credibility. In that process it might have found the documents not to be authentic. But that would need to have been for independent reasons, unless the appellant’s evidence fell into the S20/2002 category. It plainly did not fall into that category. (emphasis added)

8. In WAIJ, the Tribunal blandly stated that the corroborating documents:

   do not overcome the problems I have with the applicant’s evidence.

9. Similarly, in SZDGC, the Tribunal said at [26]:

   The Tribunal is not convinced that this statement is true as it finds that it does not accept her claims and it does not accept, therefore, that her documentary evidence is authentic.

10. On the other hand, in the present case, the Tribunal, apparently, did not consider the letter at all. The first respondent submitted that this was a case where it would not have been irrational for the Tribunal to conclude that the letter would not alter the Tribunal’s view of the applicant’s credibility.  That may be so.  But unlike S20/2002, WAIJ and SZDGC, the Tribunal did not say that it had formed such a view.  The inescapable conclusion is that the Tribunal overlooked the letter.

11. The first respondent argued that the Tribunal was under no obligation to make its own enquiries about the authenticity of the letter.  There does not appear to be a ground of review to that effect.  I take that matter no further. 

12. The first respondent then argued that, if the Tribunal did fail to consider the letter that failure did not amount to jurisdictional error.  The first respondent relied on SZOYH v Minister for Immigration and Citizenship (2012) 128 ALD 554; [2012] FCA 713 at [36] to [38], which state as follows:

    [36]Aside from such an essential component or integer of an applicant’s claim, the Tribunal has no obligation “to refer to, or adequately to consider, evidence, whether or not it might be thought probative”: see Minister for Immigration and Citizenship v MZYHS (2011) 119 ALD 534; [2011] FCA 53 at [24] per Kenny J and the cases referred to there. Accordingly, its failure to do so does not give rise to jurisdictional error.

    [37] In SXRB, Lander J described the difference between an integer and evidence in these terms (at [32]–[33]) as follows:

    [32]      The failure to consider a piece of evidence does not necessarily amount to a failure to consider an integer of an applicant’s claim for an entitlement to a visa. Whether it will or not will depend upon whether it is the only or the overwhelming evidence relating to that integer.

    [33] Any integer of any applicant’s claim may well be made up of various pieces of evidence; sometimes direct, sometimes circumstantial. The failure to consider any one piece of evidence does not necessarily amount to a failure to consider the integer itself. It will only mean a failure to consider the integer if that evidence, either by itself or coupled with other evidence whether direct or circumstantial, would have affected or might have affected the result of which the RRT arrived...

    (Emphasis added)

    [38]It follows that whether a piece of evidence is of the kind that has to be considered by the Tribunal, depends on the nature of the evidence concerned, either considered alone, or in combination with other evidence, and its significance in terms of the possible effect it may have on the result of the Tribunal’s deliberations.

13. In my view, the letter, if genuine, was an overwhelming piece of evidence in relation to the applicant’s membership of the DYFI.  Even so, the first respondent argued that a consideration of the letter may have led to a conclusion that the applicant was a member of the DYFI, but would not have altered the Tribunal’s ultimate conclusion.  However, SXRB speaks of whether the evidence “might have” affected the result and the “possible effect” on the result.  It seems to me that, if the Tribunal had considered the letter, it may have decided that it was genuine, and it may then have found that the applicant was a member and spokesperson of the DYFI, and may have then considered that the implausibility’s it identified were not of any great moment.  Consequently, the letter “might have” affected the result.

14. Based on SXRB, I consider that the first ground is made out.  Additionally, as explained in SZDGC, I consider that the Tribunal should have had regard to the letter when assessing the applicant’s credibility.  This does not seem to me to be one of those rare cases in which the well was so poisoned that corroborating evidence could be blandly dismissed or one of those even more rare cases where corroborating evidence could be overlooked entirely.

Ground 2

1. The second ground of review in the application filed on 2 July 2012 is:

   The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspect (sic) of his claims were implausible, being conclusion (sic) that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.

2. The applicant did not elaborate on this ground.  It is not clear what aspects of his claims the applicant says the Tribunal found implausible.  One possible aspect is the Tribunal’s statement that it had difficulty accepting the applicant’s explanation for his delay in lodging his protection visa application: paragraph 68 of the Tribunal’s reasons for decision.  However, the delegate said she had the same difficulty: CB61.  Therefore, this was a view that was obviously open on the known material.    Otherwise, the Tribunal’s decision appears to have been based on inconsistencies in the applicant’s evidence, rather than implausibility’s.  I am unable to discern any basis on which this ground could be made out.

Conclusion

1. As one of the applicant’s grounds has been made out, the Tribunal’s decision must be set aside.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Riley FM

Date:  24 January 2013