VCAK OF 2002 v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCA459

(i) The first ground was that there was said to be a breach of the Migration Act 1958 (Cth) ("the Act") or jurisdictional error in the Tribunal's reference to "any Convention reason" and in the failure to refer specifically to each applicable Convention reason when concluding that the appellant did not have a well-founded fear of persecution. It was submitted that as the Tribunal had failed to identify a particular Convention reason it had asked the wrong question and committed a jurisdictional error.

(ii) The second ground related to the Tribunal's treatment of the documents submitted by the appellant. It was submitted that there were breaches of ss 424A, 430 and 420 of the Act, or a failure to give cogent reasons constituting a jurisdictional error. It was not suggested that there was any lack of procedural fairness in the way in which the Tribunal dealt with the review application.

8 Barnes FM found that the appellant had not established either of the grounds relied upon and in consequence dismissed the application. 9 The notice of appeal in these proceedings, filed 10 July 2003, sets out the following grounds of complaint in respect of the judgment of Barnes FM: "1. The court erred in failing to hold that the Tribunal erred in law in failing to identify a particular convention reason and that there was no breach of section 65 or jurisdictional error in its consideration of all possibilities in its reference to "any" convention reason. 2. Therefore the court erred in failing to consider a specific claim or claims by the applicant. 3. The court erred in finding that 'no particular convention reason was raised by the applicant and the Tribunal in effect considered all possibilities in its reference to "any" convention reason'. 4. The court erred in failing to hold that the Tribunal breached sections 424A, 424, 427(1)(d) and 430 of the Act and to correctly construe the authorisation given by the applicant in relation to the documents and decisions cited by the applicant to advance his reasons. [During oral argument the appellant's counsel sought to add s 425 as a further section which had been breached.] 5. The court erred in finding that even if the documents were genuine and persuasive, the passage of time would not affect the Tribunal's exercise of power, as any failure would not be material. 6. The appellant seeks time to amend/add to the grounds of appeal prior to the hearing of this appeal." 10 It is immediately apparent that grounds of appeal 1 to 5 are largely a more particularised version of those that were argued in the proceedings before Barnes FM. Grounds 1 to 3 correlate with the first ground argued before the federal magistrate and ground 4 and 5 correlate with the second ground argued in that proceeding. As to ground 6, no application was made to amend the notice of appeal prior to the hearing. 11 At the outset it is necessary to emphasise the limited bases upon which the Court can intervene in a decision of the Tribunal. The privative clause provisions in Part 8 Divisions 1 and 2 of the Act limit the jurisdiction of the Federal Court. Review is confined to review in respect of jurisdictional error and no review on the facts or merits review, as it is sometimes called, is permitted: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 ("Plaintiff S157").

Use of the phrase "any Convention reason" 12 In essence, the complaint under the first three grounds of appeal was that it was a jurisdictional error by the Tribunal to find that the applicant does not face a real chance of persecution for "any Convention reason" without identifying the evidence of the appellant in respect of each and every Convention reason and without making a discrete finding in respect of each and every Convention reason. 13 Counsel for the appellant sought to support these three grounds of appeal by making submissions in reliance on Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389. In that case Gummow and Callinan JJ at [26]-[27] and Hayne J at [95] found that, where a person who claims Convention protection on the grounds of belonging to a group or class, it is incumbent on the Tribunal to determine, as a matter of law, whether that group or class is capable of constituting a social group for the purposes of the Convention. The difficulty with applying that principle to the facts of this case is that no group to which the appellant might claim to belong was described or identified in any way. Counsel did not identify any evidence before the Tribunal which pointed to the appellant having made any claims as to existence of a social group of which he was a member, set apart from the rest of the community by some characteristic. The appellant's counsel was not able to state upon what basis the appellant proceeded in terms of the Convention. The appellant's counsel was not able to say directly whether the appellant's claims that he had a well-founded fear of persecution by the LTTE based on his past dealing with the LTTE, placed the appellant in a particular social group. Nor was he able to say whether the appellant's political opinion was the basis upon which the appellant was proceeding. Counsel for the appellant also made it clear he was not submitting that the appellant was the member of a particular social group. Rather, the argument was put that the Tribunal, through question and answer if necessary, had an obligation to identify the applicant's claims. Sections 32(2) and 65 of the Act were relied on in support of this submission as they each required a state of satisfaction to be reached in respect of certain matters. It was submitted on behalf of the respondent that there was no error of law in the Tribunal's approach given the facts of this case. 14 What is apparent from the evidence before the Tribunal is that the appellant was employed by the Sri Lankan police force, held various posts whilst so employed and that some of his duties between 1989 until November 1993 involved investigating suspected LTTE operatives in the northern region of Sri Lanka. The appellant's brother was a serving police officer assassinated by the LTTE in 1991. The appellant was involved in a motor vehicle accident on 17 November in 1993 as a result of which he incurred significant injuries. These injuries required immediate hospital treatment and later operations. The appellant's health has been severely affected by this, he is on sick leave from the Sri Lankan police force and continues to need ongoing medical treatment which, at least in relation to earlier treatments, could not be provided in Sri Lanka. The Tribunal accepted these facts. 15 The appellant claimed that the driver of the vehicle involved in his accident in November 1993 had been recruited by the LTTE to assassinate him. He also claimed that he had received information that the LTTE is still intent on seriously harming him. However, the Tribunal found the appellant's claim that the accident in 1993 was "somehow engineered by the LTTE remains vague and unsatisfactory" and noted that "no one was apparently arrested and convicted". It noted also that he voluntarily returned to his role as a police officer in Sri Lanka, was able to serve in other sensitive areas and continued to be involved in investigations of suspected LTTE operations, yet encountered no other serious problem between the time of his accident and when he departed the country in 1999 some six years after the accident. 16 In rejecting the appellant's claim for protection as a refugee within the meaning of the Refugees Convention the Tribunal said: "The claim that the [appellant] required a false passport to go to India for treatment and used a pseudonym to avoid detection by the LTTE (even though his evidence indicates that his role in Sri Lanka had made him identifiable to a whole range of LTTE cadres)" is implausible. In assessing all the material before it the Tribunal is not satisfied that the [appellant] was targeted by the LTTE and deliberately injured. … The Tribunal finds, therefore, any chance of persecution of the [appellant] now or in the foreseeable future for any Convention reason is entirely remote, even if he were willing and able to return to his former role as a police officer. … The Tribunal does not accept that some nine years after the alleged targeting of him in 1993, and in the absence of any later harm during the extended period that he remained in Sri Lanka, the LTTE would now be intent on persecuting the [appellant] for any Convention reason. 17 After considering the contentions raised by the appellant before Barnes FM which contentions have been repeated in this appeal, her Honour said at [22]: "This is not a case where the Tribunal has failed to deal with a component integer or element of the applicant's claim or has failed to consider the material before it. In this respect the decision can be distinguished from that considered by Tamberlin J in SBBK v MIMIA [(2002) 117 FLR 112]. It is apparent from the Tribunal reasons for decision in this case that in reference to 'any Convention reason' the Tribunal is considering each of the Convention reasons set out earlier in the decision. It is also apparent that some of the Tribunal's finding are dependent on the Tribunal's conclusions that on the evidence before it there is no persecution or chance of persecution of he applicant, let alone a chance of persecution for any of Convention reasons." 18 It is clear from a fair reading of the whole of the Tribunal's Reasons for Decision that the references there to "any Convention reason" referred to a reasoning process in which the material relied on by the appellant was assessed against each and every Convention reason in circumstances where the appellant had not advanced any specific Convention reason. By this method, the Tribunal dealt with the appellant's claim, identified all the possible issues and asked itself questions in respect of all possible grounds. This method is consistent with s 420(1) of the Act which exhorts the Tribunal to carry out its functions by providing a review which is "fair, just, economical, informal and quick." The method does not offend against the provisions of ss 36(2) and 65 of the Act. In my view her Honour was correct in her findings that it has not been established that the Tribunal made a jurisdictional error in the sense of failing to deal with the appellant's claim or identifying a wrong issue or asking itself the wrong question as referred to by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323. The Tribunal correctly stated and applied the law. For these reasons none of grounds 1 to 3 of the notice of appeal is made out.

Authenticity of documents 19 In essence, grounds 4 and 5 of the appeal complain about the Tribunal's treatment of documents which it found were not genuine. The appellant complains that the federal magistrate failed to hold that the Tribunal breached various sections of the Act when dealing with documents. The documents in issue are those dated 12 May 2000, 6 November 2000, 22 May 2000 (2 separate documents), 26 May 2000 and 15 August 2001. They all dealt with the appellant's accident in 1993 and, apart from the document dated 12 May 2000, with the issue of the LTTE's involvement in that accident. The 6 November 2000, 22 May 2000 (one of the two documents), 26 May 2000 and 15 August 2001 documents suggested in general terms: that the appellant "has received death threats"; that there was "a pending threat"; that the appellant "has a high likelihood of his life to be in danger"; and that the appellant "would be in danger if he returns". The Tribunal said: "All the…documents alleging the [appellant] was targeted by the LTTE contain remarkably similar language and indicate a formulaic quality. In assessing all of the available material the Tribunal is not satisfied that any of the abovementioned documents are (sic) genuine." In concluding that the documents were not genuine the Tribunal noted and gave weight to a Department of Foreign Affairs and Trade ("DFAT") Country Information Report stating, "Document fraud is widely and well practiced in Sri Lanka." However, then the Tribunal found that even if the documents were genuine and persuasive there was subsequent evidence which contradicted the documents. This included evidence that there had been no harm to the appellant since the accident of November 1993. 20 There were two submissions advanced before the federal magistrate in support of these grounds of appeal although the second submission rolled up two discrete issues. First it was submitted that the Tribunal had breached s 424A of the Act by not inviting the appellant to comment on the adverse information in the DFAT Country Information Report. Secondly, it was submitted that the Tribunal breached statutory duties under ss 65, 420 and 430 of the Act by failing to give cogent reasons for its findings that the documents were not genuine and in failing to make further enquiries. The first articulation of breach of duty (failing to give cogent reasons) appears to involve ss 65 and 430 and the second articulation of breach of duty (failure to make enquiries) seems to involve ss 424 and 427(1)(d), although before the federal magistrate s 420 was relied upon. In this appeal the submissions were made in reliance on ss 424, 425 and 427(1)(d) rather than upon s 420. Section 420 was not included in ground 4 of the notice of appeal but was included in an omnibus submission that certain sections of the Act were mandatory. Section 425 was added to ground 4 orally at the hearing. There was no evidence of any breach of s 425. In respect of the second articulation of a breach of duty, Minister for Immigration and Multicultural and Indigenous Affairs v Tedella (2001) 195 ALR 84 ("Tedella") was relied on, on behalf of the appellant, as authority for a proposition which linked these two articulations of breaches of duty. On the basis of Tedella it was argued that in that case cogent reasons were given for rejecting the authenticity of documents (ie satisfying the statutory obligations under ss 65 and 430) because the Tribunal in Tedella had a report before it from the DEU (ie suggesting an obligation in this case under ss 424, 425 and 427(1)(d), to take steps to verify documents or make further enquiries before finding that documents are not genuine). 21 Before me a general submission was made that there was an onus, or a statutory duty cast upon an inquisitorial Tribunal to "satisfy itself" about an issue of the authenticity of documents by taking steps such as enquiries overseas or referral to the DEU when in any doubt about the authenticity of documents. It was also submitted in this context that the powers given under s 65 required "considering a matter deeply." The duty upon a Tribunal to satisfy itself about the authenticity of documents was described in submissions on behalf of the appellant as an "imperative duty" and the sections of the Act relied upon as grounding this "imperative duty" namely all of ss 420, 424A, 425, 427(1)(d) and 430 were described in argument as mandatory, not permissive. The duty was said to arise because the Tribunal noted and gave weight to a Country Information Report provided by DFAT as to the ease and frequency of document fraud in Sri Lanka. The duty was also said to arise because of a consent which the appellant had given to the first Tribunal to permit it to make inquiries as follows: I, . . ., hereby authorise and give my written consent to the Refugee Review Tribunal to use my name in the course of making inquiries of the appropriate authorities of Sri Lanka in relation to claims I have made before the Tribunal." Despite the "rolling up" of separate issues in the general submission, it is convenient to deal with the appellant's case by reference to the specific sections of the Act said to have been breached. This is particularly important as the appellant needs to show that a breach of any duty as alleged gives rise to a ground of review in this Court under Part 8 of the Act. Calling a duty an "imperative" duty does not of itself give rise to a jurisdictional error as explicated in Plaintiff S157.

Section 424A 22 Barnes FM recognised that s 424A of the Act requires the Tribunal to give to the appellant the particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review and inviting the applicant to comment on it. Barnes FM did not consider the Tribunals' rejection of the authenticity of the documents as the reason for its decision. Her Honour expressed this at [25]: "In any event it is clear from the Tribunal decision that the Tribunal first rejected the [appellant's] claims for reasons open to it on the material before it which did not relate to the documentation submitted. It then said that it had also considered the documentation and rejected certain aspects of that documentation as not genuine. However, it gave the [appellant] the benefit of the doubt in concluding that even if the documents concerning threats to the applicant in 1993 were genuine and persuasive, they did not demonstrate a real chance of persecution of the [appellant] now or in the foreseeable future for any Convention reason in light of the lapse of time, the length of time the applicant had been outside Sri Lanka and the absence of any harm to him for any reason after 1993. In other words even if the documents were genuine the Tribunal was not satisfied that there was a well-founded fear of persecution now or in the foreseeable future. In such circumstances it was not necessary for the Tribunal to invite the [appellant's] comments on the country information report relating to the ease and frequency of document fraud in Sri Lanka. It was not information that was the reason or part of the reason for affirming the decision under review as the Tribunal indicated that it came to the conclusion on the basis that the documents were genuine." Accordingly, her Honour found, correctly in my opinion, that no breach of s 424A had been established as alleged when the country information was not the reason or part of the reason for affirming the decision under review.

Sections 65 and 430 23 In considering the ground of appeal directed particularly to the statutory requirements of s 430 of the Act, Barnes FM relied on McHugh, Gummow and Hayne JJ in Yusuf at [68] and [69] and McHugh J in Re Minister for Immigration & Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407. Her Honour found at [27] that no breach of s 430 has been established: "In this case the Tribunal did set out its reasons for findings and referred to the evidence or other material on which its findings of fact were made. It indicated why it rejected the documents submitted by the [appellant] and why it did not attach weight to certain material. It gave reasons for its conclusion in relation to the absence of a well-founded fear of persecution. It is clear from the judgment of McHugh J in Durairajasingham that it was not necessary for the Tribunal to undertake a line by line refutation of evidence that it rejected." 24 Her Honour also found at [28]-[29] that, it had not been established that the Tribunal failed to discharge its statutory function to consider the application or to consider the documents in a substantive or meaningful way, or in any real sense. Barnes FM said: "As described above, the Tribunal considered and analysed the documents and indeed drew distinctions between different documents and their legitimacy. It provided reasons for its conclusions which were open to it on the grounds before it. It cannot be said that it misunderstood the statutory task committed to it or misconstrued the legislation in any way. The applicant's argument in relation to the cogency of the Tribunal's reasoning in this case seeks impermissible merits review." … …as the Full Court pointed out in Tedella at [23] "to come within the reasoning of the majority in Yusuf, it is necessary to demonstrate that the Tribunal identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material". No such error is apparent. It has not been established that the Tribunal failed to consider the 'component integers' of the applicant's claim. (See Allsop J in Htun v MIMIA [2001] FCA 1802) Jurisdictional error, even apart from the privative clause, is not concerned with errant fact finding (Yusuf at [74]). There is no error in her Honour's application of the authorities establishing the relevant principles and she was correct to find no breach of s 65 or s 430 had been established.

Sections 424 and 427(1)(d) 25 The consent form referred to above at par [20] was of particular relevance to the way in which the duty was said to arise under ss 424 and 427(1)(d) and possibly ss 420 and 425. 26 Barnes FM observed that "No transcript was submitted to the Court and there is no evidence in relation to whether the Tribunal did raise the genuineness of documents as a critical issue with the [appellant]". It is noted that the Tribunal was informed that Mr Mahinda Samaraskinghe, said to be the Member of Parliament and the author of certain of the letters, was willing to come to Australia to give evidence. In the first Tribunal decision, the Tribunal made reference to this offer but said "…the Tribunal does not require further evidence from the Member of Parliament". In considering the authenticity of the impugned documents, this aspect of the appellant's evidence in support of his claims was not directly considered by the second Tribunal. However as will become apparent this is an issue which would not have affected the outcome and accordingly does not give rise to any jurisdictional error. 27 Following established authority, her Honour found that ss 424 and 427(1)(d) empowering the Tribunal to obtain information and require investigations are permissive not mandatory. The principles have been clearly explained. See: Dissanayake v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 976 esp. at [18]. The fact that the Tribunal did not use enabling provisions like s 424 (to seek additional information) and 427(1)(d) (to make further enquiries) does not indicate any error of law on its part See also: SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 598 esp. at [40]. (No issue concerning ss 424 and 427 arose in a subsequent appeal to the Full Court: SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397.) This is especially so when the Tribunal reached its conclusions on the basis that even if the documents in question were genuine there was other evidence which contradicted the documents and it was open to it to rely on such other evidence. As well as the High Court has held that procedures under s 420 are facultative not restrictive: Minister for Immigration and Multicultural and Indigenous Affairs v Eshetu (1999) 197 CLR 611 at [49]. Finally, adding s 425 to this ground of appeal would not justify any departure from the principles referred to above. 28 It was further said that Tedella was authority for the proposition that the Tribunal should refer documents to the DEU, or take steps to have documents verified before finding that they are not genuine. However, Barnes FM found correctly that Tedella does not establish that it is appropriate in every case for a Tribunal to refer documents which are the subject of doubts to the DEU. 29 In conclusion, Barnes FM dealt with the various arguments on this appeal of the appellant's case and found at [31-32] that: ". . . it is well established that there is no general obligation upon the Tribunal to make inquiries. It has not been established that the Tribunal was under a duty to make further inquiries either in the way contended by the [appellant] or as an aspect of the general duty of procedural fairness. " I am satisfied that in this case the Tribunal did give a proper, genuine and realistic consideration to the merits of the [appellant's] case. In so far as the [appellant] seeks merits review in relation to the quality of the Tribunal's consideration and evaluation of the evidence in relation to the documents submitted this is not a ground for review. This is not a case where the Tribunal failed to consider some corroboration of the documents submitted or failed, in any sense of the term, to consider the [appellant's] case. It was not suggested that there was any denial of natural justice. Further, even if the [appellant] was correct in submitting that in certain circumstances a Tribunal would be under a duty to make inquiries as to the authenticity of documents it has not been established that such duty arose in this case. The Tribunal reached its conclusions in relation to the absence of a real chance of persecution of the [appellant] now or in the foreseeable future on the basis that, even if the documents were genuine and persuasive, the passage of time and the lack of any harm to the [appellant] for any reason after 1993 were indications to the contrary. Hence, any failure in this regard would not be material and would not affect the Tribunal's exercise of power. 30 The Tribunal's finding that the documents were not genuine was no more than a step in the reasoning process which did not affect its exercise of power. Crucially, the Tribunal had reached its conclusions on the basis that even if the documents were genuine and persuasive the passage of time and lack of harm to the appellant since 1993 constituted evidence contradicting the documents. It was for that reason that Barnes FM found, correctly in my view, that any failure to further check the authenticity of the documents was not material as it could not have affected the Tribunal's exercise of power: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353; Craig v State of South Australia (1995) 184 CLR 163 at 179. No practical unfairness arises in these circumstances and accordingly no jurisdictional error arises. The correctness of this approach has been upheld in cases concerning procedural fairness: Stead v State Government Insurance Commission (1986) 161 CLR 141; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; VEAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678 at [48]; VDAU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 363 at [50] - [52] (upheld on appeal in VDAU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 32 at [42]). Accordingly, there is no error made out in the decision of Barnes FM in respect of the issues raised in grounds 4 and 5 in the notice of appeal. 31 The appeal must be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Crennan.

Solicitor for the Respondent: Blake Dawson Waldron

Date of Hearing: 23 February and 19 March 2004