SZTDD v Minister for Immigration

[2014] FCCA 1417

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTDD v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1417

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal breached s.425 of the Migration Act 1958 by not alerting the applicant to an issue potentially determinative of the review, the Tribunal’s decision was illogical, irrational and unreasonable, the Tribunal failed to make an enquiry and also failed to ask itself “what if I am wrong?”.

Legislation:

Migration Act 1958, ss.36, 424, 425, 427, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Khant v Minister for Immigration & Citizenship (2009) 112 ALD 241
Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18
Lu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 141 FCR 346
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389
LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166
SZSJA v Minister for Immigration & Border Protection (2013) 139 ALD 36
Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220

Applicant: SZTDD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1744 of 2013

Judgment of: Judge Cameron

Hearing date: 25 June 2014

Date of Last Submission: 25 June 2014

Delivered at: Sydney

Delivered on: 10 July 2014

REPRESENTATION

Counsel for the Applicant: Mr A. Kumar

Solicitors for the Applicant: Rasan T. Selliah & Associates

Counsel for the First Respondent: Ms B. Anniwell

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1744 of 2013

SZTDD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 18 May 2012.  On 25 August 2012 he lodged with what is now the Department of Immigration & Border Protection (“Department”) an application for a protection visa alleging that he feared persecution in Sri Lanka because of his ethnicity and his imputed political opinion.  On 31 October 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa.  As summarised by the Tribunal, the applicant relevantly made the following claims.

2. In a statement attached to his protection visa application the applicant said:

   a)in 2008 his father was killed in a traffic accident while riding his bicycle home.  He believed that his father’s death was plotted by his father’s Muslim business rivals.  His family commenced a court case against the truck driver and a Sinhalese company seeking two million rupees in compensation;

   b)the company paid bribes to Criminal Investigation Department (“CID”) officers who started approaching his family to try and force them to settle the case.  They made threats against him because he refused to settle and when the threats became serious he went to live in Saudi Arabia;

   c)after he returned to Sri Lanka from Saudi Arabia he continued to pursue the case.  In April 2012, after a date for the hearing of the case had been set in May 2012, CID officers attended his home and told him that if he did not drop the case he would be killed like his father and brother (who had been killed by unknown persons in 2006); and

   d)one week before he left Sri Lanka, officers attended his home, demanded 50,000 rupees from him and threatened and insulted him.  He believed that the police would not leave him alone so he left Si Lanka.  He feared that he would suffer harm at the hands of the CID officers.

3. At a Tribunal hearing on 15 January 2013 the applicant relevantly made the following additional claims:

   a)he was a young Tamil male from the east of Sri Lanka;

   b)his brother had joined the Liberation Tigers of Tamil Eelam (“LTTE”) after being abducted by them three times.  He had been killed by the Karuna group in a battle in 2006;

   c)his father had had a successful shop and was disliked by his Muslim competitors who once threw a bomb at the shop.  The Karuna group, the CID and the EPDP had attended the shop demanding money and accusing his father of supporting the LTTE.  The CID had specifically accused him of having a son in the LTTE;

   d)his father was shot at in 2004 and he (the applicant) believed that the CID had done so because they were jealous of the successful business and also because his brother was active in the LTTE;

   e)in 2005 he joined his father working at the shop.  His father died in August 2008 when his bicycle was intentionally hit from behind by a truck.  He had seen the driver of the truck, who was a Tamil with links to the Karuna group, follow his father from the shop.  In addition to a plot by his father’s Muslim business rivals, he also believed that his father had been killed at the behest of the Karuna group who had been angry that his brother had been a member of the LTTE;

   f)his uncle and a witness made a complaint to the police, a case was filed and the police found that the accident had been caused by the truck driver.  The case was supposed to go to court but never did.  The truck driver offered to pay two lakhs to settle the case but he and his family wanted a larger amount;

   g)the CID had attended the shop and told him not to pursue the case.  He closed the shop in late 2009 because the EPDP, the army and friends of his brothers from the LTTE would attend the shop demanding things, including money.  On one occasion people from the Karuna group attended his home wanting money and said that they would abduct him.  They told him that they had killed his brother;

   h)after he sold the shop the army questioned and assaulted him whenever he went through checkpoints and asked him if he had links to the LTTE.  That, and the harassment from the CID, led him to leave Sri Lanka for Saudi Arabia in August 2010;

   i)he returned to Sri Lanka in November 2011 because of problems he had had with Sinhalese in Saudi Arabia;

   j)within a week of his return two CID officers visited his home and demanded 50,000 rupees, saying that he had just returned from overseas and had helped the LTTE.  The CID officers returned a week before he left for Australia, told him not to proceed with the case and threatened to kill him.  His family had told him that since he left Sri Lanka the CID had been looking for him;

   k)he feared returning to Sri Lanka because he would be tortured for his links to the LTTE.  The authorities had told his wife that they had proof of his involvement with the group and said that he would be punished; and

   l)as a young Tamil male from the east of Sri Lanka, if he returned as a failed asylum seeker deported from Australia the authorities would suspect him of having links to the LTTE.  They would go through his file and find his links to the LTTE and detain him.

4. The applicant produced to the Tribunal photographs which he said depicted his brother with friends from the LTTE.  He also produced a mostly untranslated document which he said was a court summons in relation to the case about his father’s death.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act.

2. The Tribunal found that the applicant was not a witness of truth and that his account of events was false.  It therefore did not accept any of his claims apart from his claim to be a Tamil from a particular part of Sri Lanka.  In this connection the Tribunal noted that:

   a)it was not until its hearing that the applicant mentioned his claim that, in addition to the jealous Muslim businessmen, his father had also been killed because of his brother’s service with the LTTE.  It noted the applicant’s reasons for not mentioning his brother’s involvement with the LTTE – that others had told him not to mention the connection because it would prevent him from staying in Australia, that he had not asked his migration agent if what he had been told was true because he had thought he should not tell anyone and that it was only after the delegate’s decision that others told him to mention it.  It also noted the applicant’s representatives’ submissions that the applicant had been told by others in detention not to mention any links to the LTTE because if he did he would not receive a security clearance and would be sent back to Sri Lanka.  The Tribunal did not accept those explanations and noted that the applicant had been willing to mention being of interest to the CID which, on its face, could also have raised security concerns.  It did not believe the applicant’s reasons for not asking his migration agent if what he had been told was true especially given that his claimed links to the LTTE were an important part of the events on which his protection claim was based;

   b)at his entry interview the applicant said that his brother had been killed by a “government group” because of problems with his father’s business and at his departmental interview he made no mention of his brother’s claimed involvement with the LTTE.  The Tribunal rejected the submission made on behalf of the applicant that his reference at his entry interview to a “government group” should be construed as a reference to the Karuna group, finding that the applicant could have easily said which group had killed his brother.  It also rejected the submissions that his family had later found out that his father’s death had been plotted by pro-government Muslim business rivals through the Karuna group and that his brother had died in a gun fight with the Karuna group, noting that the applicant had not made those claims to the delegate.  The Tribunal noted that although the applicant’s representatives’ submissions referred to the applicant’s brother’s death certificate stating that he had died of gunshot wounds on the day of a confrontation between the Karuna group and another group, no death certificate was ever produced to it.  The Tribunal also did not accept that the applicant’s difficult journey to Australia, his apprehension of his entry and delegate interviews and his fear of being sent back to Sri Lanka explained his inconsistent evidence;

   c)the applicant gave inconsistent evidence about how many times he had been approached by the CID during the period following his father’s death and before he went Saudi Arabia and during which visit they had threatened to kill him.  The Tribunal did not accept as adequate his explanations that at the time he made his statement his mind had not been well, he could not say things in a proper way, he had not been steady, he had been confused and forgot things and that in that period he had been threatened by other groups so he had just put them all together and said it was the CID;

   d)the applicant’s demeanour in relating his account, particularly the court case in relation to his father’s death, was artificial, he appeared to have been relating a concocted account of events and his responses had been vague and unconvincing.  The Tribunal noted that at first the applicant had said that the case was filed by the police but when asked who was charged or sued said he did not know before saying, when prompted, that it was the truck driver.  He also said that he did not know what his uncle had said in a statement he made when he made a complaint to the police about the death.  The Tribunal also noted that, initially, the applicant had claimed that he was told before he went to Saudi Arabia that the file was open and that the case was before the courts, before later saying that it was only after he returned from Saudi Arabia that he asked a friend who was a lawyer’s associate to initiate and run the court case which led to summons being issued and a hearing date being set; and

   e)the applicant explained his inconsistent evidence by saying that that when he prepared his statement he had been panicking, tired and did not know what to say, that many matters were not included in his statement because it had to be brief, that because of his dangerous boat journey to Australia he was confused at his entry interview which may have caused him to give incorrect evidence and that at the departmental interview he had suffered memory loss and was inarticulate.  The Tribunal did not believe that the applicant had withheld his brother’s claimed involvement with the LTTE for those reasons.

3. As the Tribunal did not accept that the applicant’s brother had been in the LTTE, it also did not accept the applicant’s claims about the photographs he had produced and which he claimed showed his brother with LTTE colleagues.  The Tribunal also gave no weight to the alleged summons document which the applicant had produced, finding that that document did not alleviate or outweigh its significant concerns over his credibility.  The Tribunal noted that the applicant’s representatives had asked it to make enquiries in Sri Lanka about the applicant’s brother’s death but it decided not to because of its concerns about the applicant’s credibility.  It was satisfied that the applicant’s claims about his brother being killed and being involved with the LTTE were false.

4. The Tribunal noted submissions made by the applicant’s representatives that the Sri Lankan government, the paramilitary and other groups acting on the government’s behalf committed human rights violations and that a disproportionate number of the victims of such violations were Tamils, who also suffered discrimination.  However, it did not accept that the applicant would be the victim of human rights violations just because he was a Tamil from the east.  Based on country information indicating that the primary victims of human rights abuses by the Sri Lankan government were people perceived as its opponents, the Tribunal found that Tamils, including those who came from former LTTE controlled areas, did not suffer harm for those reasons alone.  As the Tribunal did not believe the applicant’s claims about his brother’s involvement with the LTTE, it found that the applicant did not have such links himself.  It also found that simply being a young Tamil male from a part of Sri Lanka formerly controlled by the LTTE would not lead the applicant to be suspected of having LTTE links. 

5. Based on country information, the Tribunal found that there was no substantiated, reliable information that Tamils who returned to Sri Lanka after seeking asylum abroad suffered harm solely on that basis.  It found that returnees were interviewed at the airport to establish identity and as soon as possible were brought before a magistrate for having departed the country illegally, before being granted bail and eventually probably receiving a fine, with prison sentences likely only for individuals involved in people smuggling.  The Tribunal also found that Tamils were treated the same way as everybody else during that process.  In light of that country information, the Tribunal found that the risk of the applicant suffering harm for being a Tamil returnee who had left Sri Lanka illegally and who had unsuccessfully sought asylum abroad was remote.  It found that there was no credible evidence that the applicant was wanted by the authorities or by any other group or person in Sri Lanka or that the authorities had any interest in him such that they would have visited his home after he left, demanding to know why he had left.  Whilst the Tribunal acknowledged, as submitted by the applicant’s representatives, that a Sri Lankan government official had said that his government wanted access to asylum seekers who had departed Sri Lanka illegally because they might have been involved in serious crimes, it found that there was no reliable evidence that Tamils who returned to Sri Lanka after seeking asylum abroad and after having left the country illegally suffered harm or maltreatment on those grounds.  The Tribunal found that it did not need to decide if the particular social group of failed asylum seekers who left Sri Lanka illegally and were suspected of having links with the LTTE existed because it was satisfied that the risk of the applicant suffering harm because he had left Sri Lanka illegally and had sought asylum abroad was remote.

6. The Tribunal found that there was no credible evidence that the applicant had been the victim of discrimination in Sri Lanka.  In that connection, it noted that according to the applicant’s evidence he had been able to attend school and had not claimed to have fled Sri Lanka due to discrimination but rather due to a chain of events which it found were false.  The Tribunal also noted the submission that security forces required Tamil residents in certain areas to register household members but found that the applicant had not made a claim to have fled Sri Lanka for that reason and that the requirement to register would not amount to harm.

Proceedings in this Court

1. In his amended application the applicant alleged:

   1.The Second Respondent committed jurisdictional error by not inviting the applicant to give evidence and present arguments relating to an issue under review as required under section 425 of the Migration Act 1958 (Cth).

   Particulars:

   1.1The Tribunal did not accept that the applicant’s brother was an LTTE member for the reasons presented in paragraphs 79 and 107 of the decision.

   1.2The applicant was not invited to give evidence and present arguments in relation to this issue.

   1.3Production of death certificate was an issue and it was not requested or asked.

   2.The Second Respondent committed jurisdictional legal error by coming to a conclusion that was so illogical or irrational, that no reasonable decision maker could have reached it.

   Particulars:

   2.1The Tribunal’s reasoning at paragraphs 79 and 107 of the decision is irrational and illogical as it compares the fear of persecution by the CID for non-LTTE related circumstances with fear of a negative security assessment in Australia for mentioning LTTE affiliations.

   2.2In CB 198 paragraph 86 although the applicant stated that a son who was involved with the LTTE who were against the government, the Tribunal concluded that the applicant did not mention any link to the LTTE at the interview with the delegate and accordingly that submission rejected.

   3.The Second Respondent engaged in legal error by coming to a conclusion that was so unreasonable that no reasonable decision maker could have reached it.

   Particulars:

   3.1The Tribunal’s reasoning at paragraphs 79 and 107 of the decision is unreasonable as it compares the fear of persecution by the CID for non-LTTE related circumstances with fear of a negative security assessment in Australia for mentioning LTTE affiliations.

   3.2In CB 198 paragraph 86 although the applicant stated that a son who was involved with the LTTE who were against the government, the Tribunal concluded that the applicant did not mention any link to the LTTE at the interview with the delegate and accordingly that submission rejected.

   4.The Second Respondent committed jurisdictional error when it failed to make obvious inquiry about a critical fact, the existence of which could be easily ascertained.

   Particulars:

   4.1The Representative said the applicant’s involvement with LTTE and death could be confirmed by any member of the applicant’s village and affirmed these facts [CB 197 - paragraph 88 and CB202 paragraph 115] through the Australian High Commission in Colombo, through a private investigator, the UNHCR or any related agencies.

   4.2The Tribunal stated: “No death certificate was ever produced to the Tribunal” (CB 199 at [89]). In fact the applicant had given to the previous Representative a copy of it and he had copy at the time of the hearing.

   5.The Second Respondent Tribunal committed jurisdictional error when it failed to properly carry out the evaluation of risk and properly carry out the “real chance” test / “What if I am wrong?” test in making assessment and / or applied wrong test.

   Particulars:

   5.1The Tribunal did not assess all the matters and evaluate the “real chance” test based on the claims cumulatively.

Ground 1 – breach of s.425 concerning brother’s involvement with LTTE

1. Section 425(1) of the Act requires the Tribunal to put to an applicant issues determinative of the review of which he or she might not be aware.

2. In paras.79 and 107 of its reasons the Tribunal said:

   While it is claimed that the applicant did not mention this important information out of fear that this could jeopardise his position in Australia he was, nevertheless, willing to mention being of interest to the CID which, on its face, could also have raised security concerns. 

   …

   The Tribunal has considered all these explanations put forward by the representative in the submissions of January and April 2013 as well as from the applicant but does not believe that the applicant has withheld his brother’s claimed involvement in the LTTE for the reasons put forward.  The applicant mentioned being wanted by the CID which, if the same arguments were to apply, might also have caused problems for him here.

   The applicant submitted that what the Tribunal perceived to be an inconsistency in his behaviour, in that he had disclosed the CID’s interest in him but not his brother’s involvement with the LTTE, was a matter which should have been advised to him so he could comment on it.  He said that this was so because the “alleged inconsistency … dealt with one [of his] primary claims”, that the Sri Lankan authorities would impute LTTE links to him.

3. The claimed involvement of the applicant’s brother with the LTTE was a new issue, raised for the first time at the Tribunal review. To the extent that that allegation was an important part of the applicant’s claim to fear persecution or harm sufficient to attract Australia’s complementary protection obligations, it was a matter of which he had to convince the Tribunal and was thus not something which s.425 required the Tribunal to identify to him. The situation in this matter is distinguishable from that in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 where the Tribunal failed to alert the applicant to the fact that matters which had been of no determinative significance before the primary decision maker had acquired that significance at the review stage.

4. Consequently, nothing to do with the issue of the applicant’s brother’s death, including his death certificate, was an issue attracting s.425 notification obligations.

5. Further, the matters which the applicant identified in this allegation were no more that expressions of the Tribunal’s reasoning in relation to this issue.  It had no duty to alert the applicant to that: SZBEL at 166 [48].

Ground 2 – illogicality and irrationality

Failure to mention bother’s LTTE connection

1. In his written submissions and in his address at the hearing of this application the applicant argued that it was illogical and irrational of the Tribunal to perceive inconsistency in his disclosure prior to the Tribunal review of the Sri Lankan CID’s alleged interest in him but not his brother’s alleged involvement with the LTTE.  He argued that while the CID was an organ of government, the LTTE was a terrorist organisation and that they were quite different organisations.  He submitted that, in such circumstances, there was no inconsistency in him mentioning the former but not the latter. 

2. I am not persuaded that the Tribunal’s conclusion was illogical in the sense discussed by Crennan and Bell JJ in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611:

   … 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.

   …

   While there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. (at 648 [131] and 649-650 [135])

3. Even though the alleged basis of the CID’s interest in the applicant turned on a corrupt arrangement between those officers and the murderers of the applicant’s father, the Tribunal was of the view that being a person of interest to the Sri Lankan CID might have raised security concerns in Australia, just as an association with the LTTE might.  This was a reasonable conclusion and one which any number of decision-makers might have reached.  As such, it was not illogical or irrational for the Tribunal to conclude that it was inconsistent of the applicant to mention the CID but not the LTTE.

Irrational reasoning

1. In para.86 of its reasons the Tribunal said:

   It was submitted that the applicant told the delegate that his father was killed while riding home on a bicycle and that this was planned by Moslem business rivals who were motivated by business gains but also the fact that the applicant’s father was a Tamil and had a son who was involved with the LTTE who were against the government.  As stated above, the applicant did not mention any link to the LTTE at the interview with the delegate and accordingly that submission is rejected.

2. The applicant submitted that the first and the second sentences of that paragraph were inconsistent such that the conclusion reached in the second sentence was illogical and irrational.  However, the first sentence of para.86 does not express a finding of fact but merely records a submission made by the applicant’s advisers.  The second sentence rejected that submission, for reasons the Tribunal had given in earlier paragraphs, and there is no illogicality in that.  Moreover, the Tribunal’s conclusion on that issue was correct because, contrary to the submission made by the applicant’s advisers, no submission had been made to the delegate that the applicant’s father had been targeted because one of his sons was associated with the LTTE.

Ground 3 - unreasonableness

1. The first element of this allegation was essentially the same as that part of the second ground considered above at [20]-[22], namely that the Tribunal was wrong to see significance or inconsistency in the applicant’s failure to mention his possible links with the LTTE while disclosing that he was a person of interest to the Sri Lankan CID.  For the reasons given above at [21] and [22] the Tribunal’s conclusion on this issue was not unreasonable in the sense discussed in SZMDS.  The applicant also referred to unreasonableness of the sort discussed in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332. However, the unreasonableness discussed in that decision concerned the exercise of a discretion, not whether a factual finding was reasonably open.

2. The second element of this allegation was the same in substance as that part of the second allegation discussed above at [23] and [24].  For the reasons given there and in [25] above, that reasoning was not unreasonable in the sense discussed in SZMDS.

3. In his written submissions in connection with this ground the applicant also submitted that the Tribunal had failed to consider his explanations for his failure to mention prior to the Tribunal review his brother’s alleged LTTE links.  Contrary to this submission, the Tribunal did consider the explanations in question at paras.76-80, 84, 85, 91 and 105-108 of its reasons.

Ground 4 – failure to enquire

1. The applicant submitted that the Tribunal should have:

   a)sought out information on his late brother’s involvement with the LTTE; and

   b)requested a copy of his late brother’s death certificate.

2. In support of this allegation the applicant pointed to the fact that in their letter to the Tribunal of 16 April 2013 his advisers had submitted that his brother had been involved with a particular brigade of the LTTE, having joined in 1998, and had said:

   We respectfully submit and earnestly encourage the Tribunal to affirm these facts by way through the Australian High Commission in Colombo or a private investigator or through UNHCR or any related agencies.

   The applicant further submitted that although the Tribunal had observed critically that no death certificate had been produced, it had never advised him that it required a copy, although one had been readily available and could have been provided to the Tribunal if only it had asked.  He cited Khant v Minister for Immigration & Citizenship (2009) 112 ALD 241.

3. Section 424(1) of the Act provides:

   424   Tribunal may seek information

   (1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

4. Section 427(1) of the Act relevantly provides:

   427   Powers of the Refugee Review Tribunal etc.

   (1)For the purpose of the review of a decision, the Tribunal may:

   …

   (d)require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.

Enquiries suggested to Tribunal

1. When it is suggested that the Tribunal should have made an enquiry which it did not make, it is important to ask whether the failure to make the identified enquiry supplied a sufficient link to the outcome of the review as to constitute a failure to review. In circumstances where the evidence does not suggest that further enquiry by the Tribunal would have yielded a useful result, the Tribunal does not err if it does not make such an enquiry: Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 [26]. That is the case here.

2. No jurisdictional error based on a failure to enquire will be demonstrated unless the postulated enquiry would have produced evidence which might have led the review to an outcome different from the one it reached. The situation is similar to those cases where the Tribunal’s decision is affected by jurisdictional error because it has failed to consider information material to its decision. In those cases, if the Tribunal fails to consider evidence which might have had a bearing on the outcome of the review, in that the evidence was not “so insignificant that the failure to take it into account could not have materially affected the decision”, and where such failure could possibly have deprived the applicant of a successful outcome to his or her application for review because the evidence might have persuaded the Tribunal that it was satisfied that the applicant met the criteria for the grant of the visa sought, then that amounts to a failure to conduct the review in the manner required by the Act and is properly characterised as a jurisdictional error: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Gibbs CJ at 30-31, Mason J at 40, 44-45 and Dawson J at 71; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82] per McHugh, Gummow and Hayne JJ; Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18 at 30-31 [49]; Lu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 141 FCR 346 at 360-361 [64]-[69] per Sackville J, Black CJ and Sundberg J agreeing; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [73]-[83]; SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 at [72]; LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166 at 198-199 [145]. See also in the context of fraud on an applicant and on the Tribunal, SZSJA v Minister for Immigration & Border Protection (2013) 139 ALD 36 at 46-47 [53]-[59].

3. Having alleged that the Tribunal should have made the enquiries he identified, it was necessary for the applicant to make out all the elements of the SZIAI test, including the “sufficient link” element.  However, no evidence was adduced to show what information would have been gleaned if the Tribunal had made the enquiries suggested by the applicant’s advisers in their letter of 16 April 2013 and thus there is no basis to conclude that such enquiries would have produced evidence which might have led the Tribunal to make a decision different from the one it did make.  In such circumstances, the applicant has not demonstrated that the Tribunal’s failure to make the enquiry which he said it should have made supplied a sufficient link to the outcome of the review as to constitute a failure to review and thus jurisdictional error.

4. The applicant also submitted that the critical information supporting his allegation concerning his brother’s involvement with the LTTE and the risk profile which it therefore created for him was readily ascertainable, but this was mere assertion.  No evidence supportive of this submission was adduced.

Death certificate

1. The applicant submitted that the death certificate would have proved that his brother had died of bleeding from gunshot injuries on a specified date but conceded that it would not have evidenced the fact, or the timing, of the firefight in which his brother had allegedly been killed.  That is to say, the death certificate would not, without additional enquiry, have proved that the applicant’s brother had died fighting for the LTTE.

2. As noted earlier, in circumstances where a suggested further enquiry would not have yielded a useful result, the Tribunal does not err if it does not make that enquiry.  The Tribunal was therefore not obliged in this case to seek out the death certificate.

Unreasonable failure to make enquiries

1. The applicant also submitted in relation to the further enquiry suggested by his advisers that the Tribunal’s failure to make that enquiry was so unreasonable that no reasonable Tribunal would have exercised its discretion in that way.

2. In Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 it was held that the Tribunal is under no obligation to consider making enquiries under s.424 or to request the Secretary of the Department to make enquiries under s.427, even if asked to do so. In the absence of a duty even to consider making enquiries, unless the Tribunal decided to consider making enquiries, no question arises concerning whether any exercise of discretion was unreasonable. In this case, the Tribunal did decide to not undertake the suggested enquiries. It did so because it was of the view that the applicant had been “significantly discredited”. It was satisfied that the applicant’s claims about his brother being killed and being involved with the LTTE were false.

3. Given its assessment of the evidence before it, and its implicit conclusion that nothing would be gained by making the suggested enquiries, the Tribunal’s decision to not make the suggested enquiries was not so unreasonable that no reasonable Tribunal would have made it.  Consequently, its exercise of discretion did not miscarry as alleged.

4. Moreover, the request was unspecific and open ended and there was no reason to conclude that the information which the applicant suggested the Tribunal should have sought would have been obtained easily or indeed obtained at all.  For that reason too, the Tribunal’s decision to not make the suggested enquiries was not so unreasonable that no reasonable Tribunal would have made it.

Ground 5

1. The applicant observed that the Tribunal had not made a finding whether his brother had or had not died and failed to consider, in light of the absence of a finding on that question, whether it might have been wrong in its conclusion that he did not face a real risk of persecution in Sri Lanka.

2. Although a decision-maker who is uncertain of a matter of fact but makes a finding on the question should entertain the possibility that his or her conclusion might be wrong, this is not necessary if the decision-maker is in no real doubt on the question: Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220. In this case the Tribunal concluded that the applicant was not a witness of truth and that the account of events on which he based his claims for protection was false. It went on to reject as false his claims that his brother had been involved with the LTTE and had been killed.

3. The Tribunal was in no doubt concerning the applicant’s brother.  In such circumstances, to the extent that its view that the applicant did not face a real risk of persecution or significant harm in Sri Lanka depended on its assessment of the latter’s claims about his brother, the Tribunal was not required to consider whether its view might have been wrong because of the conclusion it had reached on the allegations concerning the brother.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  10 July 2014