FEDERAL COURT OF AUSTRALIA

MZZUQ v Minister for Immigration and Border Protection [2015] FCA 157

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

Preliminary

1    The appellant appeals from a judgment and orders of the Federal Circuit Court of Australia (FCCA) made on 16 October 2014. The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 17 September 2013 under the Migration Act 1958 (Cth) (the Act). The Tribunal affirmed a decision of a delegate of the Minister (the delegate) not to grant the appellant a Protection (Class XA) visa (the visa).

2    The appellant relies upon two affidavits that he affirmed on 29 January 2015 and 19 February 2015, respectively.

3    The following factual and procedural background, which is uncontroversial, is substantially adopted from the written submissions of the first respondent.

Background

4    The appellant is a 28 year-old citizen of Sri Lanka who arrived in Australia on 4 August 2006 on a student visa. On 1 February 2011, the appellant was granted a criminal justice visa and on 21 March 2011 he was charged with conspiracy to defraud. The charges against him were withdrawn on 29 November 2012 and the criminal justice visa was cancelled on 5 December 2012.

5    In January 2013, the appellant lodged an application for the visa and on 28 February 2013, the appellant provided a statement of claims.

6    On 25 March 2013, the delegate refused the application for the visa on the grounds that the appellant's claims in relation to his adverse profile with the Sri Lankan Criminal Investigation Department (CID) or other Sri Lankan authorities were not credible.

7    On 5 April 2013, the appellant applied to the Tribunal for review of the delegate's decision.

8    The appellant claimed to fear persecution on the grounds of an imputed political opinion, being that he has links to and is a supporter of the Liberation Tigers of Tamil Eelam (LTTE). In particular, he claimed that:

•    In 2009 he sub-let two rooms in a house he rented in Heidelberg, Victoria to two Tamil men he met through a friend who were from the United Kingdom, named Raj and Deen. He was introduced to these men by a friend called Anees, according to his signed statement of claims.

•    Two weeks later the appellant returned from university and found the police arresting Raj and Deen in respect of alleged credit card fraud.

•    The police questioned him about his relationship with Raj and Deen and he learned that they were members of the LTTE.

•    Later in 2009 he wished to return to Sri Lanka but was unable to due to the pending criminal investigation. On 21 March 2011 he was charged as an alleged conspirator of the same credit card fraud offences involving Raj and Deen.

•    On 29 November 2012, the charges against him were discontinued.

•    He made plans to return to Sri Lanka but his father advised him not to because officers from the CID had visited his father's home many times, asked questions about the appellant and taken items from the appellant's room.

•    This made the appellant fear that he will be suspected of being involved in crimes to support the LTTE and for that reason he will be persecuted if he returns to Sri Lanka.

9    On 17 September 2013, the Tribunal affirmed the decision not to grant the appellant the visa.

10    On 22 October 2013, the appellant filed an application in the FCCA for judicial review of the decision of the Tribunal. The application was dismissed on 16 October 2014.

The Tribunal

11    The appellant’s visa application dated 21 December 2012 maintains that he had learned that Raj and Deen were members of LTTE. He also claimed that his father had been questioned by Sri Lankan CID officers and from the questions they had asked his parents were of the opinion that the officers suspected that the appellant had some involvement with the LTTE.

12    However, in his signed statement of claims dated 28 February 2013, lodged with the Department, he asserted that the CID officers had spoken to his father in Sri Lanka and that his father told him that the officers suspected that he (the appellant) had knowledge of his sub-tenants’ “illegal acts”. It is clear from the wider context of the statement of claims that these “illegal acts” were the subject of the credit card fraud allegations. The appellant stated that he was unaware of these as demonstrated by the fact that the Australian police had dropped the charges against him. He claimed to fear that the Sri Lankan authorities would not believe his innocence (of those charges). No mention in this respect was made by the appellant concerning any connection between those men and the LTTE or that he had knowingly harboured LTTE suspects. The claim that the CID officers told his father that they suspected he had “knowingly harboured and helped … LTTE suspects in Australia” was first introduced by the appellant’s lawyers in their written outline of submissions to the Tribunal dated 30 August 2013.

13    The appellant had then also claimed that his criminal lawyer had informed him that Raj and Deen were sending money to the LTTE. The Tribunal at that point invited him to provide evidence from his lawyer to support his claims.

14    The Tribunal at the conclusion of the hearing again invited the appellant to contact his criminal lawyer and provide further evidence to support his claims. The only further evidence provided by the appellant after the Tribunal hearing was detailed, as follows, in the Tribunal’s reasons:

On 4 September 2013 the applicant’s agent provided post hearing submissions and evidence in support of the claim. In particular the Tribunal has had regard to the following information:

•    One page of transcript from a guilty plea before the [Victorian] County Court, Criminal Jurisdiction (page 44) in the matter of DPP v Vibhavi Alkegama, Nipunda Bogad Hettiarachchige, Mohamed Niyas dated 27 July 2011 CR-1100458 and CR-11-00459.

•    Applicant’s statutory declaration dated 30 August 2013 in which he claims that police officers who interrogated him mentioned to him that his sub tenant Raj (Selvkumaran Varatha Raj aka Markandu Selvakumaran), is a Sri Lankan Tamil resident of the UK and is connected to the LTTE.

•    The applicant claims that County Court proceedings confirm that Raj is connected to the LTTE and that the Sri Lankan Police must have obtained this information from the Australian police. The applicant claims the Sri Lankan Police therefore accuse him of knowingly helping LTTE member/s in Melbourne by providing accommodation.

15    The Tribunal concluded that the appellant had never been involved with the LTTE and he had no knowledge about whether Raj and Deen were involved with the LTTE. It also found that Deen and Raj were not members of the LTTE or suspected of sending money to the LTTE. Accordingly, the Tribunal held that the appellant would not suffer harm from the Sri Lankan authorities because of his perceived links to the LTTE.

16    The Tribunal found that the one-page extract of the transcript from a criminal proceeding in the County Court was of little assistance in supporting the appellant's claims because none of the three accused in that proceeding were Raj or Deen, and the references to "Tigers" in the transcript were unclear as to whom the accused were speaking about.

17    The Tribunal also found, with detailed reasons, that the appellant was not credible or truthful about his fears of returning to Sri Lanka. Accordingly, the Tribunal concluded that there was not a real chance that the appellant would be imputed to be a supporter of the LTTE and his claim to fear persecution on this basis was not well-founded.

18    The Tribunal likewise was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there would be a real risk of suffering significant harm.

The application for judicial review

19    The application for judicial review filed with the FCCA set out the following grounds of review (reproduced verbatim with obvious errors corrected):

(1)    MRT/RRT case officer didn't investigate the evidence properly and all the evidence made from Australian Federal Police and County Court of Australia.

(2)    In County Court Honour Judge Hannan, took a decision after listing to co accused and it's in transcript of proceedings but my RRT case officer ignored her decision what she mention in transcript and he took his own decision.

(3)    RRT case officer ignored the County Court decision, he didn't investigate or a made a call to Australian Federal Police to regarding applicant claim to find out whether it's a legit case or not. For, these reason's the Applicant kindly requesting the circuit court to consider this application and proceed a favourable decision for applicant.

(4)    The case officer in the interview ask the Applicant to prove who lived with the applicant was LTTE. Applicant did that but still the case officer didn't respect the County Court Judge decision and he refused her opinion.

20    The primary judge found, applying the dicta from Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at [25], that this was not a case in which the Tribunal was under any duty to make inquiries of the Australian Federal Police (AFP) or the County Court such that its failure to do so constituted a jurisdictional error. The primary judge noted at [45]-[46]:

I accept that the Tribunal simply failed to believe the applicant's assertions that his father had been raided by the CID, and that this finding stands aside, so to speak, from the question of the alleged LTTE membership of the two sub-tenants.

In circumstances where the materials forwarded to the Tribunal were, as the Tribunal recorded in the passages set out earlier, impossible to correlate with the actual names that the applicant provided for the two alleged sub-tenants, and this difficulty of comprehension arose directly from the materials forwarded by the applicant's migration lawyers, I do not think that the Tribunal fell into jurisdictional error in failing of its own motion to press further inquiries. The Tribunal was required to review, as the High Court pointed out in SZIAI, and it seems to me that that is what it did.

The appeal

21    The notice of appeal sets out the following grounds (reproduced verbatim):

1.    The decision of the Federal Circuit Court is affected by jurisdictional error.

PARTICULARS

a.    The court erred when it came to the conclusion that the tribunal had not fallen into jurisdictional error, in that it did fail of its own motion to press for further inquiries. In other words the tribunal was required to properly investigate the matters arising out of and connected with a proceeding in the County Court of Victoria.

b.    The Court erred in that it failed to properly apply the test as laid out in the case of Minister of Immigration v SZIAI, in that it had a duty to inquire about a critical fact which was linked to the applicant's case

Fresh evidence

22    The appellant’s affidavit affirmed on 29 January 2015 annexes copies of two documents: an original document and a translated version. The appellant’s affidavit affirmed on 19 February 2015 annexes a copy of the document. These were not before the FCCA or the Tribunal.

23    Under s 27 of the Federal Court of Australia Act 1976 (Cth) the Court is permitted to receive fresh evidence on an appeal. Rule 36.57 of the Federal Court Rules 2011 (Cth) provides that an application to adduce such evidence must be accompanied by an affidavit explaining, amongst other things, the grounds of appeal to which the application relates and why the evidence was not adduced in the court appealed from. In this case there is only one ground of appeal.

24    Relevant to the Court's discretion under s 27 is a consideration of whether "the evidence is of such relevance and weight that its admission would be likely to lead to a different result": Sami v Minister for Immigration and Citizenship (2013) 139 ALD 1 at [7]. The question for the Court is whether the fresh evidence will bear upon the jurisdictional error that has been alleged by the appellant: SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 at [27].

25    According to the translated document, the original document shows that a person with a name the same as the appellant was ordered to attend the Borella Police Station, which is in Sri Lanka, on 27 January 2015 at 10.00 am. Even assuming that the document was directed to the appellant, there is no evidence as to its provenance or why the appellant was ordered to attend the police station. The document which post-dates the Tribunal hearing and decision does not support a submission that the Tribunal committed jurisdictional error by a failure to make inquiries of either the AFP or the County Court.

26    The document does not bear upon asserted jurisdictional error. I will not admit those documents into evidence.

27    The document annexed to the 19 February 2015 affidavit, which the appellant seeks leave to adduce is an apparent translation of a document the original of which is not before the Court. It purports to be a message from one Sri Lankan Police Branch to another directing it to inform a person, with the same name as the appellant, to present himself to a particular police station on 27 January 2015 at 10.00 am “to inquire the complaint” against the appellant bearing a particular alphanumeric description but no details of the complaint.

28    It is not explained how the appellant came into possession of a translated copy of an internal police document, assuming it to be genuine. Although referring to a complaint made against the appellant it provides no details whatsoever as to the nature of the complaint. Again, for the same reasons as in the case of the other document it does not bear upon the asserted jurisdictional error and I will not admit it into evidence.

Consideration

29    The ground of appeal is directed towards the primary judge’s consideration of whether the Tribunal failed to undertake inquiries of its own and thereby committed jurisdictional error.

30    Although referring specifically to inquiries directed to the County Court I will take it as also referring to inquiries directed to the AFP. The thrust of this seems to be that if the Tribunal had made more inquiries they would likely have resulted in information to the effect that Raj and Deen were members of the LTTE.

31    There was no general obligation on the Tribunal to investigate the appellant's claims. The Tribunal's duty was limited to reviewing the Minister's decision: Chava v Minister for Immigration and Border Protection (2014) 141 ALD 433 at [76]-[78]. A failure to make an obvious inquiry may, nonetheless, amount to a failure to review. As the plurality of the High Court in SZIAI at [25] stated:

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.

32    I accept the following submissions of the first respondent upon this question.

33    The circumstances in which a duty to make inquiries arises, and jurisdictional error results from a failure to discharge it, are likely to be "rare or exceptional": Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at [60]. Further, the appellant needs to demonstrate how the failure to inquire manifests as a jurisdictional error (for example, on the basis that it leads to a decision that is unreasonable in the Wednesbury sense). In any event, before that stage is reached “it would be necessary (at least) that the fact causing (sic) [calling] for the inquiry be 'critical', the inquiry 'obvious' and the evidence 'easily ascertained’”: Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 at [31], citing SZIAI at [25]. .

34    The appellant has not identified what inquiry or investigation he alleges the Tribunal ought to have conducted beyond the generalised assertions in his application to the FCCA that the "MRT/RRT case officer didn't investigate the evidence properly and all the evidence made from Australian [Federal] Police and County Court of Australia" and "he didn't investigate or a made a call to Australian [Federal] Police to regarding appellant claim to find out whether it's a [legit] case or not".

35    There was, in this case, no obligation on the Tribunal of its own motion to conduct further enquiries concerning the appellant's claims. Its obligation was to review the decision of the delegate. It was for the appellant to put on material sufficient to satisfy the Tribunal of the necessary matters that would lead to the grant of the visa. In any event, the single page transcript put before the Tribunal was considered irrelevant because none of the accused in the County Court proceedings were Raj or Deen, and the Tribunal could not connect it to the claims made by the appellant.

36    Moreover, there was attached to the appellant’s written outline of submissions to the Tribunal an email dated 1 August 2013 from the appellant’s criminal lawyer in relation to the criminal charges he faced. The email is addressed to the appellant’s lawyers who were acting for him before the Tribunal.

37    It states that it attaches “Crown opening and Record of Interview” and that “relevant statements” would be forwarded once they had been received.

38    The “Crown opening” is the one-page transcript to which I have referred. No “Record of Interview” was attached to the email. No “relevant statements” or the “Record of Interview” were ever provided. However, what is apparent is that if indeed there was such additional information which was relevant it was his responsibility to provide it to the Tribunal.

39    The primary judge was correct to conclude, at [46], that the Tribunal did not fall into jurisdictional error "in failing of its own motion to press further inquiries".

40    Finally, the appellant relied upon the following decisions: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; Minister for Immigration and Citizenship v MZYHS (2011) 119 ALD 534; SZOYH v Minister for Immigration and Citizenship (2012) 128 ALD 554. I have considered each of them. None are pertinent to the issues in the appeal.

Conclusion

41    For these reasons, the appeal should be dismissed. The appellant should pay the first respondent’s costs.

Associate:    

Dated:    4 March 2015