ANC16 v Minister for Immigration
[2018] FCCA 1598
•19 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANC16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1598 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal considered all of the applicant’s claims – whether the Tribunal failed to make an inquiry it was bound to make – whether the Tribunal’s decision was irrational or unreasonable. |
| Cases cited: AMT15 v Minister for Immigration and Border Protection [2018] FCA 366 |
| Applicant: | ANC16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 467 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 2 May 2018 |
| Date of last submission: | 2 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 19 June 2018 |
REPRESENTATION
| Counsel for the applicant: | Anthony Krohn |
| Solicitors for the applicant: | Ambi Associates |
| Advocate for the first respondent: | Melinda Jackson |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Australian Government Solicitor |
ORDERS
The application filed on 9 March 2016 and amended on 9 April 2018 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 467 of 2016
| ANC16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant’s claims
At paragraph 4 of his written submissions to this court, the applicant summarised his claims as follows:
a)The Applicant is a national of Sri Lanka and of no other country. (CB 58)
b)He has no right to enter and to reside in any other country. (CB 58)
c)The Applicant is of Tamil ethnicity and a Sri Lankan citizen. (CB 58)
d)The applicant is Hindu. (CB 58)
e)The Applicant had a brother who was a member of the LTTE (CB 61)
f)The army would come regularly to find out about the brother in the LTTE. (CB 61)
g)In 2006 a cache of weapons was found by the army near the back of the family’s house. The applicant and his family were hit with sticks for half an hour. They fled, and the applicant hid in an aunt’s house, but was found, punched in the face, had a tooth broken and was taken by the army to their camp, and interrogated and tortured. He was released after a night of torture, and could hardly [walk]. (CB 62- 63)
h)The applicant complained to the Human Rights Commission, and soon after CID personnel came to demand that he report to their camp, with his brother who is the Applicant ANB16.
i)He went to report, and was initially told to report three times daily, but after another complaint to the Human Rights Commission the reporting frequency was reduced. (CB 64)
j)After 9 months he no longer had to report, but was required to present himself on demand, and this happened every month or two from 2008 to 2012. (CB 64)
k)In 2012, he decided … to leave. He did so in 2012. (CB 76)
l)The Applicant claimed to fear harm as a person on return to Sri Lanka, because of the weapons cache and the implication of involvement with the LTTE. (CB 65)
m)After coming to Australia with his brother ANB16, another brother was detained and questioned and beaten over three months. (CB 144-145)
n)The applicant cannot avail himself of the protection of the state. (CB 65)
o)He fears [the] government of Sri Lanka, and cannot relocate within Sri Lanka. (CB 66)
p)The applicant fears harm including that he will be killed. (CB 65)
q)ANB16, a brother of the applicant also applied for protection, and also sought review by the Refugee Review Tribunal. That Tribunal constituted by the same member as the one who made the decision in the present matter, also rejected the applicant’s brother’s application, primarily because it also found that the applicant’s brother was not a witness of truth. (CB 258, [47]) (footnote omitted)
The Tribunal’s reasons for decision
In his written submissions to this court, the applicant summarised the Tribunal’s reasons for decision as follows:
6.The Tribunal accepted that the applicant may have a brother who was in the LTTE, but known as such to the authorities for a long time, and that there was a cache of weapons found in 2006, but, unlike the delegate (CB 107-111), rejected all the Applicant’s major claims as it found he was not a witness of truth, and did not accept that the applicant had ever had the problems he claimed. (CB 262, [59])
7.The Tribunal noted the investigations conducted on returned failed asylum seekers, but was not satisfied that the applicant would suffer serious harm or significant harm in this process, [nor] that the authorities would consider his departure from Sri Lanka to have confirmed a previously imputed LTTE profile because he was not imputed with such a profile before he left Sri Lanka. (CB 264, [63])
8.The Tribunal noted that prison conditions in Sri Lanka were poor, but did not consider that if the applicant spent a brief period in prison as a person who had illegally departed from Sri Lanka this would amount to serious harm such as to be persecution, such that the applicant was a person in respect of whom Australia owed protection obligations under the Refugees Convention. (CB 265-266)
9.The Tribunal also was of the view that any harm the applicant might suffer in prison would not be intentional such as to be torture, cruel or inhuman or degrading treatment or punishment such as to be “significant harm” within the meaning of the Act, and to give rise to a right to complementary protection under the Act. (CB 266-269)
Ground 1
The first ground of review in the application filed on 9 March 2016 and amended on 9 April 2018 is:
The Tribunal fell into jurisdictional error in that it failed to consider relevant considerations, including claims, or integers of claims, or information required by the Act and the law to be considered.
The particulars to ground 1 comprised three paragraphs, which I will consider separately.
Ground 1(a)
The first particular to ground 1 is as follows:
The Tribunal excluded the evidence of the applicant’s brother, in an application heard and determined by the same Tribunal member as in the present matter, in so far as it may have undermined the applicant’s credibility, but it failed to consider whether the evidence and claims of the applicant’s brother may have tended to confirm the evidence and claims of the Applicant. (Court Book 258, [47]). (The Applicant’s brother’s relevant application to the Tribunal was in Tribunal file [number omitted], and was later the subject of an application for judicial review in ANB16 v Minister for Immigration and Another, MLG 466 of 2016)
This aspect of ground 1 concerns paragraph 47 of the Tribunal’s reasons for decision, which is as follows:
As I foreshadowed to [the applicant] at the beginning of the hearing before me in relation to his case on 25 November 2015, I also took evidence from his brother [ANB16] at a hearing on 27 November 2015. As referred to in my statement of reasons in relation to [ANB16’s] case (Case Number [number omitted]) there were inconsistencies between his evidence and [the applicant’s] evidence which mean that he and his brother do not benefit as they would have done if they had independently given mutually corroborative evidence. Since for the reasons set out below and in my statement of reasons in relation to [ANB16’s] case I do not accept that either of the brothers is a witness of truth, I do not regard [ANB16’s] evidence as undermining that of his brother nor do I regard [the applicant’s] evidence as undermining that of his brother [ANB16].
The Tribunal found that both the applicant and his brother, ANB16, were not witnesses of truth. The Tribunal did not rely on the differences between the evidence given by the applicant in the present matter, and the evidence given by his brother, ANB16, in his matter, to reject the credibility of the applicant.
However, the applicant noted that there were a number of paragraphs in the statutory declarations of the applicant and ANB16 which were word for word identical, and other parts of their statutory declarations that were broadly consistent and dealt with the same alleged incidents. The applicant argued that, in these circumstances, it was necessary for the Tribunal to consider whether the similarities between the statutory declarations made by the applicant and ANB16 bolstered the applicant’s credibility.
The Minister submitted that the Tribunal plainly considered the evidence of ANB16. The Minister implied that nothing more was required of the Tribunal. The Minister submitted that the applicant’s complaint was that the Tribunal did not believe the evidence that was given by ANB16, and further submitted that the court could not substitute its own view of the evidence.
Obviously, the fact that a number of the paragraphs of the statutory declarations made by the applicant and his brother were identical casts doubt on the authenticity of their claims, because it raises the possibility that the statutory declarations were not in the declarants’ own words, but were constructed for them. However, I leave that possibility aside. It is for the Tribunal to determine such things.
Notwithstanding the similarities, and indeed, in some parts, the substantial identity, of the statutory declarations of the applicant and his brother, the Tribunal expressly found that they did not corroborate each other. That can only mean that, in the areas that mattered, the Tribunal considered that they did not corroborate each other.
In these circumstances, it was unnecessary for the Tribunal to expressly state that it had considered whether the commonalities in the evidence of the applicant and his brother tended to confirm the applicant’s evidence. The Tribunal clearly considered that the commonalities were insufficient to persuade it that the applicant and his brother were witnesses of truth. Findings of that nature are matters for the Tribunal.
This aspect of ground 1 is not made out.
Ground 1(b)
The second particular to ground 1 is as follows:
The Tribunal found that the Applicant was not a witness of truth, but it did not consider as a possibility whether the discrepancies it observed in the applicant’s evidence may have been the result of the torture and trauma he claimed to have suffered, rather than the result of invention of false claims. (CB 258, [47]; CB 260, [54])
This aspect of ground 1 concerns paragraph 47 of the Tribunal’s reasons for decision, which is set out above, and paragraph 54 of the Tribunal’s reasons for decision, which is as follows:
As referred to above, [the applicant] claimed for the first time at the hearing before me that before he left Sri Lanka he had been subject to a signing regime, by which he said he meant that he had been required to sign once every three months and if the CID had ever come and had told him that he had to come and sign he had had to abide by their wishes. He also claimed for the first time that [Mr X, another of the applicant’s brothers] had been questioned about the fact that he ([the applicant]) and his brother ([ANB16]) had got away from the country and their connections with the LTTE. He referred to the fact that his [other] brother [Mr Y] had had LTTE connections and he said that some of the inquiries being made now referred to him having been part of that link. I consider that if there were any truth to these claims they would have been mentioned in his statement which he made on 20 November 2015, very shortly before the hearing, in which he raised for the first time his claim that his brother [Mr X] had been arrested, detained and tortured and that he was still being required to report to the Terrorist Investigation Division. I consider that the claim that [the applicant] was subject to a signing or reporting regime at the time he left the country and that he will therefore be regarded as having left the country without permission is a recent invention and I do not accept that it is true. I do not accept that it is true that, as he claimed at the hearing before me, his brother [Mr X] told him that they had kept bringing up his name during the investigation and that they wanted to find out were (sic) he was, where he had gone and if he wanted to come back. I consider that the fact that [the applicant] has been prepared to invent such a claim is also relevant to his overall credibility.
The applicant submitted that he had claimed to have suffered severe torture, and the Tribunal should have considered whether this was the reason that he had difficulty in recalling details.
The Minister submitted that the Tribunal did not accept that the applicant had suffered torture, so it could not be said that the Tribunal failed to take into account the claim of torture.
It was not suggested that the applicant had expressly claimed that he could not remember details because he was tortured. The applicant put this ground on the basis that the possibility that the applicant could not remember details because he was tortured was an issue that arose on the materials, and therefore the Tribunal should have considered it.
There were certainly claims that the applicant had been tortured. However, the Tribunal rejected those claims. Therefore, the possibility that the applicant had difficulty remembering details because he was tortured did not arise on the accepted facts. Therefore, there was no need for the Tribunal to consider that possibility.
This aspect of ground 1 is not made out.
Ground 1(c)
The third particular to ground 1 was as follows:
The Tribunal relied on the report by DFAT to the effect that in most cases returning persons suspected of departing Sri Lanka illegally have been granted bail immediately on appearance in Court (CB 265, [66]; CB 267, [73]), but did not consider whether, as the DFAT report said may be required, there was a family member available and willing to be guarantor for his bail. (CB 233, DFAT report, 5.33)
This aspect of ground 1 concerns paragraphs 66 and 73 of the Tribunal’s reasons for decision, which are as follows:
66. As I put to [the applicant], the Australian Department of Foreign Affairs and Trade has advised that in most cases people suspected of having departed Sri Lanka illegally have been arrested by the police at Colombo international airport. They have been transported to the Magistrates Court in Negombo at the first available opportunity and in most cases they have been granted bail immediately by the magistrate. As I put to him, the Department has said that as of March 2014 (updated to July 2015 in the report issued on 18 December 2015) no returnee who had just been a passenger on a people smuggling venture had been given a prison sentence for departing Sri Lanka illegally but that fines had been issued.28 As I put to [the applicant] I take the view that this whole process - his being arrested, charged, released on bail and fined - is the result of the non-discriminatory enforcement of a law which applies generally to everyone in Sri Lanka and that it therefore lacks the necessary connection with one or more of the five reasons in the Refugees Convention. For the reasons given above I do not accept that there is a real chance that he will be singled out, or treated differently, from any other returnee who was just a passenger on a people smuggling boat for one or more of the five Convention reasons or specifically because his brother [Mr Y] was in the LTTE or because explosives and weapons were found in Madduvil in September 2006.
28DFAT Country Report – Sri Lanka, 16 February 2015, paragraphs 5.27-5.28, and see now DFAT Country Information Report – Sri Lanka, 18 December 2015, paragraphs 5.32-5.33.
…
73.As I put to [the applicant], the information available to me suggests that he will only be held at the Negombo Prison for a brief period, for example because a magistrate is not available due to a weekend or a public holiday.30 As I put to him, the Australian Department of Foreign Affairs and Trade has advised that allegations of mistreatment of returnees have not been substantiated. It has said that it is not aware of allegations of mistreatment of returnees while on remand.31 [The applicant] said that he had suffered a lot under the CID because of their torture and their very aggressive way of carrying out investigations. He said that the allegation of his brother having brought weapons and buried them behind their house kept repeating over and over again. He said that this would resurge again upon his. arrival when they started carrying out those investigations. He said that his brother [Mr X] had told him on the day before the hearing that he would be approached by the CID at the airport because they had kept bringing up his name during their investigation. They had wanted to find out where he was or where he had gone and if he wanted to come back. He said that beyond the airport, if he went home, the CID would be there to investigate him. However I do not accept, having regard to my findings of fact above, that [the applicant] was told this by his brother [Mr X], nor that he had the problems which he claims to have had in Sri Lanka. Having regard to my findings of fact above I do not accept that [the applicant] was of any interest to the Sri Lankan authorities at the time of his departure from Sri Lanka, nor do I accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm at the hands of the CID or Sri Lankan authorities more generally.
30DFAT Country Report – Sri Lanka, 16 February 2015, paragraph 5.27, and see now DFAT Country Information Report – Sri Lanka, 18 December 2015, paragraph 5.32; ‘Sri Lanka: Asylum denied, a penalty waits at home’, Sydney Morning Herald, 8 December 2012, CX300741.
31 DFAT Country Information Report No. 12/67, dated 29 November 2012, CX299951, R.2; DFAT, ‘Sri Lanka: RRT Country Information Request LKA41955 – Treatment of returned failed asylum seekers’, 28 March 2013, CX305410; and see now DFAT Country Information Report – Sri Lanka, 18 December 2015, paragraph 4.23.
This aspect of ground 1 also concerned a passage from paragraph 5.33 of a report from the Department of Foreign Affairs and Trade dated 18 December 2015 regarding Sri Lanka,[1] which is as follows:
In most cases, when a returnee pleads not guilty, returnees are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor.
[1] CB233.
The applicant argued that the Tribunal failed to consider whether the applicant had a family member who could act as a guarantor and thereby fell into an error similar to the error identified in Minister for Immigration and Border Protection v SZTQS (2015) 148 ALD 507; [2015] FCA 1069. In that case, Griffiths J said:
44. These matters provide an adequate basis for the primary judge’s finding at [50] of her reasons for judgment to the effect that the Tribunal’s reasons “clearly show that the conclusion that the applicant would be granted bail was based on the RRT’s acceptance that a member of the applicant’s family would be needed to provide surety for the applicant”. Thus, applying SZBEL, her Honour found that the Tribunal had fallen into jurisdictional error by failing to identify this issue and invite SZTQS’s comments.
45. It is necessarily implicit in the primary judge’s conclusion in [45] of her Honour’s reasons for judgment that a “crucial plank” in the Tribunal’s reasoning was its earlier finding that a member of SZTQS’s family would provide surety for him and that he would be bailed and, accordingly, not be detained for long. I am not satisfied that the Minister has established appellable error. Having regard to the terms of the Tribunal’s reasons for decision in [46] and [51], I consider that no error has been demonstrated in the primary judge’s conclusion that the Tribunal made a finding that a member of SZTQS’s family would provide surety for him and that, accordingly, he would only be detained for a short period.
…
60.The question of whether a family member would provide surety for SZTQS was a crucial link in the Tribunal’s chain of reasoning, and was an issue that, in order to comply with s 425(1), the Tribunal had to identify to SZTQS. …
The error in SZTQS was an error of the type identified in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; (2006) 231 ALR 592; (2006) 81 ALJR 515; [2006] HCA 63, which was not alleged in the present case. However, the applicant argued that the question of whether the applicant had a family member who could act as guarantor was a crucial link in the Tribunal’s chain of reasoning, and by failing to deal with it, the Tribunal fell into error.
The Minister argued that this aspect of ground 1 should be rejected because the applicant did not claim that he did not have a family member who could act as guarantor for him and the claim did not arise on the materials because it was the applicant’s evidence that he had numerous family members in Sri Lanka. The Minister said that the applicant made no such claim even though the relevant country information was put to him at the hearing and in a post-hearing invitation to comment.
The Minister also argued that the Tribunal impliedly considered and rejected any claim that the applicant did not have a family member who could act as guarantor because the Tribunal said at [74] of its reasons for decision:
Having regard to what I have found to be his circumstances, I consider on the basis of [the DFAT] advice that there is only a remote chance that he will have to spend any longer than a fortnight in gaol on remand.
The Minister submitted that the applicant’s circumstances should be taken as including his family circumstances. The Minister also argued that the applicant’s reliance on SZTQS was misplaced, as that case concerned an SZBEL-type error, which was not alleged in the present case.
The Minister also argued that the Tribunal advanced separate bases for rejecting any claim relating to guarantors. Those bases were that holding illegal emigrants in remand in Sri Lanka:
a)occurred pursuant to a law of general application that was not applied in a discriminatory manner, so did not engage the Refugees Convention[2]; and
b)occurred without the intention necessary to engage the complementary protection regime[3].
[2] Paragraph 66 of the Tribunal’s reasons for decision.
[3] Paragraph 75 of the Tribunal’s reasons for decision.
The points made in the previous paragraph are a complete answer to the third aspect of ground 1. I also accept that the relevant claim was not made, and nor did it arise on the materials. The reliance on SZTQS was misplaced, as it concerned a type of error that did not arise in the present case. Consequently, this aspect of ground 1 is not made out.
Ground 2
The second ground of review in the application filed on 9 March 2016 and amended on 9 April 2018 is:
The Tribunal fell into jurisdictional error in that if failed to make inquiries as required by law, whether by the exercise of its power under section 424 of the Act to get information or otherwise.
Particulars
The Tribunal failed to exercise its power to get information or evidence in that it did not inquire of the Red Cross for verification that one of his brothers in Sri Lanka had been detained in or about 2014 and beaten and interrogated for three months. (CB 144; CB 261, [57]
The applicant argued that, if there is an obvious inquiry about a critical fact, the existence of which is easily ascertained, then the Tribunal may have a duty to make that inquiry, and a failure to do so may be a jurisdictional error. For that proposition, the applicant relied on Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; (2009) 259 ALR 429; (2009) 83 ALJR 1123; [2009] HCA 39 at [25], where the High Court said:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. … (footnote omitted)
Ground 2 concerns paragraph 57 of the Tribunal’s reasons for decision, which is as follows:
As likewise referred to above, [the applicant’s] brother also said at the hearing on 27 November 2015 that the other thing was that I had not believed that his brother [Mr X] had been taken by the army but the Red Cross had given a letter confirming that. He said that there were phone numbers to contact them and the Tribunal could verify this too. [The applicant’s] brother said that there was no date on this letter from the Red Cross: only his brother’s name and file number were there. On 15 January 2016 [the applicant’s] representative produced a copy of a card issued the International Committee of the Red Cross in Sri Lanka. [The applicant’s] representative said that he would contact [the applicant’s] brother to see if he had a letter from the Red Cross but no such letter was forthcoming. The card issued by the International Committee of the Red Cross in Sri Lanka gives a reference number and a name but no telephone numbers and having regard to the problems which I have identified with [the applicant’s] evidence I have not considered it necessary to pursue inquiries either with the Red Cross or with the Human Rights Commission of Sri Lanka as proposed by [the applicant’s] brother. The Tribunal is not required to make out an applicant’s case for them and the Tribunal is not generally obliged to investigate claims by making inquiries outside the material presented to it by the applicant.19 I do not accept on the evidence before me that this is a case where an obvious inquiry could be made about a critical fact, the existence of which could readily be ascertained. I note that there is no suggestion that [the applicant’s] representatives made any inquiries of either the Red Cross or the Human Rights Commission of Sri Lanka to ascertain what evidence either of these bodies might be prepared to provide nor did [the applicant] himself request that the Tribunal take oral evidence from either of these bodies in accordance with section 426 of the Migration Act 1958.
19 See SZNWA v Minister for Immigration and Citizenship [2010] FCA 470 at [41] per Foster J and the authorities cited there; Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; SZNBX v Minister for Immigration and Citizenship [2009] FCA 1403.
As explained by the Tribunal, the applicant claimed that there was a letter from the Red Cross confirming his claims about his brother. However, the applicant did not provide such a letter to the Tribunal. Following the hearing, the Tribunal emailed the applicant’s representative, saying:
… at the hearing in relation to the applicant’s case on 27 November 2015 the applicant had a receipt from the Human Rights Commission and a letter from the Red Cross which it was agreed would be produced to the Tribunal.
As of today’s date neither of these documents have (sic) been received. Please advise the Tribunal if you are intending to produce … the missing documents as was agreed at the … [hearing][4].
[4] Annexure CA-4 to the affidavit affirmed by Chellappah Ambikaipalan on 11 April 2018.
The applicant’s representative replied by email, saying:
… please find attached the receipt from the Human Rights Commission and the Red Cross. I have contacted the applicant to see if he has a letter from the Red Cross to go with the receipt. I will update you regarding this issue shortly.[5]
[5] Annexure CA-4 to the affidavit affirmed by Chellappah Ambikaipalan on 11 April 2018.
The “receipt” is a photocopy on a single page of what appears to be two sides of a document that is a little larger than a business card. On one side, it had the words:
INTERNATIONAL COMMITTEE OF THE RED CROSS
DELEGATION IN SRI LANKA
P.O. BOX 2100COLOMBO
On the other side, the “receipt” had two boxes, the second of which had two lines of writing. The first box contained the following:
ICRC Nr: LKC 141850
The first line of the second box appears to contain machine printing as follows:
FULL NAME / [foreign language] / [foreign language]
It may be surmised that the words in the foreign language or languages are the Sinhalese and Tamil equivalents of full name. The second line of the second box contains what appears to be two handwritten words in a foreign language. The words are presumably someone’s name, possibly in Sinhalese and Tamil. Nothing further was forthcoming from the applicant.
The applicant argued that, with the information set out above, the Tribunal could easily have contacted the Red Cross, which could have corroborated the applicant’s claim that his brother had been detained, interrogated and beaten over a period of three months in 2014 to 2015. The applicant said that, by consulting the Red Cross, the Tribunal could easily have obtained evidence that was potentially determinative of the review.
The applicant relied on AMT15 v Minister for Immigration and Border Protection [2018] FCA 366, where Tracey J said:
37. The document was in the Tamil language on Parliamentary letterhead. It identified the author as a Member of Parliament for a particular district in Sri Lanka. It contained telephone numbers, a fax number, a “hot line” number and a postal address in that district. The letter was dated 25 April 2012. It was addressed to AMT15 in his capacity as “Policy Propagation Secretary” at a postal address. It advised that the 14th annual conference of the local TNA was to be held on 27 May 2012 at 8.30 am at a particular hall. It contained an agenda for the meeting.
38. The Tribunal said (at [24]) that it had carefully considered this document but that it did not overcome the concerns it held about AMT15’s credibility. It did not say why. It did not, for example, suggest that the document was bogus. Its authenticity could have been confirmed by a telephone call or a facsimile transmission. Neither of these steps was taken. The Tribunal simply said that it did “not give evidentiary weight to [the document].” “Accordingly” the Tribunal disbelieved AMT15’s claim that he attended the TNA conference on 27 May 2012. The significance of this finding was reinforced later in the Tribunal’s reasons (at [36]). There the Tribunal rejected a submission from AMT15 that he would be at risk because of his association with the TNA because it found “no credible evidence” that he had undertaken activities for the TNA.
39. There is an element of circularity in this reasoning. There was nothing on the face of the letter to suggest that it was other than what it purported to be. It was addressed to the applicant in his capacity as an office holder in the TNA. It contained an agenda for a TNA meeting which AMT15 was apparently expected to attend on 27 May 2012 at a nominated venue at a nominated time. This letter, had it been accepted by the Tribunal, had the potential to bolster AMT15’s claims to have been an active member of the TNA.
…
47. The Tribunal was not under any obligation to gather evidence or to make a case for AMT15: see Re Minister for Immigration & Multicultural Affairs; Ex parte Cassim (2000) 175 ALR 209 at 213; [2000] HCA 50 at [14] (McHugh J); Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at 602; [2011] HCA 1 at [20] (French CJ and Kiefel J); Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] (Black CJ, Sundberg and Bennett JJ); Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at 583, 586, 588; [2010] FCAFC 41 at [22], [36] (Keane CJ) and [49] (Emmett J). However, in circumstances in which there was no reason to suggest that the letter was not authentic and it contained multiple contact details for the member of the Sri Lankan Parliament whose name was printed on what appeared to be official Sri Lankan Parliamentary letterhead, it would have been relatively easy for the Tribunal to have, directly or indirectly, contacted the member of Parliament and enquired as to whether he had sent the letter to AMT15. Questions might also have been asked about whether AMT15 held the office in the TNA to which the letter referred and whether AMT15 had attended the party meeting to which the agenda related. The failure to make these obvious enquiries which had the potential to have a material bearing on AMT15’s credibility and some of his claims of political involvement, constituted, on the facts of this case, a jurisdictional error. The failure amounted to a constructive failure to exercise jurisdiction: cf Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at 39-41; [2015] HCA 51 at [49]-[52] (Nettle J).
The applicant acknowledged in the present case that the “receipt” did not contain a telephone number. However, the applicant said that the Tribunal could easily have found a telephone number, called it, and, using the reference number on the “receipt”, asked who it related to, and what the Red Cross knew about that person.
The Minister argued that the Tribunal was not obliged to do on behalf of the applicant what he had not done himself, namely, obtain information from the Red Cross. For that proposition, the Minister relied on Minister for Immigration and Citizenship v MZYCE (2010) 116 ALD 156; [2010] FCA 767 where Gray J said at [37] and [38]:
37.In my view, the tribunal did not fail to discharge its statutory function of reviewing the decision to refuse the first and second respondents protection visas by failing to make inquiries that might have revealed information about the genuineness of the newspaper articles. By its letter dated 4 August 2008, the tribunal had given to the first respondent clear notice that it might not accept the truth of the allegations contained in the newspaper articles. The first respondent had every opportunity to provide further information to the tribunal to persuade it otherwise. If he had wished the tribunal to go to the internet, he could have said so, and could have provided the sort of material that he did provide subsequently, too late, to the Federal Magistrates Court. In the normal course, people are entitled to expect that documents will be treated as genuine and acted upon. It is also true that, in the case of newspaper clippings, the ordinary person would be astonished by a suggestion that their authenticity might be questioned. For all that, however, the first respondent was told clearly that their reliability was in issue. If he failed to provide further information that would satisfy the tribunal that the newspaper articles were authentic, his case was likely to suffer.
38.Having expressed to the first respondent its concerns, the tribunal was not then obliged to do what the first respondent did not do, and seek further information about the authenticity of the newspaper articles. To the extent to which the federal magistrate held otherwise, his Honour was in error.
The Minister also relied on Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377, where Katzmann J said at [47] and [48]:
47.In SZIAI the relevant issue was whether the tribunal had committed jurisdictional error by not making its own inquiries into an allegation that certificates submitted by the appellant as evidence were forgeries. The High Court found that there was no jurisdictional error by reason of the tribunal’s failure to inquire. One of the reasons the plurality came to this conclusion was that there was nothing on the record to indicate that any further inquiry by the tribunal directed to the authenticity of the certificates could have yielded a useful result (at [26]). In other words, there was no material to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of the decision. And so it is here.
48.Furthermore, there is no reason why, if evidence to support the pregnancy was available, SZRTF, herself, could not have supplied it. It was for her to provide the evidence in support of her claim.
The Minister noted that the applicant knew that the Tribunal had significant doubts about the claim that the applicant’s brother had been detained and tortured. The applicant said that he would provide to the Tribunal a letter from the Red Cross regarding his brother but did not do so. Moreover, the Minister argued that it is far from apparent that the inquiry proposed by the applicant was an obvious inquiry about a critical fact, the existence of which could be easily ascertained.
The Minister also argued that the Red Cross may only have had information that had been reported to it from other sources, such as the applicant’s family, and would therefore have been worthless. This argument is speculative and I disregard it.
However, following MZYCE and SZRTF, I consider that, if it was so easy to get the information, the applicant could have himself obtained the letter that he foreshadowed from the Red Cross, with all the details that he said may have been determinative of the review. It was not incumbent on the Tribunal to obtain for the applicant information that he had failed to obtain for himself.
The present case is distinguishable from AMT15. In that case, the letter presented to the Tribunal appeared to be from a Member of Parliament and contained many details that supported the applicant’s claims. The Tribunal decided to disregard it without explanation. In the present case, the “receipt” presented to the Tribunal did not even say, in English, that it related to the applicant’s brother. Indeed, the email to the Tribunal which attached the “receipt” did not say that it related to the applicant’s brother, and nor did the affidavit by which it was placed before the court.
In AMT15, in the absence of a finding that the letter was bogus, the Federal Court found that the Tribunal ought to have made inquiries of the apparent author of the letter to confirm that the details in it were correct. In the present case, the “receipt” contained no details about the applicant’s brother or a contact person.
The applicant argued that it would have been easy to ascertain a telephone number for the International Committee of the Red Cross in Sri Lanka. However, even for the purposes of the hearing before this court, the applicant did not provide evidence of how to obtain the telephone number, how easy it is for a telephone call to be put through to the relevant person, and what the relevant person would be able to say about the applicant’s brother.
In the circumstances, I am not persuaded that there was an obvious enquiry that could easily have been made and that the Tribunal should have made. This ground is not made out.
Ground 3
The third ground of review in the application filed on 9 March 2016 and amended on 9 April 2018 is:
The Tribunal fell into jurisdictional error in that it acted unreasonably.
This ground has two particulars. I will address them separately.
Ground 3(a)
The first particular to ground 3 is as follows:
The Tribunal was unreasonable in finding, not merely that it was not satisfied of the claims, but that the Applicant was not a witness of truth. (CB 258, [47])
In his written submissions, the applicant said that it is well established that the Tribunal is obliged to act rationally and according to probative evidence. The applicant relied on Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16, where Crennan and Bell JJ said at [130]:
In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
Irrationality is to be distinguished from reasoning about which reasonable minds may differ, as explained by Crennan and Bell JJ at [131] of SZMDS, which is as follows:
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
It has also been held that the court may set aside a decision for irrationality even though the reasoning on the ultimate jurisdictional fact was not irrational, if the irrationality occurred ‘on the way’ to the final conclusion: Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210; [2016] FCA 516 at [54] per Wigney J.
The applicant said that it was unreasonable for the Tribunal to have found not merely that it was not satisfied of the applicant’s claims, but that the applicant was not a witness of truth. The applicant argued that the Tribunal had a flimsy basis for concluding that the applicant was lying on oath.
The Minister submitted that there were various matters that the Tribunal relied upon to conclude that the applicant was not a witness of truth, including internal inconsistencies, implausibilities, changing evidence after matters were put and raising new claims late in the review process.
The Tribunal noted the prevalence of document fraud in Sri Lanka, and noted that the applicant produced a copy of a purported order for the detention of the applicant’s brother that was purportedly signed by the President of Sri Lanka[6]. The Tribunal noted that the document was in English, although the official language of Sri Lanka is Sinhalese.
[6] Paragraph 52 to 53 of the Tribunal’s reasons for decision.
In addition to the matters mentioned in paragraphs 60 and 61 above, there are other matters, too numerous to mention, which together provide an ample and rational basis for the Tribunal’s conclusion that the applicant was not a witness of truth. The first aspect of ground 3 is not made out.
Ground 3(b)
The second particular to ground 3 is as follows:
The Tribunal found that one of the applicant’s brothers was a member of the LTTE, that a cache of weapons was found near the Applicant’s family’s home, and had information of reports that family members of LTTE members have been arrested (CB 218, DFAT 3.54). It also was considering the situation of the applicant as returning after an absence of nearly four years, and being under scrutiny as an illegal emigrant who had left with his brother, also an illegal emigrant, but the Tribunal found there was no real chance of the applicant suffering serious or significant harm as the result of the cumulative effect of these factors.
The applicant submitted that the Tribunal’s conclusion that there was not a real chance of the applicant suffering serious or significant harm as the result of the cumulative effect of facts that the Tribunal accepted was unreasonable. The Minister submitted that the Tribunal’s conclusion was not unreasonable.
In my view, this was a matter on which reasonable minds may differ. Consequently, the Tribunal’s conclusion was not unreasonable in the relevant sense. This aspect of ground 3 is not made out.
Conclusion
As none of the applicant’s grounds has been made out, the application will be dismissed with costs.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 19 June 2018
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