SZWAW v Minister for Immigration
[2018] FCCA 2562
•12 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWAW v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2562 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming delegate’s decision not to grant protection visa – whether Tribunal made a jurisdictional error by failing to make inquiries in relation to matters asserted in a letter applicant provided to the Tribunal – whether Tribunal failed to consider claim – whether applicant was on notice that a particular element of his claim was in issue – whether Tribunal’s not accepting an element of the applicant’s claim was irrational – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 412, 414, 424, 425 |
| Cases cited: Abebe v Commonwealth [1999] HCA 14 |
| Applicant: | SZWAW |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1297 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 29 June 2017 |
| Date of Last Submission: | 29 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 12 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar by direct access |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
The application dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1297 of 2016
| SZWAW |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a national of Sri Lanka, seeks judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) Visa (Protection visa).
Claims for protection and course of application for protection
The applicant stated his claims for protection on a number of occasions. These were at an “Unauthorised Maritime Arrival” (UMA) interview held on 10 September 2012, in a statutory declaration the applicant made on 29 October 2012 (Statutory Declaration) that formed part of the application for a Protection visa the applicant made on 8 November 2012, at an interview before the delegate on 9 April 2013 (PVA interview), at a hearing before the Refugee Review Tribunal (Previous Tribunal), and at a hearing before the Tribunal. In addition the applicant, through his representative, provided submissions both to the Previous Tribunal and to the Tribunal together with documents.
It would be convenient to begin by describing the claims the applicant made in the Statutory Declaration. These are as follows: [1]
[1] CB65-69
a)The applicant is a Tamil and a Hindu. He was born in Batticaloa.
b)The applicant left Sri Lanka illegally by boat in July 2012 because of his ethnicity, and because he would be imputed with a political opinion favourable to, and having involvement with, the Liberation Tigers of Tamil Eelam (LTTE).
c)The Sri Lankan Army (SLA) shot the applicant’s father when the applicant was thirteen years of age. The SLA shot the applicant’s father randomly while he was working in a rice paddy on his land, approximately 6 kilometres from the applicant’s family’s house. The applicant’s father was one of 21 farmers that were shot, and whose corpses were burned.
d)Everyone who lived in the applicant’s area suffered years of harassment, beatings, and torture that continues “today”. Because “we are Tamil’s and our area was controlled by the LTTE they are accusing us of being involved with this group”.
e)Between 1991 and 1993 the applicant was stopped at army checkpoints “so many times I cannot recall the exact number”. On one occasion the applicant was arrested and tortured, and was forced to present himself every day for twenty-one days at an army camp. If on the day he presented himself there had been no incidents in the area, the applicant “just signed then left”; but if a bomb blast or shooting had occurred, the applicant would be beaten.
f)The applicant was also detained and tortured in 2005 when he was working as a co-operative manager. Part of the applicant’s role in that position was to distribute food and goods to people in need. The applicant was arrested because he was suspected of making deliveries to the LTTE.
g)The applicant was “captured” three times.
i)The first occasion occurred in 2005. The applicant was taken in a jeep to the army camp, kept in a small dark room for seven days, and on each of those days two men questioned the applicant about his involvement with the LTTE and beat him.
ii)The second occasion occurred in 2007 after a bomb exploded in the army camp located approximately 100 metres from the co-operative. The applicant was not taken anywhere, but between 8 and 10 men came to the applicant and interrogated and beat him for approximately half an hour.
iii)The third occasion occurred in 2010. Two or three times some people had gone to the applicant’s home and questioned the applicant’s wife about the applicant’s whereabouts. The applicant’s wife reported this to the police, but five days after she did so the applicant received a telephone call in which the applicant was told “they knew” the applicant’s wife had lodged a police report; and the applicant was warned that if the applicant reported the phone call he would not see his family again. The applicant supported this part of his claims by submitting a document titled “Report regarding the complaint of self security” dated “2010.12.21” (Purported Report of Complaint).[2]
h)The applicant has never lived in peace, always looking over his shoulder, not knowing whether he would come home from work. He was a witness to constant kidnappings and disappearances.
i)The applicant finally decided to leave Sri Lanka in 2012.
j)The applicant fears that if he returns to Sri Lanka:
i)he will face arrest and abuse because he had already been subjected to arrest and torture by the Sri Lankan authorities, and there is no guarantee for his life in Sri Lanka;
ii)the Sri Lankan authorities (the SLA and the CID, being the Criminal Investigation Department) will harm or mistreat him because he is a Tamil, and because he has faced problems from the authorities because of the area in which he was born;
iii)he will be imputed with “the political opinion of being associated with the LTTE” because the applicant is a Tamil male; and
iv)he will be persecuted for seeking asylum in a western country.
[2] CB133-4
The applicant gave broadly consistent evidence in his interview before the delegate. The delegate accepted the applicant’s claims to be credible; but the delegate refused to grant the applicant a Protection visa because the delegate was not satisfied that a person of the applicant’s profile has a real chance of suffering serious or significant harm if he were to return to Sri Lanka.[3]
[3] CB617, [23]
In support of his application for review the applicant forwarded to the Previous Tribunal two documents. One purports to be an acknowledgment of complaint dated 21 August 2013 the applicant claimed was given to his wife when she reported that the CID had been harassing her at the applicant’s home.[4] The second document purports to be a certified copy of a letter from what the applicant claims was the co-operative where he had worked, stating that the applicant resigned from the co-operative because of threats he received from the CID (Purported Co-operative Letter).[5]
[4] CB621, [25]. A copy of the document and a translation is at CB458-461 (two copies).
[5] CB621, [25]
On 6 August 2014 the applicant, through his representative, provided to the Tribunal written submissions.[6] The applicant there claimed, for the first time, that since the age of 18 he was a staunch supporter of the Tamil National Alliance (TNA), which the submissions described as a “Tamil based political party”.[7] This claim was supported by a purported letter from the sitting Member of Parliament stating that the applicant is a staunch supporter of the TNA (Purported MP Letter).[8] The applicant repeated that claim to the Tribunal. He claimed he helped with elections by campaigning door-to-door and distributing pamphlets.[9] The applicant claimed he was a co-op manager who looked after 1,500 families over which the applicant had influence, and the TNA relied on “him for support of those individuals”.[10] The applicant also claimed the SLA and CID identified him as an LTTE supporter because he was a member of the TNA.[11]
[6] CB411
[7] CB417
[8] CB417. A copy of the letter is at CB430
[9] CB627, [39]
[10] CB627, [43]
[11] CB627, [44]
The applicant relied on the Purported MP Letter not only to support his claim that he was a staunch supporter of the TNA. The applicant relied on that document to support his other claims. The Purported MP Letter states, among other things, that the applicant was a branch manager at the co-operative at which the applicant claimed he worked “which was under the control of the” LTTE; that “after the ceasure [sic] of wars and the capture of this area by the Army has been suspeciousely [sic] considered in this area including this co-operative institution and other necessary services”; that in “this context” the SLA and the “Irmy [sic] Intelligent [sic] Unit were considered [sic]” the applicant and “had constant inquiries about him”; that “some unknown armed persons compelled to visit his home and on 2009 05.20 they inquired [sic] about him at his wife and worsely [sic] threatened her and warned that if failing to produce him to them, he would be put into severe punishments”.
Before the Tribunal the applicant also claimed he was continuously monitored until he left Sri Lanka, and he had to report his movements to the police.[12]
[12] CB629, [62]
Tribunal’s reasons
The Tribunal accepted the applicant is a national of Sri Lanka;[13] is a married Tamil who lived in area V in the Batticaloa district from birth until he moved to C, which also is in the Batticaloa district; [14] the applicant’s father died before the end of the civil war in Sri Lanka, and that his death was caused by the SLA;[15] the applicant’s brother died in 1998 from heart problems; the applicant’s wife and children are presently living in C; the applicant had a lot of income, rice, and paddy fields, and that he is a person of considerable wealth and has substantial assets in Sri Lanka;[16] the applicant lived in several places within the Batticaloa district, including having lived for four months as an internally displaced person (IDP) at V, initially for ten days at the school, and then in a tent;[17] and during the war which ended on 9 May 2009 the applicant, like many thousands of Tamils living in Tamil-held areas of Sri Lanka, was questioned and interrogated, was required to go through checkpoints and report his movements, and may have been questioned about his involvement with the LTTE.[18]
[13] CB635, [89]
[14] CB635, [94]
[15] CB635-636, [94]
[16] CB636, [94]
[17] CB636, [95]
[18] CB636, [96]
The Tribunal, however, did not accept that from 2005 to 2012 the applicant was harmed because he was a co-operative worker, either during or after the war, or that the Sri Lankan government or the SLA or any paramilitary group imputed to the applicant a pro-LTTE profile or TNA profile, or that these groups continued to monitor the applicant and seek to harm the applicant causing the applicant to leave Sri Lanka;[19] and the Tribunal did not accept the applicant was a witness of truth.[20] The Tribunal relied on a number of matters.
[19] CB636, [99]
[20] CB636, [100]
a)First, the applicant’s explanation of food distribution in area V after the LTTE were pushed out from that area differed from country information the Tribunal considered independent and reliable. In particular the Tribunal found the applicant was unaware that, according to the country information on which the Tribunal relied, food was distributed to returning IDPs according to a “Cash Equivalent for Food (CEF) scheme”. [21]
b)Second, before the Previous Tribunal the applicant stated that the SLA pushed the LTTE out of V in 2009, whereas country information indicated this occurred in 2007. The Tribunal found that had the applicant in truth worked for the co-operative as he claimed he would have been aware that the LTTE had been pushed out from V in 2007.[22]
c)Third, before the Previous Tribunal the applicant stated he was born in area V and lived there all the time working with the co-operative until he left Sri Lanka. The applicant, however, had provided to the delegate a document that showed he lived in C from 2006 until 2012, which is 47 kilometres away from V.[23]
d)Fourth, the applicant had no knowledge of the co-op structures in Sri Lanka.[24]
e)Fifth, if, as the applicant claimed, he had an LTTE profile it is unlikely he would have been able to work in the co-operative because, relying on country information, the Tribunal found that in Sri Lanka co-operatives were regulated by the Cooperative Societies Act which is administered by Assistant Commissioners in every district acting through inspectors.[25]
f)Sixth, the Tribunal found it implausible that the authorities targeted the applicant after the war because he provided food to the LTTE in circumstances where no other workers had been targeted.[26]
g)Seventh, the Tribunal found it implausible that the applicant would have remained in the Batticaloa area during the war without having been moved to a detention centre if, as he claimed, he had been imputed with pro LTTE sympathies.[27] The basis of the Tribunal’s finding of implausibility is country information that showed that in 2010 those in the north and east of Sri Lanka who were suspected of being LTTE workers or supporters were arrested and taken to detention centres.[28]
h)Eighth, the applicant did not state in his Statutory Declaration that he had been the subject of any monitoring, and the Tribunal did not find it plausible the applicant would have omitted to mention this fact in his application for a Protection visa, if it were true that he had been subject to on-going surveillance from the end of the war until 2012 when he departed Sri Lanka.[29]
i)Ninth, the applicant did not claim he worked for the TNA until he appeared before the Tribunal.[30]
[21] CB636-637, [101]
[22] CB637, [103-104]
[23] CB637, [105]
[24] CB637, [106]
[25] CB638, [107]
[26] CB638, [108]
[27] CB639, [115]
[28] CB639, [113]
[29] CB639-640, [116]
[30] CB640, [118]
The Tribunal considered the Purported Co-operative Letter.[31] The Tribunal noted[32] it had put to the applicant that the letter, which is addressed to the “District Commissioner”[33] and signed by the general manager, only stated the applicant “has been informed of his post”, and that the letter “merely suggested” the applicant has life-threatening problems “and the threats could have come from anywhere ie. medical issues”. The Tribunal also considered[34] a letter purportedly written by the co-operative titled “Appointment for the Branch Manager” stating the applicant was appointed on 1 April 2000,[35] and a document the Tribunal described as “Essential Service Officer (Identification Tags)”.[36] The Tribunal made the following findings in relation to these documents:[37]
As credible sources including DFAT indicated that it was relatively easy to obtain false documents in Sri Lanka and as document fraud is a real issue, and as I am satisfied the applicant is not a witness of truth, I place no weight on these document[s] as evidence that the applicant was employed by the co-op or that he resigned from the co-op due to threats from the CID or that he was dismissed.
[31] CB638, [110]. A copy of the letter is at CB305 and a translation is at CB305
[32] CB638, [110]
[33] It is in fact addressed to “District Coperative [sic] Commissioner, Batticaloa”
[34] CB638, [110]
[35] A copy is at CB104
[36] A copy is at CB135-138
[37] CB638-9, [110]
The Tribunal also considered the Purported MP Letter and the Purported Report of Complaint. The Tribunal noted the Purported MP Letter indicated that some unknown armed persons visited the applicant’s home on 20 May 2009 and threatened the applicant’s wife that if the applicant were not produced “he would be put into severe punishment”. The Tribunal also noted, however, that the Purported Report of Complaint is dated 21 December 2010, but stated that the applicant’s wife lodged a complaint on 21 May 2009 regarding an incident when persons came to her home in the night looking for the applicant. The incident is stated to have occurred on 20 August 2009. The Tribunal noted that as “the lodgement of the complaint pre-dates the incident clearly this information is internally inconsistent”; and it is also inconsistent with the information contained in the Purported MP Letter.[38] The Tribunal concluded that in light of these inconsistencies and its concerns about document fraud in Sri Lanka the Tribunal placed no weight on these documents.[39]
[38] CB640, [120]
[39] CB640, [121]
Relevant to one of the grounds of application before me is that the applicant requested the Tribunal, but the Tribunal declined the request, to contact the Member of Parliament who purported to write the Purported MP Letter. The Tribunal referred to the request and its reasons for declining that request in the following passage:[40]
I have considered the applicant’s request to contact Member of Parliament [name stated]. I am not satisfied that information about the applicant’s wife reporting to the police or the applicant’s circumstances of employment can be readily ascertained by contacting MP [name stated] due to my concerns about the applicant’s credibility and the potential delays for a response from [Member of Parliament’s name] office.
[40] CB641, [122]
The applicant also referred to the Purported Acknowledgment of Complaint, but the Tribunal placed no weight on this document because it did “not accept that the applicant is a witness of truth”, and also because it relied “on DFAT report . . . about the prevalence of fraudulent documents in Sri Lanka”.[41]
[41] CB641, [124]
Given these observations the Tribunal concluded it did not accept the CID or the paramilitary visited the applicant’s wife when the applicant was in Sri Lanka or after he arrived in Australia. On the basis of this and its other findings, the Tribunal repeated the applicant was not a witness of truth, found the applicant “created his claims to obtain the visa sought”, and that it followed that the Tribunal did not accept the applicant:[42]
[42] CB641, [125]
a)has been or is imputed to have links with the LTTE;
b)was detained and tortured many times by the SLA between 1991 and 1993;
c)in 2003 was detained for 14 days;
d)in 2006 was questioned and held for seven days by the SLA on suspicion of delivering food to the LTTE;
e)in 2007 was beaten, later questioned, detained, and tortured for 3 hours by the SLA;
f)sought alternative employment in 2008 and was unsuccessful in 2 interviews;
g)was arrested or detained at any time;
h)was threatened by anyone at any time causing him to destroy his Sim card;
i)was a supporter of the TNA political party since he was 18 years of age and assisted them by handing out leaflets;
j)1,500 people relied on the applicant for food and support;
k)was identified by the CID as an LTTE supporter because he was a member of the TNA party;
l)worked for a co-operative and supplied food to the LTTE; or
m)worked for a co-operative and supplied food to the people of V.
Having found the applicant suffered none of the harms the applicant claimed he suffered while in Sri Lanka, the Tribunal considered whether the applicant was entitled to protection under the Refugees Convention[43] (and hence satisfied the criterion provided for by s.36(2)(a) of the Migration Act 1958 (Cth) (Act)) based on his being a Tamil male, and his having left Sri Lanka illegally or being a failed asylum seeker, and whether he satisfied the complementary protection criterion provided for by s.36(2)(aa) of the Act.
[43] Being the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. At the time the applicant applied for a Protection visa, the criterion provided for by s.36(2)(a) of the Migration Act 1958 (Cth) was that the applicant for the visa was “a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol”.
The Tribunal did not accept there is a real chance that in the reasonably foreseeable future the applicant will be subjected to serious harm because he is a Tamil male, or because he had lived in a Tamil area.[44] Nor did it accept the applicant has a real chance of being persecuted because of his illegal departure from Sri Lanka or because he is a failed asylum seeker.[45] The Tribunal was satisfied that on his return the applicant would not be suspected of having committed serious crimes, including people smuggling or terrorism offences. The Tribunal found, however, that even so, because the applicant departed Sri Lanka illegally it is likely he would be questioned at the airport for the purpose of establishing his identity, charged under the Immigrants and Emigrants Act (IEA), and remanded in custody until bail is posted. The Tribunal also found the applicant’s circumstances were such that bail would be raised, and that a penalty of up to 50,000 rupees will be imposed on the applicant for having breached the IEA. The Tribunal also found that the applicant might be remanded in prison for up to two weeks and that prison conditions in Sri Lanka are generally poor and unsanitary. The Tribunal was satisfied, however, that these matters would occur as a consequence of the application of laws of general application, and not because the applicant is a Tamil or for any other Convention reason.[46]
[44] CB137
[45] CB647, [155]
[46] CB644-646, [140-155]
In considering whether the applicant satisfied the complementary protection criterion provided for by s.36(2)(aa) of the Act, the Tribunal referred to findings it had already made which the Tribunal stated was to the effect that the evidence did not indicate the applicant or any member of his immediate family ever had any involvement or association with the LTTE, or that the applicant or any member of his immediate family was suspected of having such an involvement; the Tribunal did not accept the applicant was interrogated, monitored, assaulted, threatened, imprisoned, or detained by the CID, or that anyone is looking for the applicant, or that the applicant is imputed “with being LTTE or being anti-government of that he was of adverse interest to the authorities”; and that the Tribunal did not accept the applicant suffered any harm during or after the civil conflict. Based on those findings, the Tribunal concluded it did not accept the applicant faces any real risk of significant harm in the future.[47]
[47] CB648, [162]
The Tribunal also concluded it did not accept there is a real risk the applicant will suffer significant harm because he is a Tamil male, or a young male or wealthy Tamil from Batticaloa, or because he sought asylum in Australia. The Tribunal repeated its findings that because he departed Sri Lanka illegally the applicant may face questioning at the airport, arrest on charges of leaving Sri Lanka illegally, and being remanded for a relatively short time pending a bail hearing and being fined 50,000 rupees.[48] The Tribunal also found the applicant may also receive contact visits from authorities at his home.[49]
[48] CB648, [165]
[49] CB648, [165]
The Tribunal was not satisfied these matters constitute significant harm.[50] That is so even though the Tribunal accepted the applicant may be remanded in conditions that are cramped, uncomfortable, and unsanitary. The Tribunal did not accept that spending up to a fortnight in such conditions amounts to significant harm, or that the applicant faces a real risk of suffering significant harm. Relevant to one of the grounds of application before me is the following findings:
I also do not accept that such treatment is intentional as required by the law in Australia. I do not accept that pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on the applicant as required by the definition of ‘cruel or inhuman treatment’” in s.5(1) of the Act. Nor do I accept the overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’.
[50] CB648, [166]
For these reasons, the Tribunal was also not satisfied the applicant satisfied the complementary protection criterion provided for by s.36(2)(aa) of the Act.
Grounds of application
The application contains six grounds of application, but the applicant does not press grounds 2 and 6.
Ground 1
Ground 1 is as follows:
The Tribunal fell into error and/or denied the Applicant procedural fairness when . . . in relation to his application for review in circumstances it was under a duty to make further inquiries to ensure that the Applicant could participate in the review process.
Particulars
(a)The Applicant provided the Tribunal with correspondence from MP . . .
(b)[The MP] was stated to be an elected MP and thus had his own electoral office.
(c)It was reasonably easy for the Tribunal to contact and obtain information from MP or MP’s office.
(d)The Tribunal acted on basis of believe [sic] (AAT at [122]) rather than act as required under the Act.
(e)The Tribunal should itself [have] properly informed itself by making proper enquiries to ensure procedural fairness; the Tribunal failed to do so;
(f)The document provided by the Applicant could have been otherwise readily available confirmed/verified;
(g)In the circumstances the document was critical to the Applicant’s claim;
(h)The Tribunal committed jurisdictional error in failing to make the inquiries on that issue.
This ground appears to be directed to the Tribunal’s declining the applicant’s request that it contact the purported author of the Purported MP Letter. In the applicant’s written submissions, however, the ground is stated in broader terms. The applicant there submits the Tribunal was obliged to make inquiries not only of the author of the Purported MP Letter, but in relation of other persons in relation to the matters asserted in the Purported MP Letter. Thus the applicant submits it was “reasonably easy for the Tribunal to obtain details as to whether the charges existed or not”;[51] that it “was relatively easy for the Tribunal to make enquiries from the employers and or cooperative registry staff about the Applicant and/or Applicant’s employer or from the agency itself about which the Tribunal was well versed”, and that the “MP or his office would have confirmed these matters”;[52] and that the applicant’s “details would also [be] readily available from institutions”.[53] The applicant further submits that the Tribunal acted legally unreasonably in not making inquiries “because it is obvious that material . . . was readily available and which was centrally relevant to the decision”.[54]
[51] Applicant’s Outline of Submissions, [8]
[52] Applicant’s Outline of Submissions, [9]
[53] Applicant’s Outline of Submissions, [10]
[54] Applicant’s Outline of Submissions, [18]
Counsel for the Minister submitted there was no obvious inquiry about a critical fact the existence of which could easily have been ascertained by the Tribunal. By that I understand counsel to have intended to submit that the facts the existence of which the applicant submits the applicant ought to have inquired were not easily ascertainable by the Tribunal making any obvious inquiry. Counsel further submits that had the Tribunal enquired of the author of the Purported MP Letter, and the author had confirmed the letter was true, “this would not add anything to what was before the Tribunal”.
There are many cases in which it has been claimed that the Tribunal made a jurisdictional error because it failed to make an inquiry about the existence of an asserted fact. These claims have often been determined simply by considering whether the asserted fact of whose existence it is claimed the Tribunal ought to have inquired was a “critical fact”, and whether the existence of the asserted fact could have been “easily ascertained” by the making of “an obvious inquiry”. These expressions are to be found in Minister for Immigration and Citizenship v SZIAI where the plurality said that 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”.[55] As this passage states, however, it is only in “some circumstances” in which the Tribunal’s failure to make an obvious inquiry about a critical fact, the existence of which could easily be ascertained, could result in the Tribunal’s making a jurisdictional error. In other words, that there may be an asserted fact critical to an applicant’s case whose existence can easily be ascertained by the making of an obvious inquiry does not by itself give rise to any duty by the Tribunal to make the obvious enquiry to ascertain the existence of the asserted fact. That follows from the nature of the jurisdiction the Tribunal is required to exercise under the Act.[56]
[55] [2009] HCA 39 at [25]
[56] In what follows, I have relied and to a large extent repeated what I said in Shah v Minister for Immigration [2014] FCCA 624
The starting point is s.414 of the Act which provides that the Tribunal must “review” the decision the subject of the application before it. That is a duty to inquire into the existence or non-existence of facts relevant to the Tribunal determining whether to affirm or set aside the decision under review. As noted by the plurality in SZIAI, however, the extent of the Tribunal’s duty to inquire into the existence of facts is qualified:[57]
[P]roceedings before the tribunal are inquisitorial, rather than adversarial in their general character. There is no joinder of issues as understood between parties to adversarial litigation. The word “inquisitorial” has been used to indicate that the tribunal, which can exercise all the powers and discretions of the primary decision-maker, is not itself a contradictor to the cause of the applicant for review. Nor does the primary decision-maker appear before the tribunal as a contradictor. The relevant ordinary meaning of “inquisitorial” is “having or exercising the function of an inquisitor”, that is to say “one whose official duty it is to inquire, examine or investigate”. As applied to the tribunal “inquisitorial” does not carry that full ordinary meaning. It merely delimits the nature of the tribunal’s functions. They are to be found in the provisions of the Migration Act. The core function, in the words of s 414 of the Act, is to “review the decision” which is the subject of a valid application made to the tribunal under s 412 of the Act.
[57] [2009] HCA 39 at [18]
The nature and extent of this qualification have been stated in different ways. It has been said that “it is for the applicant for a protection visa to establish the claims that are made”;[58] it is “for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason”, and that the “Tribunal must then decide whether that claim is made out”;[59] the “function of the Tribunal . . . is to respond to the case that the applicant advances”;[60] and the RRT “is required to deal with the case raised by the material or evidence before it”.[61]
[58] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [40]
[59] Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576 (Gummow and Hayne JJ)
[60] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [78] (Kirby J)
[61] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 at [58]; ( (Black CJ, French and Selway JJ)
Given the nature of the Tribunal’s jurisdiction, therefore, the Tribunal does not come under an obligation to make an inquiry about the existence of an asserted critical fact on which the applicant relies and in support of which the applicant presents evidence, only because the existence of that fact can be ascertained by the Tribunal making an obvious enquiry beyond its considering the evidence the applicant provides in support of the existence of that fact. Yet that is the underlying premise on this part of the applicant’s ground. The applicant in effect submits the Tribunal was under a duty to make inquiries because the Tribunal could easily have made the inquiries the applicant claims it ought to have made of asserted facts on which the applicant relied but which the Tribunal did not accept. I do not accept that submission.
In any event I do not accept that the facts whose existence the applicant claims the Tribunal could have ascertained could in fact have been ascertained by the making of any obvious inquiries. It may be accepted that the Tribunal could have readily ascertained the authenticity of the Purported MP Letter by attempting to make a telephone call using the telephone numbers apparent on the face of the letter. But even if the Tribunal made that call, and the Purported MP Letter proved to be authentic, the letter’s being authentic would by itself have been incapable of verifying the matters asserted in it; and that is because they state matters of which the author of the letter could not reasonably be considered to have first-hand knowledge. That means the Tribunal would have had to undertake the task of determining for itself on the basis of the applicant’s evidence whether it should accept the matters asserted in the Purported MP Letter. I also do not accept that the other asserted facts the existence of which the applicant in his written submissions claims the Tribunal could have easily ascertained could in fact have been easily ascertained by the Tribunal making any obvious inquiry. The applicant in his written submissions, for example, submits the Tribunal ought to have made inquiries of unnamed “employers and or cooperative registry staff” about the applicant. That cannot reasonably be characterised as the making of obvious inquiries.
That, then, leaves the applicant’s submission that the Tribunal acted unreasonably by declining the applicant’s request to contact the author of the Purported MP Letter. The Tribunal has power under s.424(1) of the Act “to get any information that it considers relevant”, and it may be accepted that where the Tribunal is requested to obtain information the Tribunal must act reasonably in considering whether it should agree to that request. When determining in any given case whether the Tribunal acted reasonably in not accepting such request, the reasonableness of the Tribunal’s conduct must be assessed having regard to the subject matter, scope, and purpose of s.424(1) of the Act, the information that was before the Tribunal and, where the Tribunal has given reasons, the reasons the Tribunal gave for not agreeing to the request and, in particular, whether those reasons disclose an evident or intelligible justification for its not agreeing.[62]
[62] I have relied on the summary I gave in SZVMG v Minister for Immigration & Anor [2016] FCCA 631 at [15] of the principles for judicial review based on unreasonableness as summarised by the Full Federal Court in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 (Allsop CJ, Griffiths and Wigney JJ)
The subject of s.424(1) of the Act is the Tribunal’s getting information it considers relevant to the review. That power, however, must be seen in the context of the nature of the Tribunal’s jurisdiction I have already identified. The information that was before the Tribunal in the case before me included information on the basis of which it was reasonably open to the Tribunal to conclude that the applicant was not a witness of truth, and that the Purported ML Letter, as well as the other documents the applicant submitted, were not genuine. It was reasonably open to the Tribunal to rely on those conclusions to find it was not satisfied that information about the applicant’s wife reporting to the police, or the applicant’s circumstances of employment could be readily ascertained by contacting the author of the Purported MP Letter. That is so if for no other reason than the matters stated in the Purported MP Letter could not reasonably have been based on anything the author may himself have observed, but could only have been a report of what another person (such as the applicant) related to the author.
Ground 1 of the application, therefore, fails.
Ground 3
Ground 3 is as follows:
The Tribunal committed jurisdictional error when it failed to deal with all of the Applicant’s claims.
Particulars
(i)The Tribunal failed to address a number of the Applicant’s claims.
(ii)Further details to be provided upon receipt of court book.
In counsel’s written submissions the applicant submits he had claimed that he would be subject to reporting requirements and that, because he had left Sri Lanka he did not meet the reporting requirements and, for that reason, on his return to Sri Lanka he will come under scrutiny.[63] The applicant submits the Tribunal noted this claim at paragraph 83 of its reasons.[64] In that paragraph of its reasons the Tribunal sets out the post hearing submissions the applicant’s advisor provided to the Tribunal on 6 September 2015; and the claim the applicant submits the tribunal failed to consider is noted in the paragraph that appears next to the third dot point.
[63] Applicant’s Outline of Submissions, [23]
[64] Applicant’s Outline of Submissions, [8]
That paragraph refers to the applicant’s claim that after he was arrested in 2005 he was questioned on suspicion of delivering food items to the LTTE, and that the authorities imposed on him reporting conditions. After describing the nature and extent of the reporting conditions the paragraph states the applicant did not notify the local police when he fled to Australia; and that this, together with the applicant’s having departed Sri Lanka illegally, will further confirm in the minds of the SLA and the CID that the applicant was a member, supporter or sympathiser of the LTTE.
In my opinion, there was no distinct claim of future risk of harm based on the applicant’s having ceased to comply with reporting requirements after he left Sri Lanka; and that is because such claim was necessarily based on the claim that he was monitored in the first place. As I have already noted the Tribunal did not accept the applicant was monitored.[65] The Tribunal’s having found the applicant was not monitored necessarily disposed of the claim that the applicant’s ceasing to comply with reporting requirements after he left Sri Lank exposed him to risk or increased risk of harm.
[65] CB638, [109]; CB639, [116]
Ground 3, therefore, also fails.
Ground 4
Ground 4 is as follows:
The Tribunal committed jurisdictional error when it found that the Applicant was not [a] former co-operative worker (AAT at [100]-[109]) and/or denied procedural fairness in relation to its findings (AAT at [103]) and/or was under duty to make inquiries (AAT at [111]) or has been irrational in its conclusions.
Particulars
(i)The Tribunal denied the Applicant procedural fairness and was not on notice that the Applicant was in fact co-op worker when the previous Tribunal and the delegate had accepted this to be so.
(ii)The Tribunal failed to put the Applicant on sufficient notice that it did not accept he is former co-op worker.
(iii)The Tribunal committed jurisdictional error.
This ground makes two claims. One is that the applicant was not put on notice that the Tribunal considered there to be an issue whether the applicant was employed by the co-operative in circumstances where the delegate and the Previous Tribunal accepted the applicant was so employed. The second is that the Tribunal’s not accepting the applicant’s claims that he was employed by the co-operative was irrational.
The first claim relies on the principles considered by the High Court in SZBEL v Minister for Immigration and Multicultural Affairs,[66] which may be summarised as follows:[67]
a)At common law a duty to accord procedural fairness consists in providing to the person likely to be affected by the decision an opportunity to put information and submissions to the decision-maker in support of the outcome the persons seeks; and to rebut or qualify by submitting further information and comment and submissions in relation to material that is adverse to the person.[68]
b)The duty extends to the decision-maker identifying to the person likely to be affected “any issue critical to the decision which is not apparent from its nature or the terms under which it is made”, and advising the person to be affected “of any adverse conclusion which has been arrived at which would not obviously be open on the known material”.[69]
c)Section 425 of the Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal.[70] It requires the Tribunal to invite the applicant to “give evidence and present arguments relating to the issues arising in relation to the decision under review”. Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa.[71]
d)The issues that arise in relation to the decision are to be identified by the Tribunal. If “the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review””.[72]
e)There may be cases where the Tribunal’s statements or questions during a hearing sufficiently indicate to an applicant that everything he or she says in support of the application is in issue.
That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. . . . But where . . . there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.[73]
[66] [2006] HCA 63
[67] I repeat here the summary I gave in SZSRB v Minister for Immigration & Anor [2013] FCCA 1382, at [46]
[68] SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63at [29]. The quoted passages are from Commissioner for Australian Capital Territory Revenue v Alphaone Pty (1994) 49 FCR 576 at 591-592 (Northrop, Miles and French JJ).
[69] SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63at [29]. The quoted passages are from Commissioner for Australian Capital Territory Revenue v Alphaone Pty (1994) 49 FCR 576 at 591-592 (Northrop, Miles and French JJ).
[70] SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63at [33]
[71] SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63at [34]
[72] SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63at [35]
[73] SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63at [47]
There is nothing to suggest that the applicant or his representative assumed that the Tribunal accepted or would accept the applicant was an employee of the co-operative of which he claimed he was an employee. On the contrary, the material before me satisfies me the applicant and his adviser were aware that whether or not the applicant worked with the co-operative was or would be an issue before the Tribunal. First, by letter dated 17 March 2016 the Tribunal requested the applicant’s advisor to provide a number of documents and their translation referred to in the advisor’s submissions of 6 September 2016.[74] These included what the Tribunal described as “Letter of Appointment as A Branch manager of the Co-Operative Society”, and “Letter from [name of co-operative] Co-Op (Accepting the Resignation). That indicated, and ought reasonably to have indicated to the applicant, that the Tribunal was not prepared to accept the applicant was employed by the co-operative as he had claimed. Second, it is apparent from the Tribunal’s decision-record that the Tribunal asked the applicant questions which indicated or ought reasonably to have indicated to the applicant that the Tribunal had not accepted his claim that he worked with a co-operative. That is apparent in paragraph 74 of the Tribunal’s reasons for decision. The Tribunal there records a number of matters it put to the applicant, one of which was that “if he worked for the Co-op he would have known” about a particular programme. Third, the Previous Tribunal found the applicant not to be a person of credit. That the applicant’s general credibility was an issue before the Tribunal was recognised by the applicant’s advisor in the submission made on 6 August 2015 who made submissions about the applicant’s general credibility.[75]
[74] CB592
[75] CB417-418
This part of ground 4, therefore fails.
The applicant’s claim of irrationality is principally directed to the Tribunal’s reliance on two items of country information. The first item of country information showed that after the LTTE were pushed out of area V, IDPs returning to area V were assisted through a “Cash Equivalent for Food (CEF) scheme” which the British Red Cross deemed most appropriate.[76] In his counsel’s written submissions, the applicant submits the Tribunal “has presumed” (by which I understand counsel intends to submit the Tribunal assumed the applicant did not know about the CEF scheme) when it was “simply the case that the Applicant did not deal with British Red Cross but stated that [it was] NGOs that he was dealing with”.[77] This submission appears to repeat the explanation the Tribunal in its reasons records the applicant gave to the Tribunal’s putting to the applicant the CEF scheme.[78] The Tribunal there recorded that the applicant said “it was a government operation” which had nothing to do with the co-op. The Tribunal, however, noted that the applicant did not respond when it was put to the applicant that aid was distributed through co-ops.[79]
[76] Applicant’s Outline of Submissions, [31-32]
[77] Applicant’s Outline of Submissions, [31]
[78] CB637, [102]
[79] CB637, [102]
There was nothing irrational in the Tribunal’s testing the applicant’s claims that he worked with a co-operative by reference to country information which has not been suggested was not credible. In particular, there was nothing irrational in the Tribunal proceeding on the basis that, if the applicant were an employee of the co-operative, as he claimed he was, he ought to have been in a position to explain how the co-operative distributed food; and that, to the extent there was credible country information that explained how co-operatives worked in the area in which the applicant claimed he worked, it was open to the Tribunal not to accept that the applicant worked with the co-operative if the applicant could not explain how the co-operative operated, or if he gave an explanation that was inconsistent with the country information.
The second item of country information on which the claim of irrationality is directed is that which the Tribunal identifies in paragraph 103 of its reasons. That information indicates the LTTE were pushed out of area V in 2007. The Tribunal relied on that information as a reason for not finding the applicant a credible witness because the applicant said the LTTE was pushed out of area V in 2009. In counsel’s written submissions it is submitted that the country information “does not support that the involvement of the organisation that the Applicant worked for had ceased in 2009”.[80] That implies the Tribunal relied on this item of country information to find the applicant’s involvement with the co-operative ceased in 2009. That, however, is not what the Tribunal did. It simply relied on the country information to find that the applicant was incorrect in stating the LTTE had been pushed out of area V in 2009, and to rely on that finding as a matter that reflected adversely on the credibility of the applicant’s claim that he was employed with the co-operative. It was reasonably open for the Tribunal to so reason because it was reasonably open to the Tribunal to suppose that a person who claimed to have worked with the co-operative in area V from 2004 to 2012 would have been able to accurately identify the year in which the LTTE had been pushed out of area V.
[80] Applicant’s Outline of Submissions, [79]
The applicant finally submits that the Tribunal’s “finding of credibility is not supported on any substantial basis but on presumptions and/or immaterial inconsistencies”, and that the Tribunal “has failed to properly address the Applicant’s credibility and there is not [a] sound basis for rejection of this and other claims”.[81] This submission was not developed in oral address by counsel for the applicant. In my opinion, the summary of the Tribunal’s reasons which I have given demonstrates that the Tribunal relied on a number of matters on which it was reasonable for it to rely in concluding it was not satisfied the applicant had worked with the co-operative as he claimed he did.
[81] Applicant’s Outline of Submissions, [33]
For these reasons, ground 4 fails.
Ground 5
Ground 5 is as follows:
The Tribunal fell into jurisdictional error and/or denied the Applicant procedural fairness when . . . in relation to his application for review in circumstances it was under a duty to make further inquiries to ensure that the Applicant could participate in the review process.
Particulars
(a)The Applicant provided the Tribunal with information regarding employment with co-operative.
(b)The tribunal did not believe that it could obtain rather than actually attempt to obtain information.
(c)It was reasonably easy for the Tribunal to contact and obtain information.
(d)The Tribunal should itself properly informed itself by making proper inquiries to ensure procedural fairness; the Tribunal failed to do so;
(e)The document provided by the Applicant could have been otherwise readily available confirmed/verified;
(f)In the circumstances the document was critical to the Applicant’s claim;
(g)The Tribunal committed jurisdictional error in failing to make inquiries on that issue.
(h)The Applicant was not on notice that his claim to be co-operative worker would be rejected (AAT at [82]).
This ground and particulars (a)-(g) completely overlap with ground 1; and it fails for the reasons I have concluded ground 1 fails. That is, I do not accept that the existence of the matters of which the ground claims the Tribunal could have ascertained are matters of which the Tribunal could have easily ascertained by the making of any obvious inquiry; and to the extent the Tribunal could easily have ascertained the truth of the matters the ground claims the Tribunal could have ascertained, the Tribunal was under no duty to do so, these matters being matters in support of the existence of which the applicant provided evidence.
Particular (h) repeats the substance of the first of the two claims made in ground 4, and it fails for the reasons I have concluded that that claim fails.
Ground 5, therefore, also fails.
Matters not stated in application
The applicant relies on two additional grounds that are not stated in the application. The first is the ground which is identified in the applicant’s written submissions as “Ground 6A”. Counsel for the applicant informed me that the issue this ground intends to raise is that which was decided by the Full Federal Court in SZTAL v Minister for Immigration and Border Protection.[82] Counsel informed me that he only wished to make a formal submission that the Full Federal Court judgment was incorrect. I note that submission, but I also note that after I heard the matter the High Court dismissed the appeal that was brought against the Full Federal Court’s orders.[83]
[82] [2016] FCAFC 69
[83] SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34
The second matter on which the applicant relies arises from the existence of a certificate that was purportedly issued under s.438(1)(a) of the Act (Certificate). The Minister accepts the Certificate is invalid, but submits that the documents that are the subject of the Certificate were not considered by the Tribunal and, in any event, the documents covered by the Certificate could not have impacted on the Tribunal’s review of the applicant’s case. In support of that submission the Minister read an affidavit of Ms Hillary which annexed a copy of the Certificate and exhibited the documents covered by the Certificate. There are three documents which report on the setting aside by this Court of the decision of the Previous Tribunal.
Counsel for the applicant made no submission in relation to the Certificate. I find that the Tribunal did not rely on the documents covered by the Certificate; and the documents covered by the Certificate were incapable of having any bearing on any issue that was before the Tribunal. It follows that the Tribunal’s not having disclosed the Certificate to the applicant could not have deprived the applicant of an opportunity to advance his case, or to put any information or argument to the Tribunal, or otherwise have led the applicant to suffer any detriment.
Conclusion and disposition
The applicant has failed on each of the grounds of application stated in the application, and has otherwise failed to establish the Tribunal made any jurisdictional error. I propose, therefore, to order that the application be dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 12 September 2018
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