CZBQ v Minister for Immigration and Border Protection

Federal Circuit Court 9 In his further amended application to the Federal Circuit Court the appellant claimed: 1. The Tribunal made jurisdictional error since it failed to make inquiries necessary to complete its review. Particulars The Tribunal considered the issue of the appellant's father's detention in 2009 critical to the appellant's overall case. It failed to inquire into the authenticity and the truthfulness of two vital documents in relation to the 2009 detention of his father: a) CB 224 - "Detention Order" made by the Additional Secretary, Ministry of Defence. … 10 His Honour noted that the further amended application raised other grounds but they were not pressed. 11 His Honour considered that jurisdictional error on the part of the Tribunal had not been demonstrated. This was because, in summary: A failure on the part of the Tribunal to enquire may amount to jurisdictional error if sufficiently unreasonable: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123. The case of the appellant rested primarily on the proposition that if the Tribunal had accepted that the appellant's father had been detained in 2009 because of a perception that he had links to the LTTE, it might have come to a different view of the appellant's credibility. As his Honour explained at [22]: It is far from obvious that the genuineness of the purported detention order was critical to the Tribunal's decision. If it had been determined to be genuine, the Tribunal's opinion on whether the applicant faced a real risk of persecution if he returned to Sri Lanka might have been different but, given all the other matters which the Tribunal relied on in reaching its decision, that is far from certain. In those circumstances, it is difficult to conclude that the failure to make the enquiry supplied a sufficient link to the outcome before the Tribunal to constitute a failure to review. Consequently, I do not find that the Tribunal was required to make the enquiry identified by the applicant. There is no evidence before the Court to support a finding that an enquiry of the Sri Lankan government in relation to the genuineness of the purported detention order would have been reasonably easy or would have determined the genuineness of the purported detention order one way or the other. An enquiry of the Sri Lankan government might have exposed the appellant to risks. The Court did not accept that the appellant implicitly requested the Tribunal to make the postulated enquiry. In any event the High Court held in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 that the Tribunal is under no obligation to consider making enquiries under s 424 of the Act. Although the appellant submitted that the Tribunal made wrong findings about a number of matters, in respect of most of those matters they were findings open to the Tribunal on the material before it. The Tribunal did clearly err in respect of the person who caused the purported detention order to issued, however his Honour considered this mistake of little significance.

Appeal to this Court 12 A notice of appeal was filed in this matter on 12 January 2015. It raised three grounds of appeal: 1. That there is a jurisdictional error in the Federal Circuit Courts decision. 2. The reasons provided by the Second Respondent to the First Respondent in support of the Second Respondent's recommendation that the Appellant was not a person to whom Australia had protection obligations were neither logical nor rational. 3. Further grounds of appeal will be provided once I have legal representation and the review of the written reasons for the decision has been completed. 13 Written submissions of both the appellant and the Minister were filed in this appeal. 14 No amended notice of appeal has been filed containing further grounds of appeal. Accordingly, I understand that the appellant relies solely on the first and second grounds of appeal raised. 15 The Minister submits that neither of these grounds of appeal were raised in the Court below, and that even were the Court minded to grant leave to the appellant to raise these grounds they have no merit. This is because the Minister submits, in summary: Ground 1 is an unparticularised assertion of jurisdictional error, and no error is apparent in the decision of the primary Judge at [21]-[24] where his Honour addresses the issue of whether the Tribunal erred in failing to make enquiry as claimed by the appellant. Ground 2 is an unparticularised assertion of illogicality and irrationality, however the Tribunal's findings were open to it and were neither illogical nor irrational in circumstances where it had regard to the information before it including country information. 16 In written submissions the appellant claims, in summary, as follows: In relation to Ground 1: o the issue of detention was central to the way in which the Tribunal reached its conclusion; o the detention and the Tribunal's consideration of the Detention Order were critical, and the Tribunal was on notice that this was a key issue; o the Tribunal was under a duty to make further enquiries, and the Detention Order contained sufficient detail to allow the Tribunal to follow through with enquiries to determine its status. In relation to Ground 2: o the Tribunal's decision is unreasonable in the sense described in Minister for Immigration v Li (2013) 249 CLR 332; o the potential risk of harm and the issue of detention were critical facts to the resolution of the appellant's claims. The failure to obtain the information critical to resolution of the appellant's claim was unreasonable; o the primary Judge recognised that the Tribunal made an error in its discussion of the relevant detention document, but his Honour dismissed this as being of little moment. In fact, this error demonstrates that the Tribunal did not properly consider the material before it. The appellant submits that this mistake was unjust or wrong. 17 As is clear from the appellant's submissions, the substantive point upon which the appellant relies in this appeal is the treatment by the Tribunal of evidence, led by the appellant, that his father was arrested and detained for 90 days in 2009. In particular, I note the following observations of the Tribunal: 50. The Tribunal also put to the applicant that this was the first time he had raised the claim regarding his father being arrested and detained for ninety days in November 2009; the Tribunal noted that it was not referred to in his statement or in the detailed submission from his adviser received by the Tribunal a few days ago. It put to the applicant given the seriousness of his claim and the fact he has also now provided documentation to support this, the Tribunal has serious concerns that this is not a credible claim and that he has raised this an [sic] effort to bolster his case. The applicant stated that he has submitted a letter from Colombo. The Tribunal noted that it has some concerns about the authenticity of this document given it has no official quality, it does not identify who issued the order and it could have essentially be typed by anyone. The Tribunal also noted the country information which suggests that it is quite easy to obtain fraudulent official documents in Sri Lanka. It put to the applicant that given this had been presented so late and as stated, it does not have any official quality to it, the Tribunal has some concerns about the genuineness of this document. The applicant stated that if the Tribunal asks his father, he would say there are a lot of problems in Sri Lanka. 18 In considering this issue, at [15] of the primary judgment his Honour observed: 15. The applicant submitted that the detention order document had been critical to the credibility of his allegation that his father had been perceived to have had links to the LTTE which had, in turn, been critical to his claim to fear persecution in Sri Lanka on the basis that he (too) would be perceived to have links with the LTTE. In substance he submitted that if the Tribunal had accepted that his father had been detained in 2009 because of a perception that he had links to the LTTE, it might have come to a different view of his, the applicant's, credibility. 19 Later, his Honour noted: 18. The applicant noted the Tribunal's observations on the characteristics of the purported detention order and addressed submissions to the accuracy and reasonableness of those observations. He submitted that the Tribunal's factual findings concerning the document and this aspect of the claim more generally were, in one respect, demonstrably incorrect, and in other respects not the appropriate findings. The applicant argued that the Tribunal's demonstrably incorrect criticism of the document, that the document did not identify who had purportedly caused it to be issued, indicated that the Tribunal had not given sufficient attention to that document. He submitted that that finding was unreasonable, arbitrary and negligent and that therefore the Tribunal had not discharged its duty to review. The Minister conceded that the Tribunal was mistaken in making that statement. (emphasis added.) 20 Lastly, and importantly, his Honour concluded: 30. The observation that the purported detention order did not identify who had ostensibly caused it to be issued was plainly wrong and reflected an inadequate consideration of the document. However, it was a mistake of little significance when the Tribunal's other criticisms of the document, which directly concerned its authenticity, are taken into account. Moreover, those criticisms indicated that the Tribunal had, indeed, considered the document. The fact that it made a mistake about one aspect of the document does not demonstrate otherwise. 21 A mistake in relation to the evidence may be so fundamental to the decision of the Tribunal that it results in a failure of the Tribunal to discharge its duty to review the delegate's decision according to law: W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379 at [27]; Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 437 at [15]. This issue was explored by the Full Court in W375/01A where their Honours said: 27. It follows that the Tribunal made a serious mistake. Is the mistake an error of law providing ground for judicial review? We think it is. The Tribunal refused to receive relevant and probative evidence then available to it. This is not a case where evidence had been rejected because of a belief that the evidence would not establish what the appellant was asserting. On one view, such an error may not go to jurisdiction. Here the situation is different. The Tribunal failed to perform the duty imposed on it by the Act (s 425(1)) to decide the appellant's case on the material put to it and by conducting an appropriate inquiry thereon: The Queen v Marsham [1892] 1 QB 371; Toronto Newspaper Guild v Globe Printing Co [1953] 3 DLR 561; Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 per Gleeson CJ at [14], Gaudron and Gummow JJ at [42]-[44], McHugh J at [67], Hayne J at [149]-[155], Callinan J at [163]-[164]; Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 per Gleeson CJ at [4]; Wade and Forsyth Administrative Law 7th ed. 1994 at pp 318-319. That is to say, by not fully listening to the case the appellant wished to put, the Tribunal declined to exercise its jurisdiction and failed in its duty: Board of Education v Rice [1911] AC 179 at 182; Local Government Board v Arlidge [1915] AC 120 at 132-133. It is an error which provides ground for review under either s 476(1)(b), (c) or (e) of the Act. By refusing to hear "evidence" on a cardinal issue, the Tribunal purported to make a decision for which it did not have jurisdiction (s 476(1)(b)), or to make a decision it was not authorised to make (s 476(1)(c)), or so acted because of an error in its understanding of the relevant law (s 476(1)(e)). See Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 per Gleeson CJ at [10], McHugh, Gummow and Hayne JJ at [76]-[85]. 22 Was the mistake of the Tribunal concerning the detention document relating to the alleged detention of the appellant's father an error going to the jurisdiction of the Tribunal in this case? On balance, I consider it was. The Tribunal's criticisms of the relevant document were that "it has no official quality, it does not identify who issued the order and it could have essentially be typed by anyone". However in respect of this document: it is clear on its face that the document did identify the person who issued it; it is clear on its face that it was signed; it is clear on its face that it has a Defence Ministry reference number. 23 None of these points were noted by the Tribunal, and in fact in finding that the document was not genuine it appears that the Tribunal did not consider these points at all. 24 Although the Tribunal stated in its decision that the document "has no official quality" it is unclear what the Tribunal meant by this. At the hearing Mr Speirs for the Minister submitted that the document was not stamped, and further the spelling of the name of the appellant's father on the document was different from the manner in which it appeared in an affidavit affirmed by the appellant's father on 17 September 2012. So far as I can ascertain from the material before me, neither of these points were made by the Tribunal or put to the appellant in respect of the provenance of the document. Indeed, as I put to Mr Speirs, one might imagine that a forgery of a detention order might be expected to reproduce the spelling of the name of the alleged detainee correctly in order to give some credence to the forgery. This point is of course speculative and was a matter properly to be considered by the Tribunal. On the material before me, it was not. 25 At the hearing the Minister also submitted that the Tribunal's consideration of the detention order was in the context of points put to the appellant concerning the prevalence of documentary fraud in Sri Lanka, and the unsatisfactory response of the appellant to the Tribunal's questioning in this regard. I note that the appellant was 17 years old at the time of the Tribunal hearing. With respect to the Minister, I would be surprised if a 17 year old person would be in a position to address this issue with authority. 26 I do not accept the proposition that this error was of little significance in the context of the Tribunal's criticisms of the document, as found by his Honour at [30] or indeed the findings of the Tribunal as a whole in respect of the appellant's case. I form this view in light of the reliance by the appellant on this document, his youth and his presumed need to rely on others to assist him prepare his case given that he was 17 years old at the time of the matter before the Tribunal. I also consider it of significance that the Tribunal treated this document as relevant to its consideration of the appellant's credibility. While I note the point made by Mr Speirs concerning the views formed by the Tribunal in the context of the lateness of the submission of the detention order, I consider that this issue required consideration in light of a proper examination by the Tribunal of the detention order itself. This proper examination was not conducted by the Tribunal. 27 While it is settled law that, as a general proposition, the Tribunal is under no duty to act in an inquisitorial capacity and investigate the claims of an applicant before it through independent sources (Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21-22) it may be that a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, could supply a sufficient link to the outcome to constitute a failure to review. In such a case the failure to make such an enquiry can result in a decision being affected by jurisdictional error: SZIAI at 436 [25]. In SZIAI the High Court formed the view that despite a failure by the Tribunal to make certain enquiries, the decision of the Tribunal was not affected by jurisdictional error because there was nothing on the record to indicate that any further enquiry by the Tribunal, directed to the authenticity of the relevant documents, could have yielded a useful result (at [26]). I am not satisfied that this is the case in the proceeding before me, because in the absence of proper consideration by the Tribunal of the detention order, it is not clear if informed enquiries could have assisted the Tribunal in reaching a different view of the validity of the detention order. 28 In my view an error was made by the Tribunal going to its jurisdiction, and his Honour below erred in not setting the decision aside. 29 The appeal should be allowed and the decision remitted to the Tribunal for rehearing according to law. 30 It appears that the appellant has obtained legal advice in the course of his preparation for this appeal. As an ordinary proposition costs follow the event: Oshlack v Richmond River Council (1998) 193 CLR 72. It follows that the Minister is liable for the costs of the appellant of and incidental to this appeal. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.