Case: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51
Outcome: referred to
Counsel for the appellants referred me to NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [212] , where Madgwick J found as follows, and with which I expressed substantial agreement: 'There was no independent requirement on the delegate so to check. Nevertheless, given the potential importance of the letter and the delegate's fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. A decision-maker cannot be said to "have regard" to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389 ; (2001) 109 FCR 152 at [58] , a "decision-maker may be aware of information without paying any attention to it or giving it any consideration". In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration had in Black CJ's phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in "an active intellectual process" in relation to the letter yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so.' Upon the footing of that dictum , counsel for the appellants contended that whenever the Tribunal states that it will have regard to something of significance, it must engage in an '... active intellectual process... you can't make a fleeting reference'. It was further submitted that the Tribunal erred by not considering the particular social group to which the appellant husband belonged in order to be able to properly assess the nature and extent of the appellant husband's subjective fear of persecution. That particular social group was said on behalf of the appellants to include 'a person who is professionally and visibly associated with a prominent politician who had changed parties'. 25 In relation to the appellant's reliance on NAJT [2005] FCAFC 134 ; 147 FCR 51, counsel for the Minister submitted that unlike the circumstances of the present proceedings, the Court in NAJT was there addressing a situation where the Tribunal 'was asserting in effect that [the applicant had] given nothing in support of [his] claim when in fact he had put something in support of his claim...[and] not surprisingly it was open to the Court to say...where there is a [matter] directly relevant to a critical issue of your claim, then the failure to deal with it was a jurisdictional error'. 26 For reasons apparent from what I have already pointed out or else determined, I have reached the view, after giving the issues arising at the instance of the appellants and the Minister much thought, that there is sufficient basis for the operation here of those principles adversely to the Minister's case, in the sense of failure to deal with a matter of relevance sufficiently or adequately in the particular circumstances of this case. The appellants' case the subject of par 1(c) of the appellants' amended notice of appeal above, does not appear to have been sufficiently addressed in the presentation of the Minister's case, at least largely for the reasons the subject of par 1(d) above. 27 The Minister's submissions upon the first and second grounds raised in the appellants' amended notice of appeal seem to me to have been somewhat too clinical in approach, and to fall short of coming adequately to issue with the nature and contextual significance of the events purportedly addressed by the Minister in that regard, being events, viewed in terms of their physical occurrence, the credibility whereof was not to my understanding the subject of dispute. 28 In relation to the third ground of appeal raised in the amended notice of appeal, counsel for the appellants submitted that the Tribunal's finding, to the effect that the threats the appellant husband received were not attributable to political reasons, was made 'in relation to the threats arising from [the] 1999 videotaping incident and not from the fact that, after appearing at the media conference on 1 May 2004... the appellant received "real threats"'. Counsel for the appellants further submitted that 'it was incumbent on the Tribunal to consider whether the appellant had a well-founded fear of persecution by reason of the 1 May 2004 media conference and after which the appellant claimed that is when the "real death threats took place" by reason of the fact that he was perceived as changing parties in concert with...the former Foreign Minister of Sri Lanka'. It was contended that jurisdictional error arose out of the Tribunal's failure to consider whether there was a real chance the appellant would be persecuted by reason of his affiliation and association with the former Foreign Minister. 29 Summarising the significance of the findings of the Tribunal, counsel for the Minister submitted that the Tribunal found the 1999 incident to have been criminally rather than politically motivated. Counsel further submitted that the 'Tribunal asked the appellant husband to elaborate on the threats he had received in 2004 and, in relation to the threat received on 1 May 2004, it transpired that what was said could not be characterised as a threat'; and that the 'Tribunal indicated that even if it accepted that he had received the death threats as he claimed, they referred back to the 1999 incident and did not have a political motive'. I have encountered considerable difficulty as to the viability of that indication on the Tribunal's part, for reasons I have already foreshadowed.