AYX17 v Minister for Immigration
[2017] FCCA 2233
•14 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYX17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2233 |
| Catchwords: MIGRATION – Protection visa – applicant notified Tribunal he wanted the Tribunal to hear from two nominated person – s.426 of the Migration Act 1958 (Cth) not requiring the Tribunal to hear those persons – whether Tribunal acted legally unreasonably in not hearing from those two persons – no legal unreasonableness – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.426 |
| Cases cited: AKD16 v Minister for Immigration & Anor (2016) 315 FLR 228 |
| Applicant: | AYX17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 461 of 2017 |
| Judgment of: | Judge Wilson |
| Hearing date: | 30 August 2017 |
| Date of Last Submission: | 30 August 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 14 September 2017 |
REPRESENTATION
| Counsel for the applicant: | Mr L. Brown |
| Solicitors for the applicant: | Victoria Legal Aid |
| Counsel for the first respondent: | Ms J. Lucas |
| Solicitors for the first respondent: | Clayton Utz |
ORDERS
The amended application filed 2 August 2017 is dismissed.
The applicant pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 461 of 2017
| AYX17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
After the Minister consented to an order extending the time within which to commence this proceeding, the applicant argued that the Administrative Appeals Tribunal (“the Tribunal”) fell into jurisdictional error because it decided not to take evidence from two people the applicant said were important to his case.
The applicant contended that in proceeding to determine the applicant’s protection visa claim, the applicant alerted the Tribunal to the identity of two witnesses from whom he said the Tribunal should have
heard. He said that by reason of the Tribunal not hearing from those witnesses –
a)
the Tribunal breached s.426 of the Migration Act 1958 (Cth)
(“the Act”); and
b)the Tribunal’s decision not to take evidence from the two witnesses was legally unreasonable.
The question is whether the Tribunal’s decision in this case should stand.
Synopsis
For the reasons that follow, in my judgment the Tribunal did not fall into jurisdictional error.
Short factual narration
In order to put the basis of this application for judicial review into context, it is necessary to say a little about the factual substratum of this visa application.
The applicant, a citizen of Turkey, arrived in Australia on
28 October 2015, at first lawfully as a crew member of a visiting ship. However, he deserted his ship and was detained on 3 November 2015. He was held at a detention centre in Western Australia. On
28 January 2016 the applicant lodged an application for a protection visa. On 21 March 2016 and 4 April 2016 the applicant was interviewed by a departmental officer in relation to his claims.
The applicant asserted he had a well-founded fear of persecution if he returned to Turkey. In particular, he relied on the following –
a)his religion, being a Christian who had previously criticised Islam;
b)his ethnicity, being Kurdish and Alevi;
c)his political opinion, being opposed to the Turkish government and President Erdogan; and
d)he would return to Turkey as a failed asylum seeker.
So far as the applicant’s claim in respect of his political opinion was concerned, the applicant put forward the following –
a)
he was arrested and detained for six days after being involved in anti-government and anti-Erdogan protests in Gezi Park on
28 May 2013;
b)security forces tortured the applicant while he was detained;
c)he went into hiding because an arrest warrant was issued after he was released from detention; and
d)he remained in hiding for 20 months before his brother-in-law helped to secure fake papers to assist with his travel to Australia.
The delegate accepted that the applicant may have protested at
Gezi Park at some stage in 2013. However, the delegate did not accept that the applicant was there on 28 May 2013. The delegate did not accept any of the applicant’s claims that he suffered harm because of his protesting.
The Tribunal hearing was conducted on 13 October 2016. Prior to the commencement of the hearing the applicant informed the Tribunal in handwriting that he identified two witnesses on the Tribunal’s response to hearing invitation form, providing the names of the witnesses, their telephone numbers and describing the evidence of each with the
words –
He knows everything about my case.[1]
[1] Court book filed on 24 May 2017 at p.221.
The applicant produced before me a transcript of the hearing before the Tribunal.[2] A reading of it revealed that the applicant attempted to enliven the Tribunal member’s interest in the applicant’s desire to have the two witnesses contacted with a view to hearing their evidence.
[2] Exhibit “JT-1” to the affidavit of Joel Townsend affirmed 11 August 2017.
The more important passages were as follows –
MEMBER: The last thing I want to say is I will be making notes and you will receive a written decision, it won’t be today, it will be as soon as I can make a decision and write it, and it will be sent to you.
Now … do you have any questions about anything that I’ve said so far? Because otherwise we’ll start looking into your particular circumstances.
INTERPRETER: Is it possible to call the witnesses who are in Turkey at the moment?
MEMBER: Well I was going to ask you about those. Why do you want me to talk to these two people?
INTERPRETER: They are the two witnesses that know everything in detail. One of them is an engineer and one of them is an officer in charge at this (indistinct) house building construction company.
MEMBER: And what are they likely to tell me?
INTERPRETER: What happened – they are going to tell you what I had encountered during this Gezi Park incident and how long I was hiding and where I was hiding after the incident and that Christians and Armanians and Alavies, they are not wanted in Turkey at the moment and this dispute is accelerating in Turkey and all TV stations, all TVs are now switched off or they are banned to broadcast at this moment in Turkey. This is what they are going to tell us.
MEMBER: Well … the tribunal decides what witnesses it will hear. As far as your claims that these two people will give me information about the circumstances in Turkey, I don’t take advice from people that I don’t know. I have no idea who these people are, they could be anyone. I have independent country information here from the Department of Foreign Affairs and Trade and I will rely on that to get other sources of information about what’s going on in Turkey.
I’m not telling you that I won’t speak to them, but if I do think it’s necessary I’ll speak to them towards the end of the hearing.
But my very big problem is that I have no idea who I’m talking to, it’s just a voice at the other end of the phone. You could have got them to put something in writing that I then could have checked, so I’m very uncomfortable talking to people that I don’t know who I’m talking to.[3]
[3] Exhibit “JT-1” to the affidavit of Joel Townsend affirmed 11 August 2017 at pp.4-5.
It was readily apparent that if the Tribunal acceded to the applicant’s request to contact the two witnesses, the Tribunal was concerned with the identity of the person on the other end of the telephone. The point was made in the following sentence by the Tribunal member –
But my very big problem is that I have no idea who I’m talking to, it’s just a voice at the other end of the phone.[4]
[4] Exhibit “JT-1” to the affidavit of Joel Townsend affirmed 11 August 2017 at p.5.
As a matter of identification, the position adopted by the Tribunal seemed to me to have been legitimate. That said, with appropriate safeguards for swearing or affirming witnesses to tell the truth,
most courts and tribunals across the Commonwealth of Australia have provision to, and regularly, take evidence from witnesses by, among other means, telephone.
In two places in its reasons for decision, the Tribunal made
reference to the applicant’s nomination of two witnesses. The first was at paragraph 7, the relevant portion of which was as follows –
He told the Tribunal that his two nominated witnesses would tell the Tribunal what he encountered at Gezi Park, how long he had been in hiding, and where he was hiding, and that Christians and the Alevis are not wanted in Turkey. He said they could also give other information such as broadcast channels being censored in Turkey. The Tribunal advised the applicant that it would rely on its own independent country information rather than take evidence from a person or persons it would not be able to identify.[5]
[5] Court book filed on 24 May 2017 at p.232.
The second place where the Tribunal addressed the issue was at paragraph 45. It is as well to set it out in full –
The Tribunal considered the applicant’s claim that he was able to nominate two witnesses currently in Turkey and would tell the Tribunal what he encountered at Gezi Park, how long and where he had been in hiding, and that Christians and Alevis are not wanted in Turkey. He offered that they could give a range of country information as well. The Tribunal declined the offer to take oral evidence over the telephone from the two nominated witnesses. It considered they would add little to the applicant’s claim that he attended Gezi Park, which the Tribunal accepts.
It also considered it would be unlikely to place weight on their evidence as it would not be able to verify their identity or their evidence. As explained to the applicant at the hearing, insofar as country information is concerned, the Tribunal prefers to rely on country information from independent sources such as the sources cited in this decision record.[6]
[6] Court book filed on 24 May 2017 at pp.238-239.
Contrary to the delegate’s treatment of the case, the Tribunal accepted that the applicant had protested in Gezi Park. However, the Tribunal did not accept that the applicant undertook the particular protest activities that he claimed or that he suffered the harm that he claimed. Details of those conclusions appeared between paragraphs 42 and 44 of the Tribunal’s reasons.
Ultimately, the Tribunal affirmed the delegate’s decision not to grant the applicant the protection visa he sought.
The application in this court
Soon after announcing appearances, Mr Brown of counsel for the applicant sought leave to amend ground 1 so that the reference in it to s.462 of the Act was amended to s.426. Leave was granted. And, as mentioned in the opening paragraph of these reasons, Ms Lucas of counsel for the Minister took the very sensible and pragmatic approach of consenting to the extension of time that the applicant needed so as to bring this application for judicial review in this court.
The two amended grounds on which the applicant relied were as follows –
1. The Second Respondent committed jurisdictional error by, in breach of s 426 of the Migration Act 1958, failing to give real and genuine consideration to the Applicant’s written request that it take oral evidence from two witnesses that he identified.
2. Alternatively to 1, the Tribunal committed jurisdictional error because its decision not to take oral evidence from the two witnesses identified by the Applicant was legally unreasonable.[7]
[7] Amended application filed 2 August 2017 at p.3.
Let me now go directly to them.
Ground 1
This ground invited a consideration of whether the Tribunal gave real and genuine consideration to the applicant’s written request to take oral evidence from two identified persons and whether any such failure amounted to a breach of s.426 of the Act.
In my view, the Tribunal did as it was entitled to do under s.426 of the Act and thereby did not fall into jurisdictional error.
In order to put s.426 of the Act into context, it is necessary to backtrack chronologically to 8 September 2016 when the Tribunal provided a written invitation for the applicant to attend the hearing scheduled for 9:30 a.m. (West Australian time). With that written invitation,
the Tribunal provided a form to the applicant headed “Response to hearing invitation – MR division” and requested the return of the form within seven days. No dispute arose in this case about the applicant’s receipt of those documents, his response to them and his communication of his response to the Tribunal. The Tribunal hearing was postponed to 13 October 2016. At 9:37 a.m. on 13 October 2016 the Tribunal hearing commenced and it concluded at 12:40 p.m. that day.
No dispute arose in this case that for the purposes of s.426(2) of the Act the applicant properly gave the Tribunal written notice that the applicant wanted the Tribunal to obtain oral evidence from the persons named in the notice. That enlivened s.426(3) of the Act. It was in the following terms –
If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.
Certain phrases in s.426(3) warrant close attention. In one is the phrase “the tribunal must have regard to the applicant’s wishes”, importing a mandatory obligation and thereby imposing a statutory imperative that the Tribunal was required to take into consideration the applicant’s wishes. In other words, the Tribunal was not permitted to ignore the applicant’s wishes. But that section said nothing about the considerations upon which the Tribunal was required to embark when it was to “have regard to the applicant’s wishes”. For example, was the Tribunal required by s.426(3) of the Act to devote a portion of its reasons for decision to explain precisely what agitated on the Tribunal member’s mind when the Tribunal member “had regard to the applicant’s wishes” that the applicant wanted to obtain oral evidence from a specific named person?
The second phrase in s.426(3) of importance was the phrase “but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice”. On a plain construction of the two phrases of s.426(3) of the Act, connected as they are by the preposition “but”,
it may fairly be concluded that whatever mandatory requirement was imposed on the Tribunal when having regard to the applicant’s wishes, no corresponding mandatory requirement fell to the Tribunal to obtain evidence from the persons named on the form provided by the applicant.
The applicant in this case conceded that the Tribunal was not required to accede to the applicant’s request to call the two witnesses. However, in his written submissions[8] Mr Brown contended that the Tribunal
was –
a)obliged to give real and genuine consideration to the applicant’s request that the Tribunal receive oral evidence from the two identified witnesses; and
b)not to refuse the applicant’s request in a way that was legally unreasonable.
[8] Applicant’s outline of submissions filed 2 August 2017.
Both parties relied, albeit a different reasons, on the decision of the
Full Court of the Federal Court of Australia in Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin and Anor[9] (“Maltsin”) (Spender, Kenny and Lander JJ). That case was decided over 12 years ago when the relevant section the Act was in a different form. In that case, s.361(3) of the Act stated as follows –
If the Tribunal is notified by an applicant under subsection (2) or (2A), the Tribunal must have regard to the applicant’s notice but is not required to comply with it.
[9] [2005] FCAFC 118.
It will be immediately apparent that the formal wording of s.361(2) of the Act was quite different to s.426(3) of the Act in its current iteration. Be that as it may, the gravamen of ss.361(3) and 426(3) was largely similar, namely, that the Tribunal was required to have regard to the applicant’s wishes, yet the Tribunal was not required to comply with those expressed wishes. In Maltsin, the Full Court of the Federal Court of Australia construed the statutory obligation under s.361(3) of the Act in the following terms –
This means that the Tribunal must 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 individuals in accordance with the applicant’s wishes. The Tribunal must not merely go through the motions of considering the applicant’s wishes as expressed in the notice. As the respondents’ counsel said, the authorities establish that the invitation to appear before the Tribunal must be “real and meaningful and not just an empty gesture”: NALQ at [30]; SCAR at [37]; and Mazhar at 188 [31]. It follows that the consideration that the Tribunal gives to the wishes of the applicant concerning the evidence to be taken at the hearing must also be genuine. The Tribunal must not decline to comply with the applicant’s wishes capriciously, but must take account of such relevant matters as the relevance and potential importance to the outcome of the review of the evidence that could be given by a nominated witness (compare W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211 (“W360/01A”) at [2] per Lee and Finkelstein JJ and [30]–[32] per Carr J)), the sufficiency of any written evidence that has already been given by a witness, and the length of time that would afford the applicant a fair opportunity to put his or her case before the Tribunal. These considerations flow from the nature of the Tribunal’s overarching objective, which is to provide a review that is “fair, just, economical, informal and quick”:
see s 353(1). The Tribunal must bear in mind this statutory objective when considering the weight to be given these matters.[10][10] [2005] FCAFC 118 at [38].
Thus, it seemed to me that the content of the statutory obligation under s.426(3) of the Act is that the Tribunal must –
a)not merely go through the motions of considering the applicant’s wishes;
b)give genuine consideration to the wishes of the applicant;
c)not decline the applicant’s wishes capriciously; and
d)take into account such relevant matters as the relevance and potential importance to the outcome of the review of the evidence that could be given by the nominated witness, the sufficiency of any written evidence that has already been given by a witness and the length of time that would afford the applicant a fair hearing to put his or her case before the Tribunal.
In this case, there was no suggestion that the Tribunal declined to hear from the two witnesses capriciously. However, Mr Brown stressed his submission that the Tribunal did not give genuine and real consideration to the applicant’s request for the Tribunal to hear from the two nominated persons.
I do not agree.
For present purposes I have put to one side the Tribunal’s concerns about the identity of the person at the other end of the telephone.
True, such a consideration was a practical matter but it did not go to the substance of the evidence that might have been given. As to the substance of the evidence the two nominated persons might have given,
the Tribunal’s consideration of the matter was recorded at paragraph 45 of its reasons. Relevantly synthesised, they amounted to these.
First, the Tribunal recorded that the two nominated persons would tell the Tribunal what the applicant encountered at Gezi Park, how long and where he had been in hiding and that Christians and Alevis were not wanted in Turkey. That much addressed the elements set out in W360/01A v Minister for Immigration and Multicultural Affairs[11] where the Full Court of the Federal Court of Australia referred to the need for the Tribunal to consider the relevance and potential importance to the case that the evidence of the nominated witnesses might give. The Full Court of the Federal Court of Australia in Maltsin expressly agreed with that approach.
[11] [2002] 124 FCR 449.
Next, the Tribunal recorded that the evidence that might have been given by the two nominated witnesses would have added little to the applicant’s claim that he attended Gezi Park because the Tribunal accepted the applicant’s evidence on point.
Next, the Tribunal stated that it considered it unlikely that it could place weight on the evidence of the two nominated witnesses as the Tribunal would not be able to verify their identity or their evidence.
To the extent that the Tribunal mentioned the concept that it would be unable to match photographic identification with the person on the other end of the telephone who asserted he was the specific named person on the form provided by the applicant, that much was true.
Finally, the Tribunal stated that in so far as country information was concerned, the Tribunal preferred to rely on country information from independent sources such as sources cited in the decision record of
(I infer) the delegate.
Did that consideration amount to a real and genuine consideration of the applicant’s request to adduce evidence from two nominated witnesses? In my view it did. I do not accept the propositions advanced by Mr Brown between paragraphs 21 to 23 of his written submissions. However, in deference to the high quality of his submissions,
in writing and before me, it is appropriate to descend to the detail to explain my conclusion that I reject the contention that the Tribunal did not give real and genuine consideration to the applicant’s request.
Mr Brown argued that a key issue in this case was whether the applicant should be believed about his claims that he attended
Gezi Park, that he was arrested and that he was then mistreated by the authorities. Mr Brown contended that the two nominated witnesses could have given evidence of the events at Gezi Park and that such evidence was crucial to the applicant’s claims that Australia owed protection obligations to him. He said the two witnesses’ version of events at Gezi Park was the “bedrock of [the applicant’s] claims to be owed protection by Australia”.[12]
[12] Applicant’s outline of submissions filed 2 August 2017 at [22.1.].
Ms Lucas contended that the Tribunal correctly concluded that the version of events given by the applicant was lacking in the detail it would have expected the applicant to have recited if in fact the applicant had an active role attracting the attention of the authorities. Bearing in mind that the Tribunal found the applicant’s evidence to have been vague and lacking in detail it could not be said that the outcome before the Tribunal would have changed if the named witnesses had been permitted to give evidence. After all, the Tribunal took the view that the applicant’s own evidence was vague and that it lacked detail. Other witnesses may have filled in certain details that were missing from the applicant’s evidence. But the applicant’s own evidence was not thereby enhanced. The evidence from the two named witnesses may have rendered more probable the occurrence of a particular event but the Tribunal’s state of satisfaction based on the applicant’s own evidence would have remained unchanged. Put simply, the Tribunal was not persuaded that the applicant’s own evidence was anything but vague and lacking in detail. But in any event, it seemed to me to be off topic to be considering whether the evidence of the two other witnesses may have rendered more probable the occurrence of a particular event. An application for a visa is not equivalent to a court case. Rules of evidence do not apply to a visa application. Issues about the burden of proof do not apply. Questions about proving a fact with corroborative evidence do not apply. In this field of administrative law the relevant issue is whether the applicant has demonstrated to the satisfaction of the delegate or the Tribunal that the visa applicant has met the criteria for the grant of the relevant visa. It is not to the point that the visa applicant takes the view that when the totality of his material is assessed, he satisfies the relevant criteria for the grant of the visa. Nor is it to the point that the visa applicant believes that on the balance of probabilities he or she has adduced sufficient evidence to warrant the grant of a visa. Questions of evidence, weight of evidence, sufficiency of evidence and the like are ordinarily not germane to whether an applicant has satisfied the criteria for the grant of the visa.
Returning to the narrative, it was necessary for me to address whether the evidence of the two nominated witnesses was “potentially of high relevance to the applicant’s claims”[13] as the applicant said. In my view that submission was an overstatement of the position. I agree that if it had been received at all, the evidence of the two nominated witnesses may have informed the Tribunal about certain events. The applicant failed to demonstrate the veracity of his claim. Additional evidence of whatsoever nature was wasted because the applicant remained in the position that the Tribunal did not accept his claim. In other words,
the Tribunal was not satisfied that the applicant had made out his claim and therefore there was no claim to corroborate.
[13] Applicant’s outline of submissions filed 2 August 2017 at [22.1.].
When properly understood, it seemed to me that the applicant’s contentions about ground 1 amounted to the propositions that –
a)an applicant should be permitted to put before the Tribunal a body of material from sources of his own choosing showing that in total, that material had satisfied the Tribunal that the applicant met the prescribed criteria for the grant of a visa; and
b)it was legally unreasonable to not permit the applicant to call such evidence as he chose.
I reject that proposition. It flies in the face of the express statutory provision in s.426(3) of the Act that provides that the Tribunal is not required to obtain evidence from a person of the applicant’s nomination. It would be a peculiar result indeed if on the one hand the Tribunal was not required to obtain evidence from a nominated person and on the other hand the Tribunal could be seen to have acted legally unreasonably by so doing.
In my view, ground 1 failed.
Ground 2
Under this ground the applicant contended that the Tribunal’s decision not to take the evidence of the two nominated witnesses was legally unreasonable.
Any consideration of the doctrine of legal unreasonableness must take into account at least four seminal authorities on point. They are
Minister for Immigration and Citizenship v Li and Anor,[14] Minister for Immigration and Border Protection v Singh,[15] Minister for Immigration and Border Protection v Stretton[16] and Minister for Immigration and Border Protection v Eden[17] (“Eden”). So far as the historical evolution of the doctrine was concerned, I traced the learning back to the
1597 decision in Rooke’s Case[18] in AKD16 v Minister for Immigration & Anor.[19] The decision in Rooke’s Case significantly predated the genesis of the contemporary jurisprudence that commenced with the decision in Associated Provincial Picture Houses Ltd v Wednesbury Corp.[20] At all events, most recently the Full Court of the Federal Court of Australia in Eden put the salient point for consideration in the following terms –
It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.[21] (footnote omitted)
[14] (2013) 249 CLR 332.
[15] (2014) 231 FCR 437.
[16] [2016] FCAFC 11.
[17] [2016] FCAFC 28.
[18] (1598) 77 ER 209.
[19] (2016) 315 FLR 228.
[20] [1948] 1 KB 223.
[21] [2016] FCAFC 28 at [65].
The question in this case was whether the Tribunal’s decision not to take evidence fell within the test stipulated in Eden. In other words I have to determine whether, having regard to the terms, scope and purpose of the relevant statutory power conferred by s.426(3) of the Act, the decision of the Tribunal was such that it fell outside of the range of lawful outcomes. The decision of the Tribunal in this case was entirely within the range of lawful outcomes. In my judgment,
the Tribunal did not engage in legal unreasonableness.
I have already canvassed the statutory provision in s.426(3) of the Act that provides that the Tribunal is not required to obtain evidence from a person nominated by the applicant. I have also already canvassed the legal curiosity that would flow from the application of that precise statutory provision while concurrently there was legal unreasonableness if the Tribunal did the very thing that s.426(3) of the Act permitted the Tribunal to do, namely, not obtain evidence from a nominated person. The construction of legislation leading to an absurd result is to be avoided, as was held in such cases as Grey v Pearson,[22] Australian Boot Trade Employees’ Federation v Whybrow & Co,[23] Broken Hill South Ltd (Public Officer) v Deputy Commissioner of Taxation(NSW)[24] and Footscray City College v Ruzicka.[25]
[22] (1857) 10 ER 1216.
[23] (1910) 11 CLR 311.
[24] (1937) 56 CLR 337, 371.
[25] (2007) 16 VR 498, 505.
In his written submissions Mr Brown quite properly pointed out that a tribunal’s reasons must demonstrate an intelligible justification for the result at which it arrives. But he contended that the Tribunal’s reasons in this case revealed that the decision for declining to take the evidence of the nominated persons lacked intelligible justification. He argued that the evidence of the two nominated persons was crucial to bolstering the credibility of the applicant’s claims. To my mind,
the more important issue was the applicant’s credibility and not the credibility of the applicant’s claims. The applicant advanced the claims. The Tribunal did not regard him as being a credible witness on certain matters. His evidence was not accepted on certain matters.
The Tribunal was entitled to reject his evidence. Having done so the Tribunal then stated that it considered that the Tribunal would be unlikely to place weight on the evidence of the two nominated persons because the Tribunal would not be able to verify their identity or evidence. It seemed to me that by the phrase the Tribunal “would not be able to verify their identity or their evidence”, the Tribunal was conveying the concept that if the nominated witnesses gave their version of events by telephone, the Tribunal would be denied the opportunity of making some or all of the witness assessments of the sort addressed by Kirby ACJ in Galea v Galea.[26] Those advantages included –
a)hearing the evidence in its entirety;
b)hearing and seeing all evidence in context, chronologically and logically advanced;
c)having time during adjournments and during the running of the case to reflect upon the evidence and to weigh it against all other evidence while fresh;
d)hearing and seeing interruptions, hesitations and delays in the giving of testimony; and
e)observing body language, sometimes important for interpreting communication.
[26] (1990) 19 NSWLR 263.
The task of assessing a witness’s demeanour is of special relevance in an oath against oath case, as Kirby J pointed out in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liquidation).[27]
[27] (1999) 73 ALJR 306.
Here, it seemed to me that the Tribunal’s expression that it would not be able to verify the evidence of the nominated witnesses was,
in reality, the expression of its concern that it would do no more, if it received their evidence, than hear a voice on the other end of the telephone. There was no error in that conclusion to my way of thinking.
On behalf of the Minister Ms Lucas of counsel contended that the Tribunal’s findings in paragraph 45 of its reasons did not lack intelligible justification. She argued that the complaint advanced by the applicant under ground 2 invited review of the merits of the Tribunal’s decision not to take evidence from the two nominated witnesses.
I agree. She urged me to apply the reasoning of Katzmann J in BTF15 v Minister for Immigration and Border Protection[28] to the effect that having regard to the view about the applicant’s credibility in the overall, there was no reason to suppose that the two nominated witnesses could allay the Tribunal’s concerns about the applicant’s credibility. To my mind that proposition should be applied here.
[28] [2016] FCA 647 at [55].
Ground 2 failed.
Conclusion
Both grounds of review failed. I dismiss this application for judicial review and order the applicant to pay the Minister’s costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 14 September 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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