SZBUU v Minister for Immigration - [2006] FMCA 197

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBUU v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 197

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to deal with integers of applicant’s claims – whether Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth).

Migration Act 1958 (C’th), ss.414, 424A, 424A(1), 424A(3)(a), 424A(3)(b), 430.

Dranichnikovv Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423
NAOL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 243
WAJS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 139
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
SZDQL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 769
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396
SZBMI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1005
Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27
SZFCN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1433
SZBNK v Minister for Immigration & Multicultural Affairs [2005] FCA 998
SZFKL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 931
NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Applicant:

SZBUU

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2342 of 2003

Judgment of:

Barnes FM

Hearing date:

7 November 2005

Date of Last Submission:

28 November 2005

Delivered at:

Sydney

Delivered on:

28 February 2006

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Ms R. Francois

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the Refugee Review Tribunal be joined as second respondent to the proceedings.
That a writ of certiorari issue quashing the decision of the Refugee Review Tribunal made on 22 October 2003.
That a writ of mandamus issue requiring the Refugee Review Tribunal to redetermine the applicant’s application according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2342 of 2003

SZBUU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 22 October 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant is a citizen of India who arrived in Australia in April 2002. He applied for a protection visa. The application was refused and he sought review by the Tribunal. He attended a Tribunal hearing.
In the statement attached to his protection visa application the applicant claimed to fear persecution on the basis of his Muslim faith and his involvement with the Student Islamic Movement of India (SIMI). In particular he claimed to fear being arrested and detained under prevention of terrorism legislation (the ‘POTA Act’) and to fear human rights abuses, torture and persecution in a climate of animosity and hatred against the Muslims. He claimed to fear that he would be perceived as a person of radical political opinion; that his ‘other fear’ was that he was perceived as a possible sympathiser or person with links with SIMI and that his ‘further fear’ was also based on Muslims who “spent most of their time like me travelled outside India perceived as fundraisers and/or propagandists for Muslim radical groups and continued to face real persecution and human rights abuses by the Indian police and the government authorities”. He claimed that as a student he had joined the SIMI and that when he turned 30 in 1988 he became a trustee-manager of SIMI until it was banned in 2001. He referred to ethnic violence between Muslims and Hindus as having prompted him to seek protection in Australia. He complained of increases in Hindu violence against Muslims in certain parts of India and claimed that he and his family had suffered greatly after October 2001 due to ethnic violence in other parts of India, that he had been questioned by the police more than ten times and interrogated and that the police had been hesitant to provide protection for Muslims.
He claimed that he had travelled overseas on a number of occasions in 2001, once to sell books and magazines, once to avoid possible arrest and torture because of the atmosphere of animosity and hatred against Muslims perceived to be radicals, once after the events of 11 September 2001 and that, fearing for his safety after the Prevention of Terrorism Act was passed, he left India in March 2002 for Bangkok before coming to Australia in April 2002.
In the statement accompanying his protection visa application he claimed to fear returning to India because he feared being arrested and tortured under the POTA, feared being perceived as a possible sympathiser with Muslim radical movements and detained and tortured if there was any incident or attack by Muslim radicals in Tamil Nadu and feared that due to his position as the trustee-manager of SIMI he was perceived as a Muslim radical and would face persecution by reason of this from the authorities.
On 17 May 2002 a delegate of first respondent wrote to the applicant inviting his comment upon certain information about the situation in India. The applicant’s migration agent responded to this information by letter dated 26 June 2002 enclosing country information about the situation in India.
The application was refused by a delegate of the respondent. The applicant sought review by the Tribunal. The review application took issue with the decision of the delegate, suggesting that the delegate had erred in law amounting to jurisdictional error in a number of respects but did not make further claims.
The Tribunal wrote to the applicant inviting him to attend a hearing. At the applicant’s request the Tribunal granted an adjournment of the hearing. The applicant attended a hearing conducted, at his request, by video-link.

The Tribunal decision

The Tribunal summarised the applicant’s claims as follows:
The applicant claimed that he left India because of persecution as a result of his religion and political activities, he was a management level and trustee of SIMI, and cannot now return to India as he is at risk of persecution because of his religion and political activities with SIMI.
In its reasons for decision the Tribunal accepted that the applicant was an Indian national from Tamil Nadu but found that it was:
“… unable to accept that the applicant’s claims had any credibility or veracity. This is so because I am unable to accept that the applicant is, or ever was, a member or trustee of the Indian organisation SIMI. As such, I am unable to accept that the applicant was the subject of persecution because of his religion or political opinion in India, or that he will face a real chance of persecution for his religion or political opinion if he returns to India.”
The Tribunal stated that it was unable to accept that the applicant “is a trustee or was a member of SIMI” because he was unable or unwilling to give a comprehensive description of the organisation and its activities or his role and function within the organisation, notwithstanding that he claimed to have been a member since he was a student. The Tribunal found that the applicant was unable to explain the membership system of SIMI and that his description of there being “ordinary members and advisers” was not consistent with the description of membership contained in the information he had provided to the Tribunal. The Tribunal found that he was unable to explain his role and functions in the organisation with any detail but made generalisations about how he was a member, trustee-manager and his responsibilities. It found that he appeared unable or unwilling to acknowledge the association of SIMI with other terrorist-based organisations inside and outside India or to acknowledge that notwithstanding the arrest of many members of SIMI after it was banned in September 2001, many were also released on bail including leaders of the organisation and his own claimed state president and divisional leader.
The Tribunal also had regard to the fact that, while claiming that all leaders of SIMI had been arrested, detained, mistreated and remained in detention, the applicant claimed that somehow he, also an important leader of the organisation and in charge of the Tamil Nadu section of SIMI, had not been arrested and was not wanted by the authorities, but that (although he was an important manager and trustee of SIMI) he was not known to the authorities but “only his name was known at the government level”.
The Tribunal was not satisfied that the applicant was subject to persecution because of his membership and association with the Indian Islamic group SIMI or that he had a real chance of being persecuted if he returned to India because of his membership or association with the group.
The Tribunal found that it was supported in this respect by the applicant’s travel activities, which indicated that despite his claims about being an important leader and manager with a banned terrorist organisation, he was able to travel in and out of India with impunity. The Tribunal found that these were not the travel details of a person who claimed he was of adverse interest to the Indian authorities and who claimed to fear persecution if he returned to India.
The Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution in the foreseeable future if he was to return to India by reason of his political opinion, religion or for any other Convention reason.
The applicant sought review by application filed in this Court on 4 November 2003. No grounds were contained in that application. The applicant now relies on an amended application filed on 21 April 2004. Written submissions were filed by the applicant in Court which raised a further ground as discussed below.

Failure to take into account relevant considerations

The ground raised in the amended application is that the Tribunal constructively failed to exercise its jurisdiction in that it failed to take into account relevant considerations being the applicant’s claim that he feared persecution as a member of a social group being Indian Muslims who spent a lot of time travelling outside of India. The ground was elaborated on in the amended application. The applicant contended that the case he presented to the Tribunal was that he feared persecution on three bases: first, because he was a trustee of SIMI, secondly, because of his religion as a Muslim and thirdly, because he spent a lot of time outside India and as he is a Muslim he would be perceived as a fund raiser or propagandist for Muslim radical groups. It was contended that the third reason could be characterised as being a fear of persecution by reason of his membership of a particular social group being Muslim Indians who spend a lot of time outside India. It was contended that the Tribunal had rejected his application in respect of the first two reasons and had failed to consider the third in a manner constituting a failure to take into account relevant considerations and a jurisdictional error.
It was submitted that there was a separate claim of membership of a social group and that this claim was not merely an aspect of the applicant’s claim to fear persecution by reason of his religion. It was said that the Tribunal had failed to take cognisance of the fact that the applicant claimed that he had travelled to many Asian countries continuously and, being a member of SIMI, a radical Muslim group which was banned in September 2001 and that his extensive and intensive travel to many Asian countries resulted in the police and intelligence organisations perceiving him as a fundraiser for a ‘dangerous Muslim cause’. It was suggested that while the Tribunal had referred to the applicant’s extensive travel to many Asian countries in describing his claims, it had neither taken this into account or addressed it as an issue. Furthermore it was contended the Tribunal had summarised but not addressed the applicant’s claim that the security organisations believed he was travelling frequently and widely outside India as a fundraiser for SIMI. The application referred to the protection visa application, in which the applicant had claimed, among other things, that he was “a Muslim who spent much of his time outside India and would be perceived as a fundraiser and propagandist for Muslim radical groups” and that there was animosity between Hindus and Muslims in India.
It is necessary to set out in some detail the actual claims made by the applicant to consider this ground and the respondent’s submissions in that respect.
In his protection visa application the applicant provided a detailed statement of answers to specific questions and an accompanying statutory declaration.
In answer to question 40 “Why did you leave the country?” the applicant stated:
I fear that if I remain in India I run the risk of being arrest and detained under POTA Act and fear of serious human rights abuses, torture and persecution in the present animosity and hatred against the Muslims to be guilty of committing a serious offence or perceived to be radicals of political opinion.
My other fear is that I was perceived as a possible sympathiser or a person with links with a Muslim Radical Movements because of my membership and position as Trustee-Manager of “Student Islamic Movement of India (SIMI) – a banned Association, I will be at risk of detention, interrogation and torture if there is any problem concerning any alleged incident or attack by any Muslim groups accused of linked with SIMI in India.
My further fear is also based on Muslims who spent most of their time like me travelled out side India perceived as fund raisers and/or propagandists for Muslim Radical groups and continue to face real persecution and human rights abuses by the Indian Police and the government Authorities.
He claimed to fear further mistreatment by the Indian Police. He stated that he and his relatives had suffered since the outbreak of ethnic violence aimed at Muslims and Hindu dominated government policies. He claimed:
Thousands of Muslims were forced to leave their homes, farms and businesses (including us) as a result of racist attacks aimed by assault, rape, sexual abuse, arson and robbery and intimidation took shelter and cover in jungles during the time of violence. The continued violence and attacks on civilians and sexual abuses perpetrated on Muslims by the Hindu radicals prompted me to seek protection in Australia for my safety.
In response to question 41 about what he feared may happen to him if he returned to his country, the applicant referred to developing animosity and hatred against Muslims and a fear he would not get protection and support as he had in the past.
He claimed to fear detention under POTA and persecution “in the present animosity and hatred against the Muslims perceived to be radical” and also to fear detention and torture if there were any alleged incidents by Muslim groups accused of links with SIMI as a perceived possible sympathiser or person with links with a Muslim radical movement because of his involvement with SIMI.
He stated that his ‘further fear’ was also based on Muslims with political involvement being regarded as Muslim radicals and facing persecution and human rights abuses by the police and government authorities.
In answer to question 42, as to who he thought might harm or mistreat him if he went back, the applicant claimed to fear police and politically-motivated radical Hindus and other political adversaries in India who may act without any fear of law enforcement authorities (because the Indian police and military were said to consist of more than 90 per cent Hindus and to be hostile towards Muslims in India). He stated that as he had avoided questioning and interrogation by the Indian police when they were looking for him during the time they banned the SIMI he feared that he would be definitely arrested, detained and tortured for alleged involvement with the banned Islamic groups and gaoled for indefinite time under the draconian POTA Act.
Finally in response to question 43 “Why do you think this will happen to you if you go back?” the applicant stated that “My further fear is also based on Muslims who spent most of their time like me travelled outside India perceived as fundraisers and/or propagandists for Muslim radical groups and continue to face real persecution and human rights abuses by police and Government authorities”. In the following paragraphs he explained that he was perceived as a person with a political opinion opposed to the majority Hindus and referred to the government’s discriminatory policy towards the Muslims. He described his involvement in SIMI at some length and referred to arrest and mistreatment of SIMI members and trustee members.
He then described attacks on relatives and neighbours by Hindus during previous ethnic violence in India and concluded:
I being a distinguishable position as a Muslim activist My further fear is also based on Muslims who spent most of their time like me outside India perceived as Muslim group’s fundraiser and/or propagandists. Radical or sympathiser without any government protection run the risk of detention, torture and human rights violations as if there is any problems emerged concerning any further violence between the Hindus and Muslims I will face severe harassment and serious harm in detention with possible torture and even disappearance.
In response to a question about state protection (question 44) he claimed that “being a minority Muslim” he could not expect protection from Hindu-dominated police and authorities with hatred towards Muslims.
In his statutory declaration attached to the protection visa application the applicant described his fear as first a fear of arrest and detention under the POTA and fear of serious human rights abuses, torture and persecution in the present animosity and hatred against the Muslims perceived to be radicals. His “other fear” was said to be that as he was perceived as a possible sympathiser or a person with links with any Muslim radical movements he would be at risk of further detention, interrogation and torture if there was any problem concerning any alleged incident or attack by any Muslim radical groups in Tamil Nadu. He continued that “my further fear is also based on Muslims with political involvement and my distinguished position as trustee manager of SIMI such as I am regarded as a supporter of Muslim radicals or sympathisers and continue to face real persecution and human rights abuses by the Indian police and the government authorities”.
In a letter dated 17 May 2002 the Department wrote to the applicant enclosing country information for comment. The letter stated that the applicant had claimed to fear criminal mistreatment by the Indian authorities due to his involvement with SIMI and also to fear mistreatment at the hands of Hindu fundamentalists and the Indian authorities for reasons of being a Muslim. The country information on which comment was sought related to the situation of Muslims in India and their treatment by the authorities. The letter also raised concerns about the credibility of the applicant’s claim to fear persecution for reason of having been a trustee manager of SIMI.

In response the applicant’s migration agent wrote to the Department by letter of 26 June 2002. The adviser summarised the applicant’s claims about involvement in SIMI and expressed his fears in terms of his claimed involvement in SIMI, his fear that he ran the risk of being arrested and detained under the POTA and that he feared serious human rights abuses, torture and persecution in the present animosity and hatred against Muslims perceived as radicals and stated that his “other fear” was that as he was perceived as a possible sympathiser and a person with links with Muslim radical movements he would be at risk of detention, interrogation and torture if there is any problem concerning any alleged incident or attack by any Muslim radical groups in India. The letter continued that his “further fear is also based on Muslims with political involvement and his distinguished position as trustee-manager of SIMI such as he is regarded as supporter of Muslim Radicals” and since SIMI was banned and declared an illegal organisation he was at a very high risk of harm and human rights abuses. The letter responded specifically to the Tribunal’s country information in relation to the situation of Muslims in India and submitted other country information relating to the treatment of Muslims in India and ethnic violence in India and India’s human rights record. It was submitted that there was a substantial basis for the applicant’s fear of persecution, that the delegate had to deal with the personal circumstances of the applicant and that the country information reports referred to were not seeking to address the particular situation of a person like the applicant who was perceived and imputed as an activist/dissident likely to oppose the government in an effective and organised way after his return to India.
The adviser’s submission went on to refer to an atmosphere of animosity against all Muslims perceived as terrorists after the September 2001 attack in New York and suggested that all Muslims were targeted and that it was not a remote chance that ‘innocents’ like the applicant could get caught in operations by the USA and its allies. Further submissions were made in relation to the likely consequences of the applicant’s involvement with the banned SIMI association. It was submitted that the applicant’s well-founded fear of persecution was grounded in his imputed political opinion as a supporter/member and his profile as trustee-manager of the banned SIMI group, his ethnicity and religion (Muslim/Islam faith). It was also submitted that his fear of serious harm because of his social and religious commitment could not be dismissed as remote or fanciful. In light of his past experiences and considering he was perceived and imputed as a trustee-manager of SIMI it was contended that the delegate could not be confident the applicant would be given reasonable state protection in India. The material attached to this letter included general country information about the situation of Muslims in India and also country information relating specifically to the SIMI organisation.
The delegate considered the applicant’s claims as being put on two bases: a fear of mistreatment by authorities because of his involvement with SIMI and a fear of mistreatment by Hindu fundamentalists and the Indian authorities for reasons of being a Muslim. Both aspects of the claim were addressed.
In the application for review filed with the Tribunal, in response to the question about reasons for making the application the applicant claimed (among other things) that the delegate had failed to consider the general human rights record of India and that the experiences of other Indian Tamil Muslim persons in a similar situation may indicate the existence of systematic persecution for a Convention reason.
The applicant provided to the Tribunal a letter from the secretary of the mosque in the town in which the applicant was living in New South Wales certifying that he was a practising Muslim, working as a community leader and was assistant imam (religious leader) of the mosque. The applicant also submitted country information in relation to the rights of minorities in India, including Muslims, consisting of extracts from 2003 working group sessions on minorities of the United Nations Commission on Human Rights in which attention was drawn to the position of the Muslim minority community in India.
A transcript of the Tribunal hearing is before the Court. At the Tribunal hearing the Tribunal member told the applicant that he had considered his application to the Department and various other submissions and material he had provided and stated: “And you’ve provided an account of your situations on a number of occasions already so I think I have a reasonable idea of what you claim your problems are”. The Tribunal member then went on to say that he may not discuss everything with the applicant at the hearing, would be asking some questions but would consider everything in making his decision. The Tribunal hearing concentrated on the problems the applicant claimed he had experienced based on his involvement in SIMI and the extent of his involvement with that organisation. However when asked why he thought he was a refugee the applicant stated:
APPLICANT: At present the government that is in power is giving a lot of problems for Muslims in India. They’ve tried to create what they wanted in Bombay, they didn’t succeed then they started in [?] and they have to some extent succeeded their goal. Now they are trying to create problems in Tamil Nadu.
TRIBUNAL: And when you say now, do you mean right now, as in 2003 or when you were living there.
APPLICANT: Well they have been trying, they were not successful when Karunanidhi was the chief there in Tamil Nadu. Now when [?] is there they are able to achieve a little more so …
When asked why this had made him a refugee the applicant described the ban on SIMI after 11 September 2001 and the arrest of SIMI members. The Tribunal then asked him for more details about his claim that he not been arrested.
I have outlined the claims of the applicant in some detail because the respondent submitted that the applicant did not make a separate independent claim based on his travel outside India and that such claim centred on and was involved with and part of his claim that he was a known Muslim activist because of his involvement with SIMI. On this basis it was contended that, as the Tribunal clearly dealt with the applicant’s claim of involvement with SIMI it also dealt with the associated claims.
Counsel for the respondent acknowledged that in some circumstances a failure to consider a claim would amount to jurisdictional error (see Dranichnikovv Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389) but contended that in Dranichnikov the applicant’s credit had not been rejected. Rather the Tribunal had considered that the harm he feared was not for a Convention reason. It was in that context that the High Court had held that the Tribunal had failed to accord natural justice and constructively failed to exercise jurisdiction in determining Mr Dranichnikov’s claim on the basis that the relevant social group was businessmen when his claim was to membership of a more limited group being businessmen who took a public stance against the failure of law enforcement authorities to take action against crime (see Gummow and Callinan JJ at [24] – [25] with whom Hayne J agreed, and Kirby J at [88] – [89]). At [24] Gummow, Callinan JJ stated:
To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.
It was contended that in this case there was no fundamental misunderstanding of a substantial, clearly articulated argument relying upon established facts with respect to the applicant’s claims. Reference was also made to the distinction drawn by Kirby J at [87] and [88] between a jurisdictional and non-jurisdictional error and the suggestion that where “there has been a fundamental mistake at the threshold in expressing and therefore considering the legal claim propounded by an applicant, the error will be classified as an error of jurisdiction”. However it was contended that in this case the Tribunal did consider the applicant’s claimed fear of persecution on religious grounds, including that his travel may cause him to be perceived as a fundraiser for radical Muslim groups and rejected all of his claims based on its complete rejection of his credibility. It was also contended that the applicant’s alleged fear of persecution by reason of his being a well-travelled Muslim was not clearly articulated in the applicant’s typed response to question 41 in his protection visa application, in the statutory declaration provided to the Department in connection with his application for a protection visa, in the submissions by his migration agent to the Department or to the Tribunal during the Tribunal hearing. It was contended that insofar as the applicant did mention such a fear in response to question 40 of the visa application, the context and history of his claims made it clear that this fear was not a separate fear but arose from and in the context of his being a known member of SIMI.
While the decision of the Tribunal must not be read with an eye too keenly attuned to the perception of error (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259) as the Full Court of the Federal Court discussed in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27, the Tribunal is required to deal with the case raised by the material or evidence before it (at [58]). In addition to claims expressly articulated the Tribunal is obliged to consider claims which “clearly arise from the materials before it” (at [58] – [61]). As their Honours stated at [63]:
It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]). But as the Full Court said in WAEE (at [45]):
“If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.”
In summarising the applicant’s claims the Tribunal set out not only to the applicant’s claim to fear arrest and detention as a radical Muslim or sympathiser because of his position with SIMI but also his claims that he was a Muslim who spent much of his time outside India and would be perceived as a fundraiser and propagandist for Muslim radical groups, that he and his relatives had suffered greatly since the Babai Mosque dispute and the ethnic violence aimed at Muslims by the Indian government. It also recited his claim in the hearing about problems for Muslims in India.
However in the findings and reasons part of its decision, while the Tribunal stated that the applicant had experienced and feared persecution because of his religion and political activities with SIMI, it dealt only with those claims based on his membership of and position with SIMI. This is clear from its findings:
I accept that the applicant is an Indian national from Tamil Nadu province because he has a valid and legitimate Indian passport and speaks the Tamil language. However I am unable to accept that the applicant’s claims have any credibility or veracity. This is so because I am unable to accept that the applicant is, or ever was, a member or trustee of the Indian organisation SIMI. As such, I am unable to accept that the applicant was the subject of persecution because of his religion or political opinion in India, or that he will face a real chance of persecution for his religion or political opinion if he returns to India.
In other words the Tribunal rejected the applicant’s claims because it was not satisfied that he was ever a member or trustee of SIMI. The Tribunal reiterated that it was not satisfied that the applicant was subject to persecution or had a real chance of being persecuted because of membership or association with SIMI. The subsequent findings that the Tribunal was “supported in this respect by the applicant’s travel activities” relate to the fact that, despite the applicant’s claims that he was an important leader and manager of SIMI, (a banned terrorist organisation), he continued to travel with impunity.
It is apparent from reading the Tribunal decision fairly and as a whole that, while the Tribunal rejected the credibility of the applicant’s claims, it did so based on a fundamental mistake about or misunderstanding of the integers of his claims. First, his claim (whether expressed in terms of religion or political opinion) to fear persecution as a Muslim radical or sympathiser was based on more than one foundation. It was not based solely on his actual (or even perceived) association with and membership of SIMI, a banned Islamic terrorist organisation, but also on his being a Muslim who spent most of his time travelling outside India. This is clear from a consideration of all of his claims. He put his ‘other’ or ‘further’ fear on two distinct bases in his answer to question 40 in the protection visa application. While he focussed on concerns arising from alleged involvement with SIMI in his responses to questions 41 and 42, he reiterated the separate basis for his concern to be perceived as a Muslim fundraiser and propagandist because of his travel outside India in response to question 43. The slight recasting of his claims in his statutory declaration nonetheless repeated as part of the basis for his ‘other fear’, the possibility that he would be perceived as a possible sympathiser or person with links with any Muslim radical movement in addition to the fear based on his role with SIMI.
His adviser’s letter in response to the Department’s invitation to comment addressed the concerns raised in that invitation – which related to his involvement with SIMI and being a Muslim. This response should not be seen as confining the bases for his claims. As to the Tribunal hearing, the Tribunal member made it clear that he may not discuss everything with the applicant and stated that he had a reasonable idea of what the applicant claimed his problems were. In such circumstances the applicant’s failure to repeat a particular aspect of his claims at the hearing does not indicate that he made no such claim.
Nor is it established that this aspect of his claim arose from and in the context of his being a known member of SIMI. His description of ‘Muslims who spent most of their time like me outside India’ is not limited to those with a perceived association with SIMI.
The Tribunal did not simply fail to deal with an aspect of the evidence. It “failed to address and deal with how the claim was put to it, at least in part” (see Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42] per Allsop J). It failed to deal with all the component integers of the claim. The findings in relation to SIMI did not address the second and distinct basis for the applicant’s fear that he would be perceived as a Muslim radical or sympathiser.
Moreover, even if I am wrong and the Tribunal reasons for decision are to be read as dealing with both foundations for the claim based on the applicant being a perceived as a Muslim radical or sympathiser, there is a further difficulty with the Tribunal reasons for decision. Nowhere in the findings and reasons part of the Tribunal reasons for decision does the Tribunal deal with the applicant’s claims based on his religion as a Muslim (that is, apart from his claims that he would be perceived as a Muslim radical or sympathiser with radical groups). In outlining the applicant’s claims the Tribunal referred to the applicant’s Muslim religion. It described him as a 48 year old Indian Muslim from a particular town in Tamil Nadu province of India. However the Tribunal summary of the applicant’s claims, and even of the delegate’s decision, made no reference to the part of his claims that was put on the basis of his religion as a Muslim apart from his claimed involvement with SIMI and the perception of him as a Muslim radical or sympathiser with Muslim radicals. The only country information cited in the reasons for decision relates to passports in India, the judicial system in India and to SIMI.
Yet it is clear, not only from the applicant’s initial claims but also from his adviser’s submission and the country information he provided to the Department and to the Tribunal, that a separate and independent and clearly articulated integer of his claims was a fear of persecution based on his religion. This was not merely a concern about an absence of effective protection, as is apparent from his claims about mistreatment of his family and neighbours and other Muslims and his reliance on country information in relation to the treatment of minority groups in India including Muslims. While it is the case that the main fear articulated by the applicant was based on his claimed involvement with SIMI and a perception of him as a radical or radical sympathiser he also claimed to fear mistreatment at the hands of Hindu fundamentalists and the Indian authorities for reasons of being a Muslim.
I raised this issue with counsel for the respondent, who contended that the applicant’s claim based on his religion as a Muslim was dealt with by the Tribunal, in its statement at paragraph 47 that “The applicant claimed that he left India because of persecution as a result of his religion and political activities. He was a[t] management level and trustee of SIMI and cannot now return to India as he is at risk of persecution because of his religion and political activities with SIMI”. The assessment of his claims (see paragraph [9] above) rejected the credibility of his claims because the Tribunal could not accept his claimed involvement with SIMI and that ‘as such’ it was unable to accept he was the subject of or would face a real chance of persecution ‘for his religion or political opinion’.
It was submitted for the respondent that because the statement that the Tribunal was unable to accept the applicant’s ‘claims’ referred to claims in plural, it thus referred back to paragraph 47 of the decision which, by referring to ‘religion’, dealt with the applicant’s claims based on his being a Muslim. In other words it was suggested that the Tribunal found that it did not accept that the applicant told it the truth in relation to anything because his evidence in relation to SIMI was so utterly unbelievable that it did not trust anything that he told it. It was contended that as the Tribunal had formed the view the applicant was utterly unreliable, it did not need to go on to give other reasons why the applicant should not be believed, because it could not be satisfied about anything the applicant said.

In summarising the applicant’s claims at the start of the findings and reasons part of its decision, the Tribunal did not distinguish between the applicant’s claims based on religion and those based on his involvement with SIMI, rather it referred to his “religion and political activities with SIMI”. It is clear from the manner in which the Tribunal dealt with the applicant’s claims, not only in this part of its reasons for decision but in the earlier part of its decision where it summarised the claims and referred to independent information, that the only aspect of religion that it identified as part of his claims was the aspect related to his claimed identification or perceived association with Muslim radicalism as a known member of SIMI. The Tribunal dealt with such claims in finding for the reasons that it gave that it was unable to accept that the applicant is or ever was a member or trustee of the Indian organisation SIMI. It went on to state “As such I am unable to accept that the applicant was the subject of persecution because of his religion or political opinion in India, or that he will face a real chance of persecution for his religion or political opinion if he returns to India” (emphasis added). In this context it is clear that the only claims that the Tribunal understood the applicant to be making were those that were associated with his claimed involvement in SIMI.
While it is the case that findings of credibility are matters for the Tribunal which are hard for a Court to disturb in the absence of significant jurisdictional error in the manner in which such findings are reached (see Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423; NAOL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 243 and WAJS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 139), in this instance I am satisfied that the Tribunal fell into jurisdictional error in such a way that its conclusion on credibility must be impugned. The Tribunal is under an obligation to respond to a substantial, clearly articulated argument relying upon established facts (Dranichnikov v Minister for Immigration & Multicultural Affairs). As Kirby J pointed out in Dranichnikov, if there has been a fundamental mistake at the threshold in expressing and therefore considering the legal claim propounded by the applicant the error will be classified as an error of jurisdiction. It will be treated as a constructive failure of the decision-maker to exercise the jurisdiction and powers given to it (at [87]).
In this case the Tribunal referred to religion as a Convention ground but it is clear from the whole of its decision including the summary of the applicant’s claims, the summary of the delegate’s decision and the country information to which it referred, that it did not understand that one aspect of the case brought by the applicant was his religion per se and not simply his religion in light of perceptions of him as a radical or as involved with SIMI, or even as a Muslim traveller. This is also clear from the reasons that the Tribunal gave for rejecting the claims about the credibility of the applicant’s claims. There is nothing in the Tribunal reasons for decision to indicate why its conclusion that it was unable to accept that the applicant was ever a member or trustee of SIMI (which related to specific concerns about the evidence he had given in relation to SIMI and his travel details) impugned in any way his claim to be a Muslim. This claim was based not only on his own evidence but also on the letter of support provided by the secretary of the mosque which he claimed to attend in Australia. If the Tribunal had understood that the applicant made a claim based purely on his religion as a Muslim, one would have expected to see, as in the delegate’s decision, some discussion of independent country information in relation to the situation in India.
As Allsop J stated in Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at 259:
The requirement to review the decision under s.414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise the jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration … It is to be distinguished from errant fact-finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act … make it clear that the Tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant”. This is consistent with what the High Court said in Dranichnikov and the subsequent comments by the High Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27 at [63] as set out above.
In this case the applicant made a claim that was misunderstood or misconstrued by the Tribunal, which based its conclusions on the claim so misunderstood or misconstrued. This is not a case in which the Tribunal made a mere error of fact not constituting jurisdictional error. Nor can it be said that the fact that the paragraph in which the applicant’s credibility was rejected dealt with “claims”, indicates that the Tribunal understood (and hence intended to include in its rejection of all of the applicant’s claims as lacking credibility or veracity) his claim to be a Muslim and to fear persecution in India on that basis. The Tribunal fell into jurisdictional error.

Section 424A

The other main ground relied on by the applicant was a contention that the Tribunal did not comply with s.424A of the Migration Act 1958 (C’th) in that it did not give the applicant the information used against him when it decided his application.
At the time of the hearing the basis for the alleged breach of s.424A was not clarified by the applicant. However, the Tribunal decision made reference to the applicant’s possession of a passport and specific travel details – information contained in his protection visa application. In light of the decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 the opportunity was given to each of the parties to file further written submissions. The respondent also provided the Court with a transcript of the Tribunal hearing. It was not disputed that the travel details constitute ‘information’ within s.424A(1). Counsel for the respondent addressed the issue of whether such information, provided by the applicant or his adviser to the delegate, was information which formed the reason or part of the reason for affirming the decision under review (see the discussion by Sackville J in SZDQL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 769 at [55]) and also the application of s.424A(3(b) which exempts from the s.424A(1) obligation information that the applicant gave for the purpose of the application.
As to the first of these issues it is necessary to identify the reasons for the Tribunal’s decision (see VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [33] and VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [51] – [54]). The relevant part of the Tribunal decision appears after the Tribunal explained why it was unable to accept that the applicant is or ever was a member or trustee of SIMI based on his inability or unwillingness to give a comprehensive description of the organisation, its activities or his role and function, his inability or unwillingness to acknowledge that many members of SIMI who had been arrested had subsequently been released as well as the fact that while he claimed all SIMI leaders had been arrested and remained in detention he had been neither arrested or wanted by the authorities at that time.
In light of this information the Tribunal was not satisfied that the applicant was subject to persecution because of his membership and association with SIMI or that he had a real chance of being persecuted if he returned to India because of his membership or association with the group. It stated “I am supported in this respect by the applicant’s travel details” and referred to the fact he was able to obtain a passport in January 2001 and engage in considerable travel into and out of India from April 2001 until arriving in Australia in 2002. It listed travel details. It noted that the 11 September 2001 attack prompted significant activities by countries in relation to terrorist organisations (including the banning of terrorist organisations such as SIMI in India).
The Tribunal continued:
“Notwithstanding that the applicant claimed to have been an important leader and manager with such an organisation, he continued to travel in and out of India with impunity.”
It described the applicant’s evidence when asked about this at the Tribunal hearing and stated:
“These are not the travel details of a person who claimed that he was of adverse interest to the Indian authorities, and who claimed to fear persecution in India and if he returned to India.”
The Tribunal then concluded “Accordingly I am not satisfied that the applicant has a well founded fear of persecution by reason of his political opinion, religion or for any other Convention reason in India” (emphasis added).
Reading the Tribunal reasons as a whole, contrary to the contentions for the respondent I am satisfied that the information about the applicant’s travel was an ‘integral’ part of the reasons for the Tribunal decision in the sense considered in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471. While the Tribunal stated that it was supported in its conclusions by these details, considered in the context of the Tribunal’s reasoning process and the aggregate of its findings, this information cannot be said to be “relatively minor and unimportant in the scheme of things” (VAF at [4]) as the respondent submitted. The relevance of this information to the Tribunal decision is supported by the fact that the Tribunal raised with the applicant in the hearing the fact of his travel after SIMI was banned and the fact that he was not arrested despite his claim to be a high level manager member of SIMI – a banned organisation. This is consistent with the view that this information was so integral to the Tribunal’s reasoning process in rejecting the applicant’s claims as to require as a matter of fairness that the applicant be told the information and why it was relevant (VAF at [41]. Also see VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [53] – [54]). Further, contrary to the respondent’s contention, it is not clear that the Tribunal’s decision was based solely on the adverse view of the applicant’s credit that the Tribunal formed entirely on the basis of his evidence at the hearing. It was in light of the travel information as well as the Tribunal’s rejection of the applicant’s claims about SIMI that it rejected the applicant’s credibility and ‘accordingly’ was not satisfied the applicant had a well founded fear of persecution.
I have addressed the respondent’s submissions in this regard but, in any event, on 24 February 2006, shortly before my judgment was due to be delivered, the decision of the Full Court of the Federal Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 was delivered. This reinforces my conclusion – but goes further, in that it rejects (in light of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162) a consideration of fairness as part of the analysis of whether something is part of the reasons for affirming the decision (see Allsop J at [200] – [214], with whom Weinberg J agreed at [155]) and also the distinction between information which is an ‘integral’ part of the reasons and that which is merely ‘relatively minor and unimportant in the scheme of things’.
Allsop J suggests at [215] in relation to s.424A(1) that:
“... the question to ask, by reference to the reasons of the Tribunal in the context in which one finds them (as revealing what would be the reason or part of the reason for affirming the decision immediately prior to the making of the decision), is whether the information in question was a part (that is any part) of the reason for affirming the decision. To the extent that the reasons of the relevant majorities in Paul and VAF can be seen to require that the relevant part of the reason have a stature or importance, or be of a character, which would make it unfair not to invoke the procedures of s.424A, I think SAAP requires that such an approach be rejected. It is only necessary that the information be a part of the reason.”
His Honour went on to state at [216] that:
“Merely because something is contained in the text of the reasons of the Tribunal which involves “information” does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of the reason). Having thus ascertained the reason or reasons (if there be more than one) why the Tribunal was not relevantly satisfied, any information that was (and thus, in the relevant sense, would be) a part of the reasoning process to explain such reason engages the operation of s 424A without any additional requirement (for which Paul and VAF appear to call) that the relative importance of the information to the reasoning process be assessed to form a judgment as to whether fairness requires the engagement of s.424A.”
On this basis information which is a part “even though a subsidiary and minor part of the reason for decision” (Allsop J at [220] and Weinberg J at [158]) is a part of the reason for the decision. On this approach, which I am bound to follow, it is even clearer that the information in question was a part of the reason for affirming the decision. It was factual information (in addition to the concerns about the evidence of the applicant) which played a part in the Tribunal’s disbelief of the applicant’s claims about his role in SIMI, which was, as detailed above, the reason for the Tribunal’s rejection of the applicant’s claims about past persecution and fear of future persecution. As with the information in SZBMI (one of the five matters dealt with in the full Court judgment reported as SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs) it was sufficiently important or relevant (see Allsop J at [227]) for the Tribunal to raise it with the applicant at the hearing. Even if, contrary to my view, it did not play a ‘central or integral role in the reasoning process displayed in the reasons’ on the approach adopted in SZEEU it was a ‘relevant operative consideration in the Tribunal’s consideration of the [applicant’s] claims’ (at [227] per Allsop J) and as such was a part of the reason for affirming the delegate’s decision. Hence the s.424A(1) obligation was enlivened unless one of the exceptions applied.
Counsel for the respondent had submitted (on the assumption that Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 limited the scope of s.424A(3)(b)) that by republishing the material in his protection visa application to the Tribunal, the applicant gave it to the Tribunal ‘for the purpose of the application.’ SZEEU confirms that Al Shamry should be followed. (See Moore J at [9], Weinberg J at [134] and Allsop J at [184]). Thus a duty can arise under s.424A(1) in relation to information given by the applicant prior to or not “for the purposes of” his application to the Tribunal.
The respondent contended that the applicant republished the material before the delegate by reasons of the terms of his application to the Tribunal which alleged that the delegate had made a number of errors and asserted that the applicant was ‘entitled for the protection visa in Australia which I had applied.’ However reference to the fact of the application and the applicant’s belief in his entitlement to the visa does not, of itself, ‘republish’ all the information (in this case his travel details) provided in the application or to the Department. This is not a case where the applicant resubmitted his protection visa application as part of his review application (cf SZFCN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1433 at [12] and SZBNK v Minister for Immigration & Multicultural Affairs [2005] FCA 998 at [23]).
Nor did he rely expressly on the terms of his protection visa application in his review application. He did not, for example, inform the Tribunal that the detail of his claims was set out in his protection visa application. He did not repeat the content of his protection visa application in submissions or otherwise (cf SZBNK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 998 at [28]). It has not been established that the applicant gave the information to the Tribunal by reason of the terms of his review application.
In the alternative (or in addition) the respondent contended that the applicant also confirmed during the Tribunal hearing that the ‘details’ of the information he had given to the delegate ‘are all correct’ and that in the context of his application to the Tribunal it was clear he intended the Tribunal to have regard to that material in determining his application (SZFKL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 931 at [7] – [8] per Madgwick J). The respondent sought to distinguish NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744, which is directly contrary to SZFKL, on the basis that the applicant in this case specifically referred to his protection visa application in his review application. It was contended that his response to the Tribunal questions must be considered in that context. It was also said to be relevant that what was relied on was an affirmation in broad terms by the applicant indicating that the Tribunal could rely on the accuracy of the material before it.
The transcript of the Tribunal hearing indicates that the Tribunal asked the applicant if he was satisfied the information in his various applications, statements and other materials was true and correct and that he confirmed the details were correct. NAZY is directly in point (see the Tribunal’s account of a similar exchange in the hearing in NAZY at [11]). The recent decision in SZEEU confirms that the approach taken in NAZY (that such an adoption of information at the hearing does not ‘transform’ the information into information provided by the applicant) in his application for review is correct. (SZEEU per Moore J at [20], Weinberg J at [157] and Allsop J at [219] and compare the situation considered at [179] per Weinberg J). What occurred in this case (considering both the review application and the hearing) did not amount to a republication of the information in question such that it can be said that the applicant gave it to the Tribunal within s.424A(3)(b). The applicant did not himself provide the information in the protection visa application to the Tribunal (NAZY at [39]. Also see SZEEU at [239] per Allsop J).
It is the case that in SZEEU (at [51] – [52]) Moore J was prepared to infer that the appellant in that case had provided his passport to the Tribunal at the hearing as requested thus giving that information for the purpose of the application for review within s.424A(3)(b). (Also see Moore J at [83], Weinberg J at [172] and Allsop J at [264]).

In this case the applicant provided a copy of his passport to the Department with his protection visa application. He was requested to bring his passport to the Tribunal hearing in the letters of invitation – but the hearing was conducted by video link. Clearly he could not hand his passport to the Tribunal member. There is no reference in the transcript of the hearing to the applicant giving the Tribunal his passport or a copy. Rather it reveals that the Tribunal member told the applicant:
“Now I need to ask you just some preliminary questions … I have a copy of your passport thank you very much. Now did you have any help in the preparation of your applications, submissions, statements and other material.”
In the Tribunal reasons for decision, in describing the applicant’s claims and evidence, the Tribunal referred to the fact that it had before it the Department’s file, which included the application, written submissions and other material in support of the application. (That material included a copy of the applicant’s passport annexed to the protection visa application.) After describing the applicant’s personal details the Tribunal described his travel details and stated ‘the applicant produced a copy of his passport.’ It went on to describe what the passport indicated and then dealt with the statement of claims in the statutory declaration provided with the protection visa application. No reference is made to provision of a passport in the description of the Tribunal hearing. It is not clear from the reasons for decision that a copy of the passport was produced to the Tribunal as well as to the Department.
In all the circumstances I do not consider that it should be inferred from this evidence that the applicant brought his passport to the hearing or gave a copy to the Tribunal and in that sense gave the information therein to the Tribunal within s.424A(3)(b).
A breach of s.424(1) is established. This constitutes jurisdictional error (SAAP). It has not been shown that there was a basis for the decision entirely independent of the failure to observe the s.424A obligations (SZEEU at [110] – [111] per Weinberg J and [231] per Allsop J). Consistent with SAAP and SZEEU the applicant is entitled to succeed because the requirements of s.424A have not been met.
I note that the applicant contended that the Tribunal failed to comply with s.424A in failing to put to him particular items of independent country information relied on by the Tribunal. However the independent country information relied on by the Tribunal is within the s.424A(3)(a) exception. The principles in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 do not assist the applicant in relation to the independent country information relied upon by the Tribunal because of the operation of s.424A(3)(a).

Other grounds

These findings make it strictly speaking unnecessary to consider the alternative grounds raised by the applicant but for the sake of completeness I address those contentions. First, insofar as the applicant took issue in oral submissions with the merits of the Tribunal decision his contentions do not establish jurisdictional error. His written submissions contended that there was a breach of s.430 of the Migration Act 1958 which is said to constitute an error of law and jurisdictional error. However, while I am satisfied that the Tribunal fell into jurisdictional error in the manner considered above, that error did not arise because of a failure to comply with s.430. As Gleeson CJ pointed out in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 331 there is nothing in the language of s.430 “which imposes a requirement to make a finding on every question of fact which was regarded by the … Court, on judicial review of the Tribunal’s decision, as being material”. His Honour went on to say:
The requirement imposed by s.430 is to prepare a written statement that, in the context of setting out the Tribunal’s reasons for decision, “sets out the findings” on any material questions of fact. It is impossible to read the expression “the findings” as meaning anything other than the findings which the Tribunal has made. By setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction … or may provide some other ground for judicial review.
In this case this is what has occurred, but it cannot be said that the Tribunal did not set out the findings that it made (also see Gaudron J at 338 pointing out that “The failure of the Tribunal to make a finding with respect to a particular issue is not, of itself, a failure to observe procedures required by the Act” and McHugh, Gummow and Hayne JJ at 344 – 346 suggesting that “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”).
Consistent with what was said by the High Court in SAAP the Tribunal should be joined as second respondent to the proceedings. As the Tribunal fell into jurisdictional error the matter should be remitted to the Tribunal for reconsideration. The applicant is not represented. No order as to costs should be made.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:28 February 2006.