FEDERAL COURT OF AUSTRALIA

SZWAW v Minister for Immigration and Border Protection [2019] FCA 710

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

Revised from the transcript

LEE J:

1    In this appeal against orders made by a judge of the Federal Circuit Court, any necessity for me to set out the background facts relating to the claims for protection, including the processes of reasoning of the Tribunal, has been spared by reason of the careful and comprehensive summary of those matters by the primary judge: see SZWAW v Minister for Immigration & Anor [2018] FCCA 2562 at [1]-[21]. There is no suggestion by either party that that summary is otherwise than accurate.

2    The appellant’s counsel confirmed at the outset of the appeal that the argument was limited to the three grounds referred to in the notice of appeal filed on 2 October 2018. Those three grounds alleged that the primary judge fell into error in rejecting four of the grounds of the application that was made before the primary judge. The substance of the grounds articulated by the appellant’s counsel can be summarised as follows: (a) the primary judge should have upheld the first ground of review below; (b) the primary judge failed to uphold the appellant’s third ground of review below; and (c) the primary judge failed to uphold the fourth and fifth ground of review below.

3    It is convenient to deal with each of the grounds of appeal in turn.

GROUND 1

4    Before the Tribunal, the appellant had made a claim that his involvement with the Koralai North Multi-Purpose Co-Op Society (co-operative) placed him at risk of harm (AB528). The appellant provided various documents in support of this claim, and in particular, a letter from a Member of Parliament (MP Letter). The appellant contended before the primary judge that the Tribunal had fallen into jurisdictional error because it failed to make inquiries of the member of the Sri Lankan Parliament who, it was contended, had provided the MP Letter in support of the claim of the appellant. It was alleged that the inquiry was necessary to enable the author of the MP Letter an opportunity to verify its contents. This ground of review was dealt with by the primary judge in his Honour’s reasons at [24]-[33].

5    It is important, however, to commence consideration of the ground by outlining which elements of the appellant’s application the Tribunal accepted and rejected. The Tribunal accepted that the appellant, a Sri Lankan, is a married Tamil who like other Tamils living in Tamil-held areas of Sri Lanka, during the hostilities in that country was questioned and interrogated about his involvement with the LTTE.

6    The Tribunal did not accept that: (a) from 2005 to 2012 the appellant was harmed because he was a cooperative worker either during or after the war; (b) the Sri Lankan Government or army imputed to the appellant a pro-LTTE profile; or (c) any group continued to monitor the appellant and seek to harm the appellant, causing the appellant to leave Sri Lanka.

7    Moreover, the Tribunal did not accept the appellant was a witness of truth, and in doing so, relied on a number of matters that are set out by the primary judge at [10] as follows:

a. First, the [appellant’s] explanation of food distribution in area V after the LTTE were pushed out from that area differed from country information the Tribunal considered independent and reliable. In particular the Tribunal found the [appellant] was unaware that, according to the country information on which the Tribunal relied, food was distributed to returning IDPs according to a “Cash Equivalent for Food (CEF) scheme”.

b. Second, before the Previous Tribunal the [appellant] stated that the SLA pushed the LTTE out of V in 2009, whereas country information indicated this occurred in 2007. The Tribunal found that had the [appellant] in truth worked for the co-operative as he claimed he would have been aware that the LTTE had been pushed out from V in 2007.

c. Third, before the Previous Tribunal the [appellant] stated he was born in area V and lived there all the time working with the co-operative until he left Sri Lanka. The [appellant], however, had provided to the delegate a document that showed he lived in C from 2006 until 2012, which is 47 kilometres away from V.

d. Fourth, the [appellant] had no knowledge of the co-op structures in Sri Lanka.

e. Fifth, if, as the [appellant] claimed, he had an LTTE profile it is unlikely he would have been able to work in the co-operative because, relying on country information, the Tribunal found that in Sri Lanka co-operatives were regulated by the Cooperative Societies Act which is administered by Assistant Commissioners in every district acting through inspectors.

f. Sixth, the Tribunal found it implausible that the authorities targeted the [appellant] after the war because he provided food to the LTTE in circumstances where no other workers had been targeted.

g. Seventh, the Tribunal found it implausible that the [appellant] would have remained in the Batticaloa area during the war without having been moved to a detention centre if, as he claimed, he had been imputed with pro LTTE sympathies. The basis of the Tribunal’s finding of implausibility is country information that showed that in 2010 those in the north and east of Sri Lanka who were suspected of being LTTE workers or supporters were arrested and taken to detention centres.

h. Eighth, the [appellant] did not state in his Statutory Declaration that he had been the subject of any monitoring, and the Tribunal did not find it plausible the [appellant] would have omitted to mention this fact in his application for a Protection visa, if it were true that he had been subject to on-going surveillance from the end of the war until 2012 when he departed Sri Lanka.

i. Ninth, the [appellant] did not claim he worked for the TNA until he appeared before the Tribunal.

8    The rejection of both the credibility of the appellant and the claim that the appellant worked for the co-operative, provides the necessary backdrop in understanding his Honour’s process of reasoning which is the focus of this ground of appeal.

9    In SZIAI the High Court, in considering the existence of a duty to inquire, indicated that while common law requirements of procedural fairness would not usually appear to support a duty to inquire, the ground of unreasonableness might offer some fertile ground for a limited duty: at [20]-[30]. The issue of inquiry is one which is better circumscribed by reference to when jurisdictional error could occur, than by some attempt to articulate the circumstances in which some duty arises. Rather than make definitive statements regarding the existence of a duty, the High Court explained at [25]:

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 (citation omitted). 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.

10    The question becomes, whether this is what has occurred in the present case. The primary judge began the analysis by noting that the core function of the Tribunal is an obligation to “review” the decision the subject of the application before it. At [29], the primary judge, with respect, correctly observed that given the nature of the Tribunal’s task, it does not come under an obligation to make an inquiry about the existence of an asserted critical fact only because the existence of that fact can be ascertained by the Tribunal making an obvious inquiry, beyond its consideration of the evidence provided by the applicant in support of the existence of that fact. It was for the appellant to advance whatever evidence or arguments that he wished to present in support of the submission that he had a well-founded fear of persecution, and for the Tribunal then to decide whether that claim was made out.

11    At [25], the primary judge noted the submission made on behalf of the Minister, that there was no obvious inquiry to be made about a critical fact, the existence of which could have easily been ascertained by the Tribunal. The reference to “critical fact” was of significance, as the primary judge recognised, because in order for the failure to enquire to constitute jurisdictional error, there must be a sufficient link to the outcome of the application: see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at 1129 [25]; see also Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [49]-[51] per Nettle J for the further discussion of the relevant principles.

12    Having regard to the Tribunal’s decision not to inquire further in the context of the decision as a whole, there is no error demonstrated. The most compelling reason being that the “critical facts” asserted to be contained within the MP Letter, could not be readily verified through contacting the MP. The primary judge noted that it might be accepted the Tribunal could have readily ascertained the authenticity of the MP Letter by making a telephone call using the telephone numbers apparent on the face of the MP Letter, but even if that course was undertaken, the MP Letter being authentic, in and of itself, would not have relieved the Tribunal of the necessity to undertake the task of determining whether the appellant’s evidence should be accepted in relation to the matters referred to in the MP Letter. That is because the MP Letter, ex facie, stated matters which the author was stating, not as a firsthand witness of events, but as someone recounting matters in respect of which it could not reasonably be considered he had firsthand knowledge.

13    Another difficulty for the appellant was the rejection of the appellant’s evidence as noted above at [6], and the resulting perception of his lack of credibility. The decision was made in that context, and rather than being credibility findings which could have been contradicted by the inquiry, these findings meant that the Tribunal could not be sure that the MP had been provided with information that was true. In these circumstances, at [31]-[32], the primary judge recognised that no error was identified in the Tribunal refusing the appellant’s request to obtain information, which resulted in the primary judge concluding that the ground failed. In doing so, the primary judge did not fall into error.

GROUND 2

14    The appellant contends that his Honour should:

… find that the assessment of future harm (sic). The Tribunal committed jurisdictional error when it failed to deal with the [appellant’s] claims based on reporting requirements.

15    As Mr Kumar confirmed, and as I have already noted, this ground of appeal related to the third ground of review before the primary judge, and was dealt with at [34]-[37] of his Honour’s reasons. The contention is that the Tribunal failed to consider the claim made by the appellant that he was at risk of harm, based on the fact that the appellant had ceased complying with reporting requirements following his departure from Sri Lanka. At [37] the primary found that:

[T]here was no distinct claim of future risk of harm based on the [appellant] having ceased to comply with reporting requirements, and that is because such a claim was necessarily based on the claim that the [appellant] had been monitored in the first place.

16    The simple fact is that the Tribunal did not accept the appellant’s claim that he was monitored. Having made this finding, this necessarily disposed of the claim that the appellant, by ceasing to comply with reporting requirements after he left Sri Lanka, had exposed himself to risk or an increased risk of harm. Accordingly, there was no jurisdictional error, and the primary judge did not fall into error.

GROUND 3

17    This ground, as noted above, relates to grounds 4 and 5 before the primary judge, which were dealt with by his Honour at [39]-[52]. The ground is multi-faceted in that it alleges that: (a) the primary judge erred in considering the claims relating to the appellant’s occupation and duties; and (b) the primary judge should have found that the Tribunal committed jurisdictional error when it found the appellant was not a former cooperative worker; and/or (c) the Tribunal denied procedural fairness in relation to its findings; and/or (d) the Tribunal was under a duty to make inquiries or has been irrational in its conclusions.

18    Given this very expansive and inter-related set of allegations, it is convenient to deal with Ground 3 by reference to grounds 4 and 5 considered by the primary judge.

GROUND 4 (before the primary judge)

19    Ground 4 involved a contention by the appellant that the Tribunal was under an obligation to undertake an inquiry as to whether or not the appellant had been employed by the cooperative. It was further submitted by the appellant, that the Tribunal was obliged to put the appellant on notice that his claim to have been employed by the cooperative would be rejected.

20    As the primary judge correctly recognised, this ground made two distinct claims. The first was that the appellant was not put on notice. The second was an allegation of irrationality.

21    In respect of the former, the claim made by the appellant that he was not on notice, his Honour correctly directed himself to the principles considered by the High Court in SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152 at 161-163 [29]-[35], 165 [47]. The primary judge then went on to find at [42] that there was nothing to suggest that the appellant or his representative assumed that the Tribunal accepted or would accept that the appellant was an employee of the co-operative of which he claimed he was an employee, and indeed, the contrary was the case. His Honour expresses in detail his reasons for forming that view at [42], including: (a) that the Tribunal requested from those advising the appellant, a number of documents relevant to the appellant’s contention that he was employed by the cooperative; (b) it is apparent from the decision record the Tribunal asked questions which ought reasonably have indicated to the appellant the Tribunal had not accepted his claim as apparent in the Tribunal’s reasons at [74]; and (c) submissions were made generally by the appellant in relation to his general credibility.

22    His Honour was clearly correct to reject this argument.

23    The second aspect of ground 4 was the claim of irrationality. The primary judge at [45]-[46] found that it was not irrational for the Tribunal to assess the claim that the appellant had been employed by the co-operative by reference to country information, which was not suggested to be other than credible. The relevant country information related to the ways in which the co-operatives operated, and was in substance put to the appellant by the Tribunal during the course of the hearing. The appellant’s apparent lack of familiarity with the material led the Tribunal to concluding that the appellant did not in fact work for the co-operative. This reasoning process was open to the Tribunal on the evidence before it, and the process of reasoning which is set out comprehensively in the reasons cannot be described as illogical. At [47] the primary judge also rejected the submission that the Tribunal’s finding of adverse credibility in this regard was based on immaterial inconsistencies and had no sound basis. The inconsistencies between the country information regarding the co-operatives, and the appellant’s own knowledge and apparent experience, is primarily an issue for the Tribunal. This Court does not enter into merits review. As the primary judge found, the detailed reasons of the Tribunal evidenced a conclusion which was open on the evidence and explained in a way that demonstrated a rational reasoning process. Accordingly, the primary judge rejected the appellant’s contentions in this regard in a way which does not disclose any error. The submissions before me did not raise any other basis for the alleged “unreasonableness” and so this part of the ground must be dismissed.

GROUND 5 (before the primary judge)

24    As to the fifth ground before the primary judge (which Mr Kumar confirmed was also part of Ground 3 before this court), the appellant contended the Tribunal was under an obligation to undertake an inquiry as to whether or not the appellant had been employed by the cooperative. The primary judge rejected the notion that the Tribunal was under an obligation to make inquiries of the author of another letter which contained an assertion that the appellant had been employed by the cooperative at [50]. The primary judge noted the overlap between this contention and ground 1 (insofar as it related to the duty to make inquiries), and concluded, after considering the particulars for the ground, that he did not accept that the veracity of the claim could have been easily ascertained by the making of any obvious inquiry. As the Tribunal noted, no address or telephone number was provided on the face of the document provided. The submissions before me do not explain how it is said that the primary judge fell into error on this point, or how the veracity of the appellant’s employment could have been easily ascertained based on the letter. There does not seem to me to be any error in the primary judge’s analysis in this regard and accordingly, this ground must fail.

25    It follows from the above that the appeal must be dismissed with costs.

Associate:

Dated:    23 May 2019