AJH17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 574
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AJH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 574
File number(s): SYG 321 of 2023 Judgment of: JUDGE GOODCHILD Date of judgment: 23 August 2023 Catchwords: MIGRATION – review from Administrative Appeals Tribunal – oral evidence – where Tribunal declined to hear from corroborative witness – legal unreasonableness – extension of time – merits of substantive application such that extension of time granted – application succeeds. Legislation: Migration Act 1958 (Cth) s 5, 426, 427, 429A, 477, 477A
Migration Regulations 1994 (Cth)
Cases cited: AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317
BFD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 887
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
BTF15 v Minister for Immigration and Border Protection [2016] FCA 647
CZBH v Minister for Immigration and Border Protection [2014] FCA 1023
DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 17
Gallo v Dawson (1990) 93 ALR 479
Manna v Minister for Immigration and Citizenship [2013] FCA 400
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485
Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118
MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585
MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
SNYE v Minister for Immigration and Citizenship [2010] FCA 500
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604
Division: Division 2 General Federal Law Number of paragraphs: 110 Date of hearing: 13, 30 June 2023 Place: Sydney Counsel for the Applicant: Mr Jones Solicitor for the Applicant: Human Rights for All Counsel for the First Respondent: Mr Johnson Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
SYG 321 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AJH17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GOODCHILD
DATE OF ORDER:
23 august 2023
THE COURT ORDERS THAT:
1.The time for filing the application for judicial review be extended to 27 February 2023.
2.A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 29 June 2022.
3.A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine the application for review according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GOODCHILD:
The applicant seeks judicial review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 29 June 2022, which affirmed a decision of a delegate of the first respondent to refuse the applicant a protection Visa.
The applicant seeks an extension of time in which to commence these proceedings pursuant to an application filed 27 February 2023
This Judgment addresses both the application extension of time and the application for judicial review.
For the reasons that follow, the Court concludes that an extension of time should be granted and the decision of the Tribunal to affirm the second respondent’s decision should be quashed and the Tribunal should be required to consider the applicant’s application for review according to law.
Brief history
The applicant, who is a 42-year-old citizen of Vietnam, arrived at an offshore territory of Australia (“the offshore port”) together with his daughter on 1 October 2012. At the time, both the applicant and his daughter were classified as “unauthorised maritime arrivals”.
On 17 September 2013, the applicant (and his daughter as a secondary applicant) applied for a Permanent Protection (Class XA) visa which was later deemed to be an invalid application. Because the visa application was deemed to be invalid, on 13 July 2015 the applicant and his daughter were invited by the then Department of Immigration and Border Protection to apply for a Temporary Protection (Class XD) (subclass 785) visa.
On 3 November 2015, the applicant and his daughter applied for the relevant Temporary Protection visa but was refused that visa by a delegate of the then Minister for Immigration on 19 August 2016 (“the delegate’s 2016 decision”).
On 24 August 2016, the matter was referred to the Immigration Assessment Authority for review. On 14 December that same year, the Authority affirmed the delegate’s decision concluding, inter alia, that the applicant (and his daughter) did not satisfy the requirements for protection in Australia.
On 30 January 2017 the applicant sought judicial review of the Authority’s decision in the Federal Circuit Court of Australia (as it was formerly known), but that application was dismissed following hearing on 30 October 2017. The applicant sought to appeal that judgment out of time but was unsuccessful.
On 6 August 2018 the Full Court of the Federal Court of Australia delivered judgment in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 (“DBB16”). Relevantly, that case dealt with the validity of the offshore port as an entry point for maritime arrivals and how persons who arrived in Australia via this port were not to be considered “unauthorised maritime arrivals” or “fast track applicants” pursuant to s 5 of the Migration Act 1958 (Cth) (“the Act”).
In light of the DBB16 Judgment, the applicant and his daughter filed an application with the Administrative Appeals Tribunal seeking a review of the delegate’s refusal decision.
The Department wrote to the applicant on 6 March 2020 advising him that he (and his daughter) were affected by the DBB16 Judgment and that as a result had been reassessed to have made their initial visa application in September 2013 validly. The applicant was further informed by the Department that due to certain legislative amendments made to the Act and the Migration Regulations 1994 (Cth) (“the Regulations”), their application was, and continued to be treated by the Department, as an application for Temporary Protection (Class XD) (subclass 785) visas.
In June 2020 the applicants were re-interviewed by the delegate for the purposes of their Temporary Protection visa application. On 12 August 2020, the delegate once again refused to grant them the visa, stating in separate decisions that the applicant and his daughter were not persons in respect of whom Australia has protection obligations as provided for in the Act (“the delegate’s 2020 decisions”).
On 20 August 2020 the applicant and his daughter applied to the Administrative Appeals Tribunal for a review of the three decisions made by the delegate in both 2016 and 2020.
On 4 March 2022 the applicant and his daughter were invited to attend a hearing before the Tribunal which took place on 21 and 28 March 2022. Both applicants were in attendance at the scheduled hearing dates and represented by a lawyer. In the course of that hearing, the applicant maintained his protection claims and placed significant weight on letters he claimed were authored by a priest that supported the events he says had implicated him in serious harm relating to his religious faith.
On 29 June 2022, the Tribunal affirmed all three decisions made by the delegate.
THE CURRENT PROCEEDINGS
The applicant initiated proceedings in this Court on 24 February 2023 seeking judicial review of the Tribunal’s decision made on 29 June 2022.
Pursuant to s 477(1) of the Act, the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decision. As the applicant is 205 days out-of-time in relation to the Tribunal’s decision, he requires an extension of time pursuant to s 477(2) of the Act, to pursue his judicial review proceedings in this Court.
On 30 June 2023, the applicant’s extension of time application proceeded to a hearing before me. At the hearing, both the applicant and first respondent were represented by counsel. On the first day of the hearing, the applicant was cross-examined by Counsel for the first respondent. That cross-examination was confined solely to the application for extension of time.
LEGAL PRINCIPLES – EXTENSION OF TIME
Section 477(2) of the Act provides that the Court may, by order, extend the 35 day period within which a substantive judicial review application can be filed, if:
(a)the applicant makes an application for extension of time in writing detailing why the extension should be granted; and
(b)the Court is satisfied that it is necessary in the interests of the administration of justice to grant the extension.
In the present case, the applicant filed his Originating Application on 24 February 2023 and amended it on 30 May 2023. In his Amended Originating Application, the applicant provided the following ground for why he believes an extension should be granted:
1.The Applicant has been detained in immigration detention since 17 October 2019. As a result, the Applicant has had no income and is impecunious. The evidence shows that access to pro bono legal representation for individuals detained in immigration detention is extremely limited.
(As per original)
Section 477(2)(a) of the Act is thus satisfied.
In relation to s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
While the factors which may be considered when determining whether to grant an extension of time are not limited, as per the reasoning of the High Court in Tu’uta Katoa[1] in relation to a substantively similar provision in s 477A(2) of the Act, the most common factors considered by the Court in matters of this sort include:
(a)the length of delay;
(b)whether there has been a reasonable and adequate explanation for the delay (explanation);
(c)whether there is any prejudice to the Minister (prejudice); and
(d)whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time (merits of substantive application).
[1] Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 (“Katoa”) at [12]-[13].
When considering the merits of the proposed substantive application as a factor in assessing whether to grant an extension of time, the Court will do so at a “reasonably impressionistic level”.[2] Importantly, an applicant need only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error which may warrant an extension being granted.[3]
[2] MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585 (“MZABP”).
[3] MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158 (“MZAIB”); Katoa at [54].
In Katoa, the High Court considered, in relation to s 477A(2) of the Act, that the provision entrusts to the Court the function of identifying and formulating the interests of the administration of justice and how they should be weighted and assessed, including by reference to the merits of the proposed application. It will not constitute jurisdictional error to undertake more than an impressionistic assessment of the merits, leaving the discretion to exercise this power “deliberately broad”.[4]
SHOULD AN EXTENSION OF TIME BE GRANTED
[4] Katoa at [39], [46]-[61].
Length of delay
The Court notes that an extension of time is not granted as a right.[5] Further, the limitation periods specified in the Act are the “general rule” and any grant of an extension of time is an exception to that rule.[6]
[5] Gallo v Dawson (1990) 93 ALR 479 at [2] per McHugh J.
[6] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
The delay in this matter is 205 days. This is significant and weights against the granting of an extension of time.
Prejudice
There has been no prejudice suggested in respect of the first respondent.
Given the focus of the submissions advanced by the respective parties was the applicant’s explanations for delay and the merits of his substantive application, I do not consider the issue of prejudice a weighty matter in my consideration, noting, there is of course, a public interest in the finality of administrative decision-making.
Explanation for delay
It is submitted on the applicant’s behalf that an extension of time is justified as there are adequate reasons to explain the delay. The applicant relies on two affidavits filed by him on 6 March and 2 June 2023, and an affidavit filed by the principal of the legal practice that currently has carriage of his matter, dated 6 March 2023.
The applicant deposes that since October 2019 he has been in immigration detention and has had no means to earn money. He says he was not able to afford a lawyer to review the Tribunal’s decision and relied on evidence given by his current solicitor that detainees within immigration detention facilities “face significant barriers to accessing pro bono legal representation”.[7]
[7] Affidavit of A Battisson dated 6 March 2023, [4].
The applicant further deposed that, upon receiving notice of the Tribunal’s decision, he made numerous attempts to obtain assistance from various service providers including the Refugee and Immigration Legal Service; a human rights organisation; a Vietnamese migration agent and a local member of parliament who referred him to another organisation. Neither of them, the applicant deposed, could give him the appropriate help. The applicant deposed that it was not until he contacted an old acquaintance from Darwin who would visit him at the detention centre, that he was able to engage legal representation. He recounted that initially he sent his documents to the old acquaintance, which took time, and that the old acquaintance then put him in contact with his the current solicitors. The applicant submitted that once formally instructed, his lawyers “immediately” took steps to initiate the current proceedings. This evidence was largely unchallenged.
The applicant submitted that one other impediment to him obtaining legal representation and giving instructions to lodge a judicial review in time was his mental health. He deposed that since being in detention his mental health had deteriorated, including that he has found it hard to stay motivated and positive about his future. Following the Tribunal’s decision, the applicant says he was also “extremely anxious”. Annexed to his March affidavit are records of mental health consultations dated between July 2022 and February 2023, the general tenor of which is that the applicant has experienced stress, frustration and has struggled with his situation.
It was submitted on behalf of the first respondent that neither of the applicant’s reasons for delay are satisfactory.
At the hearing before me, counsel for the first respondent cross-examined the applicant on the steps he took to obtain legal representation to review the Tribunal’s decision. In particular, counsel for the first respondent challenged the applicant’s evidence that his efforts to retain legal representation were specifically for the purpose of appealing the Tribunal’s decision in the Federal Circuit Court. In this regard, counsel referred to correspondence annexed to the applicant’s June affidavit in which it can be seen the applicant sent emails requesting assistance in preventing his deportation from Australia, not referring to appealing the Tribunal’s decision.
When challenged, the applicant maintained that he actively sought assistance to appeal the Tribunal decision, adding that the means by which he sought help were not confined to sending emails, but also included telephoning various organisations including the Refugee and Immigration Legal Service. He stated under cross-examination that he was aware of the 35-day time-frame in which to file a judicial review, but reiterated that despite his many efforts he was unable to find “the right person” to help him within the relevant time period.
In my view, while the authorities are clear that a lack of legal advice alone is an insufficient excuse for failure to comply with statutory time frames,[8] some latitude should be given to the applicant in this case in light of his detention, claimed impecuniosity, and mental health struggles as corroborated in medical records annexed to his affidavit.
[8] Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [17]; SNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]-[9].
I accept on the material before me that, notwithstanding his limited circumstances, the applicant actively sought assistance regarding his matter not limited to sending emails to different organisations and other persons he thought would render him the appropriate help. Some of these efforts were supported by documentary evidence contained in his affidavit, and were, therefore, not just bare assertions. Viewed together, I am persuaded that the significant delay is adequately explained.
In any event, even if I were not so persuaded that the applicant has provided a satisfactory explanation for delay, it is well-settled that the most critical factor for consideration when determining whether an application for an extension of time ought to be granted, is whether the proposed application for judicial review has any merit.
For the reasons that follow, I consider the applicant’s proposed ground of judicial review has a reasonable prospects of success.
Merit
In the context of an extension of time application, the Court is required to undertake no more than an “impressionistic” assessment of the grounds of review advanced by the applicant. The question before the Court is whether the grounds are “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”.[9]
[9] MZABP [63].
The applicant here advances one ground of review in his Amended Originating Application dated 30 June 2023, as follows:
1.The Second Respondent [the Tribunal] failed to give proper, genuine and realistic consideration to the applicant’s request for the Second Respondent to obtain evidence from Father Nguyen and/or acted in a legally unreasonable way in failing to obtain that evidence.
Particulars
a.The applicant relied on three letters that purported to be from Father Nguyen and contained his contact details.
b.The applicant requested that if the Tribunal doubted the genuineness of the letters, it should contact Father Nguyen.
c.The Tribunal concluded at [82] that the letters from Father Nguyen were not genuine.
d.The Tribunal did not explain why it had decided not to obtain evidence from Father Nguyen pursuant to the applicant’s request.
e.The Tribunal observed at [75] that there may be difficulties identifying witnesses outside Australia. It was not open to the Tribunal to refuse to contact Father Nguyen on this basis.
f.The Tribunal could have made (but failed to make) an obvious inquiry to determine whether the contact details for Father Nguyen were accurate, namely a brief internet search.
(As per original)
Before me, counsel for the applicant elaborated that the sole proposed ground of review relied upon can be framed in two different ways: a failure by the Tribunal to give “proper, genuine and realistic consideration to the request to obtain evidence from Father Nguyen”; and the Tribunal otherwise dealing with the applicant’s request to obtain evidence from Father Nguyen in a “legally unreasonable way”.
For completeness, I first set out a brief summary of the Tribunal’s decision.
The Tribunal’s Decision
The application before the Tribunal was for the review of the decisions made by the delegate in 2015 and 2020 refusing the applicant and his daughter Temporary Protection visas.
In summary, the applicant claimed a fear of harm to return to Vietnam because of his catholic religion, his anti-Communist and pro-democracy political opinion, or opinions which may be imputed to him because he is a Catholic, his illegal departure from Vietnam, his status as a failed asylum seeker and a cumulative impact of some or all of these factors.
The applicant claimed that Father Dinh Thuc Nguyen (“Father Nguyen”), a well-known activist priest asked him to act as a security guard at a chapel his parents attended in Con Cuong during a period of increased repression of local Catholics in 2012. He says that he was involved in a violent confrontation with police, soldiers and others on 1 July 2012 and he was forced to flee Vietnam to avoid arrest. He claimed that he was involved in a secret political organisation led by Father Nguyen. The applicant claimed a fear of harm in Vietnam because of his association with Father Nguyen and the church in Con Cuong.
At [38]-[111] the Tribunal set out in some detail its consideration of the applicant’s claims and evidence with reference also to independent evidence such as DFAT country reports. Included in this section of the decision, at [60]-[86], is the Tribunal’s discussion of the evidence givne by the applicant of his involvement in the events of 1 July 2012, and his involvement with Father Nguyen and the chapel in Con Cuong.
It is recorded at [74] of the decision that the applicant provided to the Tribunal three letters “purported to be from Father Nguyen”. The Tribunal concluded at [75] that it had concerns about the genuineness of these letters and made some comments as to why that was so.
In the same paragraph of the decision ([75]), it is recorded that the applicant maintained the truth of Father Nguyen’s letters and told the Tribunal that it could “use the information in the letters to contact [Father Nguyen] by telephone or email”. The decision then reads:
I [the Tribunal member] observed that there were often difficulties identifying witnesses outside Australia and advised [the applicant] that I was not currently intending to contact Father Nguyen or anyone in Vietnam. However, I would consider [the applicant]’s request and take account of all of his evidence before reaching a decision.
Further in the decision, under the heading “Findings of fact in relation to the event of 1 July 2012”, the Tribunal concluded (at [82]) that it was not satisfied that the letters were genuine and stated that it believed they were instead “manufactured by the applicant or on his instructions”. Ultimately, the Tribunal afforded no weight to the letters.
It is the complaint of the applicant in the present proceedings that in the course of the Tribunal hearing there was clearly an express request by the applicant for the Tribunal to take evidence from Father Nguyen, that although the request was made outside of the statutory scheme of calling witness evidence under s 426 of the Act, the Tribunal were nevertheless required to give proper consideration to the request having regard to the Tribunal’s powers under ss 427(1)(a) and 429A of the Act.
It is argued by the applicant that the request to contact Father Nguyen was not adequately grappled with in the Tribunal’s decision, there being, according to the applicant, “no engagement” in [82] of the explicit request to call Father Nguyen on the details provided in the letters. The only reason put forward by the Tribunal, the applicant submits, was the claimed difficulty with identifying witnesses outside Australia, which the applicant further submits is not sufficient a concern to justify a refusal to call a witness as per the Full Court decision in AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317 (“AYX17”), and which was also a conclusion that lacked any proper basis when one looks in this case at the steps that can be taken to verify Father Nguyen. If Father Nguyen were called and evidence taken from him, it is the applicant’s case that such critical evidence could “change the whole approach to the credibility of the applicant’s claims”.
The first respondent submitted in written submissions that the applicant’s proposed substantive application cannot be made out as the Tribunal’s exercise of discretion not to call Father Nguyen as a witness was not left unexplained in its reasoning. Such reasoning, the first respondent said, could be found in [75] and [82] of the Tribunal’s decision and in particular in the reservations expressed about the applicant’s credibility which ultimately influenced the observations made about, and treatment of, the three letters purportedly written by Father Nguyen. In oral submissions before me, the first respondent stated that the Court would not draw any adverse inferences from the Tribunal “not having expressly given reasons for its non-exercise because there was no obligation to do so”. Ultimately, it was argued that the Court must look instead at the Tribunal’s reasons as a whole and “infer from the outcome of the non-exercise of power whether there was an evident and intelligible justification”.
Further, the first respondent advances a number of submissions regarding what the Tribunal is and is not obliged to do in the exercise of its powers. The first respondent insists that the question is not whether another conclusion or approach was open to the Tribunal, but whether the Tribunal could reasonably come to the conclusion that it did reach. In this regard, it is argued that the Tribunal had available to it the power to make the call, but it did not need to given the “very significant reasons” for doubting the applicant as a truthful person in respect of his claims, and the additional reasons for finding that the letters did not look to the Tribunal to be authentic on their face. It is the first respondent’s case that this approach was sufficient for the Tribunal to form its final conclusions, without taking the additional step of first making investigations of the contact details provided by the applicant and then seeing what may have subsequently resulted.
On the face of the Decision record, and applying an impressionistic assessment, I am persuaded that the applicant has a realistic prospect of successfully establishing that the decision of the Tribunal is affected by jurisdictional error and as such, I am satisfied that the interests of justice require that an extension of time be granted in this case.
SUBSTANTIVE JUDICIAL REVIEW APPLICATION
Having determined that it is appropriate to make an order extending the time for the applicant’s application to allow the applicant’s application to proceed, I now turn to consider the substantive application on its merits.
As previously summarised, the applicant argues that the Tribunal fell into jurisdictional error in the way it approached the request made by the applicant to obtain evidence from Father Nguyen.
It is important to note here that it is common ground between the parties that the applicant’s request to call Father Nguyen was not one made in the form of a written notice pursuant to s 426(2) of the Act. Were the request made in accordance with s 426(2), the Tribunal would have (under s 426(3)) a discretion whether or not to take evidence from a nominated person but be required to genuinely apply its mind to the contents of the notice and, in particular, to the question whether it should take the oral evidence of the nominated individual in accordance with the applicant’s wishes: Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118.
Instead, the ‘request’ in this case arose in the course of the Tribunal hearing, in circumstances where concerns were expressed by the Tribunal about the genuineness of Father Nguyen’s letters and the applicant thereafter invited the Tribunal to contact Father Nguyen.
The Tribunal’s power to take oral evidence from a person when a request to call that person is made outside the statutory scheme in s 426, is derived from s 427(1)(a) of the Act which relevantly provides:
Powers of the Tribunal etc
(1) For the purpose of the review of a decision, the Tribunal may:
(a) take evidence on oath or affirmation
…
The power conferred on the Tribunal by s 427(1)(a) is discretionary, and that discretion, according to AYX17 at [75] citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, is to be understood as “conditioned by a requirement that it be exercised in a legally reasonable way”.
It is well-settled that a myriad of factors may influence a Tribunal’s decision to obtain oral evidence or its decision not to do so. As outlined by Rangiah J in CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 (“CZBH”) at [58], these factors include:
…the relevance and importance of the proposed evidence, whether written evidence is sufficient for the Tribunal’s purposes, whether taking the evidence would cause undue delay, the ease or difficulty of contacting the proposed witnesses and the availability of a suitable interpreter. In an appropriate case, the Tribunal might decide that the evidence of an applicant is so compromised that hearing the oral evidence of the corroborating witness could not affect the outcome.
For the giving of oral evidence before the Tribunal, s 429A provides that the Tribunal may allow that evidence to be by telephone, closed-circuit television or any other means of communication.
The Tribunal’s concerns
Before considering in further detail the Tribunal’s response to the applicant’s request to obtain evidence from Father Nguyen, it is prudent to first outline the relevant context in which the Tribunal exercised its discretionary power: AYX17 at [87]
The Tribunal raised various concerns about the applicant’s claims before it and ultimately concluded that there were issues regarding his credibility.
The Tribunal concluded that the applicant had concocted claims to support his claim for protection and to obtain residency in Australia. The Tribunal did not accept that the applicant was a close associate of Father Nguyen or that he was asked to serve as a security guard at the church or chapel in Con Cuong at any time. The Tribunal found that the applicant’s claim that Father Nguyen asked him to serve as a security during major events was implausible as there was a reasonably large Catholic population in the area and Father Nguyen is said to have only visited about three times a year.
Neither did the Tribunal accept that the applicant was present when the chapel in Con Cuong was attacked on 1 July 2012 or at any other time. The Tribunal also did not accept that the police came to the applicant’s home, or his parents’ home, to arrest him at any time after 1 July 2012. Nor did the Tribunal accept that the applicant was of interest to the police or anyone else in Vietnam for any reason relating to his visits to Con Cuong.
The Tribunal concluded that the applicant was not at Con Cuong on 1 July 2012 because of inconsistencies between his version of events and other earlier accounts of the events.
It is worth noting here that the applicant’s protection claims were founded entirely upon his perceived persecution because of his faith and critical incidents and events associated with Father Nguyen.
In support of his claims before the Tribunal, the applicant relied on three letters purported to be from Father Nguyen dated 13 September 2016, 18 January 2018 and 23 July 2020. As summarised at [74] of the Tribunal’s decision, those letters provided the following:
·a letter dated 13 September 2016, which states that Father Nguyen served in the region that included Con Cuong from 2010 until 2013, that the authorities frequently caused problems for Catholics in that area, including on Sunday, 2 July 2012 when over 1000 police attacked the church in Con Cuong, damaged church property and beat him and others. It adds that, from what he was told, the applicant was at the parish of Con Cuong on 2 July 2012 and was followed and threatened so he had to flee the country.
·a letter dated 18 January 2018, which states that the letter dated 13 September 2016 mistakenly stated that the incident in Con Cuong occurred on 2 July 2012, not 1 July 2012.
·a letter dated 23 July 2020, which repeats the information in the September 2016 letter and adds that while Father Nguyen was in Con Cuong the applicant visited him and helped him. On 1 July 2012, the applicant “strongly protected” him and as a result he was beaten. After that, the applicant was watched. Father Nguyen advised the applicant to run away. The letter reads if the applicant returned to Vietnam he would be at risk of harm.
All three letters are said to be signed and sealed by Father Nguyen and contain a letterhead with either a telephone number or email address for Father Nguyen, or both.
Furthermore, all three letters referred to the applicant by name, referred to the region in Vietnam where Father Nguyen served (including the township of Con Cuong where the applicant’s parents lived), referred to Father Nguyen saying mass in Con Cuong and the authority causing “trouble”, and specifically referred to the critical incident on Sunday, 1 July 2012.
At [75] of its Decision the Tribunal recorded that it advised the applicant that it had concerns about the genuineness of the letters from Father Nguyen on the basis that:
… the first letter did not suggest that he and Father Nguyen were friends and appeared to indicate Father Nguyen did not have firsthand knowledge of his presence in Con Cuong on 1 July 2012 and the other letters appeared to have been written to rectify errors in the first letter.
At [82] of the Decision, the Tribunal repeated that it was not satisfied that the letters were genuine, concluding:
As discussed above and below, I did not find [the applicant] to be truthful or a credible witness. The letters all seek to support claims which I have found to lack credibility, their content has changed over time and I do not find them persuasive. As pointed out at the hearing, there is nothing in the first letter which suggests that [the applicant] was known to Father Nguyen or that Father Nguyen could confirm his presence in Con Cuing on 1 July 2021. If [the applicant] had served as a security guard at the chapel in Con Cuong on 1 July 2021 at Father Nguyen’s request, I believe this would have been clearly stated in the letter. The fact that the letter gives the wrong date for the attack in Con Cuong casts further doubt on its authenticity. The second and third letters do nothing more than attempt to overcome these problems. All of the letters could easily have been created by anyone who speaks Vietnamese and has access to a computer and printer. The Vietnamese versions of the letter are printed on plain paper and the only identifying mark is a simple stamp. I believe that these letters were manufactured by [the applicant] or on his instructions and I have given them no weight.
The context in which the Tribunal had to consider whether to obtain evidence from Father Nguyen was not only its adverse views about the applicant’s claims (and credit), but its concerns about the veracity of Father Nguyen’s letters.
The Tribunal’s “approach” to the request to call Father Nguyen
As touched upon earlier, the request by the applicant to contact Father Nguyen for the purpose of obtaining evidence from him was made after the Tribunal raised doubt as to the genuineness of Father Nguyen’s letters.
The Decision at [75] particularly records:
… I advised [the applicant] that I also had concerns about the genuineness of the letters from Father Nguyen. I noted that the first letter did not suggest that he and Father Nguyen were friends and appeared to indicate Father Nguyen did not have firsthand knowledge of his presence in Con Cuong on 1 July 2012 and the other letters appeared to have been written to rectify errors in the first letter. I also advised him that while I was aware that people had been arrested on 1 July 2012 and that some people who were seen as anti-government activists might have been arrested at a later time, it was not my understanding that people continued to be at risk of arrest merely because they were present on the day. The applicant said that Father Nguyen did not lie and I could use information in the letters to contact him by telephone or email. I observed that there were often difficulties identifying witnesses outside Australia and advised him that I was not currently intending to contact Father Nguyen or anyone in Vietnam. However I would consider his request and take account of all of his evidence before reaching a decision.
There is no dispute that the Tribunal did not obtain evidence from Father Nguyen at the contact details provided in the letters, either during or after the Tribunal hearing.
The respective submissions advanced on behalf of each party in relation to the Tribunal’s approach in this regard, are summarised at [53]-[56] of this Judgment.
Consideration - did the Tribunal fall into jurisdictional error in its approach to the request to call Father Nguyen?
The relevance and importance of Father Nguyen’s evidence to the applicant’s case before the Tribunal and the Tribunal’s reasoning within the Decision Record
The decision as to whether to receive oral evidence will depend, to a significant extent, on the relevance and importance of the evidence: CZBH at [58]-[59].
There can be no doubt that the events that occurred on 1 July 2012 were at the core of the applicant’s protection claims. The Decision records that the catalyst for the applicant’s departure from Vietnam was the incident at Con Cuong in July 2012 and it is further recorded that the applicant told the Tribunal that he would not have left Vietnam but for his involvement in these events.
A fair reading of the Tribunal’s decision with respect to the finding that the applicant was not a truthful or credible witness almost exclusively covered factual ground involving Father Nguyen - whether that factual ground related to events before July 2012, the circumstances of the incident on 1 July 2012, or the reasons for the applicant leaving Vietnam.
So too, did Father Nguyen’s letters produced by the applicant speak to the matters which, in the Tribunal’s opinion, undermined the applicant’s credibility.
Being such a central figure in the applicant’s observance of his faith, and of the critical incidents and events generally, Father Nguyen in my view was very well placed to corroborate, or not, the claims made by the applicant. Distinguishable to the circumstances in BTF15 v Minister for Immigration and Border Protection [2016] FCA 647 (cf [51] and [53]), the concerns as to the credibility of the applicant in this case may well have been alleviated or at least informed by evidence from Father Nguyen. The Tribunal would have also had opportunity to ask Father Nguyen questions to test the credibility of the evidence in the letters provided, in response to the explicit concern at [82] that those letters were manufactured by the applicant or on his instructions.
In this case the Tribunal did not find the “well was so poisoned”: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59. That is, the Tribunal did not conclude in its reasons that it decided to refuse Father Nguyen’s oral evidence because the applicant had been discredited beyond redemption (cf SZVBB v Minister for Immigration and Border Protection [2015] FCA 1414 [44]).
Moreover, as stated at [85] of AYX17, some caution is needed before determining that it is open to a decision-maker to conclude that proffered corroborative evidence cannot “affect” the decision-maker’s view of the reliability or credibility of an applicant. As elaborated in that case (at [85]):
If that conclusion is reached too readily it discounts the purpose of corroborative evidence, and it also tends to suggest a level of prejudgment which does not sit easily with the decision-maker’s task to make the correct or preferable decision on all the material before it.
There is a raft of authorities discussing when a failure to consider corroborative evidence constitutes jurisdictional error. Inevitably, each case turns upon its own particular facts and circumstances. The recent case of BFD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 887 usefully held at [58]:
It is not sufficient for a Tribunal to make emphatic findings adverse to the credibility of a party and then to eschew consideration of purportedly corroborating evidence.
Applied to this case, I accept that the Tribunal’s reasons, as the Minister submitted, demonstrate that the Tribunal had concerns as to the applicant’s credit in relation to all the important aspects of his narrative, as discussed at [67]-[76] above. However, while it is open to the Tribunal to first make an assessment of the applicant’s credit and his claims before giving attention to any corroborative evidence: Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 at [37], what is still required is an assessment of the evidentiary value of the purportedly corroborative oral evidence from Father Nguyen, which should be manifest in the Tribunal’s reasoning.
I accept the applicant’s submission that the Tribunal did not consider whether the requested evidence from Father Nguyen would add anything to the applicant’s claims as to for example, the July 2012 incident. The Decision record does not reveal that the Tribunal undertook a conscious process of considering and weighing the purported evidence in respect of this issue, which was clearly material.
Neither do the Tribunal’s reasons disclose a clear, cogent explanation for its rejection of Father Nguyen’s oral evidence other than observing at [75] that there were “often difficulties identifying witnesses outside Australia” which, for reasons I will come to, does not prevent the proposed witnesses’ evidence holding probative value: AYX17 [54].
In failing, therefore, to bring its mind to bear on the relevant evidence requested, and, absent clear reasons for exercising its discretion not to obtain Father Nguyen’s oral evidence such that an evident and intelligible justification for that decision can be discerned: CZBH, I am satisfied that the Tribunal fell into jurisdictional error.
Claimed difficulties with identifying witnesses outside of Australia
The applicant submits that the only basis upon which the Tribunal did not contact Father Nguyen, being claimed difficulties with identifying witnesses outside of Australia, discloses error when regard is had to the decision of AYX17. I accept the applicant’s submissions in that regard.
As the reasoning in AYX17 at [36] reveals:
At [33], the Federal Circuit Court set to one side the Tribunal’s observations about the difficulty in establishing the identity of the witnesses. It was correct to do so: there are often likely to be issues about the reliability of the identity of a witness, especially if the Tribunal only hears from the person by telephone. The prospect of such issues arising is inherent in the process established by the Act and is not, in itself, sufficient justification to refuse to hear from a personal person is an applicant has nominated as a witness.
(Emphasis added)
The Full Court in AYX17 went on to say at [54], which the applicant relied upon in oral submissions:
The power in s 429A would extend, for example, to taking evidence via a method that allowed the Tribunal to see the person giving evidence (such as Skype or FaceTime or another application). Section 429A(c) is ample to accommodate any modern form of communication, most of which are straightforward to use and accessible throughout the world. Using internet-based forms of communication could relieve some of the identity concerns which can attend telephone evidence, although as we set out below, the mere fact that the mode of communication is a telephone is no reason, in and of itself, for a Tribunal to assume, or presume, that issues of identity will loom so large as to make the person’s evidence lacking in sufficient probative value to justify the Tribunal hearing evidence from the person.
The Minister does not dispute that a difficulty to ascertain the identity of Father Nguyen, who was outside Australia, by telephone does not of itself provide a basis to not contact Father Nguyen. The Minister maintains, however, that the Tribunal provided other reasons for not obtaining that evidence which, for the reasons given, I am not satisfied were evident in the Tribunal’s reasons.
The applicant adds that the conclusion that there would have been a difficulty in identifying Father Nguyen was itself a conclusion that lacked any proper basis. Here, the applicant argues that it is not enough for the Tribunal to decide at [75] that it is difficult to identify a witness on mere speculation or a general view about the position of that witness. What the applicant says the Tribunal failed to do was engage in an intellectual analysis of whether there really would be a difficulty in identifying Father Nguyen.
An “obvious inquiry”, the applicant says the Tribunal could have made was a brief internet search for the contact details of Father Nguyen, from which it would have been readily apparent that the telephone and email details set out in the letters were publicly available on the internet. The applicant relied upon an affidavit evidencing the results of such searches.
While I am not satisfied that there is an obligation on the Tribunal to undertake internet searches in the way contended by the applicant, I accept that general observations and concerns about the difficulty of identifying a witness outside Australia, without more, does not provide a sufficient basis to refuse to call that witness: AYX17; CZBH.
Section 429A makes clear that the Tribunal is conferred a broad power in respect of the mode by which it can decide to take evidence. There was nothing in the Decision record to suggest that evidence from Father Nguyen could not be obtained by other electronic means which could have also assisted in verifying his identity. It is to be remembered here that country information to which the Tribunal had regard in its decision (at [55], [61]) did not readily permit a conclusion that Father Nguyen did not exist, noting also that early in its decision the Tribunal had identified Father Nguyen as a “well-known activist priest” (at [33]).
Accordingly, it was not in my view open for the Tribunal in the circumstances to rely on issues about verifying Father Nguyen as a witness in deciding not to obtain evidence from him. This was legally unreasonable.
Any burden on the Tribunal and/or delay to the determination of the applicant’s application if Father Nguyen were called to give evidence
Finally, the applicant submits that contacting Father Nguyen would not have been burdensome, nor would it have given rise to delay in the determination of the application.
I agree with the applicant’s submission.
As identified by counsel for the applicant in both written and oral submissions, the Tribunal hearing took place across two dates in March 2022, those occasions being one week apart. Further, on 25 May 2022 the Tribunal made a request to the applicant for further information about other matters relating to his claims, such information to be provided by 1 June 2022. The Tribunal did not make their decision until 29 June 2022, just over three months after the Tribunal hearing concluded.
Clearly, there was an ongoing process of considering the applicant’s application across a period of three months. The calling of Father Nguyen either at the hearing or in the period post-hearing, would not have caused any further delay in the proceedings before the Tribunal.
CONCLUSION
For the reasons given earlier, I am satisfied that it is appropriate to make an order extending the time for the applicant’s judicial review application to be filed.
As to the substantive application before me, I am satisfied that the Tribunal fell into jurisdictional error in failing to adequately grapple with the request to obtain evidence from Father Nguyen such that it exercised its discretion under s 427(1)(a) of the Act in a legally unreasonable way. This is so, having particular regard to the relevance and importance of Father Nguyen’s oral evidence, the only evident basis upon which the Tribunal decided not to call Father Nguyen which was inadequate, and the absence of any delay in the determination of the application if Father Nguyen were contacted to give evidence.
Accordingly, I make the orders set out at the forefront of this Judgment.
I will hear from the parties in relation to costs.
111 I certify that the preceding one-hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild.
Associate:
Dated: 23 August 2023
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