SZOOR v Minister for Immigration - [2011] FMCA 253

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOOR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 253

MIGRATION – Review of decision of Refugee Review Tribunal – whether the Tribunal failed to address or deal with an aspect of the applicant’s claim – whether the Tribunal did not deal with a “very important piece of evidence” – whether the Tribunal overlooked evidence from a psychiatrist – whether the Tribunal rejected the applicant’s claims because of assertions in a letter received by the Tribunal from an unknown person – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.430, 476

SZDXZ & Ors v Minister for Immigration & Anor [2007] FMCA 1689
Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; (2002) 187 ALR 117; (2002) 76 ALJR 598
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Ors [2000] HCA 47; (2000) 203 CLR 194; (2000) 174 ALR 585; (2000) 74 ALJR 1348
SZGKX v Minister for Immigration and Citizenship [2007] FCA 461
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 180 ALR 1; (2001) 75 ALJR 1105
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 144 ALR 567; (1997) 71 ALJR 743
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 66 ALR 299; (1986) 60 ALJR 560
Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104
MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94
Singh v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1113
MZXGP v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 1314
Mayadeen v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1522
Monserrat Gonzales Karras v Minister for Immigration & Multicultural Affairs; Teresa Pasini Cabal v Minister for Immigration & Multicultural Affairs [1998] FCA 1705
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27
SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330
SDAQ v Minister for Immigration and Multicultural Affairs [2003] FCAFC 120; (2003) 199 ALR 265
S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 203 ALR 112
Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152; (2001) 194 ALR 599
NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51
SZJQN v Minister for Immigration & Anor [2007] FMCA 1550
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Martinez v Minister for Immigration and Citizenship [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32
SZOBS v Minister for Immigration and Citizenship [2010] FCA 1000
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1
STCB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 61; (2006) 231 ALR 556; (2006) 81 ALJR 485
Minister for Immigration and Citizenship v MZYHS [2011] FCA 53
Subramaniam v Minister for Immigration and Multicultural Affairs [2002] FCAFC 255
Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268
VMAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 21
VGAP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1607
Rezaei v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1294
SZIEW v Minister for Immigration and Citizenship [2008] FCA 522
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41; (1980) 31 ALR 666
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367; (2010) 84 ALJR 369
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 273 ALR 122; (2010) 85 ALJR 306

Applicant:

SZOOR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1775 of 2010

Judgment of:

Nicholls FM

Hearing date:

8 March 2011

Date of Last Submission:

8 March 2011

Delivered at:

Sydney

Delivered on:

20 April 2011

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser (Direct Access)

Counsel for the Respondents:

Mr D Godwin

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application made on 16 August 2010, and amended on 8 March 2011, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $10,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1775 of 2010

SZOOR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made under s.476 of the Migration Act 1958 (Cth) (“the Act”) on 16 August 2010, and amended on 8 March 2011, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 13 July 2010, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

The applicant is a national of Pakistan who arrived in Australia on 18 June 2006. While the applicant’s claims to protection have evolved since that time, at their core is a fear of persecutory harm from Muslim extremists because of his involvement (as the cameraman) of the filming of a television news report about a religious school (a madrassa). The applicant claimed to have been threatened as a result.
The applicant’s subsequent claim to also fear persecutory harm in Pakistan on the basis of his claimed homosexuality was first raised in a Statutory Declaration given to the Tribunal on 16 October 2009 (CB 494).
The course of the applicant’s attempt to seek protection in Australia has a long history before both the Tribunal and the Court:
1)On 15 May 2006 the applicant applied to the Tribunal for review of the delegate’s decision (CB 80 to CB 106) (“T1”).
2)T1 handed down its decision on 5 October 2006, affirming the delegate’s decision (CB 183 to CB 200).
3)This was set aside by this Court (differently constituted) on 20 August 2007 (CB 201 to CB 223).
4)On 26 June 2008 a differently constituted Tribunal again affirmed the delegate’s decision (CB 411 to CB 442) (“T2”).
5)On 3 September 2009 this Court (differently constituted) set aside the decision of T2 (CB 469 to CB 487).
6)On 13 July 2010 the Tribunal handed down the decision which is the subject of consideration by the Court now (“T3”).
Throughout this process the applicant attended hearings and gave evidence to each of the differently constituted Tribunals, as did a number of witnesses on his behalf. The applicant also submitted various pieces of documentary evidence.

Before the Court

Before the Court the applicant was represented by Mr BM Zipser of counsel. Mr DH Godwin of counsel represented the first respondent.
Although the amended application contained six grounds, the applicant did not press grounds four and five.

Ground One

Ground one asserts that the Tribunal failed to address or deal with an aspect of the applicant’s claims, and that this revealed jurisdictional error.
Although not properly pleaded, this was expanded in submissions as a complaint in the alternative that the Tribunal did not deal with a “very important piece of evidence”, and that this also revealed jurisdictional error.
The factual situation giving rise to this complaint is as follows.
The applicant claimed to have worked as a cameraman for GEO Television in Pakistan until late 2005. In July 2005 he and a reporter (Mr Chaowdhury (who also spelt his name as “Chudhary”)) were assigned to prepare a news report which involved the filming of a religious school in connection with a story following a terrorist bombing in England
Following the broadcasting of the story it was claimed that Mr Chaowdhury received an anonymous call on his mobile phone and was threatened because of the report. The applicant also claimed that he received a threatening phone call on 18 July 2005. The applicant further claimed that he was attacked on his way home on 11 September 2005 by Muslim extremists, and received further “threatening calls to my office” (see CB 86 to CB 87 – a Statutory Declaration by the applicant of 29 May 2006).
Mr Jaffri (who also spelt his name as “Jaffry” and “Jaferry”) was a producer at GEO during the relevant time. The applicant reported the receipt of the first threatening call to him on 18 July 2005 (see the Statutory Declaration at CB 85).
Mr Jaffri provided a statement in an email which was subsequently submitted to the Tribunal on 24 October 2007 by the applicant’s then migration agent (CB 257 to CB 258).
Mr Zipser made the following relevant submissions:
1)Mr Jaffri gave an account of the events of 15 July 2005 and following, based on his observations at that time and what the applicant had reported to him.
2)This “corroborated” the applicant’s account of relevant events (see the applicant’s written submissions at [24] (a)).
3)In particular and relevantly: “… our telephone operator received many phone calls from those unidentified group, asking about [the applicant] and Mr. Badar Munir Chudhary…” (CB 257.9).
4)At the hearing with T2 in November 2007, Mr Jaffri said amongst other things: “… that threatening phone calls came through for the applicant right up to when he left Pakistan. They stopped after he left…” (CB 775.8).
Mr Zipser’s argument proceeded on the basis of seeking to argue at least two issues to be resolved:
1)How the Tribunal dealt with the various integers of the applicant’s claims; and
2)How it dealt with Mr Jaffri’s “evidence” (see [26] of the applicant’s written submissions).
A preliminary question however is: how is what Mr Jaffri said to be characterised? Does his email and what he said to the Tribunal comprise a claim, or an integer of the applicant’s claims to be a refugee, as pleaded in ground one? Or, is it evidence in support of the applicant’s claims as expressed in the alternative in the applicant’s submissions?
In SZDXZ & Ors v Minister for Immigration & Anor [2007] FMCA 1689 (in particular at [23] to [58]) I considered authorities relevant to the issue of the difference between a claim, or an aspect of a claim, and corroborating evidence (Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; (2002) 187 ALR 117; (2002) 76 ALJR 598, Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Ors [2000] HCA 47; (2000) 203 CLR 194; (2000) 174 ALR 585; (2000) 74 ALJR 1348, SZGKX v Minister for Immigration and Citizenship [2007] FCA 461, Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 180 ALR 1; (2001) 75 ALJR 1105, NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 (“Applicant WAEE”), Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 144 ALR 567; (1997) 71 ALJR 743, Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 66 ALR 299; (1986) 60 ALJR 560, Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 (“Paul”), Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 (“Htun”), VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104, MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 (“MZWBW”), Singh v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1113, MZXGP v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 1314, Mayadeen v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1522 and Monserrat Gonzales Karras v Minister for Immigration & Multicultural Affairs; Teresa Pasini Cabal v Minister for Immigration & Multicultural Affairs [1998] FCA 1705).
It is the case that a failure to deal with a claim or an aspect of a claim may well lead to jurisdictional error (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 (“NABE”)). However, I agree with Mr Godwin that what Mr Jaffri said does not constitute any new claim by the applicant to fear persecutory harm if he were to return to Pakistan. Nor does it add any additional aspect to his claims.
The applicant claimed that he had filmed the madrassa. He then received a threatening phone call and told Mr Jaffri, who was his supervisor. Nearly two months later he was attacked on the way home. Another two months later he received further threatening phone calls “to my office” (various references, but see for example CB 747, CB 753, CB 771.6 – all in the evidence he gave to T1 and T2, see also the adviser’s submissions at CB 779.8, CB 781.4 and CB 784.3).
The applicant’s case as put by him, and explained in submissions by his adviser, was that these threats were received from the same group of people (the terrorists) who attacked him as a result of his filming of the madrassa.
While Mr Zipser sought to portray some of what Mr Jaffri said as “expanding” on the applicant’s claims, none of what he said does so. For example the fact that Mr Jaffri said that the GEO telephone operator received many telephone calls from unidentified groups, in substance and reality does nothing more than support the applicant’s claims that he received telephone calls at his office. That is, the import of what Mr Jaffri said was that the applicant told him he had received threats because of the filming of the madrassa and that those who threatened the applicant made calls to the office. Also that the reporter, Mr Chaowdhury, also received threats. By no stretch could this be said to be a new or additional claim to fear persecutory harm.
Similarly, the assertion that the calls came “through for the applicant up to when he left Pakistan” adds nothing to the applicant’s claim. His evidence was that he continued to receive telephone calls in late November 2005. He left Pakistan and arrived in Australia in January 2006 (CB 15).
It is also important to consider, as Mr Godwin submits, that the applicant’s representatives themselves (before the Tribunal) presented and relied on Mr Jaffri’s evidence as corroboration of the applicant’s claims, not as expanding on them. (See for example “… [the applicant’s] claims are corroborated by Mr Mujahid Jaferry his supervisor at GEO Television…” (CB 244 at 1.2).)
I could not see in any of the voluminous material provided by the applicant to the Tribunal, or submissions made by his advisers, any suggestion that what Mr Jaffri said contained some additional element of the applicant’s claims. What he said was on occasion explicitly, and for the remainder implicitly referred to as corroborative evidence of what the applicant had said had relevantly occurred.
As Mr Godwin submitted, it is not open to the applicant to now reformulate his claims (SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 at [23], NABE at [58], SDAQ v Minister for Immigration and Multicultural Affairs [2003] FCAFC 120; (2003) 199 ALR 265 at [19], S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 203 ALR 112 at [1].)
Although strictly speaking what the applicant is attempting to do is not so much to reformulate claims in the sense of expanding them, but to mischaracterise plainly corroborative evidence as some sort of new claim.
Whatever the case, what remains is that, to the extent that the applicant relies on what Mr Jaffri said to the Tribunal to make out this ground, the Tribunal did not deal with a claim or a part of a claim to fear persecutory harm. This complaint does not succeed.
This conclusion is sufficient to deal with the applicant’s ground as pleaded.
It is of concern that an applicant with legal representation, who is given leave to file an amended application in Court at the hearing itself, then proceeds to make submissions that exceed the complaint as put in that amended application.
Nonetheless, even if the ground had been one of complaint that the Tribunal did not properly deal with this evidence, such a ground would not succeed in the current circumstances.
The argument is that Mr Jaffri’s evidence was critical to the applicant’s claims. While there appeared to, possibly, be some concession by Mr Zipser that the Tribunal does not need to refer to every piece of evidence before it, the argument was that the importance of Mr Jaffri’s evidence to the applicant’s case was such that it should not have been overlooked.
The submission was that the Tribunal did not consider or address this evidence in its analysis, and an inference can therefore be drawn that it was overlooked (Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152; (2001) 194 ALR 599 (“Singh”), NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51(“NAJT”) at [205] to [213]. See also SZJQN v Minister for Immigration & Anor [2007] FMCA 1550 (“SZJQN”) at [28]). That is, the Tribunal overlooked critical evidence and that this reveals jurisdictional error (VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77], Martinez v Minister for Immigration and Citizenship [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32 at [50] to [52], SZOBS v Minister for Immigration and Citizenship [2010] FCA 1000 at [33] to [37]).
I have already set out above the relevant aspects of Mr Jaffri’s evidence. In short, he was the applicant’s supervisor at GEO, the applicant attended as a cameraman and filmed at an extremist madrassa, the applicant told him he had been threatened and assaulted, and the applicant received and continued to receive threatening calls at the office, including some intercepted by the telephone operator.
It was not exactly made clear in submissions why this evidence was “special” or “critical” such as to attract the principle in the authorities relied on by the applicant.
At best, I understood that it was “important” because Mr Jaffri’s evidence was based on “what he knew for himself”. That is, what he observed, as opposed to the evidence of the applicant’s other witnesses, which was what was otherwise told to the applicant or what he told them. Presumably, the former is a reference to Mr Jaffri’s evidence about the receipt of telephone calls at the office and that the applicant was a cameraman at GEO who was sent on the madrassa assignment. However, there is no evidence to suggest that Mr Jaffri observed the attack on the applicant or that he heard the calls the applicant received on his mobile phone.
A number of general points need to be made.

First, it is the case that, pursuant to s.430(1)(c) and (d) of the Act, the Tribunal is required to set out in its decision record the findings of fact it made, and refer to the evidence or any other material on which they are based.
Second, even a failure to do so is not jurisdictional error (Htun at [42] per Allsop J, with whom Spender J agreed, Applicant WAEE at [46], NABE at [63], Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 (“SZNPG”) at [21]-[28] per North and Lander JJ, with whom Katzmann J agreed (see at [35]) and Paul at [79] per Allsop J, with whom Heerey J agreed).
Third, I agree with Mr Godwin, in particular given point one above (at [38]), that an inference that the Tribunal did not do something (not take the evidence into account) should not be drawn lightly (Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 per Gummow J at [70]). Given the terms of s.430, an absence of a direct express rejection, or acceptance, of the evidence does not necessarily mean that it has been overlooked.
It could be that this was simply a situation where the Tribunal did not accept Mr Jaffri’s evidence (or the relevant part of it) because it had already reasoned, on the basis of other evidence, adversely to the applicant. Given the provisions of s.430 the Tribunal must set out the evidence on which its findings are based. Such other evidence would fall outside the scope of this requirement (NABE, MZWBW, Paul, and SZNPG at [21] to [28]).
Fourth, I am not persuaded in any event that the Tribunal can be said to have overlooked this evidence. I agree with Mr Godwin’s submission that the Tribunal took Mr Jaffri’s evidence into account.
Mr Jaffri’s evidence was essentially given by way of an email submitted by the applicant (CB 257 to CB 258), and in oral evidence to the Tribunal (CB 775). The features of his evidence relevantly were that:
1)He had worked with and had supervised the applicant.
2)The applicant had been assigned, with Mr Chaowdhury, to film at the madrassa.
3)The applicant told him he had been attacked by “unidentified terrorists” in September 2003 (CB 257.8).
4)Threatening telephone calls were received right up until the time the applicant left Pakistan, at which time they ceased (CB 775.8).
This evidence was put before the Tribunal by the applicant, and in particular his adviser, to corroborate these elements of the applicant’s claims. (For example see the submission concerning Mr Jaffri’s email at CB 243 to CB 254.)
At [185] (CB 858.8 to CB 859.1)) of its decision record the Tribunal states:
“Against these matters, the Tribunal had considered the fact that there is evidence presented by the applicant which is supportive of his claim. There have been persons prepared to give oral and written evidence of what they claim to have known of the applicant’s past experiences. These include former workmates of the applicant and other personal acquaintances. The nature of that evidence, however, is not sufficient to overcome the Tribunal’s concerns regarding the evidence as a whole. While the Tribunal accepts that some people may have been told or read about the claimed attack on the applicant, the Tribunal does not believe the evidence that the applicant’s name was given to persons from the madrassa nor that any actual attack was witnessed. In the case of Mr Butt, who claims to have witnessed the attack, he is a close friend of the applicant who has assisted with obtaining material to support the claim. In the case of the evidence of Mr Badar Munir Chaowdhury, while it is supportive of the applicant’s claims regarding his name having been given to members of the madrassa, the Tribunal believes that this element of the claim has in fact been fabricated over time. The applicant, early in proceedings was not able to give clear and consistent evidence on this point and the Tribunal believes that this claim has been fabricated at a later point to assist the applicant.”
I agree with Mr Godwin that, at the very least, it is not open to say that the Tribunal did not take into account and consider Mr Jaffri’s corroborative evidence. On this basis the applicant has not made out his complaint.
Even further, it is reasonably open to find that the Tribunal did take into account and consider Mr Jaffri’s evidence.
Mr Zipser submitted that the absence of any mention by the Tribunal of Mr Jaffri by name when dealing with corroborative evidence (at [185]) means that the Tribunal overlooked this “critical” evidence.
I do not agree. Paragraph 185 of the Tribunal’s decision record must be read in context of the Tribunal’s analysis as a whole.
Relevantly, the Tribunal set out its understanding of the applicant’s claims ([167] at CB 854.9). It set out its conclusion that the applicant had not presented a truthful account of his fears. That he had, over time, fabricated claims of harm and claimed experiences. The Tribunal rejected the truthfulness of the key factual aspects of the applicant’s claims ([168] at CB 855.1). In particular it rejected the applicant’s claim to fear persecutory harm said to arise from his work as a cameraman in Pakistan, and from those who he claimed attacked him as a result ([169] at CB 855.2).
The Tribunal found that the applicant had presented “obviously fabricated material to support his claimed past experiences”. The Tribunal rejected the applicant’s explanations ([170] at CB 855.4 to [175] at CB 856.4).
The Tribunal also rejected the applicant’s factual account of past harm because:
1)“… he has, over time displayed a propensity to make assertions about his actions and motivations which, when subjected to scrutiny, are not sustained.” ([177] at CB 856.7.)
2)The applicant’s claims “about how those whom he said would seek to harm him became aware of his role has been unclear over time”. Further, at times the applicant was “deliberately unclear” ([179] at CB 857.2).
3)The Tribunal rejected the applicant’s explanation that this was because of his “psychological state” ([181] at CB 857.8).
4)The Tribunal had regard to a detailed allegation which was adverse to the applicant’s account ([183] at CB 858.3).
5)The newspaper reports relied on by the applicant in support of his claims were created by the involvement of the applicant “… in having these reports reproduced in the media.” ([184] at CB 858.5.)
Having comprehensively rejected the applicant’s factual account, based on findings which were reasonably open to it and for which it gave reasons, the Tribunal then turned to the evidence of those who sought to provide corroboration of the applicant’s claims to fear persecutory harm because of the filming at the madrassa. This brings us to [185] (at CB 858.8) of the decision record.
Here the Tribunal made explicit reference to evidence “supportive of the applicant’s claims”. It specifically noted that there were persons prepared to give oral and written evidence in support. The sentence: “… These include former workmates of the applicant…” at least allows the inference that this included Mr Jaffri, who described himself, and was described by the applicant’s representative, not only as the applicant’s supervisor but a workmate.
At the very least this reference denies the applicant the opportunity to make out his case that Mr Jaffri’s evidence was overlooked.
The Tribunal set out elsewhere in its decision record Mr Jaffri’s evidence, both written and oral. The fact that at [185] it did not mention Mr Jaffri by name does not mean it overlooked his evidence where it specifically noted that it had evidence from former workmates and personal acquaintances.
Ultimately, I agree with Mr Godwin that, on at least a fair and holistic reading of its decision record, the Tribunal rejected the truth of the applicant’s factual account. See also the emphatic finding at [208] at CB 863.7:
“Considered overall, the Tribunal does not believe that the applicant has provided a truthful account of his fears of return to his country of nationality. In the Tribunal’s view, he has fabricated two bases for a claim, arising from his work in Pakistan and his claimed homosexuality, neither of which are true. The Tribunal does not believe that he was ever attacked in Pakistan, nor of interest to any person associated with the Jamia Manzoor-ul-Islamia madrassa or any other fundamentalists group in Pakistan. Nor does the Tribunal believe the applicant is homosexual, has told anyone in Pakistan that he is homosexual or engaged in homosexual conduct. The Tribunal does not find that there is any risk of harm to the applicant for the reasons he has advanced.”
In doing this the Tribunal did not overlook Mr Jaffri’s evidence.
Mr Zipser submits that Mr Jaffri was able to give first hand evidence that the applicant was assigned as a cameraman to film the madrassa, and that the GEO office received threatening telephone calls aimed at the applicant up until he left Pakistan. The latter, in particular, was not evidence given by the applicant.
The answer to this complaint is that what is set out at [185] (at CB 858.8) and [208] (at CB 863.7) of the Tribunal’s analysis, when read in context with the Tribunal’s entire decision record, does not allow for the inference to be drawn that the Tribunal overlooked this evidence.
This must also be viewed in light of what was said at [187] (at CB 859.5):
“Considering the evidence overall, the Tribunal is lead to a conclusion that having formed a desire to live in Australia the applicant travelled here in 2006 having fabricated the basis of the claim of having been of interest to the Jamia Mazoor-ul-Islamia group in Pakistan. He arranged for the creation of fabricated documentation to support this claim and induced personal acquaintances to assist those claims with evidence that was not accurate. While he may have informed people in Pakistan that he was of interest to those associated with the madrassa before his most recent departure from the country, the Tribunal does not believe this to be the case.”
With this I am satisfied that the Tribunal properly dealt with Mr Jaffri’s evidence. When regard is had to [185] (“… former workmates of the applicant and other personal acquaintances…”) it is tolerably clear that the “fabricated documentation” included that of Mr Jaffri. It was fabricated in the sense that Mr Jaffri reported what the applicant told him, and was thereby induced to give evidence that was not accurate.
In light of this it is not necessary to consider whether this evidence was critical to the consideration of the applicant’s claims. Ground one is not made out.

Ground Two

Ground two is another example, or variant, of the same complaint as in ground one. It complains that Mr Chaowdhury, who was the reporter that the applicant accompanied while filming the madrassa, stated in an email (CB 255) that he had received threatening telephone calls after the report on the madrassa was broadcast. Further, in evidence to the Tribunal he stated that he had been threatened by the people who had been filmed and as a result had to leave Pakistan (see generally CB 814 to CB 815).
The complaint is that the Tribunal failed to consider these claims and, again in the alternative, this evidence.
How what Mr Chaowdhury said could be viewed as the applicant’s claim was never explained, let alone satisfactorily explained. It may have been a claim relating to Mr Chaowdhury and his circumstances, but he was plainly not the applicant. It cannot in any sense be said to be a separate claim as to why the applicant feared persecutory harm.
The applicant’s submissions (both written and oral) contained a number of contradictions that reveal what is otherwise plain on any reading of the material before the Court, and of the Tribunal’s decision record. Mr Chaowdhury’s statements were evidence proffered in corroboration of the applicant’s claims.
An example of this can be seen at [35] to [38] of the applicant’s written submissions to the Court, where the terms “claims” and “evidence” are used loosely and probably interchangeably.
In any event the best argument that I could discern emerging out of the submissions in relation to ground two was that Mr Chaowdhury’s evidence was significant in the assessment of the truthfulness or otherwise of the applicant’s claims. That is, it was highly corroborative of his claims, and was of such critical importance that it should not have been overlooked.
Mr Zipser points to the Tribunal’s analysis at [185] (see [45] above) to argue that the Tribunal rejected only one part of Mr Chaowdhury’s evidence, that is, his evidence that his name had been given to members of the madrassa, and this was supportive of the applicant’s claims.
The argument is that the Tribunal only explicitly rejected “this element” of Mr Chaowdhury’s evidence. The applicant relies on STCB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 61; (2006) 231 ALR 556; (2006) 81 ALJR 485 (“STCB”) at [23] to argue that the Tribunal implicitly accepted the rest of Mr Chaowdhury’s evidence. Its failure to properly consider the remainder of this critical evidence therefore reveals error (Singh, NAJT, SZJQN).
As I respectfully understand the reasoning in STCB at [23], the Tribunal in that case accepted one part of the applicant’s factual account. Its failure to criticise the remainder suggested that the Tribunal made implicit findings that this account was correct.
The distinction with the current case is that the Tribunal did not accept any relevant part of Mr Chaowdhury’s evidence such that it could be said by its silence to have implicitly accepted the truth of the remainder. In fact the Tribunal found that this element of the applicant’s claim had been fabricated over time, thus expressly rejecting the truth of that part of Mr Chaowdhury’s evidence.
Even further, and quite separately as set out in relation to ground one, the Tribunal expressly rejected Mr Chaowdhury’s evidence in its totality. Its finding at [187] that the applicant had “induced personal acquaintances to assist those claims with evidence that was not accurate” speaks for itself and serves as the complete answer to the ground.

Ground Three

In ground three the applicant complains that, in overlooking evidence from a psychiatrist that he suffered from Post Traumatic Stress Disorder (PTSD) and that “the course of the symptoms appeared to be threats from terrorists and an episode when he was attacked”, the Tribunal fell into jurisdictional error in failing to deal with this evidence (CB 546.1).
The psychiatrist’s report is at CB 543 to CB 547. The applicant submits that the Tribunal quoted all of the report in its decision record under the heading “Claims and Evidence” ([70] at CB 803 to CB 806). But in its analysis it refers only to that part of the report dealing with the applicant’s stress, and not with the psychiatrist’s opinion that the course of the symptoms of PTSD were because of terrorists threats.
The applicant acknowledges that in Minister for Immigration and Citizenship v MZYHS [2011] FCA 53 (“MZYHS”), Kenny J rejected the applicant’s contention in the case before her Honour that the Tribunal erred in not considering a psychologist’s report which corroborated the applicant’s account of past persecution.
In submissions before the Court Mr Zipser stated that the “issue” considered in MZYHS was the same issue in the current case.
The argument was that Kenny J rejected the applicant’s submissions for three reasons (at [28] of MZYHS).
The first was that in that case the subject of consideration was evidence, and not an integer of the applicant’s claims (at [29]). Mr Zipser conceded that also applied to the current case.
The second was that her Honour was not persuaded that the Tribunal failed to consider the corroborative effect of the relevant report (at [30]).
Mr Zipser’s submission was that such consideration should be had with reference to the circumstances of each particular case. In the current case the submission was that the report was clearly corroborative of the applicant’s claims and that there is no reference to the report in the “Findings and Reasons” other than that in [181] (at CB 857.8) of the Tribunal’s analysis.
The answer to this complaint is that, as Mr Godwin submits, what can also be drawn from MZYHS is that the fact that the Tribunal did address some aspects of the report in its analysis (noting this was not just in the setting out of the evidence and claims) works against any inference being drawn that the Tribunal overlooked the corroborative effect of the report.
In the current case the Tribunal made very clear and emphatic findings adverse to the applicant’s credit. The Tribunal found that the relevant parts of the applicant’s claims had been fabricated over time. It rejected that any attack or threats had been made against the applicant. In these circumstances there was no obligation on the Tribunal to set out why it did not accept what really amounts to a piece of competing evidence (NABE, MZWBW, Paul, and SZNPG at [21] to [28]).
Even if the above is not sufficient (which in my view it is), what disposes of this ground is the third reason given by Kenny J in MZYHS at [32]. That is, that there is no jurisdictional error even if the Tribunal had failed to take the report, or an aspect of it, into account. (See MZYHS at [32], the reference to SZNPG at [28] to [29] and at [33], and the reference to Subramaniam v Minister for Immigration and Multicultural Affairs [2002] FCAFC 255, Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268, VMAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 21 at [27] to [29], VGAP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1607 at [34], and Rezaei v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1294 at [57].)
Ground three is not made out.

Ground Six

In ground six the applicant asserts that one of the reasons the Tribunal rejected the applicant’s claims was because of assertions in a letter received by the Tribunal from an unknown person. A copy of this letter was put before the Court by the applicant (Applicant’s Exhibit 1).
Mr Zipser took the Court to the letter to note that whoever wrote the letter knew much detailed information about the applicant and about his claims to fear persecutory harm.
The attack on the Tribunal was that its reasoning in relation to the letter was flawed in a way that revealed jurisdictional error.
The relevant parts of the Tribunal’s analysis are set out at [182] (at CB 858.2) to [183] (at CB 858.3) of its decision record:
“[182] In this context also the Tribunal has considered the content of the allegation about the applicant’s conduct which was communicated on an anonymous basis to it. This allegation was that the applicant’s claims of his past experiences were fabricated and that he did not have the experiences claimed. As was submitted, such allegations must be treated with extreme caution by the Tribunal as the information in them is untested and the author’s motivations completely unknown to the Tribunal and possibly the applicant.
[183] The applicant has claimed that this allegation has been made by a former friend, a person to whom he made a sexual advance and who wishes him ill. In the Tribunal’s view, considering the evidence overall regarding the applicant’s claims in respect of feared harm from members of the madrassa, the allegation is believable and supports the Tribunal’s assessment of the applicant’s claims. In the Tribunal’s view, the available evidence independently, and for the reasons above, points to an applicant who has a desire to live in Australia and who has fabricated a claim to need Australia’s protection. The fact that a fairly detailed allegation is received to this very effect is also supportive of the ultimate conclusion. That the allegation was made by a person who wishes the applicant ill is undoubted, but the fact that the allegation is able to detail the nature of the fabrication which is supported by an analysis of the evidence provided by the applicant points to that allegation being true.”

At best as it could be understood, the thrust of the complaint is that the Tribunal’s analysis was illogical, thus revealing error. The illogicality was said to be revealed in the following way:
1)The Tribunal accepted that anonymous allegations needed to be treated with great care because the information was untested and the author’s motivation was unknown.
2)In spite of this, the Tribunal made a finding that the allegation in the letter was true. The Tribunal’s reasoning was said to be that this was so because the allegation was detailed. Mr Zipser’s submission was that this was no basis to support the conclusion that the allegations were true.
3)Part of this submission also was that the Tribunal should have engaged in some broader analysis of the contents of the letter and compared this to some of its relevant findings, even those that could be implicitly drawn from the remainder of its analysis.
The applicant relied on SZIEW v Minister for Immigration and Citizenship [2008] FCA 522. The submission was that in that case Madgwick J found error of law where a Tribunal rejected a piece of evidence on the basis that it was hearsay. His Honour found this to be irrational (see at [14] to [19]).
By analogy therefore, albeit in a converse situation, it was irrational of the Tribunal in the circumstances to accept the truthfulness of the allegations on the basis that it did.
The applicant sought to expand the scope of the attack by referring to SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [19] with the proposition that if the Tribunal makes a finding, and there is no evidence to support that finding, then this may well constitute jurisdictional error.
Further, that in Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41; (1980) 31 ALR 666 (at 682, 685, 688 to 690) Deane J, in setting out a minimum standard for evidence on which a Tribunal may rely, stated that as a matter of law a Tribunal is bound to act on the basis that matters before it need to be established on the balance of probabilities to its satisfaction “by some rationally probative evidence.” (At 685.)
Finally, the applicant referred to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367; (2010) 84 ALJR 369 (“SZMDS”). While there was some emphasis in submissions on the joint judgment of Gummow ACJ and Kieffel J, Mr Zipser agreed that this Court would follow the test for illogicality set out in the joint judgment of Crennan and Bell JJ, who with Heydon J allowed the Minister’s appeal from the Full Federal Court.
In this light the submission was that while the test to be applied was that a Tribunal decision is not illogical if there is probative evidence before it which can give rise to different processes of reasoning (on which minds may differ, see per Heydon J), in the current case there was no probative evidence to support the truth of what was alleged in the letter. The Tribunal’s reasoning was therefore illogical.
The difficulty for the applicant is to be found in his initial reading of the Tribunal’s analysis. The applicant says that the Tribunal’s findings in relation to the letter were integral and not severable to its rejection of the credibility of the applicant’s claims.
I do not agree. On any plain, let alone fair reading, the Tribunal, independently of the letter, reached its view that the applicant had, over time, fabricated his claims to fear harm from the “terrorists” associated with the madrassa. As the Tribunal makes clear at [183] (at CB 858.4), the allegation in the letter “supports the Tribunal’s assessment of the applicant’s claims”, such assessment having been derived from a number of other sources and matters (see [169] at CB 855.3 to [181] at CB 857.8).
Mr Zipser focussed on the Tribunal’s use of the word “overall” (as in “considering the evidence overall…” at [187] (at CB 859.5) and see also its use at [183]), to argue that the Tribunal’s adverse finding as to the applicant’s credit was based on the evidence “overall”. That is, including the letter.
There is a need to be reminded about what the High Court said in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568, that Tribunal decisions should not be read with an eye finally attuned to error.
Any plain, holistic reading reveals that the Tribunal plainly found adversely to the applicant based on a range of other factors. The matter of the letter was seen as being supportive of its conclusion. The letter was not a critical part of the Tribunal’s reasoning. Nor can it be said that the Tribunal’s central analysis was contaminated by, or dependant on, its conclusion about the letter.
In short, even if some legal error did exist in its dealing with the letter, I cannot see that it would be such as to amount to jurisdictional error given that the bases of the Tribunal’s conclusion remained untouched by any such error (VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965).
In any event, I cannot see error in the way asserted by the applicant now. The letter was one piece of evidence before the Tribunal. The weight to be accorded to the letter is a matter for the Tribunal (Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 273 ALR 122; (2010) 85 ALJR 306). The allegation that there was no probative evidence before the Tribunal to support its findings that the allegations in the letter were true is not made out. That probative evidence was the letter itself, what was said in the letter, and the evidence of the applicant about the letter. The Tribunal’s finding that what was said in the letter was truthful in its allegations was based on the analysis of the presentation and content of the letter and the applicant’s explanation as to why, perhaps, the letter was sent, and by whom (a person who spurned his homosexual advances). This was probative of its finding.
Mr Zipser submitted that the Tribunal’s analysis contained factual errors and inconsistencies in relation to the letter. Even if that were the case, any wrong finding of fact, on its own, does not give rise to jurisdictional error. (See MZYHS at [24], Htun at [42] per Allsop J, with whom Spender J agreed, Applicant WAEE at [46], NABE at [63], SZNPG at [21] to [28] per North and Lander JJ, with whom Katzmann J agreed at [35], and Paul at [79] per Allsop J, with whom Heerey J agreed.)
In any event, I could not see that any such factual errors were made. The errors asserted appear to be that the letter stated that the applicant provided false information to come to Australia (that he was sent by GEO to film cricket matches in Australia), yet he was in fact employed by GEO as a cameraman (CB 69). The submission was that the letter was inconsistent in itself because it also stated that he was employed by GEO (see between [1] and [5] of the letter). This latter was said to have also been implicitly accepted by the Tribunal elsewhere in its analysis.
The difficulty for the applicant now is that he never claimed to fear persecutory harm in Pakistan simply and solely because he was a cameraman. The claim was that he feared harm from extremists in Pakistan associated with a madrassa where he had filmed a news report.
The Tribunal rejected the applicant’s claim to fear such harm because it found adversely to the applicant’s credit. It found that he had developed his account over time to create the basis for his application to protection. In this, the Tribunal found he had fabricated documentation and induced others to assist with these false claims.
The Tribunal’s reasoning leading to the rejection of the applicant’s documents as fabrications was lengthy ([170] to [176]).
In this light there is no inconsistency between paragraphs [1] and [5] of the letter. Plainly the allegation was that he was a junior cameraman employed by GEO (a fact apparently accepted by the Tribunal) and he used this to access his employer’s stationery to fabricate a letter to support his application for a visa to travel to Australia. This is not inconsistent with any relevant finding made by the Tribunal.
Further, that the Tribunal implicitly found that he was a cameraman employed by GEO is not inconsistent with the assertion in the letter, which the Tribunal accepted as true, that he had not been given the assignment of filming at the madrassa.
In these circumstances none of the authorities cited by the applicant assist him. The Tribunal’s quite separate findings are reasonably open to it on what was before it. The applicant had fabricated documents, had lied about his claimed experiences, and had induced others to support him in this. All of this provides the probative basis for the Tribunal to find, given the consistency of what was alleged in the letter with its other findings, that what was asserted in the letter was to be accepted as true.
This fails the test in SZMDS to show illogicality on the part of the Tribunal. There was more than sufficient evidence before the Tribunal to say that, in relation to this material, minds may indeed differ. For that matter, nor in these circumstances is there illogicality in the sense of the test propounded in the joint judgment of Gummow ACJ and Kiefel J.
Ground six is not made out.

Conclusion

In all, the applicant, with the benefit of the assistance of counsel, has not shown jurisdictional error in the Tribunal’s decision. To succeed before the Court he would at the very least need to have done so. In these circumstances the application, as amended, is dismissed.

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 20 April 2011