FEDERAL COURT OF AUSTRALIA

MZARY v Minister for Immigration and Border Protection [2018] FCA 374

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMBERG J:

1    The appellant is a citizen of Sri Lanka who arrived in Australia on 20 June 2012. He lodged an application for a protection visa (“visa”) on 7 November 2012. By this appeal, the appellant appeals the judgment of the Federal Circuit Court of Australia delivered on 22 September 2016 and published as MZARY v Minister for Immigration and Anor [2016] FCCA 2453. By that decision, the primary judge rejected the appellant’s application for judicial review of a decision made by the Refugee Review Tribunal (“Tribunal”) to affirm the decision of a delegate of the first respondent (“Minister”) not to grant the appellant the visa.

2    Relevantly, the primary judge found that jurisdictional error had not been established in relation to the following two aspects of the decision of the Tribunal:

(i)    the failure of the Tribunal to make inquiries of a particular member of the Parliament of Sri Lanka who had provided a letter which attested to the appellant’s family having informed him that because the appellant was a witness to his uncle’s murder, the appellant was receiving threats and military officials were looking for him, and that because he could not get protection, the appellant had left Sri Lanka; and

(ii)    the Tribunal’s non acceptance of the appellant’s explanation that he had not raised, at an earlier time than the Tribunal hearing, his claim that his uncle who was killed in 1991 and his uncle who was killed in 2008 were killed for supporting the Liberation Tigers of Tamil Eelam (“LTTE”).

3    The failure of the primary judge to find jurisdictional error in relation to the first matter I have identified constitutes ground 1 of the appellant’s grounds of appeal. The failure of the primary judge to find jurisdictional error in relation to the second matter identified constitutes ground 3 of the appellant’s grounds of appeal. Those grounds are the only grounds pressed on the appeal.

4    Given the limited nature of the appeal it is only necessary to outline some of the key background facts. In that respect it is convenient to recount some of the key facts identified in the Minister’s written submissions.

5    The appellant’s claims were initially set out in a statement attached to his visa application and supported by documents including, a copy of correspondence dated 28 July 2012 from a Mr S. Y., Member of Parliament, Batticaloa District (“Mr S.Y.”).

6    The appellant claimed to have an apprehension of harm on any return to Sri Lanka. He feared harm from the Sri Lankan Army (SLA) and armed Tamil groups that worked with the SLA. The appellant articulated Convention claims that invoked his race (Tamil), his imputed political opinion (supportive of the LTTE), and his membership of a particular social group (defined as Tamil asylum seeker and/or person who has departed Sri Lanka illegally).

7    In support of his claims, the appellant referred to the death of his uncle in September 2008, allegedly at the hands of the SLA or Tamils from armed groups working with the SLA, and gave evidence that following his uncle’s death, the appellant had been subjected to death threats that occurred whilst he was walking the streets of Batticaloa and over the phone. The appellant claimed that the government of Sri Lanka would not afford him protection as the SLA was part of the government.

ground 1

8    This ground raises for consideration whether the Tribunal’s failure to make inquiries of Mr S.Y. constituted jurisdictional error. The appellant relied upon Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123.

9    That case stands for the propositions that: the Tribunal does not have a “general duty to undertake its own inquiries … ” (at [1], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), that as applied to the Tribunal the label “inquisitorial” merely delimits the nature of the Tribunal’s functions, the core function being to review the decision that is the subject of a valid application (at [18]); and, centrally (at [25]), that:

[i]t 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.

10    In SZNBX v Minister for Immigration and Citizenship (2009) 112 ALD 475 at [21], Bennett J said that SZIAI established three conditions: first, whether the inquiry that the Tribunal failed to make was obvious; second, whether it concerned a critical fact, the existence of which was easily ascertained; and, third, whether it supplied a sufficient link to the outcome as to constitute a failure to review. As I said in MZABA v Minister for Immigration and Border Protection (2015) 234 FCR 425, I agree and adopt the approach outlined by Bennett J.

11    Before dealing with each of those conditions it is necessary to set out that part of the Tribunal’s decision where reference was made to Mr S.Y. and the letter provided by that person upon which the appellant relied. At [39] the Tribunal said this:

In making these findings, I have taken into account the copy of the MP’s letter which the interpreter at the hearing translated. It states that the applicant’s family had informed him that due to the applicant witnessing the murder of his uncle that the applicant was receiving threats and that military officials were looking for him. It also was translated as saying that the applicant could not get protection so that is why he left. Given the highly significant concerns I have with the applicant’s credibility set out above, I have given this document only limited weight in my assessment.

12    It is also necessary to record what the appellant contended to be the obvious inquiry that should have been made of Mr S.Y.. The appellant contended that the Tribunal should have asked: “[w]hat knowledge, if any, does Mr S.Y. have of the appellant’s situation?”

13    It is the failure to make that inquiry that the appellant suggested constitutes failure by the Tribunal to exercise its power and jurisdiction as required by law.

14    It is convenient to deal with the second condition described in SZNBX first, namely, whether the inquiry that the Tribunal is said to have failed to have made was concerned with a critical fact the existence of which was easily ascertained.

15    The appellant’s submissions fail, in my view, to properly identify what critical fact the Tribunal should have made further inquiries in relation to. Instead, the submissions suggest that Mr S.Y.’s letter was critical evidence for the appellant’s credibility.

16    In oral submissions made this morning, the appellant contended that the critical facts were the threats made by military officials. It was put that, given the official position of Mr S.Y. as a Member of Parliament, an inquiry should have been made of him, because he would have been in a position to give evidence about the threats made by the military officials.

17    I would accept that given the nature of the claims made by the appellant, whether the appellant witnessed the murder of his uncle may be regarded as a critical fact. I would also accept that whether the appellant had received threats from military officials and that those officials were looking for him were critical facts. There is no suggestion that Mr S.Y. witnessed the uncle’s murder and the presence of the appellant at the incident. Nor is there any suggestion that Mr S.Y. witnessed the making of any of the threats said to have been made by the military or had any involvement in those matters whatsoever. No inquiry of Mr S.Y. would have been productive of any direct corroboration in relation to the critical facts I have identified. As the primary judge observed at [28] the correspondence from Mr S.Y. merely recited what he had been told by the appellant’s family.

18    It can also be said that there is nothing obvious in an inquiry being made of Mr S.Y. There is nothing in the material to suggest that Mr S.Y. had any capacity to provide evidence or material of any probative value to the critical facts in issue. There is no error, in my view, in the primary judge’s conclusion that the Tribunal was not obliged to make any inquiry of Mr S.Y. Such an inquiry was neither obvious, nor, in my view, would it have been concerned with a critical fact, the existence of which was easily ascertained. Additionally, such an inquiry would not have had a sufficient link to the outcome of the Tribunal’s review.

19    For those reasons, the first appeal ground must be rejected.

ground 3

20    In support of ground 3, the appellant relies upon legal unreasonableness as the basis for asserting jurisdictional error.

21    Since the High Court’s judgment in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, a number of Full Courts of this Court have considered the content of the requirement that administrative decisions be legally reasonable, which is to say that they must not be legally unreasonable: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; and Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158. In Eden, Allsop CJ, Griffiths and Wigney JJ summarised in seven points what falls from Li, Singh and Stretton, noting that the seven point summary does not supplant or derogate from those cases. The seven points are these (citations omitted):

[58]    First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making.

[59]    Second, the Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory. It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker. Nor does it involve the Court remaking the decision according to its own view of reasonableness.

[60]    Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an “outcome focused” conclusion without any specific jurisdictional error being identified.

…

[62]    Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion. Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness. Such a decision falls within the range of possible lawful outcomes of the exercise of the power.

[63]    Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute. The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making. The evaluation is also likely to be fact dependant and to require careful attention to the evidence.

[64]    Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes.

[65]    Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary. That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.

22    The appellant contended that the Tribunal rejected the credibility of his claims in large part because it rejected his claim that his uncle who was killed in 1991 and his uncle who was killed in 2008 while the appellant was present, had been killed for supporting the LTTE by supplying them with food and possibly supporting them in some other ways, or that the uncle killed in 2008 had been tortured in 2002. That claim was advanced at the Tribunal hearing but at no stage earlier in the process of the appellant’s application for a visa. The Tribunal considered but rejected the appellant’s explanation that he had not earlier mentioned the connection with the LTTE because he thought it might jeopardise his application for a visa because the LTTE was banned in Australia.

23    In its reasons, at [37], the Tribunal identified six factors for its finding that the appellant’s claims that he was targeted after the death of his uncle in 2006 were not credible. One of the reasons given for that conclusion was the failure of the appellant to have raised, prior to the hearing at the Tribunal, the connection between his uncles and the LTTE. In that respect the Tribunal said this:

The applicant said in his statutory declaration that he did not know why any of his uncles had been killed or whether they had links to the LTTE and he said at the interview that he did not know why his uncle had been killed in 2006 which is directly contradictory to his claims at the hearing. In his interview and statutory declaration, the applicant did not mention that his uncle had provided food parcels to the LTTE or that his uncle had LTTE members hiding in his fields or that his uncle was detained by the authorities in 2002 and tortured. I do not accept the applicant’s explanations that he did not mention any of these matters because he was worried that his application would be jeopardised. The applicant has been represented throughout the process and he did not claim that he personally or any other family member was involved in the LTTE and its activities (save for another uncle giving food to them way back in 1991).

24    There was nothing irrational about the Tribunal concluding that the appellant’s failure to previously raise his uncles’ connections with the LTTE impugned the credibility of his claim. The failure to raise an important integer of a claim in circumstances where earlier opportunities to do so had been available, and may reasonably have been expected to have been taken up, logically raises the prospect that the later raising of that integer is a product of recent invention. Additionally, to not have raised a matter at one stage of a process in circumstances where it is later raised at another stage of the same process suggests prior inconsistency. Inconsistency is a logical basis upon which credibility may be impugned. Of course, much will depend on the particular circumstances at hand.

25    The appellant contended that the Tribunal proceeded on the basis that a claim advanced later in the process before the Tribunal was not to be accepted. The suggestion here seems to be that that was done arbitrarily. An arbitrary approach of that kind may well constitute legal unreasonableness. But there is no basis for concluding that the Tribunal adopted such an approach. The fact that the Tribunal considered and weighed the explanation given by the appellant for not earlier mentioning the LTTE connections demonstrates that the Tribunal considered the prior inconsistency on its merits.

26    The appellant also complained that the Tribunal had only given one reason for rejecting his application, that reason being that he had been represented throughout the process. There is nothing illogical or irrational in the reliance placed by the Tribunal on the fact that the appellant had been legally represented throughout in the context of the appellant’s explanation that he had not raised the LTTE connections because he was worried it would jeopardise his visa application. The fact that the appellant had access to legal representation throughout the visa application process makes it more likely that throughout that process the appellant would have been made aware, as he seems to have been aware at the hearing, that making the connections that he sought to make with the LTTE would not jeopardise his claim but would enhance it.

27    There was therefore a probative basis for the Tribunal to reject the appellant’s explanation for why he did not raise the connection with the LTTE earlier. The Tribunal’s approach did not lack evident or intelligible justification. I do not accept the appellant’s contention that there needed to be “a highly probative basis” for that rejection. The weight to be accorded to the probative basis identified by the Tribunal was a matter for the Tribunal.

28    Furthermore, and in any event, the challenge made by the appellant is made in relation to one of six factors relied upon by the Tribunal for its conclusion that the appellant’s claims were not credible. Even if the Tribunal was wrong to have relied on the factor that the appellant has challenged, the Tribunal’s conclusion as to credibility was sufficiently supported by the other five factors upon which the Tribunal relied and which are recounted at [37] of its reasons. In that context any error in relation to the factor under challenge would not be jurisdictional: MZYYU v Minister for Immigration and Citizenship [2014] FCA 98 at [50] (Bromberg J).

29    There is, in my view, no appellable error in the judgment of the primary judge. Ground 3 must be rejected.

conclusion

30    It follows that the appellant’s appeal must be dismissed.

Associate:

Dated:    20 March 2018