FEDERAL COURT OF AUSTRALIA

BBP15 v Minister for Immigration and Border Protection [2018] FCA 501

ORDERS

THE COURT ORDERS THAT:

1.    The appellant has leave to rely upon the further amended notice of appeal dated 29 March 2018 and the affidavit dated 29 March 2018 of Georgia Rose Boyce.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    This appeal is from a judgment of the Federal Circuit Court of Australia (FCCA). The judgment is reported as BBP15 v Minister for Immigration and Border Protection [2016] FCCA 3350.

2    On 13 April 2017, the then docket judge adjourned the hearing of the appeal pending the determination of proceedings in the High Court in SZTAL v Minister for Immigration and Border Protection. In September last year, the High Court delivered its judgment in that and a related matter (see SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936).

3    For the following reasons, the appeal is dismissed.

Summary of background facts

4    The appellant is a citizen of Sri Lanka, who arrived in Australia on 11 May 2012 as an unauthorised maritime arrival. The appellant participated in an entry interview on 2 June 2012. She is recorded there as saying that she left Sri Lanka because her father had been shot and killed and “we couldnt (sic) live there any more (sic) so we left and came to India”. When asked what happened after her father was killed the appellant is recorded as saying that the “army and other para militry (sic) groups such as EPDP and PLOT” investigated the family (the references to EPDP and PLOT are to the Eelam People’s Democratic Party and the People’s Liberation Organisation of Tamil Eelam respectively). The appellant said that they took her brother away for investigation and that “we were scared that we would be kidnapped and thats why left to India (sic)”. The record of entry interview also records the appellant as saying that she had a brother who was living in Melbourne.

5    The appellant formally applied for a protection visa on 4 August 2012. The appellant made a statutory declaration dated 4 August 2012 in support of her protection visa application. She claimed to be a Tamil who was suspected of involvement with the Liberation Tigers of Tamil Eelam (LTTE). She said she had lived in an LTTE-controlled area and that her family relocated to an area controlled by the Sri Lankan Army (SLA). The appellant claimed that she had left Sri Lanka because, on 14 July 2006, her father had been shot and killed by the SLA, and the family was being investigated and interrogated by the SLA and that her family feared that they would be kidnapped. She said that she escaped with her younger brother in December 2006 and went to India where they lived unlawfully until 2012. She said that she feared that the SLA would torture and kill her because of her suspected involvement with the LTTE. In addition, she said that she feared harm as a member of a particular social group comprising young Tamils from an LTTE-controlled area.

6    The appellant said in her statutory declaration that on the day of her father’s funeral she was taken to a camp for investigation and was told by her captors that if she was asked why she had been taken in for investigation she should say that her father was shot “because we had been supporters of the LTTE” when they had been living in a particular area. She said that she was released but the SLA kept control of the family home for approximately one month. She also said that her older brother had been taken away by the SLA but had been permitted to attend their father’s funeral after which he was again taken away. She said that on the night before she escaped, she saw her older brother again and that their mother said that she and her older and younger brothers had to find a way to escape because she had lost her husband and two of her brothers had also been shot.

7    The appellant said that about a month after their father’s death she and her two brothers all escaped. The older brother told them to go to a particular place and said that he would return to collect their mother. The appellant said that she waited for seven days for her older brother to return with their mother but they never did so she and her younger brother went to India where they lived in a refugee camp. She later said that her mother told her on the telephone that her older brother had never returned to collect her and that she had had no contact with him. The statutory declaration accompanying the appellant’s protection visa application included a statement by the appellant that her older brother had tried to sponsor her and her younger brother to Australia.

8    In the body of the Form 80 “Personal particulars for assessment including character assessment” completed by the appellant, the appellant identified her family members. She said that she had an older brother who was an Australian citizen living in Melbourne. A typed document entitled “family structure”, which was attached to the Form 80, identified that brother and, after his name, there was written “(AUS) 866”. It was not contested that 866 is a reference to an 866 visa, which is a protection visa. Notably, however, the appellant said nothing in her protection visa application or accompanying material (including her statutory declaration) which squarely stated that her older brother had any actual or suspected involvement with the LTTE or that his migration status in Australia had some bearing on the appellant’s claims.

9    Although the appellant’s general claims were accepted by the delegate, the delegate was not satisfied that the appellant had a well-founded fear of persecution simply by reason of her previous residence in an LTTE area or that she would face a real risk of significant harm if she returned to Sri Lanka. The delegate noted in the statement of decision that the appellant had two brothers in Australia and that one of them held a Class XA Subclass 866 visa, which had been granted on 15 June 2009, and that the other brother was an applicant for a protection visa.

10    The appellant appealed to the then Refugee Review Tribunal (RRT) (now the Administrative Appeals Tribunal). The appellant was represented by a migration agent, who was also a lawyer. She provided additional evidence in support of her claims. Following the RRT hearing, she also provided a report from a body called Foundation House which stated that she suffered from post-traumatic stress disorder (PTSD) and had been digitally raped by soldiers.

11    The transcript of the RRT hearing was not in evidence. It may be inferred from the RRT’s reasons for decision, however, that the appellant claimed that her father supported and assisted the LTTE by passing on information about the SLA to them. The appellant explained to the RRT that she had not disclosed this to the Department at her interview because she was scared of doing so (see [33]) of the RRT’s reasons for decision). It may also be inferred from [33] of the RRT’s reasons for decision that, during the course of the RRT hearing, the appellant stated that her sister and two of her brothers-in-law were involved with the LTTE. She had not referred to that in her previous evidence. There is nothing in the RRT’s reasons for decision to indicate that the appellant made any claim or submission to it concerning her older brother’s actual or suspected involvement with the LTTE as being relevant to her case.

12    The RRT rejected the principal aspects of the appellant’s claims, largely because it did not accept that she was a credible witness. In support of the RRT’s “significant credibility concerns”, it referred to six aspects of the appellant’s evidence which the RRT found to reveal inconsistency in her claims and evidence. The Tribunal did accept, however, that the appellant’s uncles and cousins had been involved with the LTTE and that that many had been killed in consequence (see [42] of the RRT’s reasons for decision). It accepted that the appellant’s father may have been shot in 2006 on suspicion of helping the LTTE (see [43] of the RRT’s reasons for decision]). It did not accept that the appellant had been mistreated physically or sexually nor did it accept many of the other claims made by the appellant concerning her detention and interrogation. The RRT did not accept that the appellant’s older brother had been taken away by the SLA on the day of their father’s funeral nor did it accept that the appellant and her brothers were of adverse interest to the authorities or anyone else (see at [35]). The RRT considered that there was no more than a remote risk that the appellant would be perceived as an LTTE supporter because of her family links with the LTTE. The RRT expressly found at [43] that it did not accept that the appellant “or any of her immediate family members were targeted or harmed by the authorities or anyone else” after the appellant’s father was shot. The RRT also rejected the appellant’s claim that she was a member of a particular social group of Tamil females with suspected LTTE links. Relying on country information, the Tribunal concluded that there was not a real chance that the appellant would be seriously harmed because she was a Tamil or a young Tamil female from the north of the country.

13    It is evident from the materials before the Court which relate to the RRT proceeding that no contention was raised by the appellant in the RRT that her claim for a protection visa turned on claims or evidence advanced by her older brother in support of his protection visa application back in 2009. The RRT appreciated that it was relevant to consider the appellant’s family links with the LTTE and it addressed those links by reference to the appellant’s claims concerning her father, uncles and cousins (and not her older brother, presumably because the appellant did not make a claim that he was suspected of any links with the LTTE). The RRT accepted that a number of the appellant’s uncles and cousins were involved in the LTTE and many were killed as a result. It also accepted that her father had been shot in 2006 on suspicion of helping the LTTE, but the RRT explained at [42] and [43] why it concluded that there was only a remote chance that the appellant herself would be perceived as an LTTE supporter.

The FCCA proceeding

14    The appellant’s application for judicial review dated 17 June 2015 alleged that the RRT’s decision was affected by an error of law and involved procedural unfairness. The appellant represented herself in the FCCA. The primary judge noted that no written particulars were provided in support of the judicial review application and that the appellant had made oral submissions. Those oral submissions were summarised as follows:

(1)    she was inhibited by the fact that the RRT member was male and that there were other men in the RRT hearing room which inhibited her in what she could say in relation to matters of a sexual nature and that this involved procedural unfairness;

(2)    the RRT focused only on the EPDP; and

(3)    if she is sent back to Sri Lanka and held on remand, she will need a guarantor, which she would be unable to obtain and she would therefore be held in remand for 14 days and be at risk of sexual assault, harassment and torture.

15    As to the first of those matters, the primary judge noted that the appellant had been represented by a male migration agent and that no application had been made for the RRT to be constituted by a woman. Moreover, while it was noted that the Foundation House report referred to the appellant’s claim that she had been digitally raped, no further information was provided to the RRT in respect of this claim. In these circumstances, the primary judge concluded at [17] that there was no denial of procedural fairness arising from the RRT member and others in the hearing room being male. Moreover, the primary judge noted the RRT’s statement that other issues with the appellant’s credibility outweighed the issues raised about the sexual assault and her alleged PTSD.

16    As to the second matter, the primary judge did not accept the appellant’s claim that the RRT had focused only on the EPDP, with particular reference to [47] of the RRT’s reasons for decision, which indicated that the RRT considered whether the appellant faced harm “from the authorities, paramilitary groups such as the EPDP or anyone else”.

17    As to the third matter, the primary judge noted the absence of any finding by the RRT that the appellant would need a guarantor and that the RRT had found at [57] of its reasons for decision that she would be granted bail on personal surety. The primary judge also referred to various findings of fact made by the RRT relating to the appellant’s family and that they would be able to collect her. The primary judge said that findings of fact were a matter for the RRT and that the RRT was entitled to reject claims on the grounds of credibility.

18    In view of its relevance to ground 3 in the further amended notice of appeal to this Court (see [20] below), it is desirable to set out [21] of the primary judge’s reasons for judgment:

21.    The applicant also said that her brother had been found to be a refugee. The applicant did not put evidence to this effect before the Tribunal. The applicant’s protection visa application said that her brother is a citizen of Australia, but does not say how he gained Australian citizenship. In any event, even if he had been granted refugee status, the decision of the Tribunal in his case is not binding on the Tribunal in the present applicant’s case. The Tribunal, in his case, may not have had the concerns with his credibility that the Tribunal, in the present case, has had with the applicant’s credibility.

19    For these and other reasons given by the primary judge, the application for judicial review was dismissed.

The appeal

20    Ms Costello of counsel, instructed by King & Wood Mallesons, represented the appellant on a pro bono basis. The Court granted leave for the appellant to rely upon a further amended notice of appeal dated 29 March 2018. It contained the following three grounds of appeal:

Grounds of appeal

1.    The Court below erred in rejecting the Appellant’s argument that the Tribunal failed to consider that the Appellant’s brother had been granted a refugee visa. In the premises, the Court below erred in not finding that the Tribunal’s decision was affected by jurisdictional error.

Particulars

a.    The Tribunal was obliged to give reasons for decision and set out its findings on any material questions of fact (s430 of Migration Act 1958 (Cth) (Act)).

b.    The Tribunal did not refer to evidence that the Appellant’s brother had been granted a refugee (866) visa, despite facts that:

(i)    the Appellant submitted evidence to the delegate that her brother had been granted a refugee (866) visa;

(ii)    the delegate found that the Appellant’s brother had been granted a protection visa application; and

(iii)    the Appellant provided a copy of the delegate’s decision to the Tribunal with her review application.

c.    It can be inferred that the Tribunal failed to consider that the Appellant’s brother had been granted a refugee visa.

2.    The Tribunal erred by failing to consider a claim, and/or integer of a claim in that the Tribunal failed to consider the Appellant’s fear of harm from paramilitary groups.

3.    The Tribunal’s decision is affected by jurisdictional error in that by not obtaining Mr T’s easily obtainable protection visa file, the Tribunal either:

a.    unreasonably failed to exercise its discretion under s424 of the Act to seek information; or

b.    constructively failed to carry out its review.

21    The Minister did not oppose the appellant amending her notice of appeal, nor did he oppose the appellant adducing further evidence on the appeal which was not before the FCCA. That evidence took the form of extracts from the Department’s file concerning the appellant’s older brother’s successful application for a protection visa in June 2009. In that matter, the delegate accepted the older brother’s claim that he had previously been imprisoned, beaten and tortured by the SLA and that he was under pressure from the LTTE and paramilitary groups who had the power to kill him. The delegate stated that she was satisfied that the older brother’s account of past persecution was internally consistent as well as being consistent with country information sources and that there was a real risk of persecution if the older brother was returned to Sri Lanka on account of his ethnicity as a Tamil and because of his imputed support to the LTTE.

The parties’ submissions summarised

22    In her first outline of written submissions, Ms Costello was highly critical of the RRT’s summary of the appellant’s claims. She described it as “remarkably incomplete” because it summarised a set of prior claims that were superceded by claims at the RRT hearing. The following examples were given:

(1)    at [21] of its reasons for decision the RRT described the appellant’s claim that her father was a farmer and was not involved in any political groups, but this did not reflect the appellant’s subsequent claims at the RRT hearing; and

(2)    at [22], the RRT referred to the appellant’s account of her interrogation by the SLA, but there was no mention of her claims that she had been physically and sexually assaulted during the interrogation even though those matters were clearly raised by the appellant with the RRT.

23    The appellant drew attention to various other aspects of the RRT’s reasons for decision in support of her contentions that:

(1)    the RRT proceeded on the basis of a summary of the appellant’s claims which did not take into account her subsequent claims at the RRT hearing;

(2)    the RRT dismissed the appellant’s claims and evidence made at the RRT hearing because they were inconsistent with the earlier claims and this caused the RRT to have credibility concerns;

(3)    although the RRT referred to a number of claims in the context of it identifying inconsistencies and drawing adverse credit findings, it did not actually consider the claims themselves;

(4)    the RRT ignored the appellant’s claims regarding her fear of harm from paramilitary groups such as EDPD and PLOT;

(5)    the RRT ignored the fact that the appellant’s older brother had had his protection claims accepted; and

(6)    the RRT did not obtain the older brother’s protection visa file notwithstanding that the appellant’s new claims before the RRT included a claim that her family members were involved with the LTTE.

24    The appellant submitted that these omissions from the RRT’s reasons gave rise to an inference that the claims regarding the older brother and harm from paramilitary groups had not been considered by the RRT.

25    Ms Costello submitted that it was not entirely clear what arguments had been run below by the appellant when she represented herself. Nevertheless, it was “reasonably apparent” from [18] of the FCCA’s reasons for judgment that an argument had been raised that the RRT erred in not considering her claims to fear harm from paramilitary groups. It was also submitted that it was “clear from [21] [of the primary judge’s reasons for judgment] that the Appellant had raised the fact that her visa application said that her brother had been found to be a refugee”.

26    The appellant challenged the primary judge’s reasoning at [18], where it was held that it was “clear”, particularly from [47] of the RRT’s reasons for decision, that the RRT had considered whether the appellant faced harm from inter alia “paramilitary groups, the EPDP or anyone else”. It was contended that [47] of the RRT’s reasons for decision reveal that the RRT had approached the appellant’s case as if no claim of harm by paramilitary groups had been made.

27    In support of ground 3, the appellant emphasised in her written outline of further submissions dated 29 March 2018 that her older brother’s involvement with the LTTE was important to the RRT’s resolution of her own claims, noting that she claimed to fear harm because of her family links to the LTTE. She submitted that the fresh evidence established that her older brother had been granted a protection visa on 15 June 2009 and that the delegate accepted her brother’s claims that he was recruited by the LTTE at the age of 16, that he was detained and beaten by the SLA and that he was the victim of extortion by paramilitaries. The appellant submitted that her brother’s protection visa file corroborated her claims regarding her family links to the LTTE and her fear of harm from paramilitaries and that it also had the potential to “redeem” the appellant’s credit.

28    The appellant submitted that at [21] to [26] of the RRT’s reasons for decision where it purported to summarise the appellant’s claims, the RRT made no reference to the appellant's claims that her immediate family members were involved with the LTTE. Rather, the RRT only referred to those claims in a section of its reasons which explained why it rejected her claims as lacking credit.

29    The appellant submitted that the RRT’s failure to get the Departmental protection visa file concerning her older brother, which was readily available and important to the RRT’s review as both corroborating her claims and affecting her credibility, was legally unreasonable and amounted to a constructive failure to exercise jurisdiction. The appellant relied upon Mason J’s observations in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 (Peko-Wallsend) at 45 regarding the obligation of an administrative decision-maker generally to have regard to the best and most current information available. She also relied upon the recent decision of the Full Court in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (CRY16) at [82] per Robertson, Murphy and Kerr JJ (noting that the Minister has sought special leave to appeal from that decision).

30    In his submissions, the Minister emphasised the need to distinguish between failing to consider a claim, as opposed to merely failing to consider evidence, citing the Full Court’s decision in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [49] and [54]. The Minister acknowledged, however, that a failure to consider evidence may give rise to jurisdictional error, depending on the relevance, cogency and importance of the item of evidence, citing cases including Pokharel v Minister for Immigration and Border Protection [2016] FCAFC 34 at [47] per Buchanan, Perram and Rangiah JJ and Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [111]-[112] per Robertson J.

31    The Minister cited Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 in support of his submission that the Tribunal’s obligation under s 430 of the Act to prepare a statement of reasons does not oblige it to identify or discuss each and every item of evidence, nor engage in a line by line refutation of all the evidence provided by a review applicant.

32    The Minister submitted that the appellant’s claims were properly considered by the RRT. Even if it did not consider the information that the appellant’s older brother had been granted a protection visa in 2009, it did not mean that the Tribunal had failed to consider her claims. In any event, the Minister submitted that, having expressly stated that it had considered the protection visa application, it is most improbable that the Tribunal did not consider the delegate’s decision, which decision included reference to the fact that a protection visa had been granted to the older brother.

33    The Minister further submitted that merely because a protection visa had been granted to the appellant’s older brother in 2009 did not mean that the appellant satisfied the criteria for a protection visa in 2015. That is particularly the case, so it was submitted, having regard to the fluidity of the situation in Sri Lanka from 2009 to 2015. Finally, the Minister drew attention to the fact that the appellant herself never sought to attribute any significance to the fact that her brother had been granted a protection visa.

34    As to ground 2 of the further amended notice of appeal and the appellant’s contention that the RRT failed to consider her claim to fear harm from paramilitary groups, the Minister drew attention to [47] of the RRT’s reasons for decision, which indicated that this claim was in fact considered.

35    As to appeal ground 3, the Minister submitted that it was evident from the materials before the Court that the appellant had never claimed before the RRT that her case turned on claims or evidence in relation to her older brother’s successful application for a protection visa. Emphasising that the appellant had been assisted by a migration agent who was also a lawyer, the Minister submitted that it was open to the appellant to have made a claim that she feared harm in Sri Lanka by reason of any claimed fact or matter relating to her older brother, but she failed to do so. The Minister submitted that this was not a case which attracted the principle from Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 (SZIAI) at [25] concerning the failure to make an obvious inquiry about a critical fact, the existence of which was easily ascertained. The Minister relied upon Sackville J’s decision in Ahmed v Minister for Immigration and Multicultural Affairs [2001] FCA 603 at [11]-[13] (Ahmed) and his Honour’s observations there regarding the significance of a failure by the RRT to make inquiries concerning the circumstances in which the review applicant’s brother had previously been granted a protection visa. Justice Sackville noted that a previous decision of a Minister’s delegate or the RRT which granted the review applicant’s brother a protection visa was not binding on the RRT in its determination of the review applicant’s case. Justice Sackville further noted that the basis upon which a protection visa had been granted to the review applicant’s brother might have been quite different, as might have been the relevant country information. For similar reasons, the Minister in this appeal submitted that it was not legally unreasonable for the RRT not to have exercised its discretionary power under s 424 to obtain the appellant’s older brother’s Departmental file.

Analysis and disposition of the appeal

36    As noted above, it was submitted on behalf of the appellant in her first outline of written submissions that the primary judge had erred in not finding that the RRT had failed to address the appellant’s claims that she had been physically and sexually assaulted. It is difficult to see how this submission fits within any of the three grounds of appeal in the further amended notice of appeal, however, I will address it in circumstances where the Minister did not raise any pleading point.

37    In my view, this part of the appellant’s case is based on an over-zealous reading of the RRT’s reasons for decision and is contrary to the need for restraint in reviewing such reasons as required by Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 (Wu Shan Liang).

38    The primary judge did not err in her consideration of the appellant’s claim that she had been physically and sexually assaulted during the course of an interrogation by soldiers. Although there was no reference to that specific claim in [22] of the RRT’s reasons for decision (where there is a summary of the appellant’s claims regarding the interrogation), it is plain from [34] that the RRT was mindful of the fact that the appellant had claimed that she had been mistreated physically or sexually during the course of the interrogation. The RRT explained in [34] that it did not accept that the appellant had been mistreated physically or sexually because of the “highly significant credibility concerns” it had with her evidence, by reference to the six matters set out in [33] of the RRT’s reasons for decision.

39    The appellant’s contentions in relation to this matter are not only inconsistent with Wu Shan Liang, but they also fail to take into account Gleeson CJ’s observations in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 at [14] regarding the structure of an administrative decision-maker’s reasons for decision:

Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.

40    Although Gleeson CJ’s remarks were directed to the structure of the reasons of the Tribunal in that particular case, I respectfully consider that they apply equally here. Merely because there is no express reference in [22] of the RRT’s reasons for decision to the alleged sexual assault does not mean that the matter was not considered, particularly when there is an express reference to it later in the RRT’s reasons at [34] (see also Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; 250 FCR 510 at [44]-[46] per Griffiths, Mortimer and Perry JJ). The reasons should be read as a whole.

41    As to the appellant’s complaint in ground 1 that the RRT did not consider her claim in respect of her older brother having been granted a protection visa in 2009, I accept the Minister’s submissions that this ground should be rejected for the reasons which are summarised in [30] to [33] above. This case is far removed from a case such as CDD15 v Minister for Immigration and Border Protection [2017] FCAFC 65; 250 FCR 587, where the Full Court allowed an appeal on the basis that the FCCA had erred in not accepting the appellant’s contention that the RRT had failed to deal with a claim of persecution which arose squarely in the appellant’s case (see also NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 (NABE) at [58]-[59]). Here, there was no failure by the primary judge to engage with the reasons of the RRT.

42    The difficulty with the appellant’s claims under both grounds 1 and 3 is that her case, as presented to the RRT, did not draw attention in any clear way to the relevance to her case of the fact that her older brother had been granted a protection visa (see further [45] below).

43    The appellant’s claim in ground 2 that the RRT had not considered her claim of harm by paramilitary groups must also be rejected. It is evident from [18] of the primary judge’s reasons for judgment that the appellant, who represented herself in the FCCA, submitted that the RRT had only focused on the EPDP. Her Honour rejected that contention by reference to what the RRT said at [47] of its reasons for decision which, for convenience, is now set out (emphasis added):

47.    Based on her individual circumstances (including that she and her family members have never been targeted by any paramilitary group) and the overall weight of the country information, I find that the applicant does not face a real chance of persecution on account of her Tamil race, membership of particular social groups (including young Tamil females from the north or her family) or her actual or imputed political opinion or any other Convention reason or any non-Convention reason, now or in the reasonably foreseeable future from the authorities, paramilitary groups such as the EPDP or anyone else.

44    The RRT’s conclusion is expressed by reference to “paramilitary groups” and not merely the EPDP. That particular group is cited as an example of a broader class.

45    Appeal ground 3 should also be rejected. As is evident from the summary above of both the background facts and the RRT proceeding, the appellant never made a clear claim that her older brother had a connection to the LTTE or that his claims or evidence in support of his protection visa application were relevant, let alone critical, to the appellant’s claims. Nor, in my view, did any such claim arise on the basis of evidence and material before the RRT, noting that a claim which is apparent on the face of material before the RRT does not “depend for its exposure on constructive or creative activity by the Tribunal” (see NABE at [58] and see also NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] per Allsop J, which passage was approved in Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161; 219 FCR 287 at [70]). It is not without significance that the appellant was assisted by a migration agent and lawyer in the RRT yet no submission was made there regarding the relevance of the fact that the older brother had been granted a protection visa back in June 2009.

46    The parties were agreed that the relevant principles concerning a duty to inquire were summarised by the Full Court recently in Ashraf v Minister for Immigration and Border Protection [2018] FCAFC 50 (Ashraf) at [56] per Tracey, Mortimer and Moshinsky JJ:

56    There does not appear to be any significant difference between the parties as to the applicable principles, which may be briefly stated as follows. The authorities establish that the Tribunal has no general obligation to initiate enquiries or to make out an applicant’s case for him or her: Le at [60] and cases there cited. In SZIAI, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ noted (at [20]) that “[t]he failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it”. Their Honours said (at [21]) that the observations of Wilcox J in Prasad may support such a proposition. After noting, at [23], that the proposition that may emerge from Prasad had not been the subject of full consideration by the High Court, and referring to observations that had been made in certain cases, their Honours said (at [25]):

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.

(Footnote omitted.)

47    In Minister for Immigration and Citizenship v Le [2007] FCA 1318; 164 FCR 151, Kenny J referred at [60] to there being authority “for the limited proposition that, in certain rare or exceptional circumstances, the Tribunal’s failure to enquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury Corporation)…” (emphasis added). In my respectful view, her Honour’s statement still represents the law while also acknowledging the need to now also take into account the High Court’s subsequent observations concerning Wednesbury Corporation in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li).

48    The following observations of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 are also apposite:

…A power is exercised in an improper manner if, upon the material before the decision-maker, it is a decision to which no reasonable person could come. Equally, it is exercised in an improper manner if the decision-maker makes his decision - which perhaps in itself, reasonably reflects the material before him - in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information.

49    I accept the Minister’s submission that this line of authority concerning the limited duty to inquire has no application in the circumstances here, with particular reference to the fact that the appellant was represented by a migration agent who was also a lawyer. Moreover, at no point in the course of the RRT proceeding was any clear claim made to the effect that the appellant’s claim for protection was supported by the fact that her older brother had been granted a protection visa. Finally, that part of the appellant’s claims which were based on what she described as her family links with the LTTE was directed to family members other than her older brother. Accordingly, having regard to the way in which the appellant’s case was presented, the fact that her older brother had been granted a protection visa on a particular basis was not “a critical fact” for the purposes of the limited duty to inquire. I find that there was no jurisdictional error in the RRT’s failure to access the Departmental file relating to the older brother.

50    Similarly, the RRT’s failure to use its power under s 424 to access the older brother’s Departmental file is not unreasonable in the legal sense explained in cases such as Li at [63]-[76] per Hayne, Kiefel and Bell JJ and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1. There is nothing in the material before the Court to indicate whether or not the RRT ever turned its mind to whether it should exercise its power under s 424 to access the older brother’s Departmental file. In circumstances where the appellant failed to make any claim that her older brother’s circumstance and migration status in Australia was relevant to her application for a protection visa, the RRT was not obliged to consider whether it should exercise its discretion under s 424 in the manner suggested by the appellant (see SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; 229 FCR 90 at [82] per Perram, Jagot and Griffiths JJ).

51    For similar reasons, I reject the contention that the RRT constructively failed to carry out its review by not obtaining the older brother’s Departmental file.

52    Finally, I reject the appellant’s submission that the Full Court’s decision in CRY16 supports her claim of legal unreasonableness. While it may be accepted that the RRT’s discretion under s 424 has to be exercised reasonably in a legal sense, this ground has no application in the particular circumstances here where, for reasons given above, the appellant failed to make any claim that her older brother’s Departmental file had any bearing on her claims. As explained above, the appellant’s case relating to family links with the LTTE focused upon other members of her family and not her older brother. For similar reasons, the appellant’s reliance on Peko-Wallsend is misguided. It is difficult to see how the contents of the brother’s file would have “redeemed” the appellant’s credibility when the appellant never claimed that his migration status had a bearing on her case.

53    On the materials before the Court, it would appear that the appellant’s case on this potentially important matter could, and perhaps should, have been put differently to the RRT by her migration agent. This is a significant matter which, I respectfully suggest, should be taken into account by the Minister in considering a favourable exercise of his personal discretion in the unusual circumstances of the appellant’s case.

Conclusion

54    For these reasons, the appeal should be dismissed. The appellant must pay the first respondent’s costs as agreed or assessed. The Court expresses its gratitude to Ms Costello and King & Wood Mallesons, who nobly agreed to act for the appellant on a pro bono basis.

Associate:

Dated:    13 April 2018