REASONS FOR JUDGMENT

1                     By Notice of Appeal filed on 8 July 2010 the appellant appeals from the decision of Federal Magistrate Driver which, by order of 17 June 2010, dismissed an Application for Judicial Review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 5 February 2010 (see SZOER v Minister for Immigration & Anor [2010] FMCA 382). The Tribunal’s decision affirmed a decision of the delegate of the first respondent (‘the Minister’) not to grant the appellant a protection visa.

FACTS

2                     The appellant was born on 3 March 1988 in the Republic of the Fiji Islands and is currently a citizen of that nation. She arrived in Australia on 19 February 2009 but had made visits to Australia on several occasions prior to that date. The appellant made an application for a Protection (Class XA) visa on 13 May 2009. Pursuant to a request made of her on 3 July 2009, she attended an interview on Friday 17 July 2009 before the Minister’s delegate.

3                     On 24 July 2009 the appellant sent to the Minister by facsimile a number of documents relating to her claim. Such documents had been requested by the Minister’s delegate during the interview on 17 July 2009. The documents included two letters from the Fijian Police Force dated 20 July 2009 addressed ‘To Whom It May Concern’ (‘The Police letters’). Such letters purported to attest to the fact that the appellant had made two complaints at Nadi Police station, one of which concerned the appellant being threatened by some Fijian people and another in respect of an incident in which she had been robbed.

4                     It is instructive to set out the Police letters relied upon by the appellant. The First relevantly provided:

This is to certify that [the appellant] reported at Nadi Police Station that she had been threatened by some Fijian people at Nawaka whilst on her way back to home from work.

The matter is been [sic] investigated by Police.

Nadi Police Report # 10027/08 is relevant.

5                     The second Police letter relevantly provided

This is to certify that [the appellant] reported at Nadi Police Station that she was robbed by some unknown Fijian people whilst she was going home from work.

The matter is been [sic] investigated by Police.

Nadi Police Report # 50/09 is relevant.

6                     Both letters identify the Station Officer of Nadi Police station as IP Hemant Dass. The letters are apparently authorised by IP Dass and contact details are provided for the Fiji Police Station in Nadi.

7                     A further document was faxed to the Minister in relation to requests made at the Departmental interview. Such document was a letter dated 21 July 2009 and addressed ‘To Whom It May Concern’ from Pillai, Naidu & Associates, a firm of solicitors in Nadi, Fiji. Such letter purported to attest to the fact that the appellant had sought legal advice in relation to two incidents of harassment and intimidation in January 2009.

8                     After receipt of the additional documents, the Minister made its determination and by letter dated 12 August 2009 indicated to the appellant that her application had been refused.

9                     By Application for Review filed in the Tribunal on 31 August 2009 the appellant sought to have the decision of the Minister reviewed.

TRIBUNAL PROCEEDINGS

10                  By letter dated 22 September 2009, the Tribunal invited the appellant to attend a hearing before it on 5 November 2009. Such hearing was subsequently adjourned to 11 November 2009. On 11 November 2009 the hearing was further adjourned because of administrative problems. The hearing was completed on 17 November 2009.

11                  The appellant claimed to fear harm in Fiji for reason of her race, being an Indo-Fijian, and imputed political opinion, her father having involvement with the Fijian Labour Party. She claimed to have been a victim of intimidation, harassment and threats by ethnic Fijians in her village, where there was only one other Indo-Fijian family. The appellant claimed that from 2006 she was the victim of personal theft, verbal and physical abuse and was too afraid to walk freely at night by herself. She claimed that although she reported these incidents to the Police, they were unable to help her. She claimed that in December 2008, four masked men entered her family’s home, tied up her parents; stole money and jewellery; beat her father and cut his arm. She also claimed that in January 2009, as she was walking home from a friend’s house, four native Fijians sexually assaulted her while attempting to rape her but were forced to flee when a car approached. The appellant claimed she did not report this incident to the Police as her parents advised that it would bring insult to her family. When asked by the Tribunal why she had not applied for protection on her previous visits to Australia in 2007 and 2008, the appellant claimed the harassment was not serious at those times, but that she became fearful after the sexual assault in January 2009.

TRIBUNAL FINDINGS

12                  The Tribunal delivered its decision on 5 February 2010. The Tribunal did not find the appellant to be a truthful or credible witness; found that there were problems with the appellant’s evidence at the hearing; that her responses to questions asked of her were vague; and that there were inconsistencies in her evidence. The Tribunal also found that the appellant’s claims were inconsistent with the country information before the Tribunal.

13                  The Tribunal also noted the differences in the claims made by the appellant in her original application, at her interview before the delegate, and before the Tribunal. For example, the Tribunal found it significant that she only mentioned the home invasion by four masked men for the first time at the Tribunal hearing. In this regard, the Tribunal concluded that if this claim were true, she would have referred to the incident at the Departmental interview, especially given the claim made by the appellant at the Tribunal hearing that this was one of the significant incidents that made her decide to flee from Fiji.

14                  The Tribunal also found that the appellant’s failure to claim protection on her previous visits to Australia and her near three month delay in applying for protection after her arrival in Australia had undermined her claims.

15                  The Tribunal considered the contents of the additional documents submitted to the Minister including the Police letters however given the lack of detail contained within the documents and the Tribunal’s prior findings concerning the appellant’s credibility, the Tribunal gave the Police letters ‘no weight’. Significantly for this appeal, the Tribunal made no inquiry to the Fijian Police regarding either the Police letters or the Police reports that were referenced therein.

16                  For convenience, the finding of the Tribunal at [85] in relation to the Police letters is set out as follows:

The two statements from the Fiji Police Force are addressed “To Whom it May Concern”. They are not Police reports provided at the time of the incidents as they are dated [in] July 2009. They state that the applicant reported that she had been robbed and reported that she had been threatened. The statements provide no details of when the applicant reported these incidents or when she was robbed and threatened. Given the Tribunal’s finding as to the credibility of the applicant and given the lack of detail in these statements the Tribunal places no weight on them.

17                  The Tribunal further found at [87]:

Taking into account all of the evidence the Tribunal finds that the applicant is not a truthful or credible witness and rejects all of the claims the applicant has made at the hearing and in her protection visa application. The Tribunal does not accept that the applicant has been threatened, intimidated, robbed and attacked by the young people of her village because she is Indo Fijian or because she or her father were members/supporters of the FLP. The Tribunal does not accept that the applicant has been threatened, harassed, intimidated and attacked since 2006. The Tribunal does not accept that she was pushed or that her purse was snatched in September 2008. The Tribunal does not accept that the applicant’s home was robbed by masked men in December 2008. The Tribunal does not accept that the applicant was robbed [in] January 2009. The Tribunal does not accept that [in] January 2009 four native Fijians came out of the jungle and attempted to rape her. The Tribunal does not accept the claims the applicant has made about her threats and attacks on her parents or her family home before or after she left Fiji. The Tribunal is of the view that the applicant has fabricated these claims in order to strengthen her claim to refugee status. The Tribunal does not accept that the applicant has suffered “serious harm” in Fiji amounting to persecution because of her ethnicity or because of an imputed political opinion.

APPLICATION TO FEDERAL MAGISTRATES COURT

18                  By Amended Application in the Federal Magistrates Court of Australia filed on 10 May 2010 the appellant sought review of the Tribunal’s decision. The sole ground of review in the application was stated as follows:

(1)     The Tribunal made jurisdictional error by not making inquiries about the supporting letters from (a) The Fijian Police and/or (b) the applicant’s lawyers, which inquiry was necessary before deciding to give those letters no weight.

            Particulars

            The Tribunal on page 24 (CB 159) at [85] held that due to lack of details in the alleged Police letter and due to applicant’s credibility it gave no weight to it.

            On Page 24 (CB 159) at [86] it held that due to lack of details in the applicant’s former lawyer’s letter, some perceived inconsistency and due to applicant’s credibility it gave no weight to it.

            A basic inquiry would have determined genuineness of the letters and truthfulness of events, which inquiry was necessary in the circumstances but not pursued.

19                  In his reasons for judgment delivered on 17 June 2010 Federal Magistrate Driver found that the Tribunal refused the Application for Review because it did not accept that the appellant was a credible witness. His Honour further found that contrary to the appellant’s submissions, no finding was made by the Tribunal that the documents (including the Police letters) submitted by the appellant were not genuine. Driver FM found that the Tribunal considered such letters but found them to be of no assistance because of the lack of detail contained in the documents.

20                  Driver FM observed that the information contained in the Police letters was extremely general in nature and that the content of the reports referred to by the Police letters was unknown. Driver FM stated that the Tribunal might have made an inquiry of the Fijian Police in relation to the Police reports outlined in the letter but it was under no obligation to do so. He observed that the same inquiry could have been made by the appellant but it had not been made. His Honour observed at [16]:

The applicant had the opportunity to make such an inquiry in order to support her claims in consequence of the letter sent to her solicitor on 7 December 2009 pursuant to s.424A of the Migration Act. That letter put the applicant on notice that the Tribunal was inclined to disbelieve the applicant’s claims of having been continuously threatened, intimidated and attacked. Although the applicant, through her solicitor, responded to the invitation to comment, there was apparently no attempt to obtain the Police reports referred to. Neither was the Tribunal invited or requested to obtain them. If, as the applicant now submits, such an inquiry was obvious and bearing on a vital issue, it is mystifying why no attempt was made by or on behalf of the applicant to obtain the reports.

21                  His Honour concluded, applying the decision of this court in SZNWA v Minister for Immigration [2010] FCA 470, that it was not unreasonable for the Tribunal to proceed on the basis that it was the obligation of the appellant to provide the information to the Tribunal in support of her application.

22                  In regard to the Tribunal’s decision to give the Police letters no weight, the Federal Magistrate at [15] held that:

Contrary to the applicant’s submissions, there was no finding by the Tribunal, expressed or implied, that the documents submitted by the applicant were not genuine. Although the Tribunal found the applicant to have been wholly untruthful in her claims the Tribunal considered the documents she had submitted. The Tribunal found no assistance in the Police statements because of the lack of detail in them. The Tribunal found that the letter from the applicant’s lawyer in Fiji was not consistent with the applicant’s claims and also suffered from a lack of detail. Because of the lack of detail and lack of consistency in the documents, the Tribunal gave no weight to the contents of them. I take the Tribunal to mean that the documents did not assist the applicant to satisfy the Tribunal that she had a well-founded fear of persecution in Fiji for a Convention reason. In particular, the documents did nothing to overcome the concerns that the Tribunal held about the applicant’s credibility. At [87] of its reasons (CB 160) the Tribunal concluded that the applicant was not a truthful or credible witness and rejected all of her claims made at the hearing and in her protection visa application.

APPEAL TO THIS COURT

23                  By Notice of Appeal filed on 8 July 2010 the appellant appeals from the decision of Driver FM. The only ground of appeal relied upon is essentially identical to that relied upon in respect of the application to the Federal Magistrates Court. That ground of appeal is as follows:

(1)     The learned Federal Magistrate erred by not holding that the Refugee Review Tribunal made jurisdictional error by not making inquiries about the supporting letters from (a) The Fijian Police and/or (b) the appellant’s lawyers, as in the appellant’s opinion this inquiry was necessary by the Tribunal before deciding to give those letters no weight.

24                  In the particulars to such ground, the appellant states as follows:

His Honour held in his decision at [15] that:

(a)     Contrary to the applicant’s submissions, there was no finding by the Tribunal, expressed or implied, that the documents submitted by the applicant were not genuine; and

(b)     That he [sic] documents did nothing to overcome the concerns that the Tribunal held about the applicant’s credibility.

The appellant claims that:

Contrary to what his Honour found the Tribunal impliedly held that the documents were not genuine. His Honour was wrong to find that the documents did nothing to overcome the concerns. If the documents were true then the Tribunal could not have dismissed all claims as made up by the appellant.

Further at [16] his Honour held that:

(c)     The Tribunal might have made an inquiry of the Fiji Police force about the content of the two Police report identified in the Police statements but it was under no obligation to do so. The same inquiry could have been made by the applicant but was apparently not made.

The appellant claims that:

The same inquiry could not have been made by the appellant because already what the applicant has provided has been dismissed and it would have met the same fate had any further information was provided. Most appropriate and necessary thing would have been for the Tribunal to inquire and in that way there is no question of the bona fide of the information obtained.

25                  Prior to the hearing the appellant abandoned reliance upon Ground 1(b) of her Notice of Appeal, relating to an apparent failure by the Tribunal to make inquiries in respect of the letter from the appellant’s solicitor.

SUBMISSIONS

26                  The basis of the appellant’s submissions is the application of considerations listed in the decision of the High Court in Minister for Immigration and Citizenship v SZIAI and Another (2009) 111 ALD 15 which held that jurisdictional error may occur if the Tribunal fails to make an obvious inquiry concerning a critical fact, the existence of which is easily ascertainable.

27                  In SZIAI, the Tribunal had sought information from the Ahmadiyya Muslim Association Australia concerning the veracity of certificates supplied to the Tribunal by an applicant supposedly from a related organisation in Bangladesh. The Association provided a response that stated that the certificates provided to the Tribunal were forgeries. The Tribunal subsequently refused the application. On appeal, the applicant alleged that, on forming the view that the certificates may be forgeries, the Tribunal should have made further inquiries regarding the telephone number contained on the disputed certificates. The High Court rejected such contention.

28                  At [25]-[26] their Honours French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:

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. There are two reasons for that. [Footnotes omitted]

The first reason is that 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.

29                  Their Honours further observed that the inadequate response by the applicant’s solicitors to claims that the certificates provided were forgeries had indicated the futility of additional inquiry.

30                  In his Honour’s separate judgment in SZIAI, Heydon J at [52] said:

The question of whether the Tribunal should have made further inquiries must be assessed bearing in mind that it was for the respondent to demonstrate that his claims were genuine; it was not for the Tribunal to try to achieve a demonstration that he had failed to achieve. The respondent had procured the certificates in the first place. Those certificates purported to be from gentlemen who knew the respondent. The respondent, it could be assumed, would know whether Mr Nuruzzaman or Mr Hossain could provide any useful information in relation to the letter of 8 January 2008. The respondent was in at least as good a position as the Tribunal to contact those gentlemen. He was represented by solicitors. Despite the letter of 8 January 2008, the respondent did not ask the Tribunal to contact either gentleman. It was not unreasonable for the Tribunal to proceed on the basis that if any further evidence was to be provided in support of the certificates, it would come from the respondent.

31                  His Honour concluded that there was no obligation on the part of the Tribunal to make inquiries in such circumstances.

32                  Bennett J in SZNBX and Another v Minister for Immigration and Citizenship and Another (2009) 112 ALD 475 at [21] summarised the principles for consideration following SZIAI. The principles as outlined by Bennett J in SZNBX areas follows:

•   whether the inquiry that the Tribunal failed to make was an obvious inquiry;

•   whether it concerned a critical fact the existence of which was easily ascertained; and

•   whether it supplied a sufficient link to the outcome to constitute a failure to review.

33                  It is convenient to set out the appellant’s submissions and to make findings seriatim.

1. An Obvious Inquiry

34                  As to the first issue, the appellant submits that the inquiry to be made of the Police was obvious given that it concerned a relevant issue; there existed a vital gap in the Tribunal’s understanding of a critical issue, namely the fact that the Tribunal was considering giving the Police letters no weight; and that the particular circumstances warranted the Tribunal making the inquiry instead of the appellant.

35                  The appellant submits that the inquiry concerned a relevant issue given that any information obtained from the Fijian Police could be used in assessing whether the appellant in fact faced a threat of harm and also to clarify whether state protection had been afforded to her.

36                   The appellant claims that there were various aspects of the documents provided to the Minister which tended to verify their credibility including the fact that the letters were written on an official letterhead, the fact that contact details were provided, that an official stamp of the Fijian Police appeared on the letters, that the Police Inspector’s contact details were provided and the fact that the file numbers of the reports corresponded to the years when the appellant claimed to be harassed.

37                  The appellant referred to the Federal Magistrate’s finding at [16], set out above in the appellant’s Notice of Appeal at [24] above, in which his Honour stated that the Tribunal was under no obligation to inquire.

38                  The appellant submits that in the special circumstances of the case, such a finding was inappropriate given that the source of the information, the Fijian Police, was neither supportive nor neutral to the appellant. The appellant submits that as her claim contained an allegation of neglect of duty by the Fijian Police, they should be treated as a source adverse to her claim. Accordingly the appellant submits that it would be unreasonable to have required her to obtain further information from Fijian Police herself and that it was incumbent on the Tribunal to do so.

Finding

39                  It was open to the Tribunal to make an inquiry of the Fijian Police Force regarding the relevant Police reports named in the Police letters provided to the Tribunal. Such inquiry may have shed light on the veracity of certain elements of the appellant’s claim, namely the details of her specific complaints to the Police.

40                  While an inquiry may have resulted in information that could have supported or dispelled the Tribunal’s doubts concerning the appellant’s credibility, the Court is unable to describe such an inquiry as ‘obvious’ given the fact that the Tribunal came to its finding on the credibility of the appellant based on the ‘inconsistent and shifting nature’ of the appellant’s own evidence. Further, the degree of detail contained in the Police letters gave no strong indication that any useful information would be obtained by making an inquiry of the Fijian Police.

41                  In SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 Bennett J said at [30]:

SZIAI stated that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could amount to a failure to review. A Tribunal’s failure to inquire may ground a finding of jurisdictional error because the failure renders the ensuing decision manifestly unreasonable, but such circumstances are rare and exceptional (Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at [60] per Kenny J at [60]). The critical underlying question remains whether the decision is vitiated by jurisdictional error. The failure to inquire must constitute a failure to undertake the statutory duty of review or otherwise be so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error (SZIAI at [26]; see also Minister for Immigration and Citizenship v Dhanoa (2009) 180 FCR 510 at [46]–[51] per Jagot and Foster JJ and SZNBX v Minister of Immigration and Citizenship [2009] FCA 1403 at [30] per Bennett J). The fact that it may have been reasonable for the Tribunal to make a certain inquiry does not elevate the lack of such an inquiry into a jurisdictional error.

42                  The appellant failed to make her own enquiries regarding the reports referred to by the Police letters. The Court finds, contrary to the appellant’s submissions, that it was open to the appellant to make such requests of the Fijian Police Department. The fact that the appellant had no apparent difficulty in obtaining the Police letters themselves tends to establish the fact that the Fijian Police Department was not such an ‘adverse source’ that no request could be made to it by the appellant. Neither did the appellant request the Tribunal to make an inquiry on her behalf. In such circumstances the Court rejects the claim that such inquiry was obvious.

2. A Critical Fact, Easily Ascertained

43                  The appellant submits that the adequacy of Police protection afforded to the appellant was a fundamental issue to her claim. The appellant submits that if the Police letters related to a critical fact (which the appellant submits is the case) the Tribunal could have only refused to give weight to such document if the documents appeared fraudulent on their face; if the Tribunal for some other reason believed the documents were fraudulent; or if the source of the documents denied that they were genuine. The appellant submits that no such considerations apply in these circumstances.

Finding

44                  The fact that the appellant made a complaint to Police concerning the alleged incidents can properly be described as a critical fact. There is nothing however to suggest, as Heydon J observed in SZIAI noted above, that the facts concerning the complaints or the alleged incidents themselves would be ‘easily ascertained’. The Police letters contain a reference to the relevant Police file numbers for the apparent investigations. The Police letters, each being dated 20 July 2009, were obtained following the Departmental interview. No further information is provided. Such lack of detail tends to establish that any further information, if it exists, might have been difficult to obtain.

3. Sufficient link to outcome

45                  The appellant submits that the Tribunal was obliged to inquire from the Fijian Police concerning the genuineness of the Police letters. It is submitted that the letters could have significantly strengthened her claim, particularly in circumstances where the Tribunal was said to have (in the appellant’s submission) dismissed all of the appellant’s claims in a ‘sweeping manner’.

46                  The appellant submits that even allowing for the fact that the Police letters lack the requisite details to totally substantiate the appellant’s claim, they establish, prima facie, that complaints were in fact made about the events alleged. Accordingly it is submitted that the Tribunal should have proceeded with caution before disregarding them.

47                  The appellant referred to the Tribunal’s finding at [85] (see above at [16]) where the Tribunal chose to place no weight on the Police letters as they were not contemporaneous with the incidents alleged and contained few details regarding the incidents which were the subject of the complaints. The appellant submits that these facts, in addition to the Tribunal’s finding concerning the credibility of the appellant, caused the Tribunal to disregard such evidence.

48                  The appellant submits that the lack of detail in the Police letters was a compelling factor for the Tribunal to make its own enquiries to the Fijian Police, enquiries that the appellant submits would have been easily conducted. Further, the appellant submits that the Tribunal’s assessment of the appellant’s credibility should not have affected the weight to be given to the Police letters. The appellant submits that the Police letters came from an independent source ‘with unquestionable integrity and in that sense [they] had to be assessed on its own’.

49                  The appellant has referred the Court to several authorities including Khant v Minister for Immigration and Citizenship and Another (2009) 112 ALD 241; Videto and Another v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167; Minister for Immigration and Citizenship v Le and Others (2007) 164 FCR 151; Luu and Another v Renevier (1989) 91 ALR 39 in support of the submission that the Tribunal was required to make an inquiry of the Fijian Police. The appellant submitted that as there existed a critical gap in the information before the Tribunal which could have been easily remedied by an inquiry, the authorities above required that the Tribunal make such inquiry.

Finding

50                  In this regard the claim of the appellant most clearly fails. The Tribunal found no support for the appellant’s case in the Police letters and made a finding on the appellant’s credibility based on the information before it. As found by the Federal Magistrate, the Tribunal at no stage disputed the veracity of the Police letters but rather disputed the veracity of the alleged events that gave rise to the appellant’s complaints. There is simply no evidence that any inquiry by the Tribunal in regard to the Police letters would have had any effect on the Tribunal’s decision.

51                  Even if the appellant had reported the incidents she relied upon to the Police, this fact does not establish that those incidents occurred. If an ‘obvious enquiry’ was confined to the Tribunal merely ascertaining whether the appellant reported the incidents, and the Police confirmed this fact, it does not assist the appellant in view of the Tribunal’s finding that the appellant’s account lacked credibility. Put another way, the fact of the complaints being made to the Police being confirmed would not have made any difference to the Tribunal’s finding that the events relied upon did not occur.

52                  Unlike the circumstances in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, Tickner v Bropho (1993) 40 FCR 183 and Luu, there has been no evidence produced that suggests what information a further inquiry would have revealed.

53                  The Federal Magistrate did not err in finding that the Tribunal made no finding, either express or implied, concerning the genuineness of the letters. The Tribunal placed no weight on the Police letters primarily on the grounds of the generality. Such conclusion could properly be drawn without the need to make a specific finding on the genuineness of the letters themselves.

54                  It was for the appellant to establish a case before the Tribunal. It was not sufficient for the appellant merely to provide the contact details of the Fijian Police and the file numbers of the apparent Police reports to the Tribunal and assume the Tribunal would conduct its own investigation. Further, the Tribunal’s misgivings concerning the veracity of the alleged incidents was put to the appellant both orally and in writing before the Tribunal’s determination and the appellant was afforded the opportunity of obtaining further information. None was forthcoming.

Appellant’s Further Grounds of Review

Reliance on Khant

55                  The appellant has relied upon the decision of this Court in Khant. However the facts in that matter are distinguishable from those currently before the Court. In those proceedings the Tribunal record showed irregularities relating to notification for a hearing before the Tribunal but the Tribunal nevertheless proceeded with the hearing in the absence of the applicant. In those circumstances the Court concluded that the Tribunal could have readily made an inquiry to clarify the reasons of the applicant’s non-attendance.

56                  The Court found in Khant at [69]:

…[T]he inquiry in question would not make the appellant’s case for him. Rather, it would seek clarification of the grounds already provided to the delegate, in the circumstance where the delegate’s record was unsatisfactory.

57                  Similar considerations do not prevail in the present appeal. In the present circumstances the appellant required the Tribunal to do more than to seek a ‘clarification’. The inquiry that the appellant required constituted a fact finding investigation by the Tribunal of the Fijian Police who may not have been able to provide any further information.

58                  In Khant the Court heldat [82]:

The court does not consider that the Tribunal’s failure to make further inquiries was so unreasonable that no reasonable person would have adopted such course. Rather, the court prefers the view that the failure to make further inquires of the appellant, or to inquire of the delegate or Department; coupled with the ease at which such inquiry could be made; coupled with the paucity of information the Tribunal had to make its decision; coupled with the type of inquiry required by reg 2.43(2)(b) of the regulations leads to the conclusion that the Tribunal failed to conduct a proper review. Despite the prolixity of the Tribunal decision, in reality, the Tribunal only served as a “rubber stamp” for the primary decision, a decision that was obviously highly problematic, even on the evidence before the Tribunal.

59                  While the Tribunal did not conduct its own investigation of the Fijian Police, such a course was not required of it. The Court does not regard the Tribunal’s decision as a mere ‘rubber stamp’ applied to the decision of the Minister. Rather, the Court finds that the Tribunal’s decision was an adequate determination of the appellant’s claim and further considers that the Federal Magistrate did not err in holding it to be so.

Application of SZNWA

60                  Driver FM found at [18] that he was unable to distinguish the present circumstances from SZNWA holding:

It was for the applicant to present whatever material she chose to the Tribunal in support of her application. The Tribunal was entitled to rely upon that information. While the Tribunal might usefully have made an attempt to obtain the Police reports referred to in the Police statements it was under no duty to do so.

61                  In SZNWA the applicant had possession of a penalty notice which was not provided to the Tribunal. The appellant submits that given the appellant was not in possession of any further information or documentation, the factual circumstances of SZNWA are different to the current proceeding. Accordingly the appellant submits that the application of SZNWA by Driver FM is misconceived.

62                  The Court finds, as did the Federal Magistrate, that while the facts of the current proceeding and SZNWA are ‘somewhat similar’ (see Federal Magistrate’s judgment at [17]), the two cases are indistinguishable in regard to the established principle that it is for the applicant to make his or her case. Accordingly the Court finds that the Federal Magistrate was not in error in his Honour’s application of SZNWA.

Weight Given to the Police Letters

63                  The appellant submits that if the Tribunal made no suggestion that the Police letters were not genuine (a finding made by the Federal Magistrate), the Tribunal was bound to give the Police letters at least some weight in its determination. The appellant submitted that there is difficulty in reconciling the Tribunal’s decision to give no weight to the documents and the Federal Magistrate’s finding that the documents did nothing to overcome the Tribunal’s concerns relating to the credibility of the appellant. The appellant submits that the Tribunal could not make any finding in relation to the credibility of the appellant based upon the incidents referred to by the Police letters without firstly establishing the authenticity of the Police letters and giving them appropriate weight.

64                  The Court finds that the Federal Magistrate was not in error in finding that the Tribunal had not erred in concluding that no weight should be provided to the statements from the Fijian Police. The letters were of an extremely general nature and were not contemporaneous with the events alleged. Given that the Tribunal had no duty to inquire further, the inadequacy of the details provided by the Police letters allowed their dismissal as having ‘no weight’.

65                  The use of the phrase ‘places no weight’ might, in isolation, be interpreted to mean that the Tribunal held the Police letters to be incapable of constituting probative evidence. An analysis of the Tribunal’s reasons shows that it did not reject the letters without careful consideration. The Court finds, as did the Federal Magistrate, that the Tribunal did take the Police letters into account in its assessment but given the findings as to the appellant’s credit and the lack of detail in the letters themselves, the Tribunal found that the Police letters could provide no support to the appellant’s case. It was only following this analysis that the Tribunal made its finding that no weight could be placed on the Police letters. The Court finds that neither the Federal Magistrate nor the Tribunal erred in reaching such conclusion.

CONCLUSION

66                  The Tribunal is not under a duty to make inquiries, nor to make out a review applicant’s case (see Abebe v Commonwealth of Australia (1999) 197 CLR 510at [187] per Gummow and Hayne JJ). Any obligation of the Tribunal to inquire is limited in its scope and must only apply in cases where the inquiry is not merely reasonable but obvious and where there is some evidence of the information which would have been revealed by such an inquiry.

67                  Jurisdictional error would occur if the Tribunal unreasonably failed to exercise its jurisdiction. The issue is whether it was unreasonable of the Tribunal not to have made inquiries of the Police to ascertain whether any details existed and if so, what those details were.

68                  The circumstances in which a failure to inquire by the Tribunal will constitute jurisdictional error have been variously described as ‘rare and exceptional’ (see Kenny J in Le at [60]) and ‘very limited’ (see MZYCE at [36] per Gray J). The circumstances before the Court are not of such character. It was not unreasonable of the Tribunal to make no inquiry of the Police. Accordingly, for this reason there has been no jurisdictional error.

69                  For the above reasons the Court finds no error has been disclosed on the part of the Federal Magistrate and accordingly the appeal is dismissed.

Associate:

Dated:         12 October 2010