SZRSU v Minister for Immigration and Border Protection [2019] FCA 1919 | Case summary

ABRAHAM J: 1 The appellant is a citizen of Sri Lanka who first applied for a protection visa on 22 June 2011, which was unsuccessful, as was the application for review of that decision. On 16 May 2014, the appellant made a further application relying upon the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act). That application was made following the decision of this Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235. On 25 May 2015, the Minister's delegate refused the application, and on 24 May 2017, the Administrative Appeals Tribunal (Tribunal) affirmed the delegate's decision. 2 This is an appeal from an order of the Federal Circuit Court which dismissed an application for judicial review of that decision of the Tribunal. 3 The appellant was represented in the Federal Circuit Court, but appeared in this Court unrepresented, with the assistance of an interpreter. His grounds of appeal were drafted with the assistance of a legal practitioner. 4 For the reasons below the grounds of appeal have not been established. Tribunal 5 The Tribunal accepted the appellant was an ethnic Tamil Hindu from Colombo who was born in the North. The Tribunal accepted that the appellant only had two passports and that he had exited and entered Sri Lanka on a number of occasions prior to the end of the civil war, travelling to Europe and the UK. 6 However, the Tribunal found that the appellant was not "a witness of truth". The Tribunal made a number of detailed adverse credibility findings. This included that the Tribunal did not accept that the appellant was a businessman or that he had been pressured for money by the LTTE or the EPDP; that the appellant personally knew a businessman widely reported to have been arrested, detained and tortured or that the appellant was arrested because of his association with this man. The Tribunal did not accept the appellant was ever detained or harmed by the authorities or anyone else in Sri Lanka; that he was perceived to be a LTTE supporter, or that he had any adverse political or religious profile before leaving Sri Lanka. It did not accept that he had joined any Tamil organisations or engaged in political activities in Australia such that he may be imputed with an adverse profile if he returned. The Tribunal did not accept that Tamil ethnicity, or being a male Tamil born in the North who lived in Colombo, gave rise to a real chance of serious harm. 7 The Tribunal accepted that the appellant would be questioned at the airport for his illegal departure and brought before a court to apply for bail, but it did not accept that he faced a real chance of harm during this process, that he would be unable to pay the fines or that they would amount to significant harm. The Tribunal did not accept that the appellant would face a real chance of significant harm due to his illegal departure or having sought asylum in Australia. Federal Circuit Court 8 The appellant sought review on five grounds, which are largely replicated by the grounds in this Court. 9 In relation to ground 1 the appellant submitted that material that was the subject of non-disclosure certificates contained adverse information that ought to have been disclosed to him. The primary judge addressed the items of information and concluded that the appellant suffered no practical injustice by reason of the manner in which the Tribunal dealt with the certificates. 10 In relation to ground 2, the appellant contended the Tribunal failed to comply with s 424A of the Migration Act in respect of (a) an allegation that he held five passports; (b) rejection of a medical report dated 28 July 2011; (c) an inconsistency between his evidence and a document purportedly from St John's College (St John's letter); and (d) a driver licence indicating the appellant lived in Colombo in 2003. The primary judge found that none of the material relied upon was capable of enlivening s 424A. 11 In relation to ground 3 the appellant submitted that the Tribunal failed to consider the St John's letter with an "active intellectual mind" and "erroneously concluded" that the document did not contain contact details. The primary judge concluded that there was no substance to the allegation that the Tribunal failed to have an active intellectual engagement with the document. His Honour concluded that the Tribunal was entitled to take into account its inconsistency with the appellant's evidence and it was open to the Tribunal to place no weight on the document. 12 In relation to ground 4, the appellant contended that the Tribunal erred in failing to make inquiries regarding the authenticity of the St John's letter and a Red Cross "detention attestation" document (Red Cross document). The primary judge concluded that an issue with the St John's letter was its inconsistency with the appellant's evidence. It was also open to the Tribunal to place no weight on the Red Cross document for the reasons that it gave. The primary judge rejected that there was any obvious inquiry in respect of a readily ascertainable fact that the Tribunal was obliged to undertake in the circumstances of the case. 13 In relation to ground five, the appellant contended that the Tribunal failed to consider his claims to fear harm by reason of his Hindu religion and support for the Transnational Government of Tamil Eelam (TGTE). The primary judge found that the Tribunal expressly referred to the appellant's submission of a claimed fear of harm by reason of being a Hindu. His Honour found that no other detail had been given to the Tribunal regarding the appellant's claims relating to his religion and therefore it was open to the Tribunal to deal with them in the manner that it did. The Tribunal rejected the appellant's claims to be suspected as anti-government and therefore rejected that the appellant faced harm on account of being perceived as a supporter of the TGTE. 14 The reasoning of the primary judge is discussed in more detail when considering the grounds of appeal. Argument 15 In this Court the appellant relied on 6 grounds of appeal which were as follows: 1. The Court below erred in finding that the Administrative Appeals Tribunal had failed to properly consider the Appellant's claims under s36 (2) (aa) of the Migration Act 1958 ("the Act") 2. The Federal Circuit Court erred in not finding that the Tribunal failed to mention that it has in its possession Certificates it possessed issued under Section 438 or Section 375 Particulars a. The Tribunal failed to provide clear particulars of the enquiries made by the Department to the UK authorities. Though the Tribunal said it disregarded the information in the Department file that he had five passports, however, during the hearing the Tribunal clearly mentioned that the applicant came on a fraudulent passport that goes into credibility issue. This adverse information in Section 438 or 375 Certificate should have been clearly disclosed to the applicant to comment. b. Further, Section 438 Certificate also contained materials (folios 341-346) and information provided to the Assistant Minister for Immigration regarding Section 417 consideration. Any information, submission or observation given by the Department of Immigration and Border Protection to the Assistant Minister for Immigration which is adverse to the applicant in the present case should have been disclosed to the applicant. In the first place, the Tribunal failed to disclose the existence of certificate to the applicant. 3. The Federal Circuit Court erred in not finding that the Tribunal failed to comply with s424 a or Section 424 (aa) of the Migration Act 1958 ('the Act') by failing to give to the Applicant clear particulars of the following adverse information, that the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate's decision; and failed to ensure, as far as is reasonably practicable, that the Applicant understood why it was relevant to the review, and the consequences of it being relied on in affirming the delegate's decision; and failed to invite the Applicant to comment on or respond to it: Particulars The applicant did not provide decision record of the Department of Immigration and Border Protection to the Tribunal in relation to his current application. a. The Tribunal noted that whether the applicant held five passports and noted it would not rely on to affirm the decision. The Tribunal then said that the applicant came on a fraudulent passport that goes into credibility issue. This particular information was not given by the applicant in relation to the current application. Therefore, this adverse information should have been put formerly under Section 424 (a) or 424 (aa) of the Migration Act to the applicant. b. The Tribunal considered the Medical report dated 28 July 2011 by Gary Thornell, a counsellor with the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) and stated that the report did not address the reasons for the diagnosis of posttraumatic stress, depression and anxiety and dismissed that 'information' without formerly put to the applicant under section 424 a or 424 (aa). The applicant did not provide the above report in connection with the current application to the Tribunal. c. The applicant did not provide a document from St Johns College for the current application which stated that he was reading Physics, Chemistry and Biology for his Advanced level after completing his O levels. The Tribunal raised concerns that it is inconsistent with his evidence that he studied Advance Level at ACBT College. This is an information should have been put under Section 424 (a) or Section 424 (aa) of the Migration Act. 4. The Court below erred in finding that the Tribunal failed to consider the documents with active intellectual mind and erroneously concluded that the there was no address or telephone numbers provided on the face of the letters and questions the authenticity of the documents from the St John's college. Particulars The applicant provided a letter from the St John's College Jaffna dated 21 April 2004 in relation to his first protection visa application to confirm that he studied at the college, which the Tribunal erroneously concluded that the document did not mention the contact details. However, the letter clearly provided telephone number, fax number and the email address of the college. Though, error in fact may not amount to jurisdictional error generally, however, in circumstances where if it directly affects the credibility of the applicant, any finding on the basis of erroneous fact may amount to jurisdictional error. In the present case, it seems that the Tribunal questioned the authenticity of the documents on the basis its erroneous finding that the documents have no contact details of the authors. 5. The Court below erred in finding that the Tribunal failed to make an enquiry to verify the authenticity of a document, which it found not to be genuine on the grounds of general findings of credit, contrary to the applicant. Particulars a. The Tribunal erroneously concluded that the certificate from St John's College Jaffna has no telephone number to verify it. However, the Certificate clearly provided the phone number, fax number and the email address of the College. On the basis of the erroneous factual finding the Tribunal failed to make an enquiry to verify the authenticity of the above document. The applicant has provided his consent to verify the documents. b. The ICRC in Sri Lanka is an Independent International organisation with credible status. The letter from the ICRC provides contact details including the address, telephone number; fax number and the email address. The Tribunal should have discharge its duty by exercising its active intellectual process and should have made an enquiry to verify the authenticity of the document. In ANB15 v Minister for Immigration & Anor [2016] FCCA3244 (21 December 2016) the Federal Circuit Court relevantly observed: "I reject the first respondent's submissions. A 'critical fact' here was the applicants' claims to have worked for TNA. True as it is that the MPs letter could only be corroborative evidence as to a fact or claim, it is corroboration where the credibility of the applicant himself was determinative of rejecting the applicant's claims and hence his assertion of facts. That is, that the Tribunal simply at [64] rejected the genuineness of the letter based on general credibility concerns in respect of the applicant. It was available to the Tribunal to simply check the authenticity of the letter by contact with the alleged author. To my mind, this would constitute a reasonable and appropriate enquiry given the 'critical' issue of credibility. Such enquiry would then have either supported/confirmed the Tribunals collateral credit findings or, alternatively, independently corroborated the applicant's credit. Consequently, in a matter where the Tribunals findings are based substantially, if not totally, on credit, material corroborative of credit is critical and the enquiry not onerous. I accept, therefore, that this is one of those limited factual platforms where the Tribunal had information available to it that it could or should have verified or dismissed by making reasonable enquiry of the author and it follows that it was not reasonable to proceed to make its findings absent such enquiry. I therefore find that the Tribunal fell into jurisdictional error and that its determination is infected accordingly. 6. The Court below erred in finding that the Tribunal failed to consider a significant and relevant consideration of applicant's claim, which is an integer part of the applicant's claims for a protection visa. Particulars a. In the applicant's representatives in their submission submitted that the applicant would face harm due to his religious ground as Hindu. In their country submission they provided country information [Minority Rights Group International, confronting intolerance: Continued violations against religious minorities in Sri Lanka] on religious violations and they submitted that Religious violations continue in Sri Lanka. The Tribunal failed to consider, ask relevant questions and assess the applicant's claims under the religious ground. However, from the country information provided to the Tribunal it seems that the claim is readily available which was centrally relevant to the decision to be made. The Tribunal failed to assess the claim under the religious ground. There was no discussion during the hearing or in the decision regarding the issue of religious violations in Sri Lanka. b. The Tribunal failed to engage in active intellectual process and failed to discuss and ask questions on the basis of applicant's fear that he supports and involve with the Transnational Government of Tamil Eelam [TGTE], which is a banned organisation in Sri Lanka. Though in the decision the Tribunal mentioned about TGTE, however, there is no evidence to suggest the Tribunal had asked any questions during the hearing or after the hearing before taking its negative decision in relation to TGTE and the applicant's involvement with that organisation which is an integer part of the applicant's claim for his protection visa and tribunal failed to ask any relevant questions regarding the applicant's involvement with the TGTE, the Tribunal formed an adverse view that he is not the supporter of the TGTE. 16 The appellant made some brief oral submissions which generally related to matters raised by those grounds. Ground 1: the Tribunal failed to properly consider the appellant's claims under s 36(2)(aa) of the Migration Act 17 This ground was a bald assertion unsupported by particulars or argument. In those circumstances this ground is not established. Ground 2: the s 438 certificates 18 This ground related to two certificates which were before the Tribunal. The documents the subject of the certificates were before the Court below. 19 Since the decision of the Federal Circuit Court in this case, the High Court has delivered its decision in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 93 ALJR 252 (SZMTA). That case concerned the issuing of certificates by the secretary of the department under s 438 of the Migration Act. The High Court concluded that, in the case of a valid s 438 notification, failure by a tribunal to disclose the fact of the notification to an applicant constituted a breach of the tribunal's implied obligation of procedural fairness, however that such a breach will only amount to jurisdictional error if there is practical injustice. The Court also found that an invalid certificate constitutes a breach of a limitation within the statutory procedures which condition the performance of the tribunal to conduct a review, but that such a breach must be material to amount to jurisdictional error. As the plurality of the Court (Bell, Gagelar and Keane JJ) explained at [38]: Because procedural fairness requires disclosure of the fact of notification, non-disclosure of the fact of notification constitutes, without more, a breach of the Tribunal's implied obligation of procedural fairness. For such a breach to constitute jurisdictional error on the part of the Tribunal, however, the breach must give rise to a "practical injustice": the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal's decision. And later, at [44]-[46] (citations omitted): …The Secretary's provision of an incorrect, and therefore invalid, notification that s 438 applies in relation to a document or information amounts, without more, to an unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review. Applying the principle of construction recently explained in Hossain v Minister for Immigration and Border Protection, however, the Act is not to be interpreted to deny legal force to a decision made on a review in the conduct of which there has been a breach of that limitation unless that breach is material. Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision. Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application. 20 In this case the appellant was not notified of the existence of the certificates. The issue therefore is whether that amounts to jurisdictional error. 21 The appellant bears the onus of establishing that the breach of procedural fairness was material, which is a question of fact. The respondent contended, in the circumstances of this case, that materiality has not been established. That respondent's submission should be accepted. 22 This ground was drafted prior to the decision in SZMTA. Nonetheless, the ground does identify the material the subject of the certificate, on which it relies. 23 When regard is had to that material, it is clear that this ground is not established. 24 The relevant material covered by the certificates is as follows: in relation to the first certificate, that the appellant had five passports and documents concerning his travel to the UK and the visa applications he made there; in relation to the second certificate, documents in certain folios which in substance contained a summary of the appellant's visa history, claims for protection and the previously constituted Tribunal's decision. 25 First, in relation to the information that the appellant possessed five passports, it is apparent from the Tribunal's reasons, that it disclosed to the appellant the information concerning the five passports, the appellant was given the opportunity to comment on the information and the Tribunal accepted the appellant's evidence in this regard. The Tribunal expressly stated that it did not rely on this information. There is no basis to contend that they did otherwise. It follows that this information was not relied on, let alone in a manner adverse to the appellant. Materiality in relation to that matter is not established. 26 In so far as the particulars in this ground refer to the Tribunal's comment at the hearing that the appellant came to Australia on a fraudulent passport, it was the appellant who provided this information to the Tribunal which they accepted. 27 Second, in relation to the other documents relating to the first certificate, that is, his travel to the UK and visa applications, this information was disclosed to him by both the previously constituted Tribunal and the current Tribunal. The respondent pointed out in oral submissions that the only other documents of potential relevance in relation to the first certificate concern inquiries made with the UK about the appellant's travel and visa history. It was submitted that what ultimately mattered to the Tribunal's decision was the finding that he had made an application at a certain date in relation to a visa in the UK and the timing of the application lined up with when the appellant said he was detained by the authorities. This was put in a letter to the appellant under s 424A of the Migration Act. This appellant's response was that he was wrong about the dates of the kidnapping and he changed the date on when he said that had occurred. 28 Third, the documents in the second certificate were matters known to the appellant (being a summary of the appellant's visa history, claims for protection and previous decision of the Tribunal). Moreover, these matters are not referred to by the Tribunal, from which it can be inferred (given the nature of the material) that they were immaterial to the Tribunal's decision: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [5] and [62]. 29 Fourth, while the particulars to this ground refer to the material in the second certificate as adverse to the appellant, that fact, even if it could be established, would not be sufficient to demonstrate materiality: MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68 (MZAOL). In MZAOL the material in issue was described as "highly prejudicial" within the context of the review. However, after considering the circumstances and context of the information, the Court concluded at [76] that: …given the highly prejudicial nature of the information… there is good reason for thinking that a fair minded Tribunal member in the regular administration of the Act... would not have affirmatively exercised the discretion to have regard to the impugned information without good reason. The Court concluded that "good reason" for the exercise of the discretion was not apparent: MZAOL at [76]. Therefore, the Court found that the Tribunal did not have regard to the information and as such the appellants failed to establish materiality: MZAOL at [77]-[78]. 30 The appellant has not established materiality, and therefore jurisdictional error, on this basis. Ground 3: failure to comply with s 424A 31 The principles in relation to the application of s 424A were recently summarised by the Full Court in CJU17 v Minister for Immigration and Border Protection [2019] FCA 875 at [14], as follows: (1) the operation of the section is to be determined 'in advance - and independently - of the Tribunal's particular reasoning of the facts of the case' (SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 ('SZBYR') at [17]); (2) in order for the section to be engaged in respect of particular information, the information should contain 'in [its] terms a rejection, denial or undermining' of the visa applicant's claims to satisfy the criteria for a visa (SZBYR at [17]); (3) the relevant 'information' in the context of the section must be 'related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence' (SZBYR at [18]) - information that 'merely [goes] to credibility is not within the section' (MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319; (2008) 166 FCR 483 at [29]); and (4) 'information', within the meaning of the section, does not encompass 'intermediate findings of fact' and 'any process of comparison between the applicant's answers and the factual statements [of third parties] with which those answers were compared', and nor do such 'factual statements' of third parties themselves, 'shorn of the analytical context in which they played their part', necessarily constitute 'information' for the purposes of the section (SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106; (2009) 179 FCR 109 at [104] (Buchanan J, with whom Perram J agreed)). 32 This ground directs attention to the material referred to by the appellant and whether, the face of the material, "on its terms" amounted to a "rejection, denial or undermining" of the appellant's claims, that would be the "reason, or part of the reason, for affirming the decision that is under review". 33 The five passports (particular 1 of this ground) could not be said to have comprised information that would form the reason, or part of the reason, for affirming the delegate's decision. That the appellant had five passports in itself is not a rejection, denial or undermining of the protection claims. Moreover, as explained above, the appellant was told of the information, was asked about it, his answers were accepted, and the Tribunal did not have regard to that information and expressly stated that it would not be the reason, or part of the reason, for affirming the decision under review. 34 As to the medical report and the St John's letter (particulars 2 and 3), the terms of that material, in itself, is not a rejection, denial or undermining of the protection claims. Rather, it was the Tribunal's subjective evaluation of inconsistencies and/or gaps in that material, and not the material itself, that formed part of the Tribunal's reasons for affirming the decision under review. 35 The Court below correctly concluded that s 424A was not enlivened. Ground 4: failed to intellectually engage with the St John's letter 36 It may be accepted that the Tribunal was in error in stating that there was no address or telephone number on the document. There was a telephone number on the document. It may also be accepted that although this aspect of the Tribunal's decision was complained of in the particulars to this ground in the Court below, the primary judge did not address it. 37 However, an error of fact is not, without more, jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [53]; ESU17 v Minister for Home Affairs [2019] FCA 300 at [17]. For example, where an error of fact leads to unreasonableness, illogicality, irrationality or reasoning for which there is no probative basis, and the erroneous finding is material to the ultimate decision, jurisdictional error may be established: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 361 ALR 227 at [41(d)]; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [38]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130] - [132], [135] per Crennan and Bell JJ; see for example: Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309. The "fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error": Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111] per Robertson J. 38 The fact that there is a telephone number on the document, of itself, appears to be of no consequence to the Tribunal's decision. The argument which could be made is that it is relevant to whether it enlivened the discretion to make further enquires about the information, which is the subject of ground 5 (which is dealt with below). 39 In each case where this issue arises, attention must be directed to the particular factual error in the context of the circumstances of the case and the reasons of the Tribunal. A photocopy of the St John's letter was one of a number of documents put forward to the Tribunal. As described by the Tribunal the appellant's submission was that he had finished his GCE O level qualification in Sri Lanka, and then immediately started studying business management for his advanced level at ACBT College, an Australian business college in Kandy and Colombo. The Tribunal observed that the St John's letter stated that he was reading physics, chemistry and biology for his advanced level after completing his O levels, which was inconsistent with his evidence. It was on that basis that the Tribunal placed no weight on the document. That inconsistency on the face of the record does not appear to be the basis of any challenge by the appellant. 40 Contrary to the appellant's contention the Tribunal did engage intellectually with the St John's letter: see generally Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [45]. 41 The Tribunal identified a number of reasons why it did not accept the appellant as a witness of truth. A number of those reasons relate to the appellant's claim that due to his association with a particular business man, he was detained by the authorities. One of the Tribunal's reasons for doing so was that the appellant gave inconsistent evidence about being captured. The Tribunal rejected the appellant's claims about those significant matters. Those matters were not effected in any way by the St John's letter. 42 After outlining the basis on which the appellant was found not to be a witness of truth, the Tribunal referred to the fact that certain documents he had provided had no address or telephone on the face of them. The St John's letter is one of three such documents. The Tribunal's observation about the other two documents, is correct. The Tribunal made some critical observations about other documents provided by the appellant, which also are not suggested to be incorrect. 43 It has not been established that the error by the Tribunal as to the fact the document had a telephone number was material to the decision, given the circumstances of this case, including the nature and purpose of the document and its place in the reasoning of the Tribunal. 44 I note that the Court below did not address this aspect of the ground although it was plainly pleaded as a particular to the equivalent of this ground below. However, as there is no jurisdictional error by the Authority in relation to that ground, the appellant has not suffered any practical injustice from the primary judge's failure to address a submission, and in those circumstances, a remittal would be futile: see, for example: CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150 at [93]; Yaacoub v Minister for Immigration and Border Protection [2018] FCAFC 39 at [31], [33]. Ground 5: failed to make any enquiry to verify the St John's letter 45 This ground appears to relate to the St John's letter and the Red Cross document. 46 This ground is premised on the basis that the Tribunal found the documents not to be genuine based on grounds of general credit findings. The appellant complains that the Tribunal failed to make an enquiry to verify the authenticity of the documents. 47 As noted above, in relation to the St John's letter the information on the face of the document was inconsistent with the appellant's evidence. The Tribunal placed no weight on this document for that reason. In relation to the Red Cross document the Tribunal noted deficiencies in the document and was not satisfied that even if the Red Cross was contacted it would assist in establishing that the appellant was the person named in the document. The Tribunal had found that the appellant was not a witness of truth and had not been detained as he alleged and was not associated with the businessman as he claimed. It is for those reasons, amongst others that the Tribunal placed no weight on that document. 48 There is no duty upon the Tribunal to make inquiries. Although, as the respondent accepted, a failure to "make an obvious inquiry about a critical fact, the existence of which is easily ascertained" may, in some cases, demonstrate error, such cases have been described as "rare and exceptional": SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 (SZMJM) at [30]. The failure to make an inquiry "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": SZMJM at [30] citing Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [26]; see also Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; (2017) 256 FCR 235 (Kaur) at [33]. It is not sufficient that it may have been reasonable for the Tribunal to make the inquiry: SZMJM at [30]. 49 This is not a rare and exceptional case such that a failure to make an inquiry amounts to jurisdictional error. The documents in question were not critical facts in light of the reasoning of the Tribunal. Moreover, as noted above, no weight was placed on the documents for a number of reasons, including inconsistency on the face of one of the documents and findings independently made about other matters. 50 The appellant, in the particulars, relies on ANB15 v Minister for Immigration [2016] FCCA 3244 (ANB15) at [11]. As is apparent from the passage relied on, that case is fact specific and does not create any broader principle regarding when a failure to inquire amounts to jurisdictional error. Moreover, in so far as ANB15 at [11] appears to suggest that it is sufficient to establish jurisdictional error if it is reasonable for a tribunal to make an inquiry, it is incorrect. The mere fact that it may be reasonable to make an inquiry does not mean a failure to do so amounts to jurisdictional error: Kaur at [33]; SZMJM at [30]. 51 This ground has not been established. Ground 6: the Tribunal failed to consider harm based on the appellant's religion and being a supporter of the TGTE 52 As the respondent correctly submitted, the appellant did not provide any substance to his claim to face harm on account of his Hindu religion. Apart from mere references to his religion there is no content given to the claim. The country information provided by the appellant's representatives contains a reference to religious minorities. The Tribunal accepted that the appellant was a Hindu, and acknowledged the claim that had been made. The Tribunal also considered this country information. The Tribunal did not accept that the appellant had any adverse religious or political profile nor that he would face a real risk of the relevant harm. Given the lack of content to the claim the Tribunal was not obliged to consider it in greater detail than it did. The Tribunal's ability to assess this aspect of his claims was necessarily constrained by the limited content of the claim made. 53 The Tribunal rejected the appellant's claims regarding the TGTE. Based on its adverse credibility findings, it did not accept that he had joined any Tamil organisations or engaged in political activities in Australia such that he may be imputed with an adverse profile if he returned. 54 In so far as the particulars to this ground suggests the Tribunal ought to have made further inquiries in this regard, as noted above, there was no obligation on the Tribunal to do this. It was for the appellant to put forward the evidence that he wished for the Tribunal to consider in relation to his claims: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at [33]; SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 at [24]. 55 This ground is not established. Conclusion 56 The appeal grounds have not been established. The appeal is dismissed with costs. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham.

SZRSU v Minister for Immigration and Border Protection

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