SZOMJ v Minister for Immigration - [2010] FMCA 707

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOMJ v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 707

MIGRATION – RRT decision – Pakistani woman claiming fears of death or abduction by Taliban – disbelieved by Tribunal – informer information given no weight – no breaches of ss.424A or 424AA – no claims which were not addressed – decision not vitiated by unreasonableness – no jurisdictional error arising from Tribunal’s considerations of mental impairments – application dismissed.

Migration Act 1958 (Cth), ss.424AA, 424AA(b), 424A, 424A(1), 424A(2A), 425

Htun v Minister for Immigration& Multicultural Affairs (2001) 194 ALR 244, [2001] FCA 1802
Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429, [2009] HCA 39
Minister for Immigration & Citizenship v SZLFX (2009) 238 CLR 507
Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108
Minister for Immigration & Citizenship v SZMDS (2010) 266 ALR 367, [2010] HCA 16
Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189
SZMCD v Minister for Immigration & Citizenship & Anor [2009] HCATrans 211
SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415

Applicant:

SZOMJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1384 of 2010

Judgment of:

Smith FM

Hearing date:

8 September 2010

Delivered at:

Sydney

Delivered on:

8 September 2010

REPRESENTATION

Counsel for the Applicant:

Mr M Jones

Solicitors for the Applicant:

Michael Jones Solicitor

Counsel for the First Respondent:

Ms A Mitchelmore

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG1384 of 2010

SZOMJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia in July 2009 on a one month visitor’s visa, which had been issued to allow her to attend a Hillsong Church event. On 4 August 2009 she applied for a protection visa, assisted by a migration agent who was a solicitor. She did not appoint that person as her representative, nor did she do so in the course of the subsequent appeal to the Tribunal, although the solicitor made a submission on her behalf to the Tribunal.
Her claims to fear persecution if she returned to her country of nationality, Pakistan, were set out in a typed statement of nine pages. The first three pages extracted news reports concerning a variety of events in Pakistan involving mistreatment of Christians in different circumstances, in particular at the hands of Taliban Islam insurgents. The applicant then referred to her own history, in which she lived in Rawalpindi in a Christian family. Her visa application referred to her obtaining tertiary qualifications, and employment with the British Council in 2004 in a position involving, inter alia, involvement in the conduct of examinations for a variety of educational purposes. She referred to the fact that her father and brother also had worked for the British Council.
She claimed to have concerns about the actions of Islam militants, and that she received threatening calls from people who thought that she could have influence over the examinations. She said she invigilated an examination in November 2008 on a Muslim religious day, and identified persons who looked like Taliban supporters trying to cheat. She claimed that they made abusive and threatening gestures and statements. That evening, a friend, Mr MM, telephoned her appearing to know that there had been an altercation with Taliban supporters, and on this occasion and subsequently he suggested to her that she should escape from their attention by converting to Islam and marrying him.
Her statement referred to a second incident in April 2009, when a group of men assaulted her and her mother when returning from church. She said:
… these men started to drag our hair and dresses in order to tear them. We started to scream and my mother fell down on the street fainting and the men started to kick me stating I would be taught a lesson for assisting Christians to leave abroad and not their fellow men. …
She claimed that she was rescued by some school students who:
… brought us to the police station and we complained as to the mob attack and the police officers refused to take any action. …
She claimed that Mr MM again contacted her showing some awareness of this attack. She said her brother advised her not to trust Mr MM, and:
… We told the police officer who was my father’s friend and he made inquiries at the Mosque through his colleagues and he confirmed that the Taliban was planning to abduct Pakistani Christians working in embassies. He further said that the police officers are afraid of the Taliban and they would not protect us. He wanted me to leave the country if it is possible. …
The applicant said that she obtained an Australian visa with her brother’s help, to come to Australia. She said:
… I fear to get back to the country as I am targeted by these group of Taliban men who are determined to abduct me and kill me. It is a miracle that I escaped. …
The applicant provided documents to the Department of Immigration confirming her connection with the British Council. She also submitted a psychological assessment prepared by a clinical psychologist dated 2 September 2009, which stated:
Thankyou for your referral of [the applicant]. I conducted an assessment on 21.8.09. [The applicant] reports and displays a range of symptoms associated with post‑traumatic stress and depression. These symptoms included: a depressed mood, anxiety; panic reactions; fatigue; poor sleep; intermittent nightmares; intrusive thoughts and images associated with traumatic experience; forgetfulness; startle reactions; hyper‑vigilance; a poor appetite; and somatic symptoms including headaches.
As a consequence of this symptomatic presentation, [the applicant] is currently not capable of undertaking paid employment. She is therefore in need of whatever financial assistance can be provided to her. Should you require further details please do not hesitate to contact me.
The applicant attended an interview with the delegate on 29 September 2009, at which she explained her claims. It appears that after the interview an anonymous phone call was received by the Department, suggesting that the applicant was fabricating her claims to be a refugee. A file note was made, but is not in the Court Book. According to the delegate, “no weight” was given to this, when deciding the visa application. Some additional questions were, however, put to the applicant in writing, and answered by the applicant in writing, before the delegate made a decision.
The delegate made her decision on 13 November 2009, refusing the visa application. The delegate explained concerns regarding “the veracity of the applicant’s claims”, referring in particular to the implausibility of the applicant having encountered the events claimed without reporting the incident to the British Council security personnel.
The applicant appealed to the Tribunal, and as I have noted was assisted by a solicitor, at least to the extent of preparing a submission. The submission addressed the delegate’s reasoning, and also forwarded a letter from the applicant’s supervisor at the British Council, which confirmed her employment and involvement in invigilating an exam in December 2008. The letter provided no corroboration of any persecution encountered by the applicant. The applicant also tendered documents showing her involvement in Christian activities in Australia.
The Tribunal held three hearings attended by the applicant: on 18 February 2010, 16 March 2010 and 12 April 2010. The Tribunal explained the course of the hearings in its subsequent statement of reasons, including its reasons for adjourning the hearing both temporarily, and to another day, to accommodate complaints of ill health. On the evidence before me, the Tribunal appears to have considered these complaints in an appropriate fashion when suspending its questioning. Other than the psychologist’s report of September 2009, no medical evidence was presented to the Tribunal concerning her health or mental capacities.
Between the second and third hearings, the Tribunal received contact from, and interviewed, a person who wished to give information about the applicant on a confidential basis. The Tribunal recorded the interview with that person, whom I shall call ‘the second informant’, on 31 March 2010, and a transcript is in evidence. The second informant denied being the person who had contacted the Department earlier, but appears to have had a similar background and to have made similar allegations. Both informants claimed to have had contacts with the applicant after her arrival in Australia, or to have information about her actions in Australia. The second informant claimed to have had conversations with the applicant which led the informant to believe that she was fabricating the claims that she was presenting to the Tribunal. The transcript of interview suggests that there was animosity between the applicant and other people with whom she had had contacts in Australia, including the second informant, for reasons which were not explored.
At the first hearing, the Tribunal told the applicant the gist of the information given to the Department by the first informant. This information, according to the Tribunal, was to the effect that the applicant and a person called SS were “fake asylum seekers”, who had travelled to Australia together and were cousins. The applicant admitted knowing SS in Pakistan, but denied that they were related, and denied that they had travelled together to Australia. On that occasion, the Tribunal member told the applicant: “I emphasised that the Tribunal would not place any weight on this information”, but that she was giving the applicant an opportunity to respond or comment on it if she wished.
The applicant attended the third hearing on 12 April 2010, after the Tribunal’s interview with the second informant. The Tribunal member informed the applicant of the gist of the new information. According to the Tribunal’s description of the hearing, the member “again told the applicant that I did not intend to rely on this information in relation to her application”, referring to the anonymous call to the delegate. The Tribunal then told the applicant that “a person had contacted the Tribunal and stated that the applicant was not telling the truth about her claims, and that she had never been threatened in Pakistan”. The Tribunal said:
112.I asked the applicant if she would like to comment and/or respond in writing in relation to this issue. She said she did not know what to do. I suggested that she listen to the recording of the hearings and, if she wished, she could put her thoughts in a letter and forward it to the Tribunal. She said she did not know why someone was saying these things about her.
The applicant accepted the invitation to make a post‑hearing submission concerning the adverse statements of the informers, and she submitted a letter dated 20 April 2010 but no sworn evidence. The applicant referred to the circumstances in which she had had contact with some people in Australia who might have become hostile to her. She claimed:
When my case was refused, I feared that they could have done something to spoil my case I told my mother and brother and they asked me to move out immediately. When they found that my case has been refused and I planned to move out from their place they started stalking me and wanted me to tell them where I am going I was scared and didn’t tell them they got mad and said they wished to visit me. They threatened me saying that they would inform the community that I am involved in prostitution if I did not return back to their place immediately. I became so stressed, and I discussed all this with my Pastor M, he was so helpful, did counselling and helped me by getting out of that place and arranging accommodation for me. Thank God I left that place but they are still chasing me asking from every one where I am and saying bad things about me. When I appeared for an interview on 16 March 2010 at the Tribunal they stalked me and one of them came to Tribunal and was staring at me constantly. I was scared because they were there and could spoil my case. I didn’t inform this to Tribunal because I was scared, that is why I fainted during the interview. This can be checked from the video camera. His name is [Mr X] and he was sitting right in front of the reception desk. They have opened my mail several times before and also opened the RRT interview letter. When I informed the Tribunal about my new address the interview letter was already sent to their address and I received a duplicate copy not the original. The duplicate copy is attached for your kind reference. I was trying hard to look away from him.
The other brother in law [Mr XX] living at [place] is on pension and telling every one in the community that he has made a complaint about [me], that [my] case is not true. He had said that [I] would be sent away from Australia soon. The men say that I have to listen to them and should come back to them and they will help me get permanent residence through another way. They are mentally torturing me and giving me hard time. I am living in fear and had consulted a doctor and taking tablets now. I saw Dr C at [the] Medical center and taking Cymbalta tablets. I have also been seeing Dr S a psychologist arranged for me by my case officer Ms N at Red Cross.
The applicant did not submit any medical evidence to corroborate her claims to be receiving medical treatment.
The Tribunal made a decision on 25 May 2010, affirming the delegate’s decision. In its statement of reasons it extracted, in large part verbatim, the claims made by the applicant in her visa statement. It summarised the evidence taken at the Departmental interview, at the three hearings attended by the applicant, and at the interview with the second informant. So far as I can assess, these appear to be accurate and careful summaries of the evidence.
In its “Findings and Reasons”, the Tribunal at paragraph 121 accurately summarised the events constituting the applicant’s claims to have suffered persecution in Pakistan, and to fear further persecution if she returned. The Tribunal then referred to the anonymous information received by the delegate and by the Tribunal:
122.The Tribunal has considered the applicant’s claims as set out in her Protection visa application, her evidence during the departmental interview, and her evidence before the Tribunal. The Tribunal has also considered the documentary evidence provided by the applicant. The Tribunal has considered the information from an anonymous source received by the delegate and the information provided by a person who attended the Tribunal and requested that his or her personal details not be revealed. Both informants indicated that the applicant was not being truthful about her Convention claims and stated that she had fabricated those claims. In relation to this information, the Tribunal told the applicant that it would place no weight on the information provided to the department from an anonymous source. In relation to the evidence provided to the Tribunal, even though it was delivered in a credible manner, the Tribunal is of the view that no weight should be placed on this evidence because the witness is not in a position to say what actually happened in Pakistan and can only say what he or she believes was in the applicant’s mind when she lodged her Protection visa application. The Tribunal exercised its duty by informing the applicant that it had received this information and providing her with an opportunity to comment on it. The Tribunal does not place any weight on the information.
The Tribunal then expressed a conclusion about the applicant’s credibility, before explaining its detailed reasons. It said that it accepted that the applicant was a Catholic and had been employed by the British Council from 2004 until she departed Pakistan in July 2009, and had worked as an invigilator in exams, including on the claimed occasion in December 2008. However, it did not accept that the applicant had been threatened on that day, nor that she had been threatened in the evening by Mr MM, nor that she and her mother had been threatened and assaulted in April 2009. The Tribunal concluded that it was not satisfied that the applicant departed Pakistan because she feared persecution for any Convention reason.
The Tribunal then explained its reasons for having arrived at those conclusions. These reasons were set out in five dot points which themselves contain findings which are explained both before and after the findings are expressed. The conclusions arrived at and explained in these dot points were as follows.
First, the Tribunal concluded that, if men had threatened the applicant in the course of an examination, she would have noted their names and reported the incident to the British Council, and that the applicant’s explanations for not doing this were implausible.
The Tribunal also rejected claims that the applicant and her brother had been threatened by people prior to that occasion and subsequently, in relation to her work for the British Council. The Tribunal referred to the applicant’s responses to questions about these claims, and in my opinion implicitly pointed to contradictions or tailoring in her evidence which led the Tribunal not to accept that these events had happened. The Tribunal also said that it thought that, if the applicant and members of her family had received threats, then they would not have continued to work at the British Council.
In its second and third dot reasons for disbelieving the applicant’s refugee claims, the Tribunal addressed the applicant’s evidence concerning the taking of advice and seeking assistance from a police officer known to her father. The Tribunal found unbelievable that the applicant was unable to tell the Tribunal the police officer’s name, and it also detected some difference in the evidence she had given about contacts with that officer and with the police in relation to the incidents in 2008 and 2009. It concluded that it did not accept that there was “any contact with any police officer in relation to fears held by the applicant or members of her family”.
In its fourth dot reasoning, the Tribunal discussed the applicant’s evidence about what had happened in April 2009 and the claimed assault on her and her mother. The Tribunal again recounted the course of the applicant’s evidence about this, and her responses to questions, and in my opinion appears to be suggesting that it detected embellishment in response to questions, rather than true recollection. The Tribunal also appears to have identified some differences in her evidence at several points about these events.
The Tribunal’s last dot reasons again took the point that the applicant’s continuing to work at the British Council after the December 2008 threats, despite a concern that members of the Taliban intended seriously to harm her because of what had happened in the examination, was inconsistent with her claims. The Tribunal said that it was “of the view that had she been threatened she would have informed the relevant person or persons at the British Council and made urgent arrangements to leave Pakistan”.

The Tribunal addressed the two letters concerning her attendance at church in Australia, and a letter from a priest in Rawalpindi. The Tribunal noted that the latter did not refer to the applicant having been assaulted outside his church, as claimed. It said that it accepted that the applicant was a Christian, but placed no weight on the statement by the priest that she had left Pakistan because of threats.
The Tribunal also discussed the probative weight of the letter from the clinical psychologist:
125.The applicant provided to the Department a letter from STARTTS (folio 84 Departmental file) which describes her mental state. The letter is headed Psychological Assessment but consists of just over 10 lines of text. The Tribunal notes that it refers to the applicant displaying a range of symptoms associated with post traumatic stress and depression. The Tribunal accepts that the applicant may be suffering from depression, anxiety and fatigue etc but is not satisfied that it is as a result of her claimed experiences in Pakistan. The Tribunal does not accept that the applicant is suffering psychological problems because she was the victim of persecution in Pakistan, as claimed.
The Tribunal repeated its findings that it was not satisfied as to each of the significant events claimed by the applicant upon which she claimed to fear persecution, and framed conclusions addressing different elements of the Refugees Convention:
126.Overall, the above matters collectively lead the Tribunal to find that the applicant is not a credible witness. The Tribunal is not satisfied that the applicant was targeted because of an incident which took place in December 2008, or that she was assaulted together with her mother in April 2009 or that she was the recipient of threats. The Tribunal does not accept that [Mr MM] told her that by converting to Islam and marrying him she could avoid serious harm. The Tribunal does not accept that any members of her family have been threatened or assaulted. The Tribunal does not accept that because of her Christian faith or because she is a Christian woman in Pakistan she was targeted. The Tribunal does not accept that there is a real chance that she will be persecuted because she is a Christian woman in Pakistan. The Tribunal does not accept that there is a real chance that she will be persecuted because she was a Christian employee of the British Council in Pakistan. The Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for any Convention reason should she return to Pakistan in the reasonably foreseeable future.
The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter to the Tribunal for further consideration. I have power to make these orders only if the Tribunal’s decision is affected by jurisdictional error. I do not have power myself to decide whether the applicant should have been believed, nor whether she qualifies for a protection visa or any other permission to stay in Australia.
The applicant has been assisted by a solicitor, to whom she was referred under the free legal advice scheme in this Court. He has presented numerous grounds seeking to establish jurisdictional error. The grounds are set out in the amended application, without any particulars:
1.The Tribunal erred by failing to provide the Applicant with a fair hearing as required by s 425 of the Act.
2.The Tribunal failed to take into account the full extent of the Applicant’s claim to have a well‑founded fear of persecution because of her membership of a particular social group.
3.The Tribunal failed to comply with the requirements of s 424AA of the Act in relation to certain information that it provided to the Applicant orally during the hearing.
4.The Tribunal failed to comply with the requirements of s 424A in relation to certain information which objectively would have been considered part of the reason for affirming the decision under review and was not given to the Applicant orally at the hearing.
5.The Tribunal erred by failing to make an obvious inquiry about a critical fact, the existence of which could have been easily ascertained.
6.The Tribunal’s explanations of its reasons for not believing the Applicant’s claims were illogical and / or inexplicable to such an extent that the overall finding of the Tribunal was so unreasonable that no reasonable person in the position of the Tribunal could have made such a finding.
These grounds were elucidated in written submissions, and also in oral submissions which identified some additional particulars and arguments. I shall address them separately.

Ground 1

Several particulars of Ground 1 were argued by reference to the Full Federal Court decision in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553. It was contended that:
6.The Applicant in this case was not in a fit mental state to represent herself before the Tribunal. She was suffering from symptoms of post‑traumatic stress and depression (CB 43), and was subject to intimidation by the presence at the Tribunal of an individual who had threatened to “spoil” her case (CB 123).
7.The Tribunal’s decision was based entirely on a finding that the Applicant was not a credible witness (CB 157 [126]). It did not take into account the possible effect, on the Applicant’s memory or ability to present her case, of her mental state and the stress caused by the intimidatory conduct of a particular individual.
8.With respect to the intimidation, the Tribunal also failed to consider whether that conduct was in any way related to the claims that had been made to both the Department and the Tribunal by one or more informants.
One part of the above submission contends that the Tribunal failed to consider the opinion provided in the clinical psychologist’s report which I have extracted above, in so far as it referred to symptoms which might affect the giving of evidence by the applicant. It was submitted that the Tribunal failed to take into account the possible influence of her symptoms of mental illness on the applicant’s giving of evidence, when assessing the credibility of her evidence and her refugee claims. It was submitted on principles established by SCAR, that the Tribunal thereby failed to afford the applicant the opportunity required by s.425 of the Migration Act 1958 (Cth) to participate in a ‘meaningful manner’ in a hearing appointed under that section. Implicitly, the submissions also suggested that the Court itself should assess the applicant’s mental illness, and conclude that she was incapable of participating meaningfully in a hearing which complied with the requirements of s.425.
The effect of SCAR has recently been examined in the Full Court in Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41, on appeal from my judgment in which I attempted to discover an underlying principle of jurisdictional error established by SCAR, governing a Tribunal’s failure to take mental impairments into account when assessing credibility. The Full Court did not endorse my understanding of SCAR. In particular, their Honours did not accept my analysis which is extracted by Perram J at [74] of his judgment.
The three judgments of the Full Court assume that the Tribunal has an obligation to assess evidence of mental impairments presented to it by an applicant, when these may be relevant to an assessment of the credibility of an applicant’s refugee claims. They affirm the general proposition that the Tribunal itself has no duty to procure medical evidence or otherwise investigate claims of mental impairments for itself. They also conclude that an applicant will not have been denied a ‘meaningful’ hearing envisaged under s.425, so as to result in jurisdictional error, unless there is evidence before the Tribunal or subsequently before the Court that, “the [applicant’s] psychological condition denied him the opportunity to give such evidence and present such arguments in support of his application as he thought appropriate” or “impaired in any substantial way his capacity for rational decision‑making in his own interests so far as the presentation of his case was concerned” (see Keane CJ at [15], also at [20], [22], and [36]‑[37], and Emmett J at [48]‑[49], and Perram J at [84] and [86]).
On these tests, in my opinion the psychologist’s report which was before the Tribunal fell far short of establishing any relevant ‘unfitness’ by the applicant to participate in any of the hearings held by the Tribunal. The Court has no additional evidence upon which to doubt the implicit assumption of the Tribunal that the applicant had been afforded a meaningful hearing, notwithstanding the suffering of some difficulties which manifested themselves at times at the hearing.
It was not put on behalf of the applicant that particular circumstances in which the Tribunal adjourned the hearings either for short or lengthy periods as a result of distress being shown by the applicant, provided evidence that at other parts of the hearings the applicant was unfit to participate meaningfully in the hearing. Its description of the hearing suggests otherwise. I am therefore not satisfied myself that the applicant was “not in a fit mental state to represent herself before the Tribunal”, nor that there was evidence before the Tribunal obliging it to arrive at that conclusion.
I also do not accept the submission that the Tribunal failed to consider the possible implications of the clinical psychologist’s report for the assessment of the applicant’s evidence. Although there is no express discussion by the Tribunal whether the flaws in the applicant’s evidence located by the Tribunal might have been affected by symptoms referred to in the clinical psychologist’s report, I am not persuaded the Tribunal failed to consider this before arriving at its adverse findings on credibility. I consider it more likely that it did consider the implications of the applicant’s suffering those symptoms for its assessment of her credibility.
In particular, I note that the Tribunal extracted the contents of the clinical psychologist’s opinion in its statement of reasons, and also referred to it in its “Findings and Reasons” when considering whether it gave probative support to the occurrence of the claimed persecution. The Tribunal’s recitation of the hearing shows that it was continuously alive during its proceedings to the applicant’s capacity to give evidence in response to its questions.
I am therefore not persuaded that any error referrable to principles arising from SCAR is established in the present case.
In support of Ground 1, the solicitor for the applicant also alleged a failure by the Tribunal to consider the possible implications for the applicant’s presentation at the hearings, of her subsequent written claims that she had been ‘stalked’ and ‘stared at constantly’ by one of the informants on the occasion of the second hearing. I have extracted the relevant parts of her post‑hearing submission above.
I am not persuaded that the possible implications of these claims for the Tribunal’s assessment of the applicant’s credibility were overlooked by the Tribunal. The Tribunal extracted these parts of the applicant’s letter in its “Findings and Reasons”. Prima facie where a Tribunal sets out a piece of evidence in its decision, it is difficult to conclude from further discussion of the evidence that it overlooked its possible evidentiary implications for a finding on credibility. In the present circumstances, this is not a case where I would draw the conclusion that the applicant’s claims of ‘stalking’ at the second hearing were overlooked by the Tribunal (cf. Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [34]‑[35], [68]‑[69], [75], and Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 at [55]).
In the course of his oral submissions on this point, the solicitor for the applicant developed what essentially was a completely separate ground of judicial review, not previously raised. This was that, assuming the truth of the applicant’s claims to have been stalked and intimidated at the hearing on 16 March 2010, these events are analogous to the agent’s conduct in SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 which the High Court considered had “the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants”, so that the Tribunal “was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review” (see [49] and [51]).
This contention, as well as being poorly developed in submissions, fails at its evidentiary foundations, because there is no sworn evidence before the Court which I would rely upon for concluding that the events alleged by the applicant in her letter did occur in fact, nor that in fact they had any substantial effect on her presentation to the Tribunal at any of its hearings.
Moreover, I am not satisfied that if the ‘stalking’ did occur in relation to the second hearing, this would result in a relevant ‘subversion’ of the Tribunal’s procedures under the principle of SZFDE. This was not a case where the Tribunal was left unaware of the impediment claimed by the applicant. Rather, the applicant herself had the opportunity when appearing before the Tribunal on that occasion, and at the subsequent hearing she attended without being ‘stalked’, to fully inform the Tribunal about the events of the second hearing. She also had the opportunity to put these claimed events to the Tribunal in writing after the hearing. As I have found above, the Tribunal acknowledged receiving the claims, and I am not persuaded that it failed to weigh up any possible relevance to its assessment of her credit. The review process was therefore not ‘stultified’.
After taking into account all the submissions made in relation to the applicant’s claims about being scared at the hearing on 16 March 2010, I am unable to identify grounds of jurisdictional error vitiating the Tribunal’s subsequent decision.
For all the above reasons, I have been unable to identify any particular upon which Ground 1 can be upheld.

Ground 2

The solicitor for the applicant developed this ground in the following manner in his written submission:
9.The Applicant claimed to fear persecution for reasons that included specific events that she claimed had occurred in Pakistan, and also for the reason that as a young, unmarried Christian woman she was in danger generally of persecution by being kidnapped or otherwise forced into marriage and conversion to Islam against her will (CB 27 final item, CB 34 relevant documentation).
10.The Tribunal did not accept her account of the specific events, but failed to address the claim that her fear of persecution was nevertheless well‑founded because of her membership of such an identifiable social group.
In support, he referred to well known passages in Htun v Minister for Immigration& Multicultural Affairs (2001) 194 ALR 244, [2001] FCA 1802 at [42] referring to the jurisdictional duty of the Tribunal to consider all the claims of the applicant and their ‘component integers’.
In factual support of the submission, the solicitor referred to one of the newspaper reports cited in the applicant’s original visa application:
Pakistan: Muslim Forces 12‑Year‑Old Girl To Convert, Marry Him – Police ridicule Christian mother for kidnapping complaint; others demand money, labor (Compass Direct News, 5 June 2009)
LAHORE, Pakistan – The Christian mother of a 12‑year‑old girl in Punjab Province who was kidnapped, coerced into converting to Islam and forcibly married to a 37‑year‑old Muslim hopes to recover her daughter at a court hearing next week. The reaction of Pakistani law enforcement authorities to Sajida Masih’s complaint so far – ridiculing her and asserting that there is nothing she can do because her daughter is now a Muslim – does not encourage her hopes of recovering her daughter Huma at next Thursday’s (June 11) hearing. Masih said that Muhammad Imran abducted Huma at gunpoint on Feb. 23 from Hanif Kot village in Gujranwala district, forcibly converted her and then married her. Imran, father of three children, has since disappeared along with his first wife, children and new child‑bride. Another land owner, Karamat Ali Saroyya, called Masih saying that Huma was in Muridke, but Masih and her lawyer were unable to find her there. Saroyya later demanded that Masih work his fields for one year to get her daughter back.
However, in my opinion on a fair reading of the applicant’s written and oral claims at the time of bringing her visa application and subsequently to the delegate and the Tribunal, she made no claims bringing herself within the circumstances of that press report. In my opinion she made no claim to be a “young, unmarried Christian woman … in danger generally of persecution by being kidnapped or otherwise forced into marriage and conversion to Islam against her will”.
On one view of her account of events in December 2008 and April 2009, she claimed to have a concern that Mr MM was taking advantage of Taliban threats to coerce her into a conversion and marriage. However, the Tribunal squarely addressed that claim, by rejecting the truth of the claimed events.
In my opinion, the present case does not reveal any ‘claim’, whether articulated or ‘clearly arising’ from the material before the Tribunal, which it failed to address (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [60]).
For that reason, I do not consider that Ground 2 has been made out.

Grounds 3 and 4

In support of Grounds 3 and 4, the solicitor for the applicant took me to various pieces of information which might be regarded as having been received by the Tribunal from the first informant and the second informant. In particular, the first informant’s allegation that she and Mr SS were ‘fake asylum seekers’, and the second informant’s allegation of a current relationship with Mr MM in Australia. In relation to Mr MM, it appears that the informant believed that the person referred to by the applicant in her refugee claims was the same person he knew with the same first name, who the informant knew was married with children living in Australia. Prima facie, it seems most unlikely that the applicant was referring to this person in her refugee claims about events in Pakistan, even if the claims were untrue.
The solicitor for the applicant argued that notwithstanding that the Tribunal said that it put the gist of the informers’ information to the applicant in the course of the hearings, it did so imperfectly by reference to the procedures set out in s.424AA(b), and thereby committed jurisdictional error. He submitted that jurisdictional error occurred, even if the Tribunal was not bound to have put that information to the applicant under either s.424AA or s.424A(1).
That submission is, in my opinion, clearly inconsistent with the judgment of the Full Court in SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 at [75] and [106]. I also note that special leave to appeal was refused by the High Court on 4 September 2009 (see SZMCD v Minister for Immigration & Citizenship & Anor [2009] HCATrans 211). The Full Court held, in effect, that s.424AA operates pursuant to s.424A(2A) to excuse the Tribunal from the jurisdictional requirement to invite written comment under s.424A(1). A failure to observe procedures under s.424AA therefore has no jurisdictional consequences if s.424A(1) did not apply to the information in question. The Full Court expressly indicated that this was the case, even if the Tribunal purported to follow s.424AA procedures without being bound to do so.

The argument developed in support of Ground 4, attempted to identify additional pieces of information given by the informant which, it was argued, the Tribunal did not even attempt to put to the applicant under s.424AA. It was then submitted that the Tribunal was bound to have put these to the applicant in writing under s.424A(1).
The significant flaw in the arguments in support of both Grounds 3 and 4 is, in my opinion, that none of the information given by the informants, whether put to the applicant in any manner or not, constituted information coming within the language of s.424A(1), as information which “the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. The Tribunal was therefore under no jurisdictional obligations referable to s.424A(1) which were not observed under the procedures of that section or of s.424AA.
I accept the submission made on behalf of the applicant that the test of what ‘would be’ a reason for affirming the delegate’s decision looks to a point of time prior to the making of a decision and announcement of reasons. However, as the High Court has recently pointed out, an inference that the Tribunal held such a state of mind prior to decision, will almost always be drawn from an examination of the reasons subsequently given by the Tribunal. If the subsequent reasons show that it arrived at a decision without giving any attention or weight to the adverse information, then usually the Court will be unable to conclude that it answered the description of information giving rise to an obligation under s.424A(1) (see Minister for Immigration & Citizenship v SZLFX (2009) 238 CLR 507 at [24]‑[26]).
In the present case, as I have extracted above, the Tribunal expressly disclaimed giving weight to any information given by either of the informants “that the applicant was not being truthful about her Convention claims”, and any information from them that “she had fabricated those claims”. Moreover, the Tribunal also in the course of the hearings with the applicant, foreshadowed that it would not be giving weight to that information.
In those circumstances, I find it impossible to find that any of the informers’ information gave rise to obligations under s.424A(1), nor any obligations which would have been answered by following procedures under s.424AA, upon the view of that provision taken by the Full Court in SZMCD.
The solicitor for the applicant invited me to read the Tribunal’s reasoning in paragraph 122, which I have extracted above, as suggesting that the Tribunal had, in fact, given weight to some of the informers’ information when disbelieving the applicant’s credibility. However, I was unable to read that paragraph in that manner.
For all these reasons, I do not consider that a ground of jurisdictional error coming within Grounds 3 and 4 has been made out.

Ground 5

Ground 5 was explained in the applicant’s solicitor’s written submissions:
19.The Tribunal had been informed that a particular non‑citizen who the Applicant claimed was in Pakistan was in fact in Australia (T 84.9‑14). Since the basis of the Tribunals’ decision was a finding that the Applicant was not a credible witness, the fact of the Applicant’s [sic: non‑citizen’s] presence or otherwise in Australia could have been easily ascertained by the Tribunal seeking confirmation from the Department of Immigration. However it failed to make any such inquiry.
20.In MIAC v SZIAI [2009] HCA 39 at [25], the majority of the High Court held that a failure to inquire in circumstances such as these could amount to a failure on the part of the Tribunal to review the case before it.
I was then taken to the evidence cited in this submission, which concerned the Tribunal’s exchanges with the applicant concerning the location of Mr MM. I do not consider it necessary to recite the relevant passages from either the Tribunal’s questioning of the applicant, or the source of that questioning in the Tribunal’s interview with the second informant.
Prima facie, the weight to be given to the second informant’s suggested linkage between the Mr MM referred to by the applicant in her visa statement with a Mr M known to the informant living in Australia, was tenuous or non‑existent. Moreover, as I have explained above, this evidence of the second informant formed no part of the Tribunal’s reasons for rejecting the applicant’s credibility. For those reasons, it is difficult to see why the Court should conclude that it would have been at all material to the Tribunal’s decision for it to have investigated whether the Mr MM referred to by the applicant in her visa claims was or was not a resident of Australia who was married with children.
Moreover, the jurisdictional error argued in support of this ground fails for the same reason that the High Court found in Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429, [2009] HCA 39 that no obligation of inquiry arose. In this respect, the applicant’s solicitor was unable to explain to my satisfaction how a projected telephone call to the suggested phone number of Mr M in Australia could have elicited a response which would have “yielded a useful result” (see SZIAI at [26]).
I am far from persuaded that this area of evidence gave rise to any obligation on the Tribunal to make inquiries within the exceptional principles which appear to have been given continuing support in SZIAI at [25].
I am not persuaded that Ground 5 has been established.

Ground 6

Ground 6 invokes principles of unreasonableness as jurisdictional error, where the findings of a Tribunal are based on no probative evidence and illogical reasoning. The principles were recently examined by the High Court in Minister for Immigration & Citizenship v SZMDS (2010) 266 ALR 367, [2010] HCA 16.
In support of the ground, the solicitor for the applicant presented in written and oral submissions an analysis of the Tribunal’s reasoning in its five dot points and in relation to the applicant’s documentary evidence, to show that none of its adverse findings were supported by evidence and to show that they all involved illogical reasoning.
Thus, he argued in his written submissions:
21.The Tribunal sets out its reasons for not believing the Applicant’s claims in para [123] (CB 153 – 156).
22.The first dot point deals with a number of claims.
(a)The Applicant and her brother were threatened by various people for refusing to help them pass exams at the British Council. The Tribunal refuses to believe this claim without identifying any inconsistencies or implausibility in it.
(b)The Applicant’s siblings were assaulted on their way to college. The Tribunal states that the Applicant made this claim in her original statement but did not refer to it at hearing. The transcript of the hearing shows that the course of questioning was at all times under the full control of the Tribunal., and the Applicant’s failure to repeat the claim merely reflects the fact that the Tribunal did not ask her about it.
(c)The Applicant claimed in her initial statement that she and her brother were told to leave their jobs at the British Council or “face the consequences”. The Tribunal refused to believe this claim because it was “of the view that [if] they had received serious threats they would not have continued to work at the British Council”. The Tribunal ignore[d] the Applicant’s explanation in the same statement (CB 31) that she and her brother had to work after their father’s death.
23.The second dot point deals with the Applicant’s reference in her claims to a police officer who had been known to her father. While there does appear to be a minor discrepancy between her initial statement, where she says “We met the police officer…” (CB 33), and her explanation at the interview that it was only her mother and brother who spoke to him (T 101.17‑18), the Tribunal’s reason for disbelieving the claim was that the Applicant did not know the officer’s name. It is submitted that no reasonable person could possibly have drawn from this fact the inferences that the Tribunal did: that no members of the Applicant’s family had made contact with a police officer; and that there was no need to contact a police officer because the incidents referred to by the Applicant had not occurred.
24.The third dot point claims that in her letter of 2 November 2009 (CB 53) the Applicant said that her mother had frequently contacted the police officer, while at the hearing the Applicant said her mother had never contacted the police officer (T 106.41‑43). By way of clarification, the Applicant explained that the communication with the police officer went through her brother, while her mother was aware of everything (T 110.44‑46). The inference confidently drawn by the Tribunal from this minor point, that there was no contact with any police officer in relation to fears held by the Applicant, is one which no reasonable person could have drawn on the facts before it.
25.The fourth dot point refers to alleged discrepancies in the Applicant’s account of events when she says she and her mother were attacked in April 2009.
(a)The Applicant said that she and her mother did not go to the police station, but then said that they did. In fact, the Applicant clearly stated that they did go to the police station in the company of a number of boys (T 105.40 – 106.6). She then clarified the Tribunal’s misunderstanding about an earlier statement that it was her brother who went to the police station by pointing out that that was the earlier occasion (T 106.8‑12). There is in fact no discrepancy in the Applicant’s evidence on this point.
(b)The Tribunal asked the Applicant why other members of the family had not attended Mass on that day, and implied that her answers were contradictory. An examination of the answers given (T 104.1‑23) reveals no discernible contradiction.
The Tribunal’s inference from these non‑existent contradictions is not one that a reasonable person in the position of the Tribunal could have drawn.
26.The final dot point merely repeats the unreasonable inference referred to in para 22(c) above. Given the known difficulty of obtaining a visitor visa for Australia from a country such as Pakistan, the Tribunal’s suggestion that a wait of 7 months implied a lack of concern about her position is unsustainable by any reasonable measure.
27.In the following paragraph (CB 156 [124]), the Tribunal notes that a letter from a priest in Pakistan does not refer to the substance of the Applicant’s claim about the attack on her and her mother in April. The assumption that the priest would necessarily have given a detailed account of what he had been told about the incident is not one that could reasonably be drawn without the Tribunal at least questioning the Applicant as to the circumstances in which the letter had been obtained, which it did not do.
28.The Tribunal’s final reason of disbelieving the Applicant, (CB 156 [125]) relies exclusively on the length of a psychological assessment (CB 43) rather than its content. The Tribunal ignores the invitation at the end of the assessment to contact the author should further details be required. The Tribunal’s summary dismissal of expert evidence in this manner reveals the type of unreasonable approach identified by Wilcox J in Fuduche v MILGEA [1993] FCA 503, (1993) 117 ALR 418, (1993) 45 FCR 515.
The premises of many of these arguments are, in my opinion, not established or are plainly wrong. Other arguments essentially, in my opinion, rise no higher than arguments as to the weight given to particular points made by the Tribunal, in circumstances where its points were open on the evidence and its adverse findings were reasonably available to be made by the Tribunal.
I do not consider that the Tribunal failed to identify the inconsistencies and implausibilities giving rise to its rejection of particular elements in the applicant’s claims. In my opinion, a fair reading of its decision shows that it did this, by suggesting that the applicant gave tailored or embellished or inconsistent evidence when questioned by the Tribunal rather than drawing from true recollection in responding to questions.
While it is true that the course of the questioning was at the control of the Tribunal, the applicant was free to give fuller answers. In my opinion, it was not illogical nor evidentiary of jurisdictional error for the Tribunal to draw some inferences from omissions in her evidence about relevant events.
The Tribunal was not bound to accept the applicant’s explanations for not reporting serious threats to her employers at the British Council, and in my opinion these parts of the Tribunal’s reasoning were supported by evidence, and followed a logical process of reasoning.
On an examination of the transcript, in fact, the applicant did give inconsistent evidence whether she and her mother went to the police station after the claimed incident in April 2009 (compare page 103 line 2 of the transcript with page 106).
It may be that other minds might have regarded some inconsistencies in the applicant’s evidence as minor and immaterial. However, I am not persuaded that it would not be open to a reasonable Tribunal assessing the evidence given by the applicant at all the hearings and considering the other evidence, to have regarded some of her responses as indicative of the absence of reliable memory of the events, and as evidencing a person whose claims should not be believed.
I consider it was open to the Tribunal to consider adversely, the applicant’s delay in leaving Pakistan, in circumstances where she claimed to have feared death or abduction arising from events in December 2008.
The applicant’s solicitor’s challenge to the Tribunal’s consideration of the letter from the Pakistani priest, in my opinion, did no more than challenge the merits of reasoning which was open to the Tribunal in law.
Similarly, I do not consider that the Tribunal’s treatment of the implications from the clinical psychologist’s letter was in any manner objectionable in point of law. Plainly that letter did not provide corroboration of the particular events claimed by the applicant to have been suffered in Pakistan, since it recited none of the history taken by that psychologist.
Considering all of the submissions made in the applicant’s written submissions and as developed in oral submissions today, I am unpersuaded that the Tribunal’s present reasons exhibit jurisdictional error on principles explained and applied by the High Court in SZMDS.
For all the above reasons, I have not been satisfied that any jurisdictional error affects the decision of the Tribunal, and I must therefore dismiss the application.
It is accepted that costs should follow the event.

I certify that the preceding eighty‑two (82) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:

Date: 8 October 2010