SZOER v Minister for Immigration and Citizenship

SZOER v Minister for Immigration and Citizenship - [2010] FCA 1100 - FCA 2010 case summary — Zoe

[8]

TRIBUNAL FINDINGS 12 The Tribunal delivered its decision on 5 February 2010. The Tribunal did not find the appellant to be a truthful or credible witness; found that there were problems with the appellant's evidence at the hearing; that her responses to questions asked of her were vague; and that there were inconsistencies in her evidence. The Tribunal also found that the appellant's claims were inconsistent with the country information before the Tribunal. 13 The Tribunal also noted the differences in the claims made by the appellant in her original application, at her interview before the delegate, and before the Tribunal. For example, the Tribunal found it significant that she only mentioned the home invasion by four masked men for the first time at the Tribunal hearing. In this regard, the Tribunal concluded that if this claim were true, she would have referred to the incident at the Departmental interview, especially given the claim made by the appellant at the Tribunal hearing that this was one of the significant incidents that made her decide to flee from Fiji. 14 The Tribunal also found that the appellant's failure to claim protection on her previous visits to Australia and her near three month delay in applying for protection after her arrival in Australia had undermined her claims. 15 The Tribunal considered the contents of the additional documents submitted to the Minister including the Police letters however given the lack of detail contained within the documents and the Tribunal's prior findings concerning the appellant's credibility, the Tribunal gave the Police letters 'no weight'. Significantly for this appeal, the Tribunal made no inquiry to the Fijian Police regarding either the Police letters or the Police reports that were referenced therein. 16 For convenience, the finding of the Tribunal at [85] in relation to the Police letters is set out as follows: The two statements from the Fiji Police Force are addressed "To Whom it May Concern". They are not Police reports provided at the time of the incidents as they are dated [in] July 2009. They state that the applicant reported that she had been robbed and reported that she had been threatened. The statements provide no details of when the applicant reported these incidents or when she was robbed and threatened. Given the Tribunal's finding as to the credibility of the applicant and given the lack of detail in these statements the Tribunal places no weight on them.

[11]

The Tribunal on page 24 (CB 159) at [85] held that due to lack of details in the alleged Police letter and due to applicant's credibility it gave no weight to it. On Page 24 (CB 159) at [86] it held that due to lack of details in the applicant's former lawyer's letter, some perceived inconsistency and due to applicant's credibility it gave no weight to it. A basic inquiry would have determined genuineness of the letters and truthfulness of events, which inquiry was necessary in the circumstances but not pursued. 19 In his reasons for judgment delivered on 17 June 2010 Federal Magistrate Driver found that the Tribunal refused the Application for Review because it did not accept that the appellant was a credible witness. His Honour further found that contrary to the appellant's submissions, no finding was made by the Tribunal that the documents (including the Police letters) submitted by the appellant were not genuine. Driver FM found that the Tribunal considered such letters but found them to be of no assistance because of the lack of detail contained in the documents. 20 Driver FM observed that the information contained in the Police letters was extremely general in nature and that the content of the reports referred to by the Police letters was unknown. Driver FM stated that the Tribunal might have made an inquiry of the Fijian Police in relation to the Police reports outlined in the letter but it was under no obligation to do so. He observed that the same inquiry could have been made by the appellant but it had not been made. His Honour observed at [16]: The applicant had the opportunity to make such an inquiry in order to support her claims in consequence of the letter sent to her solicitor on 7 December 2009 pursuant to s.424A of the Migration Act. That letter put the applicant on notice that the Tribunal was inclined to disbelieve the applicant's claims of having been continuously threatened, intimidated and attacked. Although the applicant, through her solicitor, responded to the invitation to comment, there was apparently no attempt to obtain the Police reports referred to. Neither was the Tribunal invited or requested to obtain them. If, as the applicant now submits, such an inquiry was obvious and bearing on a vital issue, it is mystifying why no attempt was made by or on behalf of the applicant to obtain the reports.

[17]

SUBMISSIONS 26 The basis of the appellant's submissions is the application of considerations listed in the decision of the High Court in Minister for Immigration and Citizenship v SZIAI and Another (2009) 111 ALD 15 which held that jurisdictional error may occur if the Tribunal fails to make an obvious inquiry concerning a critical fact, the existence of which is easily ascertainable. 27 In SZIAI, the Tribunal had sought information from the Ahmadiyya Muslim Association Australia concerning the veracity of certificates supplied to the Tribunal by an applicant supposedly from a related organisation in Bangladesh. The Association provided a response that stated that the certificates provided to the Tribunal were forgeries. The Tribunal subsequently refused the application. On appeal, the applicant alleged that, on forming the view that the certificates may be forgeries, the Tribunal should have made further inquiries regarding the telephone number contained on the disputed certificates. The High Court rejected such contention. 28 At [25]-[26] their Honours French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said: Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that. [Footnotes omitted]

[21]

An Obvious Inquiry 34 As to the first issue, the appellant submits that the inquiry to be made of the Police was obvious given that it concerned a relevant issue; there existed a vital gap in the Tribunal's understanding of a critical issue, namely the fact that the Tribunal was considering giving the Police letters no weight; and that the particular circumstances warranted the Tribunal making the inquiry instead of the appellant. 35 The appellant submits that the inquiry concerned a relevant issue given that any information obtained from the Fijian Police could be used in assessing whether the appellant in fact faced a threat of harm and also to clarify whether state protection had been afforded to her. 36 The appellant claims that there were various aspects of the documents provided to the Minister which tended to verify their credibility including the fact that the letters were written on an official letterhead, the fact that contact details were provided, that an official stamp of the Fijian Police appeared on the letters, that the Police Inspector's contact details were provided and the fact that the file numbers of the reports corresponded to the years when the appellant claimed to be harassed. 37 The appellant referred to the Federal Magistrate's finding at [16], set out above in the appellant's Notice of Appeal at [24] above, in which his Honour stated that the Tribunal was under no obligation to inquire. 38 The appellant submits that in the special circumstances of the case, such a finding was inappropriate given that the source of the information, the Fijian Police, was neither supportive nor neutral to the appellant. The appellant submits that as her claim contained an allegation of neglect of duty by the Fijian Police, they should be treated as a source adverse to her claim. Accordingly the appellant submits that it would be unreasonable to have required her to obtain further information from Fijian Police herself and that it was incumbent on the Tribunal to do so.

[22]

Finding 39 It was open to the Tribunal to make an inquiry of the Fijian Police Force regarding the relevant Police reports named in the Police letters provided to the Tribunal. Such inquiry may have shed light on the veracity of certain elements of the appellant's claim, namely the details of her specific complaints to the Police. 40 While an inquiry may have resulted in information that could have supported or dispelled the Tribunal's doubts concerning the appellant's credibility, the Court is unable to describe such an inquiry as 'obvious' given the fact that the Tribunal came to its finding on the credibility of the appellant based on the 'inconsistent and shifting nature' of the appellant's own evidence. Further, the degree of detail contained in the Police letters gave no strong indication that any useful information would be obtained by making an inquiry of the Fijian Police. 41 In SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 Bennett J said at [30]: SZIAI stated that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could amount to a failure to review. A Tribunal's failure to inquire may ground a finding of jurisdictional error because the failure renders the ensuing decision manifestly unreasonable, but such circumstances are rare and exceptional (Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at [60] per Kenny J at [60]). The critical underlying question remains whether the decision is vitiated by jurisdictional error. The failure to inquire must constitute a failure to undertake the statutory duty of review or otherwise be so unreasonable as to support a finding that the Tribunal's decision was infected by jurisdictional error (SZIAI at [26]; see also Minister for Immigration and Citizenship v Dhanoa (2009) 180 FCR 510 at [46]-[51] per Jagot and Foster JJ and SZNBX v Minister of Immigration and Citizenship [2009] FCA 1403 at [30] per Bennett J). The fact that it may have been reasonable for the Tribunal to make a certain inquiry does not elevate the lack of such an inquiry into a jurisdictional error.

[26]

Sufficient link to outcome 45 The appellant submits that the Tribunal was obliged to inquire from the Fijian Police concerning the genuineness of the Police letters. It is submitted that the letters could have significantly strengthened her claim, particularly in circumstances where the Tribunal was said to have (in the appellant's submission) dismissed all of the appellant's claims in a 'sweeping manner'. 46 The appellant submits that even allowing for the fact that the Police letters lack the requisite details to totally substantiate the appellant's claim, they establish, prima facie, that complaints were in fact made about the events alleged. Accordingly it is submitted that the Tribunal should have proceeded with caution before disregarding them. 47 The appellant referred to the Tribunal's finding at [85] (see above at [16]) where the Tribunal chose to place no weight on the Police letters as they were not contemporaneous with the incidents alleged and contained few details regarding the incidents which were the subject of the complaints. The appellant submits that these facts, in addition to the Tribunal's finding concerning the credibility of the appellant, caused the Tribunal to disregard such evidence. 48 The appellant submits that the lack of detail in the Police letters was a compelling factor for the Tribunal to make its own enquiries to the Fijian Police, enquiries that the appellant submits would have been easily conducted. Further, the appellant submits that the Tribunal's assessment of the appellant's credibility should not have affected the weight to be given to the Police letters. The appellant submits that the Police letters came from an independent source 'with unquestionable integrity and in that sense [they] had to be assessed on its own'. 49 The appellant has referred the Court to several authorities including Khant v Minister for Immigration and Citizenship and Another (2009) 112 ALD 241; Videto and Another v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167; Minister for Immigration and Citizenship v Le and Others (2007) 164 FCR 151; Luu and Another v Renevier (1989) 91 ALR 39 in support of the submission that the Tribunal was required to make an inquiry of the Fijian Police. The appellant submitted that as there existed a critical gap in the information before the Tribunal which could have been easily remedied by an inquiry, the authorities above required that the Tribunal make such inquiry.

[27]

Finding 50 In this regard the claim of the appellant most clearly fails. The Tribunal found no support for the appellant's case in the Police letters and made a finding on the appellant's credibility based on the information before it. As found by the Federal Magistrate, the Tribunal at no stage disputed the veracity of the Police letters but rather disputed the veracity of the alleged events that gave rise to the appellant's complaints. There is simply no evidence that any inquiry by the Tribunal in regard to the Police letters would have had any effect on the Tribunal's decision. 51 Even if the appellant had reported the incidents she relied upon to the Police, this fact does not establish that those incidents occurred. If an 'obvious enquiry' was confined to the Tribunal merely ascertaining whether the appellant reported the incidents, and the Police confirmed this fact, it does not assist the appellant in view of the Tribunal's finding that the appellant's account lacked credibility. Put another way, the fact of the complaints being made to the Police being confirmed would not have made any difference to the Tribunal's finding that the events relied upon did not occur. 52 Unlike the circumstances in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, Tickner v Bropho (1993) 40 FCR 183 and Luu, there has been no evidence produced that suggests what information a further inquiry would have revealed. 53 The Federal Magistrate did not err in finding that the Tribunal made no finding, either express or implied, concerning the genuineness of the letters. The Tribunal placed no weight on the Police letters primarily on the grounds of the generality. Such conclusion could properly be drawn without the need to make a specific finding on the genuineness of the letters themselves. 54 It was for the appellant to establish a case before the Tribunal. It was not sufficient for the appellant merely to provide the contact details of the Fijian Police and the file numbers of the apparent Police reports to the Tribunal and assume the Tribunal would conduct its own investigation. Further, the Tribunal's misgivings concerning the veracity of the alleged incidents was put to the appellant both orally and in writing before the Tribunal's determination and the appellant was afforded the opportunity of obtaining further information. None was forthcoming.

[33]

Weight Given to the Police Letters 63 The appellant submits that if the Tribunal made no suggestion that the Police letters were not genuine (a finding made by the Federal Magistrate), the Tribunal was bound to give the Police letters at least some weight in its determination. The appellant submitted that there is difficulty in reconciling the Tribunal's decision to give no weight to the documents and the Federal Magistrate's finding that the documents did nothing to overcome the Tribunal's concerns relating to the credibility of the appellant. The appellant submits that the Tribunal could not make any finding in relation to the credibility of the appellant based upon the incidents referred to by the Police letters without firstly establishing the authenticity of the Police letters and giving them appropriate weight. 64 The Court finds that the Federal Magistrate was not in error in finding that the Tribunal had not erred in concluding that no weight should be provided to the statements from the Fijian Police. The letters were of an extremely general nature and were not contemporaneous with the events alleged. Given that the Tribunal had no duty to inquire further, the inadequacy of the details provided by the Police letters allowed their dismissal as having 'no weight'. 65 The use of the phrase 'places no weight' might, in isolation, be interpreted to mean that the Tribunal held the Police letters to be incapable of constituting probative evidence. An analysis of the Tribunal's reasons shows that it did not reject the letters without careful consideration. The Court finds, as did the Federal Magistrate, that the Tribunal did take the Police letters into account in its assessment but given the findings as to the appellant's credit and the lack of detail in the letters themselves, the Tribunal found that the Police letters could provide no support to the appellant's case. It was only following this analysis that the Tribunal made its finding that no weight could be placed on the Police letters. The Court finds that neither the Federal Magistrate nor the Tribunal erred in reaching such conclusion.

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