FEDERAL COURT OF AUSTRALIA

SZNWF v Minister for Immigration & Citizenship [2010] FCA 1041

THE COURT ORDERS THAT:

1.                  Leave to file the Amended Notice of Appeal is refused.

2.                  The appeal is dismissed.

3.                  The appellants are to pay the first respondent’s costs. 

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. 
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                                             This is an appeal from the decision of Federal Magistrate Emmett delivered on 16 February 2010 in SZNWF & Anor v Minister for Immigration & Anor [2010] FMCA 91.  In that decision, her Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal).  The Tribunal had affirmed the decision of a delegate of the first respondent (the Minister) to refuse to grant the appellants Protection (Class XA) visas.

background

2                                             The appellants are husband and wife and are citizens of Sri Lanka.  The appellants arrived in Australia in December 2008 after legally departing from Colombo using passports issued in their own names and valid visitor visas.  The appellants lodged an application for a protection visa with the Department of Immigration and Citizenship (the Department) on 22 December 2008, based on specific claims for protection made by the first appellant (hereafter referred to as the appellant).  The second appellant’s application was based on her membership to the first appellant’s family unit pursuant to s 36(2)(b) of the Migration Act 1958 (Cth) (the Act).

3                                             A delegate of the Minister refused to grant the appellants protection visas on 13 March 2009.  The appellants subsequently applied to the Tribunal for a review of the delegate’s decision.  On 3 August 2009, the Tribunal affirmed the decision of the delegate and refused to grant the appellants protection visas, on the basis that it was not satisfied that the appellant had a well-founded fear of persecution in Sri Lanka within the meaning of the Convention.  As such, the appellants were not persons to whom Australia owed protection obligations under the Refugees Convention. 

the appellant’s claims for protection

4                                             The appellant’s claims for refugee status were based on his fear of persecution and harm in Sri Lanka at the hands of State authorities (including the President and those under the President’s control) arising from his political and religious activism.

5                                             The appellant claimed that until his departure from Sri Lanka in December 2008, he was “a highly active member of the Catholic Church in Sri Lanka and prominent figure amongst the Sri Lankan Catholic community”.  He claimed to have commenced his political activism in 1999, demonstrating against the government in relation to various injustices.  In 2001, he was injured when a bomb exploded at a protest rally he was attending.  The appellant provided police and medical reports in support of this claim.

6                                             Between 2003 and 2005, the appellant claimed to have been appointed as an advisor to the Ministry of Christian Affairs.  During this period, the appellant claims that he campaigned against the introduction of legislation, known as the Anti-Conversion Bill, that would make it a criminal offence for people to convert from one religion to another.  In September 2005 the appellant claims that he paid for the printing of 50,000 copies of a booklet opposing the Anti-Conversion Bill, and that he also held and participated in meetings with other Catholics to educate them about the proposed legislation.  In mid-November 2005, the appellant says that he published an article in a newspaper as well as a full page advertisement which criticised the Sri Lankan government and the Anti-Conversion Bill.

7                                             The appellant says that he has been threatened by both the Sri Lankan police and other unidentified men on a number of occasions in late 2005 and early 2006.  On 12 November 2005, the appellant claimed that two men, who identified themselves as Sri Lankan police, came to his house in the middle of the night and demanded to search it, without a warrant.  Also around this time, he claims to have received two threatening phone calls.  On 15 November 2005, two men carrying rifles visited his house and threatened the appellant.  The appellant reported these incidents to the police and copies of these police reports were before the Tribunal.  In January 2006 the appellant travelled to Australia to visit family.  On his return to Sri Lanka several months later, he claims that police came to his house and requested him to withdraw his earlier complaints.

8                                             In late October or early November 2008, following reports that the Anti-Conversion Bill would be reintroduced, the appellant again claimed to have received several threatening phone calls, in which he was told that he would be killed before the legislation was reintroduced in January 2009.  Although the appellant and his wife had been planning a holiday to various countries in January 2009, he says that upon receipt of these latest threats, they decided to leave Sri Lanka immediately and seek refuge in Australia with their family.  In doing so, the appellant submitted that he had left a well paying job and property in Colombo.

9                                             The appellant claimed that in order to leave Sri Lanka in December 2008 he had to speak to his contacts in the Sri Lankan police and change his itinerary a number of times so as to ensure a safe passage out of Sri Lanka.  He also claims that he was escorted through customs by a senior official with customs who was also his friend.  He says that on the day he left Sri Lanka, he also made a complaint to the police to ensure that there was documentation evidencing the current government’s involvement in corruption.  A copy of the police report was provided by the appellant to the Tribunal. It included the following statement:

Due to this reasons today I am leaving for Australia or America…It is said that I together with the others who worked against the Act will be imprisoned.  This is recorded for my future protection.

10                                          At the hearing before the delegate the appellant disclosed his membership and involvement in the United National Party (the UNP), which is currently in opposition in Sri Lanka, as a further basis upon which he claimed to fear harm.  Similarly, before the Tribunal he also claimed to have provided assistance to Tamils, including by organising a prayer service in 2007 and collecting toys and books.   When the appellant was asked by the Tribunal why he had not mentioned his involvement with the Tamils earlier, the appellant’s explanation was that he was “modest” about his work and that it had “not come to his mind”.

11                                          The appellant claimed that the threats against his life in 2005 and 2008 were explicit, and that because the Sri Lankan police were under the control of the President, the police would not protect him.  The appellant says that he fears that if he is made to return to Sri Lanka, he “would be met at the airport by police sent by the President, arrested and then disappeared [sic] without a trace”.

12                                          The appellant provided numerous supporting documents with his visa application, as well as to the delegate and the Tribunal.  The following documents, described below in general terms, were before the Tribunal and are of particular relevance to the present appeal:

·                    Letter dated 12 June 2003 from the Minister of Interior and Christian Affairs;

·                    Letter dated 11 October 2005 from a Member of Parliament and the Chairman of Christian Affairs Committee, UNP;

·                    Letter dated 21 March 2007 from the Archbishop of Colombo;

·                    Letter dated 23 July 2007 from a Member of Parliament and the Leader of the UNP;

·                    Extracts of police reports from Wattala Police Station, dated November 2005 and 9 December 2008;

·                    Identity card for the Ministry of Interior;

·                    Receipts for the printing of booklets on religious freedoms;

·                    Letter dated 23 March 2009 from a Member of Parliament and Vice Chairman of the UNP;

·                    Letter, undated, from a Member of Parliament and the Deputy Leader of the UNP;

·                    Letter dated 24 March 2009 from an Attorney at Law.

13                                          In addition, the Tribunal also had before it country information relating to Sri Lanka.  This country information included reports from the British High Commission which stated that forged and fraudulently obtained documents are common in Sri Lanka, and commonly include passports, identity cards, birth certificates, arrest warrants and sponsorship letters.

14                                          Prior to the appellant’s arrival in December 2008, the appellant had previously travelled to Australia on a number of occasions.   He first travelled to Australia in August 2004 for approximately two weeks.   On the second occasion he was accompanied by his wife and arrived in December 2004, returning to Sri Lanka in January 2005.  On the third occasion, he arrived in Australia in January 2006 and returned to Sri Lanka in March of the same year.

the decision of the delegate

15                                          The appellant attended an interview with the delegate of the Minister with the assistance of his migration agent.   In considering the appellant’s application, the delegate accepted that the appellant was a Catholic.   However, the delegate noted that the appellant gave very general responses in relation to his claims to be a prominent political and community worker within the local and wider Catholic community, and what he actually did in the roles he claimed to have held.   In particular, the delegate noted that he gave “a very vague recount of his activities devoid of specific dates, places, activities and circumstances.”

16                                          The delegate concluded that the appellant had exaggerated his profile, the activities he was involved in as a member of the UNP and his role and influence in opposing the Anti-Conversion Bill.   As a consequence, the delegate concluded that the appellant had failed to substantiate his claims that he had a significant profile and was targeted and persecuted by the Sri Lankan authorities as a consequence.   The delegate was therefore not satisfied that the appellant’s alleged involvement in these activities would lead to a real chance of persecution at the hands of the Sri Lankan authorities.   

17                                          Finally, the delegate concluded that the appellant’s conduct, including his previous travel history and his travel to Australia on this occasion, was inconsistent with a genuine fear of persecution.   The delegate held that the appellant’s delay in departing Sri Lanka and his complaint to the police on the day of his departure contradicted his claims to have been so terrified by the threats he allegedly received that he decided to leave Sri Lanka immediately.   This was further supported by the fact that, based on the appellant’s own evidence, the appellant had never been interrogated, detained or imprisoned by the Sri Lankan authorities, and had not previously experienced any difficulties when departing or returning to Sri Lanka.

the decision of the tribunal

18                                          The Tribunal accepted a number of matters in relation to the appellants.  These were summarised by the Tribunal at [71] to [75] of the Tribunal’s decision, and included that:

·                    the appellants were both citizens of Sri Lanka;

·                    the appellant was a Catholic and a supporter/member of the UNP;

·                    the Sri Lankan parliament tried to pass the Anti-Conversion Bill in 2004 and that it had been reintroduced in January/February 2009;

·                    the Anti-Conversion Bill had been opposed by religious minorities, including Catholics;

·                    human rights abuses by authorities and others continue to occur in Sri Lanka; and

·                    members of extremist Buddhist nationalist groups continue to engage in violence and harassment against Christians.

19                                          Despite the Tribunal’s acceptance of these facts, the Tribunal noted that it must determine whether the particular applicant before it has a genuine fear, founded upon a real chance of persecution for a Convention reason if the applicant were to return to his or her country of origin.  Having regard to this requirement, there were a number of aspects of the appellant’s claims which the Tribunal did not accept, namely that:

·                    the appellant had a significant profile with the Church, or that he was involved with community and charitable works for the Church as claimed;

·                    the appellant was an advisor of religious affairs for the Opposition Party or the Ministry of Christian Affairs, or that he campaigned against that Anti-Conversion Bill;

·                    the appellant would be subjected to discrimination if the Bill were passed;

·                    the appellant arranged a prayer service in 2007 that opposed the civil war or criticised the government;

·                    that the photographs or DVD were reliable evidence of the appellant’s involvement in various activities for the Church and UNP as claimed;

·                    that the appellant had been threatened in either 2005 or 2008 for any of the reasons alleged by him;

·                    that his explanation for lodging a report with the police on the same day as his departure was reasonable or plausible; and

·                    that the appellant was a person of interest to the authorities in Sri Lanka.

20                                          The Tribunal ultimately concluded that the appellants’ claimed fear of persecution was speculative.  The appellants had lived, worked and raised a family in Sri Lanka for many years without harm.  Critically, although the Anti-Conversion Bill had been debated since 2004, the appellant had not sought asylum on any of his previous visits to Australia, including during his visit in 2006, which was only a short time after he says that the first threats against him occurred.  Furthermore, the Tribunal noted that the appellant had travelled to Australia four times between 2004 and 2008 and on three of those occasions he had returned to Sri Lanka without changing his address or occupation on his return.  The Tribunal considered that this was inconsistent with a genuine fear of persecution and that the appellant was unlikely to be persecuted for being a dissident or traitor if he were to return to Sri Lanka.  Accordingly, the Tribunal affirmed the delegate’s decision, stating at [88]:

…having regard to the evidence before it, there is not a real chance that the applicant or his wife will suffer persecution from the government in Sri Lanka, including the President, Sri Lankan authorities, police or those who support the government, or anyone else in his country, either now or in the reasonably foreseeable future because of his religion, his membership of a particular social group, his political opinion or imputed political opinion or for any other Convention reason, if he returns to his country.

21                                          In reaching this conclusion, the Tribunal determined that many of the documents provided by the appellant in support of his claims were not reliable evidence of the facts contained in them and, accordingly, declined to give them any weight.  In particular, the Tribunal gave no weight to the police reports and letters listed above which referred to threats made against the appellant.  In attributing no weight to these documents, the Tribunal relied on the prevalence of document fraud and forgery in Sri Lanka, as well as its own dissatisfaction with various aspects of the appellant’s evidence. 

the decision of the federal magistrate

22                                          Before the federal magistrate, the only ground of review relied upon was that the Tribunal had breached s 425 of the Act.  It was submitted that this breach arose as a consequence of the Tribunal’s failure to:

·                    give “proper, genuine and realistic consideration” to the appellants’ claims and the supporting material;

·                    subject the documents to “appropriate scrutiny and make appropriate enquiry”; and

·                    notify the appellants that it did not accept the material as reliable in light of the country information and give them a proper and sufficient opportunity to respond and provide other evidence.

23                                          The federal magistrate dismissed the application.  Her Honour held that a fair reading of the Tribunal’s decision record made it clear that the Tribunal not only gave detailed consideration to all of the documentary material, but that the Tribunal also informed the appellants of the concerns it had regarding the documentary evidence and the reason for this concern, namely the country information regarding document fraud.  The appellant’s response had simply been to submit that the documents were genuine.  Her Honour noted that the appellant did not allege that the Tribunal’s decision record was inaccurate in any way in this regard and so it could not be said that the appellants were not notified of the Tribunal’s concerns.

24                                          Her Honour noted, at [48], that the Tribunal did not make a specific finding that the documents provided by the appellant were not genuine.  Rather, the Tribunal simply determined to give no weight to the documents as evidence of the facts alleged.   The Tribunal was entitled to have regard to the country information and place such weight as it saw fit on the documents in light of that information: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ.   The learned federal magistrate considered that the Tribunal’s findings regarding the weight to be placed on the supporting documents were open to it for the reasons it gave, based on the evidence before Tribunal as well as the Tribunal’s adverse credibility findings (which her Honour correctly noted are a matter par excellence for the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). 

25                                          Her Honour concluded at [46]:

A fair reading of the Tribunal’s decision record makes clear that the Tribunal had regard to all the documentary material and oral evidence provided to it by the Applicant and all written submissions provided to it by the applicants’ migration agent.  As stated above, it is clear that it was the unsatisfactory nature of the Applicant’s oral evidence as well as the unreliability of his documentary evidence in light of the country information which formed the reason for the Tribunal’s adverse findings in respect of the Applicant’s claims.  In the circumstances, the Tribunal did not fail to “give proper genuine and realistic consideration to the applicant’s claims.”

26                                          Finally, her Honour rejected the appellant’s submission that the Tribunal could have made its own inquiries in relation to many of the documents provided by the appellant.  No reference is made by her Honour as to the scope or content of the inquiries that the appellant suggested could have been made.  Nevertheless, her Honour held that, relying on Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20], the Tribunal is not obliged to investigate an applicant’s claims and evidence further.  Similarly, her Honour held that the duty imposed on the Tribunal by the Act is a duty to review and not a duty to inquire, as stated by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.

the appeal to this court

27                                          A Notice of Appeal from the decision of the federal magistrate was filed in this Court on 9 March 2010 and contained a single ground of appeal.  At the hearing before me, the solicitor for the appellant sought leave to file and rely upon an Amended Notice of Appeal.  The Amended Notice of Appeal deleted ground 1 of the original notice of appeal and sought to add grounds 2 and 3, being:

2.         The Federal Magistrates Court erred in finding [46]:

                        “the Tribunal did not fail to ‘give proper, genuine and realistic consideration to the applicant’s claims’”

Particulars

The RRT found that documentary evidence of the applicant was not reliable

The RRT failed to endeavour to test that evidence by reasonably initiating inquiries, as to the integrity of that evidence, through an appropriate channel in Sir Lanka [sic].

3.         In the alternative, the decision of the RRT was attended by jurisdictional error by reason that the RRT constructively failed to exercise jurisdiction in not conducting a review as required by s.414 of the Migration Act 1958

Particulars

Repeat Particulars at Ground 2.

28                                          As conceded by the solicitor appearing for the appellants, ground 3 is in essence a reiteration of ground 2.  The appellants’ principal complaint is that the Tribunal had committed jurisdictional error by failing to initiate inquiries of the Australian High Commission in Colombo (the High Commission)regarding the supporting documents, given that many of these documents on their face purported to emanate from eminent or high status persons and organisations in Sri Lanka.  The inquiries posed by the appellants were two-fold.  First, that the Tribunal could have requested the High Commission to confirm the contact details of the various persons by whom the documents were purportedly written.  Secondly, the Tribunal could have then contacted some or all of the authors using the contact details provided by the High Commission, as by doing so the Tribunal could be confident that they had in fact contacted that particular person or their office rather than “ringing into the blue”.  Whilst it was the first of these inquiries that was the main focus of the submissions before me, both avenues of inquiry were ultimately pressed.

29                                          Counsel for the Minister opposed the granting of leave.  It was submitted that the Amended Notice of Appeal raised a fresh ground of appeal that was not agitated in the court below either at all, or in the form that it is presently put and that no explanation had been provided as to why this ground was not raised before the federal magistrate or in the original Notice of Appeal.   Finally, although counsel for the Minister could not identify any particular prejudice that his client would suffer if leave were granted, it was submitted that the new grounds were in any event without merit and therefore leave should be refused.  To this end, reliance was placed on the following passage from VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 per Kiefel, Weinberg and Stone JJ at [48]:

The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated.  Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

30                                          As to whether the grounds sought to be advanced were fresh grounds of appeal, the appellants pointed to [50] of her Honour’s reasons, in which her Honour dealt with a submission that the Tribunal should have made inquiries, as evidence of the ground having been advanced below.   It is true that the reasons of the federal magistrate at [50] do refer to an argument put by the appellants that the Tribunal could have made its own inquiries.  However, it is not clear from her Honour’s reasons whether this submission was put in the same manner or with the same focus as it is presently put before me, namely that specific inquiries could have been made of the High Commission. 

31                                          Leave to raise a new ground of appeal should only be granted if it is expedient in the interests of justice to do so: VUAX at [46].   In determining whether it is expedient in the interests of justice to grant such leave, consideration must be given to the merits of the grounds raised: VUAX at [48].   In the present case the proposed new grounds of appeal were fully and carefully argued before me.   In light of that argument, and for reasons which will appear, I am of the view that each of the proposed new grounds of appeal must fail.   In those circumstances, there is no utility in my granting the appellant leave to raise the proposed new grounds of appeal.   

32                                          Although the Amended Notice of Appeal contains two grounds of appeal, the solicitor for the appellant properly conceded that in substance they were simply iterations of the same principal complaint, namely that the failure of the Tribunal to initiate inquiries through the High Commission constituted jurisdictional error.  While the two proposed grounds of appeal are closely interrelated, it is convenient to deal with each of them in turn.

failure to inquire

Relevant principles

33                                          The appellants relied on the decision of the High Court in SZIAI as authority for the proposition that in this case, the Tribunal committed jurisdictional error by failing to make inquiries.  Prior to SZIAI, it had been held in this Court that a failure to inquire could, in certain circumstances, amount to jurisdictional error.  In Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155, Wilcox J held (at 170):

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.

To similar effect is the decision of Kenny J in Minister for Immigration and Citizenship v Le (2007) 164 FCR 151, in which her Honour held that in the circumstances of that case (which she described as “exceptional”) the failure to make an inquiry constituted Wednesbury unreasonableness.   Her Honour relevantly held at [79]:

…the present is a case where the failure by a decision-maker to make a straightforward enquiry for information that was apparently readily available and relevant to critical issues can be characterised as unreasonable in the Wednesbury Corporation sense.

34                                           SZIAI involved an appeal to the High Court by the Minister from a decision of a single judge of this Court, whom had held that the failure by the Tribunal to make further inquiries by using the telephone numbers on documents provided by the visa applicant rendered the Tribunal’s decision manifestly unreasonable and vitiated by jurisdictional error.  In upholding the Minister’s appeal, the High Court held (at [24]-[25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ):

[24]      …It is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law…

[25]      Although decisions of 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. 

35                                          It is clear from this passage that there is no general duty to inquire imposed on the Tribunal.  As a result, the Tribunal can, generally speaking, choose whether to inquire or refrain from inquiring (Minister for Immigration and Citizenship v MZYCE [2010] FCA 767 at [35]-[36] per Gray J).   Nevertheless, a failure to inquire may constitute jurisdictional error if the omission amounts to a failure by the Tribunal to discharge its statutory duty of review, or otherwise renders the decision manifestly unreasonable in the requisite sense (see SZIAI at [26]; Prasad at 169-170; SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30]).   The High Court in SZIAI at [25], quoted above, identified the circumstances in which this will occur as being where the Tribunal has failed to make an obvious inquiry about a critical fact, the existence of which was easily ascertainable and sufficiently linked to the outcome of the review. 

36                                          As Kenny J noted in Le at [60], the circumstances in which a failure to inquire will constitute jurisdictional error are rare and exceptional.   It is not the duty of the Tribunal to make the case for the applicant (Prasad at 170), andthe fact that it may have been reasonable for the Tribunal to make an inquiry is not sufficient to elevate the absence of such an inquiry to the status of jurisdictional error (SZMJM at [30]).   The ultimate question for the Court when considering an application for judicial review is whether the Tribunal has discharged its statutory duty of review (MZYCE at [30]).  Where an applicant for review can establish that the circumstances identified by the High Court in SZIAI exist, then the existence of these circumstances may support a finding that the Tribunal has failed to discharge its statutory duty.

Submissions of the appellants

37                                          The appellants do not disagree with these statements of principle.   However, they contend that this is a case in which the failure by the Tribunal to make inquiries amounts to jurisdictional error.   The appellants contend that the inquiry which the Tribunal could have made, but did not make, was of the High Commission in Sri Lanka, which could have verified the contact details for the “high profile” authors of the letters which would in turn have allowed the Tribunal to make further inquiries of the authors directly if it was minded to do so.  The appellants submit that the proposed inquiry to the High Commission was an obvious inquiry that concerned a critical fact, the existence of which could be easily ascertained and was sufficiently connected to the outcome of the review (SZIAI at [25]). 

38                                          The appellants submitted that the documents which the Tribunal ultimately determined not to give any weight were corroborative of key aspects of the appellant’s claim for protection, namely his political and religious profile and activism, and that the non-acceptance of these facts was critical to the Tribunal’s ultimate decision.   The appellants submitted that these key facts could have been easily ascertained by the Tribunal undertaking the proposed inquiries.   

39                                          The appellants’ arguments in support of this position were twofold.   First, the appellants pointed to the fact that the Tribunal has, in other cases, made inquiries of the Department of Foreign Affairs and Trade (DFAT) regarding aspects of a visa applicant’s claims, including the authenticity of documents.   In particular, the appellants pointed to SZMJM, where the Tribunal had requested DFAT to make inquiries regarding the authenticity of two police reports and a death certificate that purportedly originated in Pakistan.   Secondly, the appellants relied on the fact that the purported sources of many of the corroborating documents were high status or high profile identities in Sri Lanka.   On this basis, and in circumstances where the Tribunal had doubts regarding the appellant’s claims, it was both easy and obvious to make inquiries of the High Commission as to the contact details of those persons said to have written the letters, and to subsequently contact the authors directly.  The appellants contended that it was the existence of these circumstances that rendered the failure by the Tribunal to make inquiries in this case a jurisdictional error.

Consideration

40                                          I do not agree with the appellants’ submissions for a number of reasons.   As a starting point, I am not satisfied that the contact details of the various “high profile” individuals alleged to have written and signed the supporting documents were easily ascertainable by making inquiries of the High Commission.  As the respondent submitted, there is nothing before me to suggest that the High Commission, rather than DFAT or some other body, was the appropriate organisation to undertake such an exercise.  Similarly, there is no evidence before me that establishes how the inquiries would have been made, the degree of difficulty involved, and whether the particular organisation would in any event be in a position to undertake the relevant inquiries, particularly given the variety of sources from which the documents purported to emanate.   While it may be that the Tribunal has in the past sought assistance from DFAT or other such governmental organisations, this is not sufficient to support an inference that in the particular circumstances of this case such inquiries could have been easily made.

41                                          However, there is a more fundamental difficulty with the argument advanced by the appellants.  In this case, the inquiry postulated by the appellants, being a request to the High Commission to verify various contact details, was preparatory to any direct inquiry of the purported authors of the documents.  It is difficult to see how the making of this preparatory inquiry, in the absence of anything further, would be likely to establish any critical fact upon which the outcome of the appellant’s claims might be perceived to depend.  Even if the High Commission confirmed that the contact details contained in the documents themselves were correct, this fact alone does little, if anything, to advance the appellant’s case.  It would not establish that the documents were genuine or that the statements made in them were true. 

42                                          A question which arose in relation to the documents provided by the appellant was whether the statements contained in them were accurate.  This was not a fact that could be easily ascertained by contacting the High Commission.  Even if the Tribunal took the further step of contacting the authors, whether by telephone or letter or through the High Commission, an assessment as to the credibility of each of the purported authors could not easily be made: SZMJM at [43].  I am therefore not satisfied that such inquiries would have advanced matters.  The High Court’s statement in SZIAI at [26] is apposite in this regard:

… there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result.  There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision.  The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates.  But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers.  If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened.  If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves.

43                                          As in SZMJM, the issue in this case was not merely the authenticity of the documents (such as may be the case with what purport to be a passport or a birth certificate the authenticity of which is in issue) or whether the persons named in the documents actually wrote them, but also whether, if the documents were authentic and actually written by the persons named in them, their contents were otherwise accurate and reliable. 

44                                          Furthermore, the Tribunal’s decision did not hinge on the rejection of a particular matter, which could have been easily ascertained had the Tribunal conducted an obvious inquiry.  The refusal by the Tribunal to attribute any weight to the various documents was not the only reason why the Tribunal rejected the appellant’s claims.  Rather, the Tribunal reached its conclusions on the basis of a combination of factors arising from the appellant’s evidence, both oral and documentary.  The federal magistrate correctly held that what was critical to the Tribunal’s decision was its finding that the appellant did not have a genuine fear of persecution.  This finding was based on various factors including his travel history, conduct inconsistent with a genuine fear of persecution, inadequate explanations for delay and the constant expansion of his claims and evidence directed to addressing concerns raised by the delegate in the delegate’s decision (for example, his work with the Tamils).  The Tribunal was entitled to rely on the country information before it, as well as the appellant’s own evidence and conduct, to form its own view as to the reliability of the documents and the weight to be attributed to them.  In these circumstances, it cannot be said that had the Tribunal made the suggested inquiries a different result would have ensued.  I am therefore not satisfied that the suggested inquiries were sufficiently linked to the Tribunal’s decision.  As Jagot and Foster JJ said in Minister for Immigration and Citizenship v Dhanoa (2009) 180 FCR 510 at [50]:

…information cannot be “centrally relevant” (as required to found a case of an unreasonable failure to inquire) when the only indications available at the time were that the information, even if obtained, would not have yielded a different outcome.

45                                          In so far as the appellant submitted that the suggested inquiries were obvious, I make the following further observations.  If the Tribunal is given a letter or another document that contains on its face a phone number or an address for the person said to be the author of the document, and questions or doubts arise in relation to that document, then I do not think it can be said that contacting the person using the details provided, or more accurately, attempting to do so, is not an obvious inquiry that it is open to the Tribunal to make.  But that is not the relevant test.  As is evident from the High Court’s formulation in SZIAI, jurisdictional error requires not simply that an inquiry which was not undertaken be obvious; it must be an obvious inquiry, first, about a critical fact the existence of which is easily ascertained and, second, sufficiently linked to the outcome of the review. 

Conclusion on duty to inquire

46                                          Accordingly, whilst it was open to the Tribunal to make the suggested inquiry of the High Commission and, looking beyond that, inquiries of the authors of the various documents themselves (assuming that was possible), the appellants have not established that the circumstances identified by the High Court in SZIAI exist in this case.  I am not satisfied that it was necessary for the Tribunal to undertake the inquiry which the appellant contends it ought to have made in his case for the Tribunal to fulfil its statutory duty of review.  In particular, it has not been established that the postulated inquiry, even if obvious, was about critical facts the existence of which could be easily ascertained.  Nor has it been established that the postulated inquiry, even if obvious, was sufficiently linked to the outcome of the review.  It follows that the fact that the Tribunal did not make the postulated inquiry does not amount to jurisdictional error.

Did the tribunal otherwise fail to conduct a review or give proper, genuine and realistic consideration to the appellant’s claims?

47                                          The appellants also submitted that the Tribunal failed to conduct a review in accordance with its statutory duty and that this failure amounted to a constructive failure to exercise jurisdiction.  This was said to be so because the Tribunal failed to consider or test the documentary evidence provided by the appellant that went to what the appellants’ solicitor referred to as the ‘essence’ of the appellant’s case.  The appellants submitted that the course adopted by the Tribunal was to simply cast the documents aside on the basis that document fraud and forgery was rife in Sri Lanka instead of examining each document individually for the purpose of determining whether it was authentic.  The appellants further submitted that no express finding was made that the documents were not genuine or that the appellant was not a credible witness. 

48                                          This submission was considered by the federal magistrate at [44]-[48], where her Honour relevantly held:

[44]      …Rather, at the heart of the applicants’ submissions was a contention that the Tribunal’s adverse view of the Applicant’s evidence was coloured by the unreliability of the documentary material provided by the Applicant which caused it to reject the Applicant’s claims.  However, a fair reading of the Tribunal’s decision record makes clear that the unsatisfactory explanations provided by the Applicant to the Tribunal, in respect of matters of concern substantially raised with the Applicant, led to the Tribunal’s adverse findings.

…

[46]      A fair reading of the Tribunal’s decision record  makes clear that the Tribunal had regard to all the documentary material and oral evidence provided to it by the Applicant and all written submissions provided to it by the applicants’ migration agent.  As stated above, it is clear that it was the unsatisfactory nature of the Applicant’s oral evidence as well as the unreliability of his documentary evidence in light of the country information which formed the reason for the Tribunal’s adverse findings in respect of the Applicant’s claims.  In the circumstances, the Tribunal did not fail to “give proper genuine and realistic consideration to the applicant’s claims”.

[47]      A fair reading of the Tribunal’s decision record makes clear that the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings…

[48]      …As is referred to above, the Tribunal noted that it explained to the Applicant the country information that caused it to have concerns about the reliability of many of the Applicant’s documents and noted the Applicant’s response that the documents were genuine.  The Tribunal did not make a specific finding that the Applicant’s documents were not genuine.  Rather, the Tribunal determined to place no weight on the documentary material as evidence of the facts alleged.  The Tribunal was entitled to have regard to the country information before it and to place such weight as it saw fit on that information…the Tribunal’s finding in respect of the weight it gave the applicants’ documents was open to it on the evidence and material before it and for the reasons it gave.

49                                          I agree with her Honour’s conclusions in this regard.  For the reasons given by her Honour, extracted above, it cannot properly be said that the Tribunal in any way failed to conduct a review once regard is had to the Tribunal’s reasons for decision as a whole. 

50                                          Furthermore, I do not agree that the documents provided by the appellant were the ‘essence’ of the appellant’s case.  The ‘essence’ of the appellant’s case was to be found in his claims as contained in his application for a protection visa and in his oral evidence before the delegate and the Tribunal.  While the documents provided by the appellant purported to corroborate his claims, they had to be weighed in light of the direct evidence given by the appellant and the country information to which the Tribunal referred to when determining what weight it should give them.

51                                          No detailed submissions were made by the appellants in relation to the allegation in ground 2 of the proposed Amended Notice of Appeal that the Tribunal failed to give ‘proper, genuine and realistic consideration’ to the appellant’s claims, except to say that the failure to accord the supporting documents any weight amounted to a failure by the Tribunal to give the appellant’s claims ‘proper, genuine and realistic consideration’. 

52                                          In Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 the Full Court held that the ‘proper, genuine and realistic’ formulation was not an available ground of judicial review under Part 8 of the Act as it then stood.  I think this is also true of Part 8 of the Act as it now stands.  Of course, the Tribunal must conduct a review of the applicant’s claims in accordance with its “imperative duties”: see Minister for Immigration & Citizenship v SZPNG (2010) 115 ALD 303 at [27] per North and Lander JJ citing Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.  But I do not think it is open on the material before me to find that the Tribunal failed to conduct such a review.

53                                          As her Honour correctly held at [46] (quoted above), the Tribunal considered the supporting documents.  But, after also considering the appellant’s oral evidence and relevant country information, the Tribunal determined not to give the supporting documents any weight.  The fact that the Tribunal did not make an express finding that the documents were not genuine is neither here nor there.  No jurisdictional error has been established arising out of the Tribunal’s treatment of the supporting documents.

54                                          Nor was it necessary for the Tribunal to make any express finding concerning the appellant’s credibility.  It is apparent that the Tribunal rejected much of the appellant’s evidence and it gave detailed reasons for doing so.  While it was open to the Tribunal to make an express finding concerning the appellant’s lack of credibility, it was not bound to do so. 

conclusion

55                                          In the result, I decline to grant the appellants leave to amend their Notice of Appeal.  The appeal will be dismissed.  The appellants are to pay the first respondent’s costs of the appeal.

Associate:

Dated:         24 September 2010