FEDERAL COURT OF AUSTRALIA

AMT15 v Minister for Immigration and Border Protection [2018] FCA 366

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court, made on 6 July 2017, be set aside.

3.    In lieu thereof it be ordered that the decision of the Refugee Review Tribunal be set aside and the matter remitted to the Administrative Appeals Tribunal to be heard and determined according to law.

4.    The first respondent pay the appellant’s costs of the appeal and the costs of the proceeding before the Federal Circuit Court.

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

REASONS FOR JUDGMENT

TRACEY J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (“the FCC”): see AMT15 v Minister for Immigration and Border Protection [2017] FCCA 1523.

2    The FCC dismissed an application by AMT15 for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (“the Tribunal”). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) who refused to grant a Protection (Class XA) visa to AMT15 under the Migration Act 1958 (Cth).

3    AMT15 is a citizen of Sri Lanka. He landed on Christmas Island as an irregular maritime arrival in June 2012. He applied for the visa in November 2012. He claimed to have been involved in the Tamil National Alliance (“the TNA”). That involvement extended, he claimed, to attending rallies and speaking to crowds at those gatherings. He said that he had performed a “marketing role” for the TNA in his area. This work included the preparation of posters and the distribution of flyers. He said that, in 2010, in the course of an election campaign, his motorbike was damaged and the windows of his house were broken by a group of men whom he thought were supporters of an opposition political party. The catalyst for his departure from Sri Lanka was said to have been an incident which occurred in May 2012. On the eve of a TNA party conference he had received a telephone call in which he was told not to go to the conference and that if he did so he would be shot and killed. Despite the threat he had attended the conference. Immediately after the conference men came to his house searching for him. He escaped and left Sri Lanka illegally.

4    The Minister’s delegate rejected AMT15’s claim in September 2013. Whilst she accepted that he had been actively involved in the TNA, his profile was not, she considered, such as to attract adverse interest from rival political parties should he return to Sri Lanka.

5    AMT15 engaged the services of a migration agent and lodged an appeal with the Tribunal. The appeal was supported by lengthy written submissions and included a statutory declaration by AMT15. He signed a response to a hearing invitation from the Tribunal by indicating that he wished to attend a hearing but answered “no” to the item on the form which, in substance, enquired whether he requested that the Tribunal take oral evidence from another person.

6    AMT15 attended a hearing before the Tribunal in February 2015 and was accompanied by an agent. An interpreter was also present.

7    Following the hearing further written submissions were made on AMT15’s behalf by his agent. Those submissions were directed to clarifying some of the evidence given by him at the hearing and responding to concerns expressed by the Tribunal about inconsistencies in his evidence.

8    The Tribunal was not satisfied that AMT15 was a witness of truth. It rejected his claims and affirmed the delegate’s decision in March 2015.

9    AMT15’s application to the FCC for judicial review contained six grounds. One of them was not pressed. All of the grounds were rejected by the FCC. It is not necessary, for present purposes, to summarise the FCC’s reasons for rejecting the grounds. This is because AMT15’s grounds in this Court go no further than complaining that the FCC erred by not upholding grounds argued in that Court.

10    In his appeal to this Court AMT15 did not pursue challenges to all of the adverse findings of the FCC.

GROUNDS 1 AND 4

11    Under Ground 1 AMT15 alleged that the Tribunal had erred by failing to consider a number of relevant considerations, integers of his claim, or material questions of fact. Under the first particular of Ground 1, he contended that adverse credit findings, made by the Tribunal, had led it to reject many of his central claims without giving them appropriate consideration.

12    The inconsistencies which led to the Tribunal’s adverse findings arose from varying accounts, given by AMT15, about events that occurred in the wake of the TNA party conference in May 2012. Having recounted the varying statements made by AMT15 the Tribunal summarised its findings and expressed its conclusions at [19]-[25]:

19.    The Tribunal finds the applicant’s evidence about what he saw and what took place on the evening of 27 May 2012, after the conference he attended that day, to be unsatisfactory and inconsistent. The applicant’s initial account to the Tribunal was that there were only two men present; they spoke to his wife and then they ran down a lane to catch him. Only when reminded of his account in his declaration did the applicant then say that these two men entered his home but he did not see that. After being pressed to explain his account in his declaration that he did see men go into his home, the applicant then introduced a completely different account that in fact three men came to his home and not just two. One of them could have gone into the house. After being reminded of his evidence to the delegate that men entered the house and when pressed as to whether that happened, he then said that men did go into the house and he saw that.

20.    This mobile, changing and conflicting evidence demonstrated to the Tribunal that the applicant was fabricating his account of this particular incident. The applicant did not provide a satisfactory explanation to the Tribunal for his inconsistent evidence about what should have been a very simple and straightforward account to relate. Rather, when confronted with inconsistencies, the applicant appeared to invent new evidence to try and conceal them.

21.    At the hearing the representative submitted that there would have been ‘amalgamation’ in terms of what the applicant saw or heard. In submissions of February 2015 the representative advised that after the hearing further instructions were taken from the applicant as to what took place on the evening of 27 May 2012 at his home after the conference. The representative advanced a further account, namely, that the applicant was at his home when he saw two men arrive, speak to his wife and then enter the house. He did not hear what was said and he saw only two men and ‘their eyes met’. There may have been more than two men present but he only saw two men. After they saw him he started running as did they. Later he found out his wife told the men he was not there and was given that news by his brother who did not mention the number of men present. It was submitted that the applicant was confused at the Tribunal hearing when he said there was a third man present. Since the hearing the applicant has asked his wife about that and she said there were only two men who came to the home.

22.    The Tribunal has carefully considered these submissions, oral and written, but they do not resolve the inconsistency in the applicant’s evidence. The Tribunal does not accept that the applicant, at one stage of his evidence, would tell the Tribunal that there were, in total three men involved in the incident out of confusion. At one stage of his evidence the applicant said he did not actually see men going to his house. If anything, these submissions from the representative provide yet another layer of inconsistency with respect to an event that should have been straightforward for the applicant to relate.

Conclusions on credibility

23.    At the beginning of the hearing the Tribunal told the applicant that although the delegate accepted certain aspects of his account it nevertheless remained the Tribunal’s task to determine whether or not his evidence was truthful. Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based in false.

24.    The Tribunal therefore disbelieves the applicant’s claims that he supported and undertook activities for the TNA. To the department, the applicant submitted documents purportedly from the TNA relating to the conference on 27 May 2012 and another party event. The Tribunal has carefully considered those documents but they do not overcome the concerns the Tribunal holds about the applicant’s credibility and the Tribunal does not give evidentiary weight to them. Accordingly, the Tribunal disbelieves claims he made that because of his political activities his property was damaged in 2010; he had a verbal conflict with people from other parties; he was threatened not to attend a TNA conference in May 2012; that he attended that conference and that men came to his home after that to apprehend him.

25.    The Tribunal therefore also disbelieves the applicant’s claims about running away from his home; going into hiding; leaving Sri Lanka for that reason; the men again returned to his home to find him and that members of his own family have changed address because of that. In addition, because he is not a witness of truth, the Tribunal also disbelieves claims made that he has relatives who were politicians or leaders in Tamil political parties or that he had connections to such people. Similarly, the Tribunal disbelieves claims made in the submissions from the representative of February 2015 that his departure from Sri Lanka is known to paramilitary groups.

13    AMT15 did not dispute in this Court the fact that he had given differing accounts of relevant events in his documentary and oral statements. Nor did he contend that it was not open to the Tribunal to form adverse views about his credibility arising from the multiple discrepancies which had been identified by the Tribunal. He stressed, however, that these “credibility concerns” related to a discrete part of his evidence and that the Tribunal had been distracted from its task of assessing other claims and integers of claims which he had made which supported his case for a protection visa. These other matters included AMT15’s claims that:

    his uncle had been a Tamil member of Parliament;

    he had a history of involvement with the TNA;

    he had a present commitment to the TNA;

    there existed the possibility of future involvement by him in the TNA or in Tamil politics or his desire for such involvement; and

    it was possible that he would experience repression of his political opinions out of fear of persecution.

14    There can be no doubt that the Tribunal will commit a jurisdictional error if it fails “to respond to a substantial, clearly articulated argument relying on established facts”: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394; [2003] HCA 26 at [24] (Gummow and Callinan JJ with whom Hayne J agreed at 408 [95]). To do so constitutes a denial of procedural fairness. It is also necessary that the Tribunal have regard to all of the integers of an applicant’s claim: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at 152-153; [2001] FCA 1802 at [42] (Allsop J, Spender J agreeing at [1]), cited with approval in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at 18; [2004] FCAFC 263 at [57] (Black CJ, French and Selway JJ); SZTQP v Minister for Immigration and Border Protection (2015) 232 FCR 452 at 464; [2015] FCAFC 121 at [52] (Nicholas, Robertson and Griffiths JJ).

15    In the present case the Tribunal disbelieved the evidence given by AMT15 in support of his visa application. True it is that this global disbelief arose out of the conflicting evidence which AMT15 gave in respect of one aspect of his case. That aspect was, however, a central claim. It concerned the events of the night on which AMT15 left his home not to return, allegedly because of fear of physical harm from political opponents. This fear was said to be based on AMT15’s active association with the TNA party. Because this evidence was disbelieved, the Tribunal also disbelieved evidence relating to AMT15’s familial and personal historical and ongoing involvement with the TNA, at least to a level which would attract persecutory conduct from political opponents were he to return to Sri Lanka.

16    The difficulty for AMT15, in prosecuting the first particular of Ground 1, is that the Tribunal did not fail to consider the evidence relating to the matters itemised above at [13]. Rather, it considered the claims but rejected them because of the view which it had formed about AMT15’s credibility.

17    So much was tacitly accepted by counsel in the course of argument when he submitted that the relevant vice was the unreasonableness of the Tribunal’s approach to the credit finding. Specifically, he argued that it was unreasonable, in the sense of illogical, for the Tribunal to disbelieve all of AMT15’s evidence because of the inconsistencies which attended his evidence relating to events on the night of 27 May 2012.

18    Counsel accepted that this ground (which was Ground 4 on the appeal) was hard to make good. He was correct to do so.

19    Findings on credibility are “the function of the primary decision maker par excellence”: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423; [2000] HCA 1 at [67] (McHugh J). In some circumstances it has been held that adverse credibility findings arising out of part of an applicant’s evidence can be so devastating so to justify disbelieving all of the evidence given by that person: cf Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 70; [2003] HCA 30 at [49] (McHugh and Gummow JJ). In some cases it may also be permissible for the decision-maker to give limited weight to a document because of adverse findings he or she has reached on the credibility of the rest of the evidence before it: cf Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at 308-309 and 310; [2010] FCAFC 51 at [24] (North and Lander JJ) and [35] (Katzmann J).

20    Adverse findings of fact founded upon adverse credibility findings may give rise to jurisdictional error. As Flick J observed in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 456; [2015] FCA 1089 at [20]: “[a] finding of fact founded simply upon a conclusion that a witness is not to be believed is no more immune from judicial scrutiny than is any other finding of fact.” See also SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] (Flick J); Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 121; [2013] FCA 317 at [78] (Robertson J).

21    In Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at 221-222; [2016] FCA 516 at [52] and [54]-[56] Wigney J summarised the principles emerging from relevant authorities:

52    As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

…

54    … The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see [132]): see also SZRKT at [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].

55    Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at [66]; SZWCO at [64]-[67].

56    An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; 67 AAR 376 at [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

See also: CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413 at 424-426, 434-435; [2016] FCAFC 146 at [36]-[38], [59]-[61] (McKerracher, Griffiths and Rangiah JJ); ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at 130; [2016] FCAFC 174 at [83] (Griffiths, Perry and Bromwich JJ); BNH16 v Minister for Immigration and Border Protection [2017] FCAFC 109 at [36] (Tracey, Farrell and Charlesworth JJ); DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] (Kenny, Kerr and Perry JJ).

22    The adverse credibility findings in the present case had a material bearing on the Tribunal’s adverse decision. It led to the rejection of all of AMT15’s evidence supporting his claim to be a refugee. If the Tribunal’s reasoning relating to AMT15’s credibility is irrational or illogical in the necessary senses, the potential exists for a finding that the Tribunal’s decision was affected by jurisdictional error.

23    I do not, however, consider that the Tribunal’s reasoning was illogical or irrational. Having carefully analysed AMT15’s accounts of events on the night of 27 May 2012 it found them to be riddled with inconsistencies and that they were not to be believed. These events were central to AMT15’s case because he claimed that threats and conduct of his opponents on that night were what led him to go into hiding and, shortly thereafter, to leave Sri Lanka. Although it was a matter on which minds might differ, it was not irrational or illogical to reason that, if AMT15’s evidence relating to the proximate reason for his departure from Sri Lanka was untrue, that other claims relating to his political involvement which were less proximate should also be disbelieved.

24    Ground 4 has not been made out.

25    A second particular of Ground 1 was that the Tribunal had failed to have regard to information placed before it by AMT15 relating to harm suffered, including torture, by Tamils returning to Sri Lanka after the end of the civil war in 2009.

26    AMT15 accepted that the Tribunal did deal with the prospect of AMT15 suffering harm should he return to Sri Lanka. The Tribunal concluded that he would not face such harm.

27    AMT15’s complaint, when carefully analysed, was that the Tribunal had come to this conclusion based on country information which had been provided to it by the Department of Immigration and Border Protection (“the Department”) and had not acted on somewhat conflicting material from non-government organisations such as Human Rights Watch and the Edmond Rice Centre.

28    The Tribunal did give consideration to the material appearing in the non-government organisation reports which had been submitted by AMT15. It specifically referred to this material (at [44] of its reasons) but discounted it because it related to a period between mid-2011 and late 2012 whereas the Department of Foreign Affairs and Trade reports, which had been provided by the Department, were of more recent origin having been prepared in October 2014 and February 2015.

29    There was, therefore, no failure on the part of the Tribunal to have regard to the country information which had been placed before it by AMT15 and the Department.

30    Ground 1 must be rejected.

GROUND 2

31    Ground 2 alleged that the Tribunal had misunderstood the law or applied the wrong legal test when determining whether AMT15 met the Convention definition of a refugee.

32    This was essentially a syntactic and semantic argument. It arose from a sentence in the Tribunal’s reasons (at [39]) where it rejected a claim that AMT15 “will undertake political activities on return [to Sri Lanka]” (emphasis added).

33    It is well established that an applicant will satisfy the Convention test for a well-founded fear of persecution if he or she faces a “real chance” of persecution upon return to his or her country of origin: see Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 (Mason CJ), 398 (Dawson J), 407 (Toohey J) and 429 (McHugh J). See also: Migration Act 1958 (Cth) s 5J(1)(b).

34    In paragraph [39] of its reasons the Tribunal dealt with various claims made by AMT15 about the risk of him being persecuted upon return to Sri Lanka. One of those claims was that he would undertake political activity on his return. The Tribunal was not propounding a test of refugee status in the passage which is said to expose error. Rather, it was recounting a claim made by AMT15 and rejecting it.

35    This ground must fail.

GROUND 3

36    AMT15’s third ground was that the Tribunal had erred by failing to make enquiries as required by law about a document which had been provided to it by AMT15, whether by exercise of its power under s 424 of the Act or otherwise. Section 424 provides:

424 Tribunal may seek information

(1)    In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2)    Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

(3)    A written invitation under subsection (2) must be given to the person:

(a)    except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)    if the person is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

37    The document was in the Tamil language on Parliamentary letterhead. It identified the author as a Member of Parliament for a particular district in Sri Lanka. It contained telephone numbers, a fax number, a “hot line” number and a postal address in that district. The letter was dated 25 April 2012. It was addressed to AMT15 in his capacity as “Policy Propagation Secretary” at a postal address. It advised that the 14th annual conference of the local TNA was to be held on 27 May 2012 at 8.30 am at a particular hall. It contained an agenda for the meeting.

38    The Tribunal said (at [24]) that it had carefully considered this document but that it did not overcome the concerns it held about AMT15’s credibility. It did not say why. It did not, for example, suggest that the document was bogus. Its authenticity could have been confirmed by a telephone call or a facsimile transmission. Neither of these steps was taken. The Tribunal simply said that it did “not give evidentiary weight to [the document].” “Accordingly” the Tribunal disbelieved AMT15’s claim that he attended the TNA conference on 27 May 2012. The significance of this finding was reinforced later in the Tribunal’s reasons (at [36]). There the Tribunal rejected a submission from AMT15 that he would be at risk because of his association with the TNA because it found “no credible evidence” that he had undertaken activities for the TNA.

39    There is an element of circularity in this reasoning. There was nothing on the face of the letter to suggest that it was other than what it purported to be. It was addressed to the applicant in his capacity as an office holder in the TNA. It contained an agenda for a TNA meeting which AMT15 was apparently expected to attend on 27 May 2012 at a nominated venue at a nominated time. This letter, had it been accepted by the Tribunal, had the potential to bolster AMT15’s claims to have been an active member of the TNA.

40    The adverse credit finding relating to events on 27 May 2012 led to the rejection of the letter and agenda relating to the conference on that day for no stated reason and that adverse credibility finding deprived AMT15 of the ability to satisfy the Tribunal that he was an active member of the TNA in his local area.

41    Whilst it was not illogical or irrational for the Tribunal to make an adverse assessment of AMT15’s credibility and then to determine what impact that finding had on the weight to be accorded to corroborative evidence proffered by him (S20/2002 at 70 [49]), its approach to such a determination may, nonetheless, give rise to jurisdictional error. As North and Lander JJ held in Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 at 491-492; [2010] FCAFC 50 at [36]:

When a decision-maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant’s claims have been fabricated, the decision-maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant’s account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision-maker could determine to reject it out of hand.

(Emphasis added.)

See also the observations of Katzmann J in SZNSP (at 493 [50]) where her Honour held that there was nothing illogical or irrational in rejecting the document in issue in that case “in the absence of any proof that the document was genuine or its contents unaffected or uninfluenced by [the applicant].”

42    The document considered in SZNSP was said by the applicant to contain a statement from a person whom the applicant claimed to have assisted in avoiding Chinese authorities who were pursuing her because she was a Falun Gong activist. The letter was written in Chinese but had been translated for the Tribunal. The authenticity and the authorship of the document had not been established. Nor was there any obvious or simple means by which the Tribunal could have rectified these deficiencies.

43    In SZNPG the same bench dealt with a case in which the Refugee Review Tribunal had determined that it was not prepared to give a baptismal certificate, tendered by the applicant, “sufficient weight to overcome its concerns with the applicant’s evidence.” The Court found that the brevity of the Tribunal’s reasons for discounting the certificate was “unsatisfactory” but held that, nonetheless, the Tribunal had not fallen into jurisdictional error. The major reason for this was that it was implicit in the Tribunal’s reasons that it did not regard the baptismal certificate as genuine.

44    Similar conclusions have been reached by single judges of the Court in other cases in which the authenticity of documents, on the basis of evidence before the decision-maker, was open to question: see, for example, DCV16 v Minister for Immigration and Border Protection [2017] FCA 1458 (Rangiah J); DPE16 v Minister for Immigration and Border Protection [2018] FCA 61 (Farrell J). In AVD15 v Minister for Immigration and Border Protection [2016] FCA 1450 Davies J held that the Tribunal had not erred in rejecting a request, by the applicant, to make telephone contact with a member of the Sri Lankan Parliament who had provided letters in support of the applicant’s claims. The letters were of a testimonial character. The author was said to have been the uncle of the applicant but, when asked, at hearing, by the Tribunal to state the uncle’s first name the applicant gave a name other than that appearing in the correspondence. The Tribunal had specifically raised the question of the reliability of the letters with the applicant at two oral hearings and, plainly, was not satisfied that they contained material on which the Tribunal could rely in coming to its decision.

45    The document, presently under consideration, was of a markedly different character. It was not a statement or a testimonial which had been prepared for the ostensible purpose of aiding an applicant’s refugee claims. It pre-dated the events of the evening of 27 May 2012. It appeared on official letterhead and contained numerous contact details for the author. Although there was some country information before the Tribunal (to which it did not refer in its reasons) relating to the prevalence of the production of counterfeit documents for the purpose of identity fraud, there was no evidence before the Tribunal which suggested that documents of the kind presently under consideration were sometimes fraudulently produced to bolster cases relating to refugee claims. The authenticity of the letter was not questioned. Yet the Tribunal, having “considered” the document declined to give any weight to it. The inconsistencies which led to the Tribunal’s wholesale rejection of AMT15’s credibility arose from AMT15’s account of events which occurred after the TNA meeting on 27 May 2012. Had the authenticity of the letter been established by a telephone call or fax transmission, it would have had the potential to corroborate AMT15’s claims to have been an active participant in the TNA. This may have led the Tribunal to adopt a more benign assessment of AMT15’s credibility. It is one thing for a decision-maker, having examined a particular document, to conclude that its contents were insufficient to overcome his or her concerns about an applicant’s credibility; it is another altogether for the decision-maker to decline to place any weight on the contents of the document without explaining why the corroborative material in the document should be discounted or ignored.

46    In Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at 436; [2009] HCA 39 at [25] the plurality accepted “that a failure to make an obvious enquiry 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.” Such a failure would, in turn, constitute jurisdictional error.

47    The Tribunal was not under any obligation to gather evidence or to make a case for AMT15: see Re Minister for Immigration & Multicultural Affairs; Ex parte Cassim (2000) 175 ALR 209 at 213; [2000] HCA 50 at [14] (McHugh J); Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at 602; [2011] HCA 1 at [20] (French CJ and Kiefel J); Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] (Black CJ, Sundberg and Bennett JJ); Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at 583, 586, 588; [2010] FCAFC 41 at [22], [36] (Keane CJ) and [49] (Emmett J). However, in circumstances in which there was no reason to suggest that the letter was not authentic and it contained multiple contact details for the member of the Sri Lankan Parliament whose name was printed on what appeared to be official Sri Lankan Parliamentary letterhead, it would have been relatively easy for the Tribunal to have, directly or indirectly, contacted the member of Parliament and enquired as to whether he had sent the letter to AMT15. Questions might also have been asked about whether AMT15 held the office in the TNA to which the letter referred and whether AMT15 had attended the party meeting to which the agenda related. The failure to make these obvious enquiries which had the potential to have a material bearing on AMT15’s credibility and some of his claims of political involvement, constituted, on the facts of this case, a jurisdictional error. The failure amounted to a constructive failure to exercise jurisdiction: cf Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at 39-41; [2015] HCA 51 at [49]-[52] (Nettle J).

DISPOSITION

48    The appeal should be allowed. The orders of the FCC will be set aside and in lieu thereof it will be ordered that the decision of the Tribunal be set aside and the matter remitted to its successor for further consideration according to law.

Associate:

Dated:    20 March 2018