FEDERAL COURT OF AUSTRALIA

AOL16 v Minister for Immigration, Citizenship & Multicultural Affairs [2019] FCA 756

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

2.    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 transcript)

LEE J:

1    This is an appeal of narrow compass against orders made by the Federal Circuit Court of Australia. The reasons of the primary judge (AOL16 v Minister for Immigration and Another [2018] FCCA 2944) set out in some detail the matter’s background and procedural history. This included identifying why the second respondent (Tribunal) was not satisfied the appellant was a person to whom Australia had protection obligations and subsequently considering the appellant’s claims. Ultimately, the Tribunal was not satisfied the appellant was a generally credible witness nor that the appellant faced a real chance of suffering harm if he returned to Sri Lanka in terms of s 36(2)(a) of the Migration Act 1958 (Cth) (Act). A finding was also made that there was no real risk the appellant would suffer significant harm for the purpose of s 36(2)(aa) of the Act and therefore concluded that the Tribunal correctly affirmed an earlier decision of the delegate of the first respondent (Minister) not to grant the appellant a protection visa.

2    Initially, the appellant advanced 10 grounds of appeal in this Court, eight of which did not appear to have been raised before the primary judge. After apparently receiving some assistance, the appellant filed well drafted written submissions which abandoned all grounds other than two grounds (grounds 6 and 7) that essentially repeat the contention raised by ground 1 before the primary judge. Grounds 6 and 7 are in the following terms:

6. The respondents made jurisdictional error that amount to the denial of procedural fairness as the respondents’ failed to consider the integers of the appellant’s family members’ LTTE involvement which could have been obtained from the UNHCR in Malaysia where the appellant had submitted to the UNHCR when he fled to Malaysia. The claims submitted to UNHCR is vital in the present case as the appellant had given information in relation to the appellant’s family members involvement in the LTTE and why they fled Sri Lanka before facing persecution. This information from the UNHCR in Malaysia, would have affected the respondents’ decision to a great extent and the respondents would have decided in favour of the appellant.

7. The Federal Circuit Court conceded that: “it may be accepted that jurisdictional error may be established in some circumstances grounded upon a failure to make obvious enquiry upon a critical fact, the existence of which was easily ascertainable and which, if established, would provide a sufficient link to the outcome [of] a visa application.” The Federal Circuit Court later gave unreasonable reasons justifying the Tribunal’s decision. The Federal Circuit Court before making the decision should have ordered the Tribunal to provide a copy to the appellant, the UNHCR’s response if the Tribunal did in fact make such inquiries and received a response. The Federal Circuit Court failed to note that the appellant was unrepresented and was unaware of the rights he had in obtaining a copy of the any UNHCR response if any the Tribunal obtained. Here, it should be characterised as the Federal Circuit Court’s conduct which otherwise infected the decision with jurisdictional error.

3    The latter part of ground 7 which asserts that the primary judge gave “unreasonable reasons” in justifying the Tribunal’s decision and contending that the primary judge should have ordered the Tribunal to provide a copy to the appellant of particular material (which I will describe below), was not the focus of the submissions filed by the appellant. Under the heading “Ground 7” in the appellant’s written submissions, it simply said: “submissions in 6 above are repeated”. The submissions focussed on ground 6 and the allied contention that it was necessary for the Tribunal to make an obvious inquiry about a critical fact, which I understood to be a reference to the comments made by the plurality in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at 1129 [25].

4    The duty imposed upon the Tribunal by the 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.

5    The primary judge dealt with ground 1 at [26]-[32]. Given the relatively confined nature of the issue raised on appeal it is convenient to set out those paragraphs below:

Ground 1 – integers of claim

26. Ground 1 reads:

The decision of the Administrative Appeals Tribunal (Refugee Division) is affected by jurisdictional error.

Particulars

a. The Tribunal did not consider, properly or at all, the distinct integer of the [appellant’s] new claim that mentioned the alleged involvement of his extended family members in the LTTE, namely the three sons of his grandmother’s sister. This claims was summarily dismissed as false, when there was evidence given by the [appellant] that he had obtained refugee protection in Malaysia, after being assessed by the UNHCR, whose decision contained reference to his extended family members’ involvement in the LTTE.

b. The tribunal should have made inquiries to UNHCR in Malaysia as to the veracity of this decision or directed the [appellant] to provide a copy of the decision before making its decision.

c. This was a very relevant consideration given that the UNHCR risk profiles which the tribunal quotes in its decision particularly identifies persons with family links or who are dependent on or otherwise closely related to persons with risk profiles.

27. The Tribunal was obliged to consider each integer of the [appellant’s] claims. I consider that the Tribunal did so.

28. The [appellant’s] first ground of review was referrable to the admittedly new claim based upon the alleged involvement of his extended family members in the LTTE. Contrary to the [appellant’s] contention, the Tribunal did consider this claim and rejected it: Reasons, [23]-[25]. At [25] the Tribunal identified four reasons for rejecting this claim.

29. I am not satisfied that the Tribunal failed to consider this integer of the [appellant’s] claim. I accept the submission made on behalf of the Minister that, in this case, the basis on which the [appellant] complains of a failure to consider the integers of his claim amounts to an impermissible attempt to seek a merits review of the Tribunal’s decision.

30. As concerns the complaint that the Tribunal ought to have conducted enquiries of the UNHRC as to the alleged involvement of his extended family members in the LTTE, it may be accepted that jurisdictional error may be established in some circumstances grounded upon a failure to make an obvious enquiry upon a critical fact, the existence of which was easily ascertainable and which, if established, would provide a sufficient link to the outcome [of] a visa application.

31. However, I discern no error in the Tribunal’s decision for allegedly not having done so. The question is not whether the Tribunal was subject to a duty to make inquiries but whether the decision was vitiated by jurisdictional error. First, it was for the [appellant] to adduce evidence and present arguments relating to the issues arising on the review of the delegate’s decision. As the Full Court stated in Applicant S214/2003 v Refugee Review Tribunal, “[t]he Tribunal was not obliged to prompt and stimulate an elaboration which the appellant may have chosen not to embark upon.” Secondly, in my opinion the Tribunal was not required in the circumstances of this case to make inquiries of the kind suggested by the [appellant]. Thirdly, the Tribunal accepted that it was possible the UNHRC’s decisions may have contained a reference of the kind suggested. Fourthly, contrary to the [appellant’s] ground of review, the Tribunal did in fact make such enquiries. Fifthly, the UNHRC’s response undermined the [appellant’s] claim that an UNHRC decision contained references to the alleged involvement of his extended family members in the LTTE. Sixthly, in those circumstances, it is most unlikely that any further inquiry would have made a difference to, or had any effect upon, the Tribunal’s decision. Seventhly, here any failure to pursue further enquiries or to afford the [appellant] additional time to do so, could not be characterised as amounting to a constructive failure to exercise jurisdiction. Finally, it should not be characterised as conduct which otherwise infected the decision with jurisdictional error.

32. Ground 1 is rejected.

(Citations omitted)

6    As can be seen there were two elements of the argument advanced before the primary judge. The first element of the argument related to a failure by the Tribunal to consider properly the claim of the alleged involvement of the appellant’s extended family with the LTTE. The second was that certain inquiries should have been made of the UNHCR. In order to fully understand both elements of the argument, it is necessary to explain the background at some length.

7    The issue of the alleged involvement of extended family members in the LTTE was not raised by the appellant before the delegate notwithstanding that at the time he was represented by a migration agent. That is clear from the material sent under cover of a letter from that migration agent on 14 January 2013 (AB20) and, in particular, the statutory declaration of the appellant (AB77-81). The issue as to the extended family’s involvement with the LTTE appears to have been raised for the first time in a letter from the same migration agent to the presiding member of the Tribunal in March 2014 (AB130). In response to this, there was a communication in February 2015 between a Tribunal officer and the Minister in which the following appears (AB220):

The presiding member requests that you approach UNHCR Jakarta Branch Office, either directly or through the Immigration Section of the Australian Embassy in Jakarta, and request a copy of any decision, claims, statement or information relating to the application for refugee status by [the appellant] with UNHCR BO in Jakarta. The [appellant] has authorised release of any information. The [appellant] has provided evidence of UNHCR registration.

(Citations omitted)

8    That last comment was a reference to the fact that the appellant had approached the UNHCR and was mandated a refugee in April 2008 (AB221) and then again in July 2012 (AB109).

9    A few days after the communication from which I have quoted, there were further communications between the Department of Immigration and Border Protection and the UNHCR in which the Department referred to the claim that the appellant was recognised as a refugee by UNHCR in Malaysia and seeking a copy of any decisions, claims or statements relating to the refugee application (AB214-215).

10    What was received was a document confirming that the refugee had been individually recognised in April 2008. The document did not, however, contain any details regarding the material or bases upon which the recognition was made (AB221).

11    Returning to the Tribunal’s decision, as the primary judge correctly recognised at [28]-[29], contrary to the appellant’s contention, the Tribunal did consider the claim made but rejected it and identified four reasons for doing so. It is worth setting out the relevant paragraphs of the Tribunal decision below:

23. Next, by migration agent submission of 24 March 2014, it was claimed the [appellant’s] extended family live close to the [appellant] in Alaveddy. It was claimed the [appellant’s] grandmother had two sisters who bore three sons. It was claimed all three of those sons were ‘heavily involved with the LTTE for long periods’ of time. One had later fled overseas, and of the two who remained, one disappeared and the other went missing for some time in 2008. The [appellant] believed they all held senior positions within the LTTE, because of the high level of secrecy surrounding their positions. These men who were all “heavily involved with the LTTE” were cousins of the [appellant’s] mother.

24. At hearing, the Tribunal incorrectly said the [appellant] lodged his Protection visa (PV) application in January 2014 (the PV application was lodged in January 2013), yet he had not previously mentioned the alleged involvement of his extended family members in the LTTE, until the March 2014 migration agent submissions. This was after the Department decision of 19 December 2013. When asked why he delayed making this claim, the [appellant] said (words to the effect) it was because he was not sure it was “right for him”, and he was not sure it was relevant to his case. The Tribunal put to him that it had assessed or read many Sri Lankan irregular maritime arrival cases from 2011-2014 and I may not think it was plausible he did not understand it may be relevant to his case. The [appellant] then said he obtained refugee protection in Malaysia, after being assessed by the UNHCR. He said the UNHCR decision contained reference to his extended family members’ involvement in the LTTE. Though the Tribunal admitted that it had not seen a copy of the UNHCR decision, I put to him I was even more surprised he had not mentioned this evidence in his PV application, given he understood it was allegedly part of the reason he had been granted protection in Malaysia.

25. The Tribunal understands that in some cases an applicant may be ‘wary’ of government officials on first arriving in the country where refuge is sought, as a result of prior experiences in their country of origin. However, this may be more prevalent where persons are fleeing by direct flight from a country where harm is feared, to a country where refuge is sought. However, the Tribunal has rejected the claim about the [appellant’s] extended family members involvement in the LTTE as false. That is because, first, I do not accept he would not have understood it could be relevant to his case, as he initially claimed. Second, and as discussed at hearing, I do not accept he would have travelled to Australia at that time, knowing that Australia was taking refugees, paid a considerable amount of money for the journey, and then not have put all his claims for protection (with the assistance of a migration agent), on arrival. Third, the [appellant] conceded at hearing that none of his family members in Sri Lanka, had ever been placed in any displacement or rehabilitation camp at the end of the war in May 2009. Four, at the commencement of the hearing, the [appellant] had said that though he speaks with his family in Sri Lanka approximately 2 times per month, they did not report ongoing problems (though his written claims provided contradictory evidence and I have discussed that elsewhere).

26. For the above reasons, the Tribunal is satisfied the [appellant’s] claim about the LTTE involvement of extended family members, are false. Therefore, if the [appellant] did not live at an aunt’s house for 20 days and then reside in Colombo (at the house of a friend or his older brother) for 2 months, prior to leaving Sri Lanka, then I am not satisfied it was for any reason claimed by the [appellant]. Further, I do not accept the [appellant’s] home was visited either after the alleged third incident, or at all. Therefore, I have not discussed these claims further, herein.

(Citations omitted)

12    As can be seen from the Tribunal’s reasons (TR) at [25] the four reasons to which the primary judge referred fall broadly into two categories. The first was consideration that it was surprising that the claim had not been raised before the delegate; the second being that none of the family members in Sri Lanka had ever been displaced or placed in a rehabilitation camp nor had they reported any ongoing problems to the appellant in a way in which the Tribunal accepted. It was on the basis of this process of reasoning that the Tribunal was satisfied the appellant’s claims about the LTTE involvement of his extended family members were “false” TR at [26].

13    When one understands this process of reasoning, the balance of the argument made by the appellant is then brought into focus. Putting the second limb of the argument another way, it is that having started the process of making inquiries to the UNHCR, further steps should have been taken to obtain a copy of the materials which led to the registration of the appellant with the UNHCR before making a decision. The argument goes that if these inquiries had taken place and demonstrated that the claim had been advanced to the UNHCR then this would undermine the first strand of the Tribunal’s reasoning.

14    The extract at [5] above indicates how the primary judge dealt with this argument. With respect to the primary judge, [31] of his Honour’s reasons is somewhat confusing in that, on the one hand it seems to embrace the notion that the Tribunal did not have an obligation to make the inquiry alleged by the appellant and yet, on the other hand, relied on the fact that the Tribunal did, in fact, make “such inquiries”.

15    Having said this, it seems clear that two points were being made at [28]-[31]. The first was that it was entirely open to the Tribunal to reject the claim, and that what was being sought was an impermissible merits review of that decision; and second, that it was unnecessary in all the circumstances for the Tribunal to go further than it did in understanding what precisely was put to the UNHCR in mandating the appellant as a refugee.

16    Although there may be some question as to whether or not it was correct to say, as the primary judge did at [31], that the response of the UNHCR undermined the appellant’s claims that a UNHCR decision contained references to the alleged involvement of the appellant’s extended family with the LTTE, the fact remains that the primary judge was correct to conclude that the Tribunal had considered and rejected the claim. The decision was not vitiated by jurisdictional error by reason of some obligation to make additional inquiries over and above those that the Tribunal had already undertaken in order to obtain the adjectival material upon which the decision of the UNHCR was based.

17    Whether the underlying material may have made references to members of the appellant’s extended family having LTTE involvement was not a critical fact in the case nor was there a sufficient link between that fact and the outcome of the review. In any event, the potentially obvious inquiry of contacting the UNHCR and requesting a copy of the decision was made. It is not as if part of the reasoning process was a rejection of the appellant’s contention that the UNHCR decision may have made reference to some involvement of the appellant’s extended family with the LTTE.

18    The important fact from the perspective of the Tribunal, was the failure of the appellant to advance this matter before the delegate. This can be seen by the Tribunal’s reasons at [24] where it is recorded that in response to the appellant’s claim that the UNHCR decision made explicit reference to his family’s LTTE involvement, the Tribunal member put to the appellant that he was “even more surprised he had not mentioned this evidence in his [protection visa] application, given [the appellant] understood it was allegedly part of the reason he had been granted protection in Malaysia”.

19    In all the circumstances, it does not seem to me that the primary judge fell into error in rejecting ground 1 below, and in those circumstances, the appeal must be dismissed with costs.

Associate:

Dated:    24 May 2019