FEDERAL COURT OF AUSTRALIA

SZTDD v Minister for Immigration and Border Protection [2016] FCA 136

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Administrative Appeals Tribunal be substituted as the second respondent.

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

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

REASONS FOR JUDGMENT

TRACEY J:

1    The appellant is a citizen of Sri Lanka. He is a Tamil. He arrived on Christmas Island, as an irregular maritime arrival, on 18 May 2012. He applied for a Protection (Class XA) visa on 25 August 2012.

2    In a statement attached to his application, the appellant claimed that his father had died in 2008 when he had been hit by a truck. The appellant believed that this attack was organised by his father’s Muslim business rivals. The appellant claimed that his family had commenced proceedings for compensation against the truck driver and a Sinhalese company. He alleged that the Sinhalese company paid the Criminal Investigation Department (“CID”) to approach his family in an attempt to force them to settle the proceedings.

3    The appellant claimed that, in April 2012, CID officers attended his home and threatened that, if he did not drop the case, they would kill him as they had killed his father and brother. His brother, he said, had been killed by unknown people in 2006.

4    One week before the appellant left Sri Lanka, CID officers had, he said, attended his home demanding money from him, threatening and insulting him. The appellant left Sri Lanka fearing that the CID officers would harm him.

5    The appellant claimed to fear persecution because of his ethnicity as a Tamil, because of his imputed political opinion and because he would be returning to Sri Lanka as a failed asylum seeker.

6    The Minister’s delegate rejected the application.

THE REFUGEE REVIEW TRIBUNAL

7    The appellant appealed to the Refugee Review Tribunal (“the Tribunal”). The Tribunal conducted a hearing at which the appellant and his migration agent were present.

8    At the hearing the appellant claimed that his brother had joined the Liberation Tigers of Tamil Eelam (“LTTE”) and was killed by the Karuna group in 2006. The appellant also advanced an alternative explanation for his father’s death. It was that the truck driver was linked to the Karuna Group who had wanted to kill his father because of his brother’s service with the LTTE.

9    The appellant explained that he had not previously mentioned his brother’s service with the LTTE because “others had told him not to mention any connection with the LTTE as that may prevent him from being able to stay in Australia.” The Tribunal rejected the appellant’s explanation. It said, at [79], that:

“While it is claimed the [appellant] did not mention this important information out of fear that this could jeopardise his position in Australia he was, nevertheless, willing to mention being of interest to the CID, which, on its face, could also have raised security concerns.”

10    The Tribunal went on to identify a number of other issues which led it to doubt the appellant’s credibility. They included what it considered to be inconsistent evidence given by him relating to his dealings with the CID, evidence he had given about a court case which followed the accident in which the truck struck his father and then turned to what it described as “general submissions about credibility”. At [107] the Tribunal said that:

“The Tribunal has considered all of these explanations put forward by the representative in the submissions of January and April 2013 as well as from the applicant but does not believe that the applicant has withheld his brother’s claimed involvement in the LTTE for the reasons put forward. The applicant mentioned being wanted by the CID which, if the same arguments were to apply, might also have caused problems for him here.”

11    The appellant’s representative had told the Tribunal that the circumstances of his brother’s death could be confirmed by the brother’s death certificate and that other relevant facts could be ascertained through the Australian High Commission in Colombo, through a private investigator, the UNHCR or any related agencies. At [89], the Tribunal noted that:

“No death certificate was ever produced to the Tribunal. While there may have been a confrontation on 29 October 2006 as claimed, the Tribunal does not believe that the [appellant’s] brother was involved. This is because the [appellant] made no mention of his brother’s involvement with the LTTE until his application for review made to the Tribunal. As stated above, the Tribunal rejects the explanations put forward as to why he did not mention this important information before that time.”

12    It decided, at [115], that:

“Because the [appellant’s] credibility has been significantly discredited due to the concerns discussed above the Tribunal has decided not to make any enquiries as requested. The Tribunal is satisfied that the [appellant’s] claims about his brother being killed and being involved with the LTTE are false.”

13    The Tribunal found that the appellant was not a witness of truth and that his account of events was false. It concluded that there was no credible evidence to support the appellant’s claims other than that he was a Tamil from a particular part of Sri Lanka.

14    The Tribunal rejected the appellant’s claims and affirmed the delegate’s decision.

THE FEDERAL CIRCUIT COURT

15    The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. The grounds stated in the amended application were:

“1.    The [Tribunal] committed jurisdictional error by not inviting the [appellant] to give evidence and present arguments relating to an issue under review as required under section 425 of the Migration Act 1958 (Cth).

Particulars

1.1    The Tribunal did not accept that the [appellant’s] brother was an LTTE member for the reasons presented in paragraphs 79 and 107 of the [Tribunal’s] decision.

1.2    The [appellant] was not invited to give evidence and present arguments in relation to the issue.

1.3    Production of death certificate was an issue and it was not requested or asked.

2.    The [Tribunal] committed jurisdictional legal error by coming to a conclusion that was so illogical or irrational, that no reasonable decision maker could have reached it.

Particulars

2.1    The Tribunal’s reasoning at paragraphs 79 and 107 of the decision is irrational and illogical as it compares the fear of persecution by the CID for non-LTTE related circumstances with fear of a negative security assessment in Australia for mentioning LTTE affiliations.

2.2    In…paragraph 86 although the [appellant] stated that a son who was involved with the LTTE who were against the government, the Tribunal concluded that the [appellant] did not mention any link to the LTTE at the interview with the delegate and accordingly the submission rejected.

3.    The [Tribunal] engaged in legal error by coming to a conclusion that was so unreasonable that no reasonable decision maker could have reached it.

Particulars

3.1    The Tribunal’s reasoning at paragraphs 79 and 107 of the decision is unreasonable as it compares the fear of persecution by the CID for non-LTTE related circumstances with fear of a negative security assessment in Australia for mentioning LTTE affiliations.

3.2    In…paragraph 86 although the [appellant] stated that a son who was involved with the LTTE who were against the government, the Tribunal concluded that the [appellant] did not mention any link to the LTTE at the interview with the delegate and accordingly that submission rejected.

4.    The [Tribunal] committed jurisdictional error when it failed to make obvious inquiry about a critical fact, the existence of which could be easily ascertained.

Particulars

4.1    The Representative said the [appellant’s] involvement with LTTE and death could be confirmed by any member of the [appellant’s] village and affirmed these facts…[…paragraph 88 and…115] through the Australian High Commission in Colombo, through a private investigator, the UNHCR or any related agencies.

4.2    The Tribunal stated: ‘No death certificate was ever produced to the Tribunal’… (…at [89]). In fact the [appellant] had given to the previous Representative a copy of it and he had copy at the time of the hearing.

5.    The [Tribunal] committed jurisdictional error when it failed to properly carry out the evaluation of risk and properly carry out the ‘real chance’ test / ‘What if I am wrong?’ test in making assessment and / or applied wrong test.

Particulars

5.1    The Tribunal did not assess all the matters and evaluate the ‘real chance’ test based on the claims cumulatively.

16    The trial judge rejected each ground of review: see SZTDD v Minister for Immigration & Anor [2014] FCCA 1417. Of relevance to this appeal are the trial judge’s findings in relation to grounds 2, 3 and 4.

Grounds 2 and 3

17    The appellant argued that it was illogical, irrational and unreasonable for the Tribunal to perceive inconsistency in the appellant’s disclosure, prior to the Tribunal hearing, of the CID’s alleged interest in him but not his brother’s involvement in the LTTE.

18    The trial judge rejected the appellant’s submission that the Tribunal’s perception of inconsistency was an illogical or irrational finding, at [22]:

“Even though the alleged basis of the CID’s interest in the [appellant] turned on a corrupt arrangement between those officers and the murderers of the [appellant’s] father, the Tribunal was of the view that being a person of interest to the Sri Lankan CID might have raised security concerns in Australia, just as an association with the LTTE might. This was a reasonable conclusion and one which any number of decision-makers might have reached.”

19    The appellant further submitted that the Tribunal had made inconsistent statements in paragraph [86], where it had said that:

“It was submitted that the [appellant] told the delegate that his father was killed while riding home on a bicycle and that this was planned by Moslem business rivals who were motivated by business gains but also the fact that the [appellant’s] father was a Tamil and had a son who was involved with the LTTE who were against the government. As stated above, the [appellant] did not mention any link to the LTTE at the interview with the delegate and accordingly that submission is rejected.”

20    His Honour rejected the appellant’s submission. He held that the first sentence quoted was not a finding of fact but a restatement of the submission made by the appellant’s advisers. The second sentence rejected the submission for reasons given in earlier paragraphs. There was, accordingly, no illogicality or unreasonableness involved.

21    The trial judge found that the significance attached by the Tribunal to the appellant’s failure to mention his possible links with the LTTE while disclosing his being a person of interest to the CID was not unreasonable.

Ground 4

22    The trial judge rejected the appellant’s submission that the Tribunal should have sought out information on his brother’s involvement in the LTTE and requested a copy of his late brother’s death certificate.

23    The trial judge relied on Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129, in which the High Court found that, where there is no evidence that indicates any further enquiry could have yielded a useful result, the Tribunal does not err if it does not make such an enquiry.

24    In relation to the further enquiries, the trial judge found, at [34]:

“No evidence was adduced to show what information would have been gleaned if the Tribunal had made the enquiries suggested by the [appellant’s] advisers in their letter of 16 April 2013 and thus there is no basis to conclude that such enquiries would have produced evidence which might have led the Tribunal to make a decision different from the one it did make. In such circumstances, the [appellant] has not demonstrated that the Tribunal’s failure to make the enquiry which he said it should have made supplied a sufficient link to the outcome of the review as to constitute a failure to review and thus jurisdictional error.”

25    His Honour found that “the death certificate would not, without additional enquiry, have proved that the [appellant’s] brother had died fighting for the LTTE.” Accordingly, as the further enquiry would not have yielded a useful result, the trial judge found that the Tribunal was “not obliged in this case to seek out the death certificate”.

THE APPEAL

26    The appellant has now appealed to this Court.

27    The hearing was originally listed on 17 November 2014 but was vacated because the parties wished to await the outcome of the application for special leave to appeal, and if granted, the appeal against the judgment in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. Special leave was granted and the High Court delivered its decision on 17 June 2015: Minister for Immigration and Border Protection v WZAPN (2015) 89 ALJR 639. The appeal hearing was then fixed for 27 November 2015.

28    The grounds of appeal in this Court replicated those relied on in the application before the Federal Circuit Court. The appellant abandoned grounds 1 and 5.

Grounds 2 and 3

29    In the appellant’s written submissions, he contended that the Tribunal had “mistakenly conflated two very distinct and separate organisations and the [appellant’s] reasons to fear the CID and ASIO.” The appellant submitted that his mention of the CID would not have raised security concerns in Australia as the CID officials were only interested in him due to his involvement in the case relating to his father’s death. The appellant submitted that this fact would not raise concerns about his involvement with terrorist organisations and therefore would not raise security clearance concerns.

30    The appellant submitted that the Tribunal’s finding was “arbitrary or lacking in proper engagement with the claims and evidence” and that “the Tribunal did not fully engage with the submissions in considering the claim”.

31    The Minister submitted that “a rational and logical decision maker would find … that being wanted by the CID would be comparably relevant to Australia’s security concerns as being a member of the LTTE.” In relation to the Tribunal’s conclusion in paragraph [86], the Minister submitted that the trial judge’s finding that the Tribunal was not illogical or irrational was correct because “no submission had been made to the delegate that the appellant’s father had been targeted because one of his sons was associated with the LTTE.” He contended that the Tribunal’s finding was not unreasonable for the same reasons. He added that the Tribunal had considered the appellant’s explanation for the failure to disclose his brother’s involvement with the LTTE to the delegate and had not accepted the appellant’s submissions because of his preparedness to disclose the CID interest.

32    The appellant’s written submissions were relied on and elaborated upon in oral argument. There was a notable disparity between the grounds as particularised and the submissions as they were developed.

33    As I understood this part of the appellant’s case, as ultimately refined, it was focussed on the Tribunal’s treatment of his failure to mention his indirect and perceived association with the LTTE when he originally explained his reasons for fearing persecution in Sri Lanka. He was later to attribute this failure to his concern that disclosure would excite an adverse security interest in him in Australia. The Tribunal had not believed this explanation because he had not felt a similar inhibition when he told the interviewer that he had attracted the interest of the Sri Lankan CID whilst in that country. This disbelief was one of a number of factors which led the Tribunal to conclude that the appellant was not a witness of truth and that he had had no LTTE affiliation.

34    The appellant contended that the Tribunal’s reasoning was irrational and illogical and was unreasonable in the Wednesbury sense.

35    Complaints of this kind are not easy to make good in judicial review proceedings. The reviewing court must always be alert to substituting its own appreciation of the merits for that of the body to whom the legislature has committed the fact finding task: see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [21] (Allsop CJ); [74]-[76] (Griffiths J). Although the Wednesbury unreasonableness ground of judicial review is well established the same cannot be said about complaints that a decision, or the reasoning which underpins it, is “illogical” or “irrational”. It may be that there is a substantial, if not complete, overlap between the three grounds. Whether or not that be the case, an applicant who relies on such grounds in judicial review proceedings, must do more than persuade the reviewing court that another rational decision-maker might have emphatically disagreed with the reasoning process and findings of the person who made the impugned decision. As Crennan and Bell JJ observed in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 647-8:

“In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”

36    The High Court gave further attention to the relevant principles in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. French CJ said (at 351) that:

“After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.”

See also at 375 (Gageler J).

37    When he appeared before the Tribunal the appellant placed considerable reliance on his apprehension that he would be perceived by Sri Lankan authorities as an LTTE sympathiser. He had made no mention of such a concern when he first made his application for a protection visa. He did, however, disclose to the Minister’s delegate that he had been subject to attention by a Sri Lankan security agency, the CID. It was in these circumstances that the Tribunal did not accept his explanation for not having mentioned his concern about being perceived as an LTTE sympathiser and treated this belatedly-made claim as a recent invention. Neither the Tribunal’s reasoning process nor its conclusion can be regarded as being so unreasonable that no reasonable person could have proceeded as the Tribunal did. It was neither irrational nor illogical for the Tribunal to question the apparent inconsistency of the appellant’s willingness to tell the Tribunal about his adverse dealings with the CID while not saying anything about his brother being an LTTE fighter because of an avowed fear of exciting the unwelcome interest of Australian security authorities.

38    It was necessary for the Tribunal, in performing its duties, to form a judgment as to the credibility of the appellant’s claims. Its assessment and the conclusion to which that assessment led were within the area of decisional freedom conferred on the Tribunal. While different decision-makers may have placed a different complexion on the appellant’s failure, initially, to tell the interviewer about the appellant’s brother’s alleged association with the LTTE, it cannot be said that no reasonable person would have approached the issue in the same manner. It is also to be borne in mind that the adverse credit finding, ultimately made by the Tribunal, was not informed solely by the appellant’s delay in raising the suggestion that he may, indirectly, be tarred with the LTTE brush.

39    These grounds have not been made out.

Ground 4

40    The appellant submitted that the proposed enquiries and the death certificate concerned a critical fact in the proceeding, being the appellant’s brother’s involvement with the LTTE. The appellant submitted that the “[e]nquiries would have resulted in the Tribunal being satisfied about the brother’s involvement with LTTE”. The appellant submitted that the Tribunal unreasonably determined not to exercise its power to make further enquiries because the material was “readily available” and was “centrally relevant to the decision to be made”.

41    The appellant relied on the High Court’s dictum, in SZIAI at 1129, that:

“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.”

42    The appellant referred to the UNHCR Guidelines which indicated that a familial link with the LTTE was a factor in deciding persecution for Convention reasons and the real chance test. Further, it was submitted that “the enquiries would have produced evidence which might have led the Tribunal to make a decision different from the one it did make. The enquiries would have revealed his brother’s LTTE membership.”

43    The Minister noted that there was “no evidence before the Tribunal to satisfy the Tribunal as to what information was available and how that information supplied a ‘sufficient link to the outcome to constitute a failure to review’.” In the context of the Tribunal’s adverse credibility findings against the appellant, the Minister contended that the trial judge’s finding that the Tribunal’s failure to make further enquiries was not unreasonable was correct. In relation to the death certificate, the Minister argued that it was the responsibility of the appellant and his migration agent to “demonstrate that the claims concerning his brother were genuine.”

44    The Tribunal had power, had it wished to exercise it, to cause enquiries of the kind proposed by the appellant to be made: see ss 424(1) and 427(1)(d) of the Migration Act 1958 (Cth). The question for the primary judge was whether the Tribunal had committed jurisdictional error by failing to exercise its power of enquiry.

45    The appellant was represented by a lawyer before the Tribunal. His lawyer told this Court that the appellant had had a copy of his brother’s death certificate and had given it to an earlier adviser. No explanation was provided to this Court as to why a copy of the certificate had not been provided to the Tribunal. In any event, the appellant had conceded in argument in the court below that the certificate would not have proved that the brother had died fighting for the LTTE.

46    The appellant’s legal adviser had urged the Tribunal to institute enquiries to confirm that the appellant’s brother had been a member of and fought for the LTTE. He suggested that such enquiries should be made through the Australian High Commission in Colombo, a private investigator or the UNHCR. There was no dispute that Sri Lanka had experienced a long and bloody civil war concentrated in the north of the country. There had been many casualties on both sides in fighting between the Sri Lankan army and the LTTE. In these circumstances what, if any, enquiries made by one or more of these organisations would have yielded can be but a matter of speculation. What cannot be said is that information about the appellant’s brother could have been “easily ascertained”.

47    The Tribunal’s failure to make the enquiries suggested by the appellant did not constitute a constructive failure to exercise its jurisdiction.

48    This ground must also fail.

DISPOSITION

49    The appeal must be dismissed with costs.

Associate:

Dated:    29 February 2016