Case: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396
Outcome: applied
A Tribunal is required to take into account a relevant consideration only if what is put forward as the consideration is something it is bound to take into account in making its decision. In Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at [78] - [79] Allsop J, with whom Heerey J agreed, said: "Once it is accepted that the Tribunal dealt with the subject matter or element of the claim [to fear persecution based on the appellant's Tamil ethnicity], it becomes apparent that the real complaint of the appellant must be that the Tribunal failed to expressly deal with the evidence referred to in [his solicitor's] letter of 19 November 1999 and should have, somehow, preferred that material to the countervailing evidence (which it was accepted existed) which supported or tended towards the position adopted by the Tribunal .... Thus expressed, it becomes plain that it cannot be a question of the failure to take into account a consideration made compulsorily relevant by the Act or regulations .... Whatever may be the outer boundaries of relevant and irrelevant considerations ..., they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed." 14 The Tribunal's reference to the letters follows immediately after its statements of the findings set out at [11]. It is implicit in the paragraph relating to the letters, which also appears at [11], that the Tribunal was aware that the appellant wanted to rely on them to support his claim to have been suspected of involvement in the bombing and the detention that he says ensued as a result of that suspicion. As appears from the summary of the letters at [6], they passed between the appellant and his wife and the Sri Lankan authorities. They were written during the period of the appellant's alleged detention in 1987/1988. They related to his suspected involvement in the bombing and his subsequent detention. The passage in the Tribunal's reasons quoted at [11] thus fits in every respect with the summary. Although the Tribunal member could not read the letters, the appellant's affidavit filed in the Magistrates Court discloses that he informed the Tribunal that the letters were correspondence between him and his wife and the authorities written while he was in detention, and that they vouched for his case because they proved the time he was in detention. What the Tribunal intended to convey in the last two sentences of the passage at [11] is clear enough. The first is concerned to make the point that the information in the letters could not overcome the problems with the appellant's evidence (collected in the paragraphs immediately preceding that concerned with the letters), that led it to make the findings summarised at [11]. The second sentence is intended to convey that, because of the problems with the appellant's evidence, the information in the letters was not credible. 15 It is plain, therefore, that there is nothing of relevance in the letters of which the Tribunal was not apprised before it came to its conclusion. The only matter in the letters that the Tribunal had not recorded earlier in its reasons was that they bore dates corresponding with the time the appellant said he was in detention. Therein lay the possible importance of the letters to the appellant. They did more than recite facts he had propounded on several occasions already. He relied on the letters to point up that while he was in detention he was asserting that the authorities' suspicion of his involvement in the bombing was ill-founded. The Tribunal did not only indicate that the letters recorded his contentions about the authorities' suspicion of his involvement and his wrongful arrest and detention. It indicated as well that, if the letters were authentic, they showed that the appellant and his wife were asserting this shortly after his detention. The arrest and detention were in mid-February 1988 and the wife's letters were in March of that year. The appellant's own letter was in November 1988, which is not particularly contemporaneous. In any event, in the passage at [11] the Tribunal showed its awareness that the letters were more or less contemporaneous with the detention and were thus capable of being relied on as an answer to any claim of recent invention. However the letters remain items of evidence and not either the ground upon which the appellant sought protection or an essential integer of that ground. Although the Tribunal was thus not bound to take them into account, it did so. The Magistrate correctly rejected the claim that the Tribunal had ignored or failed to take into account a relevant consideration.