CCD15 v Minister for Immigration and Border Protection

[2018] FCA 813

FEDERAL COURT OF AUSTRALIA

CCD15 v Minister for Immigration and Border Protection [2018] FCA 813

Appeal from:

CCD15 v Minister for Immigration and Border Protection & Anor [2017] FCCA 1883

File number(s):

VID 948 of 2017

Judge(s):

O'CALLAGHAN  J

Date of judgment:

1 June 2018

Catchwords:

MIGRATION – appeal from Federal Circuit Court – where Tribunal did not contact a witness that appellant claimed corroborated evidence – where Tribunal did not accept appellant’s credibility – whether Tribunal’s refusal to contact the witness was an unreasonable exercise of discretion – whether the Tribunal’s refusal to contact the witness constituted a failure to provide a hearing in the manner required by s 425 of the Migration Act 1958 (Cth) – where contacting the witness was not an obvious enquiry about a critical fact – where no sufficient link to outcome –open to Tribunal and primary judge to dismiss corroborating evidence based on credibility of appellant’s evidence – appeal dismissed

Legislation:

Migration Act 1958 (Cth), s 425

Cases cited:

Minster for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39

Minister for Immigration and Multicultural Affairs v Mattson (2005) 88 ALD 304; [2005] FCAFC 118

Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30

Date of hearing:

23 February, 18 May 2018

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

34

Counsel for the Appellant:

Mr P Bodisco

Solicitor for the Appellant:

Longton Legal Pty Ltd

Counsel for the First Respondent:

Ms K Grinberg

Solicitor for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

ORDERS

VID 948 of 2017

BETWEEN:

CCD15
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	O'CALLAGHAN  J
DATE OF ORDER:	1 JUNE 2018

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’CALLAGHAN J:

The appeal

1. The appellant appeals from orders of the Federal Circuit Court, made 10 August 2017, dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal), dated 24 September 2015. The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), to refuse to grant the appellant a Protection (Class XA) visa (visa).

   The appellant’s claims

2. The appellant was born in Sri Lanka and is a citizen of Sri Lanka. His ethnicity is Tamil and his religion is Hindu. He applied for a visa on 5 February 2013.

3. The appellant claimed to fear persecution by reason of his ethnicity, imputed opinion in support of the Liberation Tigers of Tamil Eelam (LTTE) and membership of particular social groups (being, specifically: (1) young Tamil males suspected of having links with the LTTE and (2) failed asylum seekers who have left Sri Lanka illegally and are suspected of having links with the LTTE.)

4. In a statement accompanying his visa application, the appellant claimed as follows. Before he came to Australia, he was working in electrical wiring. In 2009, he was living with his family in the Ramanathan Refugee Camp in Vavuniya. He claimed that he was arrested and interrogated, for short periods, by officers of the Criminal Investigation Department (CID) and that the interrogations were directed at establishing his connection with the LTTE.  After being released from the refugee camp, he was spotted by the CID in Vavuniya town, taken to the CID’s office, and released to his father shortly after. In July 2010, two CID officers went to his family home asking about him. The appellant believed that the CID would not leave him alone and made arrangements to leave Sri Lanka.

   The Tribunal hearings

5. On 10 February 2015, the appellant’s migration agent provided submissions to the Tribunal, attaching a letter dated 10 December 2014, purporting to be a letter from a Sri Lankan Member of Parliament (MP).  In substance, the letter said that when the Vanni region of Sri Lanka was controlled by the LTTE, the appellant was working at a telecommunications centre that was also controlled by the LTTE.

6. The appellant’s submission before the Tribunal was that “what [he] fears most is the fact that he was a paid worker in the LTTE's Telecom Centre (TC) in the sensitive area of Kilinochchi for six months”.

7. On 21 May 2015, after the first Tribunal hearing and shortly before a scheduled further hearing, the appellant’s agent filed submissions seeking to explain discrepancies between the MP’s letter and the appellant’s claims. The submission also stated that the MP may be contacted over the phone “for any clarification of doubts” and to verify the authenticity of the letter.

8. After the second Tribunal hearing, the appellant’s migration agent filed further submissions that sought to address the Tribunal’s concerns regarding the existence of the satellite communication centre at which the appellant claimed to work, and included a request that the Tribunal contact the Australian High Commission in Colombo. The letter relevantly reads:

   We are instructed by our client that truly there existed a satellite telecommunication centre of the LTTE at the place specified by the applicant, in Kilinochchi, although information or details regarding it are not available in the Internet and websites…

   We are instructed that this centre was popularly used by the people in Kilinochchi and any resident of Kilinochchi (past or present) will vouch for it. Even the Tamil employees of the NGOs and INGOs (such as the Save the Children Fund, World Vision, ICRC etc) frequently use it whenever they have problems with their office communication systems.

   The applicant respectfully and earnestly requests that enquiries regarding the existence, during the relevant period, … may please be made from [the MP] whose letter has already been submitted, which contains his contact details.

   The Tribunal’s hearing

9. The Tribunal accepted that the appellant was a Sri Lankan Tamil Hindu born in Jaffna; that the appellant’s village was controlled by the LTTE during the civil war; and that the appellant was in a camp for internally displaced persons (IDPs) immediately after the civil war.

10. The Tribunal found that the appellant was not a credible witness and had embellished and created his claims of being harmed after the civil war ended in order to enhance his claims for protection.

11. The Tribunal did not accept as plausible the appellant’s claim that he and his family remained in the IDP camp and were not moved to a detention centre because information about the appellant was unknown.

12. The Tribunal also dealt with the appellant’s claim to have been a satellite operator for Vanni Telecom, which was owned by the LTTE. The Tribunal did not accept that claim either, finding that the claim was “a creation made in order to obtain the visa sought”.

13. Before considering the appellant’s request that the Tribunal contact the MP, the Tribunal considered the veracity of the appellant’s claims, including that (1) he worked as a satellite operator for Vanni Telecom; (2) the satellite communications centre was an LTTE centre popularly used by the people in Kilinochchi; and (3) Tamil employees of NGOs (among others) also used the centre when they had problems with their own communication systems.  The Tribunal did not accept that the appellant worked as a satellite operator and did not accept that the satellite centre as described by the appellant existed.  The relevant reasoning is as follows:

    [78] … [A]t two Tribunal hearings, the applicant claimed that he worked as a satellite operator for Vanni [Varni] Telecom, which was owned by the LTTE. He told the department he worked with the company Varni in Kilinochchi in communications as an administration cashier. When put to him that in his PVA he did not claim that he was a satellite operator, he said that ‘even though when they beat me I did not tell them the truth’. I do not accept as plausible that if the applicant worked as a satellite operator employed by the LTTE, that he did not mention this occupation in his PVA, especially as the applicant claims that the consequences for satellite operators who worked for the LTTE forms the basis of his claims to fear serious and significant harm, as an LTTE worker, if he returned to Sri Lanka.

    [79] Further he claims that this satellite communications centre … was an LTTE satellite telecommunications centre popularly used by the people in Kilinochchi. The Tamil employees of NGOs and MON (such as the Save the Children Fund, World Vision, ICRC etc) also used it whenever they had problems with their office communication systems. The applicant’s advisor also submits that there is no information available about this centre, the applicant stated that it was highly secretive and his position was to monitor calls being made…

    [80] I am of the view that it is implausible that a satellite centre as described by the applicant, that was popularly used by Kilinochchi residence and Tamil employees of NGOs, where they operated the satellite equipment which was ‘hidden from public view’ would not have been referred to in any of the extensive information available on the internet and websites about the LTTE operations in 2008/2009. I am of the view that were this centre in existence, some mention would have been made in the independent evidence such as the UNHCR reports that provided extensive information that operations on the ground, reports from Sri Lankan government sources on the Internet and US State Department reports, especially as it was claimed that this centre was utilised by NGOs.

    [81] The applicant’s evidence about how long this satellite operation remained operative in Kilinochchi was also inconsistent. Initially at [the first] hearing he said that he worked there until February 2009, but at [the second] hearing he said that the centre remained operative until September/October 2008. The evidence before me is that on 1 January 2009 the LTTE vacated Kilinochchi…

    [82] Additionally the applicant said that he was employed by the LTTE, as a satellite operator until April 2009. His evidence, as to where the satellite operations were moved after dismantling in Kilinochchi was also inconsistent. At [the first] hearing the applicant said that they were moved to Mullivaika in April 2009, then moved slowly to Redpana, Vishvamadu where they operated again for 1 to 1.5 months until mid-June 2009. They then went to Puthukudiyiruppu and were there for 1 month to mid-July 2009. The applicant then changed his evidence and said that he went to Mullivaika in April 2009 after he had been to Vishvamadu. Vanni Telecom stopped its service after moving to Redpana. He then changed his evidence again and said the service was stopped in February 2009. He then said Kilinochchi was captured in 2008, it was about September or October 2008. They went to Redpana at Vishvamadu and got to Mullivaika in April 2009. When put to him at [the second] hearing that he had said that they had moved to Mullivaika in April 2009, then moved slowly to Redpana, Vishvamadu for 1 to 1 ½ months until mid June and then went to Puthukudiirippu where they operated for 1 month to mid-July, he said that was not correct, the war ended in May 2009. Kilinochchi was captured in September 2008, and they moved to Redpana and from February 2009 they provided a service to the community in Redpana.

    [83] I put to the applicant that he had provided a number of inconsistent versions about working for Vanni Telecom. I said that the independent evidence before me is that on 1 January 2009 the LTTE vacated Kilinochchi. The Satellite Communications Centre at Puthukudiyiruppu was captured on 27^th February 2009. An underground terrorist satellite camp was captured by the Sri Lankan authorities, in Kilinochchi, on 24 January 2009. He responded that there was another satellite communication wing [of the LTTE], that had its own satellite operations. I reject his claim. I am of the view, as stated above, that had Kilinochchi had 2 working satellite centres it would be known to independent sources. I accept the evidence before me that the LTTE satellite communications centre at Puthukudiyiruppu was captured on 27^th of February 2009. Therefore I reject the applicant’s claim that it was moved from Kilinochchi and remained operative in July 2009.

    [84] In light of the applicant’s inconsistent evidence about his employment with Vanni Telecom, the evidence outlining dates and places of the capture of LTTE communication locations, and the lack of any evidence regarding Vanni Telecom described by the applicant, I reject his claim that there was another satellite communication wing that he worked for where his cousin/relative had arranged his employment. I am of the view that it is a creation made in order to obtain the Visa sought.

    …

14. The Tribunal then turned to deal with the submission made by the appellant that the Tribunal should contact the MP. In declining to do so, the Tribunal reasoned as follows:

    [88] The applicant provided a letter from [the MP] …The independent evidence before me indicates that fraudulent documents are at times used by applicants from Sri Lanka and that they are easily available. Further the information provided in this letter contradicts the applicant’s evidence as it stated the applicant “was working in one of the telecommunication centre is controlled by the LTTE. As at the end of the war he moved to the welfare centre in Vavuniya”. When put to the applicant that this letter contradicted his own evidence as he had not advised the Tribunal that he worked in the welfare centre after working in the telecommunication centre, he said “we resettled to our own place”. His advisor explained that this letter refers to the refugee camp where the family lived and his reference to the applicant encountering inquiries and fears of torture is a reference to the CID coming to the applicant’s house in July 2010. The letter does not make any mention of the CID coming to the applicant’s house in July 2010 and therefore the advisor’s explanation is rejected. As I do not accept the applicant is a witness of truth, and as fraudulent documents are easily obtainable, I placed no weight on this letter.

    [89] I have considered the applicant’s request to contact [the MP]. I am not satisfied that the existence of the satellite communication centre can be readily ascertained by contacting [the Sri Lankan MP] due to my concerns about the applicant’s credibility and the potential delays in waiting for a response from [the Sri Lankan MP].

    [90] On the evidence before me, as discussed above, and my findings that the applicant is not a witness of truth, I reject the applicant’s claim that he was a satellite operator employed by the LTTE for Vanni [Vanniam] Telecom …

    [91] I have considered the claims of the applicant individually and cumulatively as to his circumstances prior to leaving Sri Lanka. For the above reasons, I find that the applicant faced no serious harm in the past.

15. For those, and other reasons, the Tribunal concluded that there was not a real chance that the appellant would be persecuted for a Convention reason. The Tribunal also concluded that the appellant was not owed complementary protection.

    Federal Circuit Court

16. On 16 March 2016, the appellant filed an application for review of the Tribunal’s decision in the Federal Circuit Court of Australia.

17. Three grounds of review were argued. It is necessary only to note the two grounds that are raised in the appeal in this court, namely that:

    (1)the Tribunal’s refusal to contact the MP was an unreasonable exercise of discretion;

    (2)the Tribunal’s refusal to contact the MP constituted a failure to provide a hearing in the manner required by s 425 of the Migration Act 1958 (Cth).

18. As to ground 1, the Federal Circuit Court reasoned as follows:

    26. A Tribunal may make a jurisdictional error if it fails to “make an obvious inquiry about a critical fact, the existence of which is easily ascertained. ” [citing Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39, [25]]. Here, as submitted by the First Respondent, the Tribunal was able to determine the claim on the basis of the material before it. That material included the Applicant’s own evidence, which the Tribunal considered lacked credibility together with country information which the Tribunal found to be extensive and specific. The Tribunal considered the Applicant’s request that it contact the Australian High Commission, but by reference to the DFAT reports which were country specific, declined the invitation.

    27. The Tribunal also considered the Applicant’s request that it contact the MP, but found the MP’s account of the Applicant’s circumstances to be inconsistent with the Applicant's own claims in a material way. The Tribunal was concerned that the MP's letter was a fraudulent document and was not satisfied the MP was a source from which the existence of the satellite centre could be “readily ascertained”. The Tribunal gave “genuine consideration” to the request by the Applicant to obtain oral evidence [citing Minister for Immigration and Multicultural Affairs v Maltsin [2005] FCAFC 118, [37]-[38]]. As submitted by the First Respondent, the Tribunal’s exercise of discretion had evident and intelligible justification: there was nothing to suggest direct contact using a contact number provided in a document the Tribunal considered could be fraudulent would yield any useful result.

19. As to ground 2, the Tribunal reasoned as follows:

    29. The Tribunal’s election to proceed to decision without conducting an enquiry or obtaining oral evidence does not amount to a breach of s.425 of the Act. The material before the Court demonstrates the Applicant was given a meaningful opportunity to present evidence and argument in support of his claims [citing and quoting from Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 at [12], per Gleeson CJ.]

    This appeal

20. The appellant appeals on two grounds in this court, contained in a document entitled “Draft Notice of Appeal”. Other proposed grounds contended for in written submissions were abandoned by counsel for the appellant at the beginning of the hearing. Taking the two grounds in turn:

    Ground 1

21. By ground 1, the appellant submits that the Tribunal fell into jurisdictional error by failing “to make an obvious inquiry about a critical fact, the existence of which is easily ascertained for reasons that the Tribunal had already drawn adverse conclusions about the appellant’s credibility and that there could be potential ‘delays in waiting for a response’”.

22. In additional written submissions, counsel for the appellant made submissions in support of ground 1 as follows:

    3. However, contrary to the Respondent’s submissions … the Appellant submits that the Tribunal did not give genuine consideration to the Appellant’s request that it contact the MP.

    a.It is irrational to prejudge the evidence of the MP and in particular whether the MP would be a reliable source from which the existence of the satellite centre could be ascertained - as opposed to the assumption made that the author of the country reports was a reliable source;

    b.There is certainly no “discernible justification” in the “Findings and Reasons” as to why the country reports were to be preferred over the evidence of the MP, who may be presumed to have some local knowledge about matters which were convert in nature;

    c.It is irrational to presume that there would be delays in contacting the MP’s office in circumstances where no contact had been made and no delay had in fact occurred;

    d.The accepted premise - that fraudulent documents are “easily obtainable” - is easily challenged in circumstances where the veracity of the documents are “easily verifiable”.

    4. In the circumstances, the Tribunal has prejudged the evidence and has done so without having heard from the MP. The findings must be irrational.

1. It is true, as Mr Bodisco of counsel (who appeared for the appellant) submitted that a tribunal may fall into error if it fails to “make an obvious inquiry about a critical fact, the existence of which is easily ascertained”.  As the plurality said in Minster for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25] (per French CJ, Gummow, Hayne, Grennan, Kiefel and Bell JJ):

   [25] 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. There are two reasons for that.

   [26] The first reason is 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. There was nothing before the Federal Magistrates Court or the Federal Court 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 its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error..

   (Footnotes omitted, emphasis added).

2. It follows that, in order to make good this ground, the appellant must establish that making the enquiry of the MP was an obvious enquiry; that the enquiry concerns a critical fact; and that there is a sufficient link to the outcome such as to constitute a failure to review.

3. In my view, none of those elements is made out in this case. The Tribunal provided detailed reasons for rejecting the appellant’s claim that he was satellite operator. The Tribunal also rejected his claim that the two satellite communication centres existed. And, as is apparent from the extracts of the Tribunal’s reasoning above, the Tribunal regarded much of the evidence that the appellant gave in this regard as unsatisfactory – and, indeed, went so far as to say that his claim that there was another satellite communication wing that he worked for was “a creation made in order to obtain the visa sought”.

4. It is also clear from the reasons, as Ms Grinberg of counsel (who appeared for the Minister) submitted, that the Tribunal specifically turned its mind to the submission that it should contact the MP. It declined to do so because, as the Tribunal explained, the Tribunal had concerns about the veracity of the letter, firstly because fraudulent documents are easily obtainable (a finding made by reference to evidence before it) and that the letter was contradictory of the appellant’s claims.  Further, again as Ms Grinberg submitted, the relevant critical fact that the Tribunal needed to consider was whether the appellant worked as a satellite operator in the claimed satellite centre(s) and, in turn, whether that raised his profile as a supporter of, or imputed supporter of, the LTTE, as he claimed.

5. There was no failure by the Tribunal to make an “obvious inquiry” into a critical fact in this case.  On the contrary, in my view, the reasons given by the Tribunal show that it gave genuine consideration to the appellant’s request for it to call the MP: cf Minister for Immigration and Multicultural Affairs v Mattson (2005) 88 ALD 304; [2005] FCAFC 118.

   Ground 2

6. The appellant contends that the Tribunal’s refusal to contact the Sri Lankan MP constituted a breach of s 425 of the Migration Act 1958 (Act).

7. Section 425 of the Act provides:

   Tribunal must invite applicant to appear

   (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (2) Subsection (1) does not apply if:

   (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

   (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   (c) subsection 424C(1) or (2) applies to the applicant.

   (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

8. The appellant contends, in substance, that it was not open to the Tribunal to make findings about his credit without first contacting the MP.

9. This ground must also fail. As the primary judge found, it was open to Tribunal to reject, and not explore further, the corroborative evidence sought to be relied on by the appellant on the basis that the Tribunal was satisfied that the appellant was fabricating his story.

10. As Gleeson CJ explained in Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59, [2003] HCA 30 at [12]:

    [12] It was contended that this passage shows that the tribunal member adopted a flawed approach to her evaluation of the evidence, failing to assess the evidence of the applicant/appellant in the light of the corroborating evidence, and giving no weight to the evidence of the corroborating witness for reasons that had nothing to do with the quality of that evidence. The essence of the complaint is that the tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant. I do not accept that this is a fair criticism of the tribunal’s reasons. In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant's story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.

    (Emphasis added).

11. The fact that the Tribunal made its decision without making any further enquiries or obtaining oral evidence does not amount to a breach of s 425. Further, it is clear that the appellant was given a meaningful opportunity to present his evidence and his arguments in support of his claims.

    CONCLUSION

12. For the foregoing reasons, the appeal will be dismissed, with costs.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.

Associate:

Dated:        1 June 2018