APP15 v Minister for Immigration and Border Protection

1. The appeal is dismissed
2. The appellant pay the first respondent's costs of and incidental to the appeal, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 The Refugee Review Tribunal (the Tribunal), found that the appellant is a national of Sri Lanka. 2 By an application lodged with the department administered by the first respondent, the Minister for Immigration and Border Protection, on 8 November 2012 the appellant sought the grant to him under s 65 of the Migration Act 1958 (Cth) (the Act), of that class of visa known as a Protection (Class XA) visa (Protection visa). The criteria for that visa included, by virtue of s 36(2)(a), (aa), (b) and (c) of the Act, that the Minister be satisfied that the appellant was either a person in respect of whom Australia had protection obligations under the conventions in respect of refugees, conveniently collectively termed the Refugee Convention, or on other complementary protection grounds or was a member of the same family unit as such a person, that person being one who held a Protection visa. 3 The basis for the appellant's Protection visa claim was detailed in a statutory declaration made by him on 31 October 2012, which was lodged with the Minister at the time when he made his application. The Tribunal summarised that claim in its reasons at [3] in this way: The applicant claims to fear harm because of a. his Tamil race; b. his political opinion of support for the Tamil National Alliance (TNA) and opposition to the Sri Lanka Freedom Party (SLFP), the Tamil Makkal Viduthalai Pulikal (TMVP or Karuna Group) and the United People's Freedom Alliance (UPFA) c. his imputed political opinion of support for the Liberation Tigers of Tamil Eelam (LTTE) and opposition to the government of Sri Lanka. He will be perceived to be opposed to the government and support the LTTE because he is Tamil; two of his cousins were combatants in the LTTE; he has been involved in campaigning for TNA; and his application for protection in Australia d. his membership of a particular social group being failed asylum seekers returning to Sri Lanka e. The applicant fears he will be killed or physically abused or that he will suffer serious discrimination (threatening his ability to subsist) and will suffer significant harm. 4 On 8 August 2013, a delegate of the Minister decided not to grant the appellant a Protection visa. The appellant then sought the review on the merits of this decision by the Tribunal. The Tribunal conducted two hearings in early 2015 in each of which the appellant gave evidence either orally or by way of tendering supporting documentation. 5 On 25 March 2015, for reasons which were published in writing the following day to the appellant, the Tribunal determined that the Minister's decision not to grant the appellant a Protection visa should be affirmed. The appellant then sought the judicial review of that Tribunal decision by the Federal Circuit Court on the basis of two identified jurisdictional errors. The first concerned an alleged failure on the part of the Tribunal to engage with a particular integer of the claim for a Protection visa. The second alleged that the Tribunal had, in the circumstances of the particular case, come under an obligation to make particular inquiries and had acted unreasonably in failing to make those inquiries. 6 Neither of these grounds succeeded before the Federal Circuit Court. On 8 December 2015, for reasons given ex tempore that day, that court dismissed with costs the appellant's judicial review application. It is from that judgment that the appellant now appeals to this Court. Originally there were two grounds of appeal. These grounds replicated the grounds of review before the Federal Circuit Court to the end of advancing a case that on either or each of those grounds, that court was in error in not finding jurisdictional error on the part of the Tribunal. 7 The first of these grounds came to be abandoned by the appellant, who came latterly to be represented by Mr Bodisco of counsel. I have been much assisted by his submissions, as for that matter I have been by the submissions made by the Minister's solicitor. 8 There was, notwithstanding the abandonment formally of ground 1, some exchange between me and Mr Bodisco in relation to that particular ground. In fairness, I should state that the exchange was one initiated by me rather than the product of any endeavour by Mr Bodisco to withdraw from a position formally abandoned in writing, particularly because the appellant is present in person. I propose to make some brief reference to that first ground, if only to provide a basis for an understanding on his part, as to why it was entirely consistent with duties which fall on counsel in relation to the Court that ground 1 was not pressed in this Court as it had been pressed before the Federal Circuit Court. 9 The particular integer of the claim which was said not to have been addressed by the Tribunal was that it was the appellant's claim that he had experienced discrimination on the basis of his being a young Tamil male who sought to achieve an education. The discrimination was said to manifest itself by the encountering of problems every time the appellant had to pass through an army checkpoint and also because of targeting on the basis that Sri Lankan authorities did not want people of Tamil ethnicity to achieve an education. This was said, so the ground before the Federal Circuit Court went, not to have been addressed by the Tribunal. 10 A study of the Tribunal's reasons discloses that in the summary which appears at [3] of the Tribunal's reasons, that particular claim in that detail is not mentioned. However, those details or integers of the claim were in fact addressed by the Tribunal in the Tribunal's written reasons. In this regard, reference might be made to that part of the Tribunal's reasons under heading "Tamil race ethnicity and PSG-Tamil male", commencing at [118], and also under the heading, "Discrimination" at [161] in the general consideration of whether Australia had protection obligations under the complementary protection criterion. Reading the Tribunal's reasons as one must as a whole, and not narrowly with an eye attuned to error, this was a case where that particular integer of the claim was addressed. It is therefore not a case where the error found by the majority in Dranichnikov v Minister for Immigration and Multicultural Affairs; Minister for Immigration and Multicultural Affairs; Ex parte Dranichnikov [2003] HCA 026; (2003) 77 ALJR 1088, was committed by the Tribunal. 11 The Federal Circuit Court was correct so to conclude and the challenge found in the abandoned ground would have faced no prospect of success. I say nothing more about that ground. 12 The ground which was pressed was ground 2 and is in these terms: Ground Two 2. His Honour erred in finding that the Second Respondent made no Jurisdictional Error in failing to make inquiries on information critical to the Application and the providers of information are easily contactable for confirmation of its authenticity. Particulars a. The Second Respondent stated at Para 91 that the Applicant's brother's UNHCR ID card does not contain his brother's last name and thus, places no weight on it. b. The Applicant provided two letters from members of Parliament from the TNA Political Party and one letter from a Member of the Eastern Provincial Council. All letters contained contact details and stated that the Applicant is a strong supporter of the TNA. That the applicant's role in the political activities is critical to the application. 13 Before the Federal Circuit Court, the learned judge accepted, and did so by reference to Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 (SZIAI), that there were circumstances where a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could supply a sufficient link to constitute a failure to review. His Honour's conclusion was that, in the particular circumstances of this case, there had been no such failure. The appellant devoted considerable time in the course of submissions to an endeavour to demonstrate that there were circumstances in this case which did give rise to an obligation to make such an inquiry. 14 In light of those submissions, it is necessary to descend in some detail into the Tribunal's reasons and to the material which was before it. The Tribunal posed for itself a question, "Is the applicant credible?" In so doing, the Tribunal, at [23], made a particular point, and it is a very useful point indeed, of reminding itself of features which can attend evidence given either orally or in writing by asylum seekers and which may serve to explain particular apparent inconsistencies. Thus the Tribunal accepted that, "applicants may be nervous and mentally distressed at times in presenting their claims". The Tribunal recorded an observation that the appellant was "able to present his evidence in a meaningful way and only became upset towards the end of the hearing after he had presented his evidence" (Tribunal's reasons at [23]). 15 The Tribunal also made a point of reminding itself at [24] that an applicant's "account may be brief at the outset and further details follow". It is necessary to remember not only that the Tribunal approached the assessment of the material before it with this reminder explicit, but also that the Tribunal is not obliged uncritically to accept material placed before it by or on behalf of the applicant, or for that matter it must be said, by or on behalf of the Minister. To do so in either instance would not be to conduct an independent review on the merits, which is the obligation of each and every member of the Tribunal. 16 The Tribunal recorded its "concerns" about both the applicant's credibility and the documents which he had provided in its reasons at [25] - [26] in this way: The tribunal had significant concerns about the applicant's credibility also because his evidence was evasive and often rather than answer a question, he provided evidence about something else or changed his evidence. The applicant confirmed he understood the interpreter each time. The agent submitted the applicant's evidence mixing intention, emotion and what happened and lack of understanding should not suggest a lack of credibility but his lack of understanding. The tribunal finds this explanation unconvincing as the applicant is educated, completed high school and commenced studying at university. Further it is at odds with his precision in evidence about the details of his brother's kidnap which was consistent with his 2014 statement. For instance he knew the precise date his brother went to Malaysia but could not recall without significant tribunal prompting (even approximately) when his brother was kidnapped or when he was aware his brother had been kidnapped. The tribunal considers the applicant's difficulties with his evidence were because he was not recalling events that actually occurred and making up his story as he went along or responding to or trying to anticipate tribunal concerns. As well as the tribunal had concerns about the documents he provided because some of the letters were inconsistent with his claims and evidence and some of the politician letters had errors and did not present as official documents. Having considered the applicant's evidence and explanations at two hearings, the tribunal finds the applicant fabricated his claims and is not a witness of truth. Further reasons are set out below. 17 Later in the course of a very detailed engagement indeed by the Tribunal with the appellant's claimed involvement with the Tamil political organisation, the TNA, which was supported by correspondence apparently from Sri Lankan politicians, the Tribunal recorded the following at [37] - [40]: The tribunal considered the politicians' letters. The applicant said they don't give letters to everyone and he got one because he was involved and politician knew his problem. The tribunal has considered the agent's submission the letters should be given the benefit of the doubt as they cannot be verified given confidentiality in refugee claims. However the letters lacked detail in areas one might expect given the applicant's claims of how they knew each other. For instance, the letters from Pon Selvarasa did not refer in detail to how the politician knew the applicant, the length of time he knew him. It did not refer to the applicant's detention in 2009, but referred to searches. As well it referred to threats from unknown opponents which was inconsistent the claims the applicant knew they were the TMVP. It did not mention he was the treasurer, official campaigner or leader of the youth, but only described him as an active supporter. By contrast it had the detail of the date he departed Sri Lanka. The letter from Nadarajah had a number of spelling errors in the name of the province, the name of the TNA and lacked any mention of the applicant's detention or his position in the TNA. The applicant provided two letters from Ariyanethran both dated 5 December 2014, one which was provided after the January 2015 hearing and the other provided at the second hearing on 12 March 2015. The first letter said the applicant had campaigned for the party elections in 8 September 2012, however the applicant had left Sri Lanka by then. The applicant said he asked politician to correct the letter and provided the second letter on 12 March 2015. None of the letters referred to the applicant being treasurer, or official campaigner, youth leader or being detained but only referred to threats and searches. The letter from Seenithamby Yoeswaran also did not refer to the applicant being a treasurer, official campaigner or youth leader. The letter was also inconsistent with the applicant claims as it suggested he had been abducted several times and warned and released by the TMVP. It suggested he had to hide due to persons coming to his house early 2012, but the applicant claimed he had to hide from 2009, was abducted once and feared the Karuna group. Given the inconsistencies with the applicant's account and lack of reference to the applicant's TNA positions and lack of detail in the letters the tribunal places no weight on them. Having regard to the applicant's evidence, the tribunal does not accept the applicant (or his family) is a high level or profile TNA supporter or a TNA member or that they campaigned for the TNA, or the applicant met or his well known to the candidates or that his family were member or campaigners for the TNA. As discussed above the applicant's evidence about TNA involvement was vague, inconsistent and by December 2014 his claims of involvement had changed considerably in a number of key respects. While the tribunal accepts he may support the TNA in that he would vote for them, the tribunal does not accept he is otherwise involved with TNA as claimed. The tribunal finds the applicant has fabricated his claims about his family's TNA involvement. 18 It was put on behalf of the appellant that holding these concerns and being of the view that there were inconsistencies as set out particularly in [38], that it would have been a simple matter on the part of the Tribunal either itself to make telephonic inquiries or to request the secretary to the Minister's department to make such inquiries of the politicians concerned. 19 The letter, seemingly from a particular politician, which appears at p 320 of the Appeal Book, is one of the documents concerned. Another appears at p 318 and another from a member of a provincial council rather than the National Parliament, appears at p 319 of the Appeal book. In support of this particular appeal ground, there was an endeavour to read an affidavit by another lawyer, Mr Barataraj, filed on 3 May 2016, deposing to telephonic inquiries of the offices of the politicians concerned. The reading of this affidavit on behalf of the appellant was opposed by the Minister. It was not material which was before the Federal Circuit Court. I refused to permit the reading of the affidavit on the appeal, for reasons which I earlier gave ex tempore. In short though, the point is that even if this material had a relevance at all before the Federal Circuit Court in demonstrating how readily an inquiry might be made, that was a matter for tendering in support of a ground of review in the original jurisdiction not so as to provide an additional factual foundation for a ground of appeal in the exercise of appellate jurisdiction. 20 Notwithstanding the rejection of the tender of the affidavit evidence, the ground was pressed on the basis that there was nonetheless, having regard to the way in which the Tribunal dealt with the letters, occasion for an obligation on the part of the Tribunal to make inquiries before reaching concluded views both in respect of affording no weight to the supporting letters and making affirmative findings of fabrication in respect of the appellant's account of his involvement with the TNA. 21 It may readily be accepted that, while findings by the Tribunal as to credit are par excellence for that administrative body to make, Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at 417, [67] per McHugh J, that does not mean that they are immune from challenge in the course of judicial review for jurisdictional error. 22 Authorities concerning challenges on judicial review to adverse findings as to credit were recently and, with respect, helpfully collected by Flick J in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 (SZVAP). One of the cases his Honour cites, is Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 121, [78] in which Robertson J observed: It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal's rejection of the entirety of an applicant's evidence and the entirety of the applicant's claim. 23 A finding as to credit, which was at odds with corroborating documentation in respect of which there was no basis to question authenticity, or in respect of which a Tribunal proceeded on a flawed or false understanding, may well provide a basis for impeaching the ultimate absence of satisfaction with respect to a protection obligation arising. And that, on the basis that the absence of satisfaction was the product of unreasonable reasoning. Examples of this type of jurisdictional error are to be found in SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 also referred to by Flick J in SZVAP and in another judgment of my own to which the appellant drew attention, SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093. 24 The point of all this, so the appellant's submission went, was that in these letters there was, if they were to be accepted, a basis upon which the appellant's oral and written evidence might be corroborated; hence the importance, so the submission went, of the Tribunal's making an inquiry. As to this, it might readily be accepted that the Tribunal was empowered by either or each of ss 424 and 427 of the Act either itself or by requirement of the Secretary to cause particular inquiries to be made of the political officers concerned. 25 It appears, having regard to [37] of the Tribunal's reasons, that at least the appellant's agent before the Tribunal, (for he was not self-represented), may have been under the impression that the letters could not be verified, "given confidentiality and refugee claims." 26 That though was a mistaken view. There was nothing which would have prevented the appellant from seeking further amplification himself from the politicians concerned or for that matter from requesting the Tribunal to organise a telephone conference with one or the other or each of them in the course of the hearing. It should also be stated that had the Tribunal itself embarked on making further inquiries, the proprietary of undertaking that course could not have been gainsaid by the Minister on judicial review. It was clearly within its power to do that. 27 It is to be remembered though in respect of the Tribunal, that the "core function, is, in the words of s 414 of the Act, to 'review the decision' which is the subject of a valid application made to the Tribunal under s 412 of the Act": SZIAI at 1127, [18]. Further, the adjective "inquisitorial" as applied to the Tribunal "does not carry that full meaning. It merely delimits the nature of the Tribunal's functions": SZIAI at 1127, [18]. That the Tribunal might lawfully have undertaken an inquiry does not mean that its failure so to do constitutes a jurisdictional error: SZMJM v Minister for Immigration and Citizenship [2010] FCA 309. 28 It is a given that there can be circumstances where a duty to inquire arises on the part of an administrative tribunal charged with a merits review function. The authorities in that regard commence with observations made in a tentative way by Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, and latterly and materially include SZIAI and Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594. 29 The long and the short of it is this. It is for an applicant ordinarily to support his or her claim for a Protection visa as best he or she can. This, the applicant did and did so with the assistance of a qualified agent. Hindsight can well be a great teacher in relation to the adequacy of that supporting material. In this case, the Tribunal did what it was entitled to do. It did not accept that material uncritically. It submitted that material to analysis on its face. As particularly evident in [38] of its reasons, inconsistencies and anomalies emerged. These, coupled with other matters, occasioned a conclusion on the Tribunal's part that the appellant's evidence was not to be accepted. It also occasioned a conclusion on the part of the Tribunal that no weight ought to be given to the supporting material from the political officers. These were value judgments reasonably open to the Tribunal and logically and rationally explained. 30 There was, in the circumstances, no duty on the part of the Tribunal to make further inquiries. Indeed the nature and extent of those inquiries would have been far from simple. They extended beyond just ascertaining that there was indeed a political officer available at that telephone number. Rather, having regard to the reservations expressed in [38], quite some interrogation indeed would necessarily have been entailed in resolving the Tribunal's particular concerns, if ever they were to be resolved. 31 It follows from the foregoing that I regard the dismissal by the Federal Circuit Court of ground 2 as in the review grounds as correct and that as replicated as ground 2 of this appeal it must be dismissed. In light of the foregoing the appeal must be dismissed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.