BCK18 v Minister for Home Affairs

[2018] FCCA 1768

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCK18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1768

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for protection visas – whether it was unreasonable and illogical for the Tribunal to refuse to exercise its powers under s 427(1)(a) and s 429A of the Migration Act 1958 – whether there was a constructive failure by the Tribunal to exercise its jurisdiction – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 425, 427, 429A, 476

Cases cited:

Browne v Dunn (1893) 6 R 67
CWR16 v Minister for Immigration and Border Protection [2018] FCA 859

First Applicant: BCK18

Second Applicant BPC18

Third Applicant: BPD18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 603 of 2018

Judgment of: Judge Street

Hearing date: 26 June 2018

Date of Last Submission: 26 June 2018

Delivered at: Sydney

Delivered on: 27 July 2018

REPRESENTATION

Counsel for the Applicant: Mr G Johnson

Solicitors for the Applicant: Gilbert & Tobin

Counsel for the Respondents: Mr H Bevan

Solicitors for the Respondents: MinterEllison

ORDERS

1. The application is dismissed.

2. The first and second applicants pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 603 of 2018

BCK18

First Applicant

BPC18

Second Applicant

BPD18

Third Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 2 February 2018 affirming a decision of the delegate not to grant the applicants protection visas.

2. The first and second applicants are husband and wife, and the third applicant is a child and included as a member of the family unit in the application for protection made on 24 February 2014. On 7 January 2014, the first and second applicants were granted a TU 573 secondary visa. It was not until 9 February 2014 that the applicants arrived in Australia.

3. The applicants were found to be citizens of Rwanda and their claims were assessed against that country. The claims for protection by the first applicant was that he and his extended family belong to the Hutu ethnic group, the majority in Rwanda and that the President is a Tutsi, the minority ethnic group in Rwanda. The first applicant was forced to flee Rwanda in 1990, and in 1996 his family returned to Rwanda. The first applicant claimed his parent’s house was occupied by a high-ranked military officer who did not want to return the family home. When the first applicant’s father tried to regain possession of the home, he was shot dead by unnamed persons. Court proceedings allegedly resulted in a decision about the ownership of the house to the first applicant’s family forcing the officer to vacate the house and shut down the officer’s business. The alleged incident in relation to the first applicant’s father happened before the first applicant was due to travel to South Africa as a journalist for Rwanda Television and Radio Rwanda to cover the Soccer World Cup.

4. The first applicant claimed that he met with two senior persons who were dissidents and former high ranking officers of the Rwandan Patriotic Front (“RPF”) who had fled to South Africa and formed their own opposition group. The first applicant alleged that two days after he met with one of them, one of the officers was shot dead and the first applicant alleged it was an intelligent agent sent by the Rwandan government. The first applicant alleged he went to the crime scene to collect information and interviewed eye witnesses and others including members of the Rwandan National Congress (“RNC”), the party of the particular officer who was still alive and the party of the officer who was shot dead.

5. The first applicant alleged he prepared a report but that it was never aired, either on television or radio, and that when he returned to Rwanda he was arrested and he was released after two weeks after being beaten and tortured. The first applicant alleged that it was the person who had been removed from the family house who was behind his detention.

6. On 20 November 2010, the applicant and the second applicant were gifted the house by the family and in early 2011, the person who had previously occupied the house offered to buy it. The applicant declined and allegedly received threatening phone calls when the particular person who had occupied the family home died in June 2013.

7. The first applicant alleged that there was another RPF officer who wanted the property and the first applicant alleged that that particular officer had been responsible for the assassination which took place in January 2014. The first applicant alleged that the person who was assassinated in South Africa had tried to recruit him to his party. The first applicant had declined but allegedly kept in contact with both officers who he met several times.

8. The applicant alleged in June 2013 the government initiated a campaign which had the purpose of calling for Hutus to apologise to Tutis. The first applicant questioned the policy and alleged his boss was shocked and directed staff to comply with it. The applicant alleged that he prepared the next morning a radio show and invited listeners and he received criticism, anger and insults from the audience, and that the next day he received a warning letter from his boss with a police summons to record a statement at the police station. The first applicant alleged he had to report to the police. The first applicant alleged that he felt threatened and decided to apply for admission to the University of Western Sydney and then that he received a letter saying he had been fired.

9. The first applicant alleged that on 19 January 2014 he was at home with his wife and children and three men forced their way into the home and abducted him and that he was taken to a place where he was beaten severely and asked about his connections to the two persons that he allegedly saw in South Africa in 2010. The first applicant was allegedly given two options: to sign a statement and get released upon payment of money, or to be killed. The first applicant allegedly signed and paid money. The first applicant alleged that his wife went to Uganda to seek refuge so he went to join her, and alleged that it was not safe for them there, so they went to Nairobi in Kenya before taking their flights to Australia.

10. The applicants claimed to fear being killed as a victim of inhuman treatment on return to Rwanda and alleged their house has been seized and that the first applicant will be killed by other journalists and that as a Hutu journalist he feels threatened in Rwanda. The second applicant claimed to fear that she will be killed or arbitrarily imprisoned and claims her husband is a journalist and that they belong to a different ethnic group, the Hutus. The second applicant referred to unknown people coming to the house and kidnapping her husband and harassing and threatening to kill her if she told anyone. The second applicant alleged that since the RPF took power in Rwanda her family have never lived peacefully because they belong to the Hutu ethnic community. The second applicant alleged both her parents were killed by RPF Tutsi soldiers and many of her relatives fled the country while others were imprisoned.

11. The second applicant fears because her husband is a journalist the government will not tolerate critics and she does not want to be continually living in fear of being killed or arrested. The second applicant referred to fearing harm from Rwanda through its intelligence officers and that her husband had been arrested, tortured and released on payment of a ransom.

12. The second applicant also referred to the first applicant going to South Africa in 2010 and her husband being arrested, imprisoned and tortured after that. The second applicant alleged they would be killed because of persons who believed they had sensitive information. The second applicant alleged the military officer who wanted to take their house by force was behind all of this.

13. On 15 July 2015 the delegate found the applicants failed to meet the criteria for the grant of a protection visa. The delegate made adverse credibility findings in relation to part of the applicants’ claims, including in particular in relation to a letter dated 3 August 2010 purporting to be signed by a person who was not appointed to head up the Rwandan Broadcasting Agency (“RBA”) until 2013.

The Tribunal

1. The applicants applied for review on 3 August 2015. The applicants appeared before the Tribunal on 27 October 2017 and 7 December 2017. On both occasions the applicants were represented by their registered migration agent. In relation to the initial hearing, the response to hearing invitation did not identify any witness that was requested to attend, nor was there any suggestion of a witness being required to attend in response to the further invitation that was sent on 6 November 2017 and responded to by email on 5 December 2017.

2. In support of the application determined by the delegate, the applicant provided a statement from Witness 1 dated 15 February 2014 who is alleged to be a journalist and had known the first applicant since November 2007. That statement alleged the first applicant was a Hutu journalist and that journalists every day were harassed and accused of collaborating with the opposition leaders. It was alleged that on many occasions the first applicant had problems with his boss because he criticised some government policies and refused to be influenced in reporting only positively on the government. Witness 1 alleged that it was hard for journalists to work independently in Rwanda as there is no freedom of speech and expression especially for Hutu journalists.

3. Following the application for review to the Tribunal, there was also provided to the Tribunal a statement from Witness 3 dated 28 January 2016. That statement alleged Witness 3 was a person who was a journalist by profession in Rwanda who had to leave because they were accused of being a spy and had been arrested several times and arbitrarily detained. Witness 3 alleged the first applicant was an outspoken and critic journalist, who had been a long time target of the current regime after refusing to work and report only in favour of the RPF party and its corrupt regime currently ruling the government. Witness 3 alleged the first applicant had survived many assassination attempts and alleged that the first applicant had been regularly in contact with opposition parties for the sake of balancing their reporting and fled the country. It was following the provision of that statement that the second hearing on 7 December 2017 took place.

Invitation to comment on or respond to information pursuant to s 424A

1. Following that second hearing, on 21 December 2017 the Tribunal wrote to the applicant under s 424A of the Act providing clear particulars of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. That letter expressly explained that credibility concerns in relation to the first applicant’s evidence would potentially undermine the credibility of the second applicant’s evidence. The first and second applicants were invited to respond to the credibility concerns.

2. The clear particulars first addressed evidence about the first applicant’s attendance at the scene of a shooting in June 2010 and identified alleged inconsistent evidence about the first applicant’s attendance at the scene of the shooting and his subsequent interrogation on return to Rwanda.

3. The second clear particulars concerned the evidence about the reason why the authorities apprehended and held the first applicant in custody on return to Rwanda and it appeared that the first applicant had given inconsistent evidence about his detention on return to Rwanda, and that this may impact on findings as to credibility.

4. The next clear particulars concerned the evidence related to the first applicant’s employer and that the RBA did not come into existence until sometime in 2013 and that a particular officer did not work for that organisation until April 2013 at the earliest. The Tribunal was concerned this may impact in relation to the alleged warning letter dated 3 August 2010 and may cause the Tribunal to find the first applicant’s evidence about his employment with the RBA and action taken against him by his employer on return to Rwanda from South Africa is inconsistent and impacted on the applicants’ credibility.

5. The next particulars concerned the evidence about the decision to leave Rwanda and identified that the information the subject of particulars is relevant because it appears the first applicant and the second applicant had given inconsistent evidence about when they decided to leave Rwanda.

6. The next clear particulars concerned the evidence about the willingness of the first applicant to undertake covert political activities after May 2012, and in particular, the implausibility of the first applicant taking such a risk in May 2012 when he decided to apply for a visa to study in January 2013 and the first applicant’s statement and statutory declarations as to the government’s intolerance of dissent and the first applicant’s assertions that he himself, for his own safety, never publically opposed the government because of the danger involved. The Tribunal outlined that this may impact on the assessment credibility of the first and second applicants.

7. The next clear particulars concern the evidence about the contact with two particular persons after returning to Rwanda from South Africa. The Tribunal referred to the first applicant’s evidence that after he left South Africa he did not have further contact with those persons, in comparison to the statutory declaration and the first applicant’s evidence that after returning from South Africa he had contact with one of the persons. The Tribunal outlined that the first applicant’s written statement also alleged that after returning to Rwanda, he was in contact with the other person and that these inconsistencies may cause the Tribunal to have concern in respect of credibility.

8. The Tribunal also gave clear particulars of the evidence about the radio program in September 2013 that may cause the Tribunal to find the first applicant’s evidence of that matter was inconsistent and would impact on credibility.

9. The next clear particulars concerned the evidence of the first applicant about his employer’s letters of September 2013 and January 2014, and that the first’s applicant’s evidence about how he received these warning letters appeared to be inconsistent which may impact on credibility.

10. The Tribunal provided clear particulars concerning the evidence about the treatment of the first applicant after September 2013. The Tribunal referred to the content of a letter in support of the application for a student visa which may cause the Tribunal to find the first applicant’s evidence about his circumstances from and after September 2013, in particular his employment and security, was inconsistent and which may impact on credibility.

11. The Tribunal provided clear particulars which referred to the ability of the first applicant to travel in and out of Rwanda in late 2013 and that it was difficult to accept that someone in the applicant’s claimed circumstances would be able to undertake that travel freely or even undertake it and would not be approached by authorities on his return as to where he had been and what he had done.

12. The next two clear particulars concerned the first applicant’s evidence about the conduct around receiving his student visa which was granted on 7 January 2014, and his remaining in Rwanda and continued presence impacting on the first applicant’s credibility.

13. The next clear particular was concerned with the evidence about the actions of the second applicant on the evening of 19 January 2014 and the information indicated that the second applicant’s evidence on this matter was inconsistent and may lead the Tribunal to find that the evidence of the first applicant and second applicant was not credible.

Applicants’ submissions in response to the s 424A letter

1. In response to the s 424A letter, a detailed reply was sent on 1 February 2018 by the applicant’s migration agent. That response attached statements from three witnesses which included:

   i)One signed statement dated 28 January 2018 provided by Witness 1, who earlier provided a statement before the delegate dated 15 February 2014.

   ii)One signed statement dated 29 January 2018 provided by Witness 2.

   iii)One unsigned statement dated 31 January 2018 by Witness 3 who earlier provided a statement to the Tribunal dated 28 January 2016. 

2. Each of the statements included telephone numbers. The submissions by the representatives addressed the relevance of the witnesses’ statements and contended that the individuals were happy to give evidence by telephone:

   “and that it would be quite wrong for the Tribunal to reject their evidence without taking the opportunity to interview them and test their credibility”.

   It was alleged that to reject their evidence without testing it despite their preparedness to speak with the Tribunal and despite the alleged significance and centrality of their evidence, that this would give rise to a perception that the Tribunal had prejudged their claims and would be a denial of the applicants right to a fair hearing under s 424 and s 425 of the Act.

3. The same submissions also requested that there should be a further oral hearing to take evidence from the first and second applicants. The submissions alleged that the statements support different aspects of the first applicant’s claims and in particular, Witness 1 corroborates the first applicant’s role as a host on talkback radio programs, the consequences when the programs led to criticisms of the government, the timing of the name change from ORINFOR to RBA and confirmation that there were concerns raised at the first applicant’s workplace started to be returned from South Africa in June 2010.

4. It was submitted Witness 2 supported the name change from ORINFOR to RBA and the applicant’s relationship with a particular person who was the first applicant’s best man at a wedding and who was another TB presenter.

5. It was submitted Witness 3 supported the applicant’s involvement with the RNC both before and after coming to Australia and the Skype calls the first applicant attended discussing the political situation in Rwanda including a call that was also attended by one of the persons the first applicant allegedly visited in South Africa who was allegedly assassinated in January 2014. It was also alleged that the statements confirm the vicarious experience of journalists in Rwanda who work at the RBA, which has not been a subject of dispute.

The Tribunal’s findings

1. On 2 February 2018, the Tribunal found the applicants failed to meet the criteria for the grant of protection visas. The Tribunal did accept that the applicants are Hutus. The Tribunal identified detailed credibility concerns. The Tribunal referred to credibility concerns in relation to the first applicant in relation to attending the scene of a shooting in June 2010, and identified the two accounts given by the applicant which were said to be inconsistent, and referred to the s 424A letter, and addressed the submissions put in response. The Tribunal did not accept the representative’s submissions, and found that the inconsistencies remain.

1. The Tribunal then addressed the evidence about the reason why the authorities apprehended and held the first applicant in custody on return to Rwanda. The Tribunal found the identified evidence to be inconsistent. The Tribunal referred to the s 424A letter and the responses provided. The Tribunal did not accept that the account was a mere expansion and did not accept that the omission could be explained.

2. The Tribunal referred to the evidence relating to the applicant’s employer, being the letter dated 3 August 2010. The Tribunal found from the country information identified by the Tribunal that the RBA did not come into existence until sometime in 2013 and that the particular person was not the head of that organisation at that time but was working for that organisation prior to April 2013. The Tribunal referred to the submissions advanced in response to this issue including a reference to the statement of Witness 1. The Tribunal found, having considered the evidence that Witness 1 does not go as far as saying that the particular person was working in the role as the head of the RBA in June 2010 and found that it would in any event, be in conflict with country information identified by the Tribunal. The Tribunal also referred to what was said by Witness 1 in relation to action being taken to change the name of the organisation and found that did not satisfy the Tribunal that the particular person was the head of the RBA in June 2010. The Tribunal also referred to Witness 2 who referred to rumours about a name change and a particular person taking over as director and Witness 2 being unable to remember the date. The Tribunal found that evidence did not persuade the Tribunal that the particular person was working as the head of the RBA in June 2010 and in particular, referred to the country information that indicated that person was not in that role at that time.

3. The Tribunal found the submissions made by the applicant and the two witness statements did not overcome the impression created by the country information that the particular person did not become the head of the RBA until 2013, and that the agency itself did not formally exist until that time. The Tribunal found this casted doubt on the veracity of the letter produced by the first applicant signed by the particular person in June 2010 and the first applicant’s evidence about being personally chastised by that person.

4. The Tribunal then referred to the evidence about the decision to leave Rwanda and referred to, the s 424A letter and the applicants submissions in response. The Tribunal identified inconsistencies in the first applicant’s evidence and also problems with the second applicant’s evidence in that regard.

5. The Tribunal then turned to the evidence about the willingness of the first applicant to undertake covert political activities after May 2012. The Tribunal also referred to the s 424A letter and the submissions received in response, as well as expressly referring to the statement of Witness 3 and the proposition that Witness 3 spoke to the first applicant on Skype about the situation in the country and the RNC. The Tribunal summarised the substance of what was said by Witness 3 and acknowledged that the evidence broadly supports the first applicant’s claims. The Tribunal however, found it must weigh that evidence with all of the other concerns that the Tribunal holds about the evidence in addition to its own concerns that the first applicant would undertake these activities when in the process of trying to flee Rwanda. It was in light of those matters, that the Tribunal found that its concerns on this issue were not overcome by the evidence of Witness 3.

6. The Tribunal then referred to the evidence about contact with two particular people after returning to Rwanda from South Africa. The Tribunal again referred to the s 424A letter and the submissions advanced in that regard and referred to the submission by the representative that the first applicant’s account was corroborated by Witness 3 who said there had been a conversation between Witness 3, the applicant and a particular person that the applicant had spoken to in South Africa.

7. The Tribunal observed that whilst Witness 3’s evidence was broadly consistent with the first applicant’s evidence, that did not overcome the Tribunal’s concern that the first applicant did not give that evidence at the interview with the delegate. The Tribunal found the first applicant’s evidence also in respect of contact with a particular person in South  Africa to be inconsistent with the first applicant’s evidence to the delegate.

8. The Tribunal referred to the evidence about the radio program in September 2013. The Tribunal expressly referred to the s 424A letter and the submissions, and did not accept the explanation advanced in relation to the inconsistency and found no satisfactory explanation had been provided.

9. The Tribunal referred to the evidence about the first applicant having received his employer’s letters of September 2013 and September 2014, and referred to the s 424A letter and the submissions advanced, and did not accept the submission put forward.

10. The Tribunal then referred to the evidence about the treatment of the applicant after September 2013 including the letter in support of the applicant’s application for a student visa and the ability of the first applicant to travel in and out of Rwanda in late 2013 and the evidence about the first applicant’s conduct in relation to the student visa. The Tribunal referred to the s 424A letter and the submissions advanced but did not accept the applicants’ representative’s submissions in relation to the delayed departure.

11. The Tribunal referred to the evidence about the actions of the second applicant the evening of 19 January 2014 and again referred to the s 424A letter and the submissions advanced in that regard, and did not accept the reason proffered in explanation.

12. The Tribunal identified having concerns about the first applicant’s credibility from the events beginning in June 2010 and continuing through to January 2014. The Tribunal identified that they were the core events on which the protection claims were based. The Tribunal considered those matters cumulatively and found that the first applicant was not a witness of truth and that the account of events on which his protection claims were based was false. The Tribunal disbelieved the first applicant’s evidence that in June 2010 he attending meetings with two senior military officers living in exile in South Africa, that he attended the scene of a shooting incident a few days later either of his own volition or at the request of the employer, and that on return to South Africa he was detained, mistreated, and interrogated.

13. The Tribunal disbelieved the first applicant’s claims about subsequent difficulties at his workplace in terms of the manner in which he was perceived and the way in which he was reprimanded and treated by his superior officer. The Tribunal disbelieved the first applicant’s claim that he came into conflict with his employer in 2013 in relation to a government campaign to have Hutus apologise for past events in Rwanda. The Tribunal did not accept the first applicant’s claims about being temporarily suspended and eventually dismissed from his employment. The Tribunal disbelieved the first applicant’s claims about being held under surveillance from that time including the claim about his car being broken into, being followed, being threatened in a bar and his wife receiving anonymous telephone calls.

14. The Tribunal disbelieved the first applicant’s evidence about undertaking covert political activities after his return from South Africa an up until June 2013 including his claims about contact with either of the two persons whom he had allegedly seen in South Africa. The Tribunal disbelieved the first applicant’s claims about men coming to his home in January 2014, abducting, detaining and maltreating him. The Tribunal disbelieved the first applicant’s claims about his wife and child leaving Rwanda covertly at the time to then come to Australia.

15. The Tribunal carefully considered the warning and dismissal letters including the letter dated 3 August 2010 purportedly written when the RBA did not exist and signed by a particular person who did not work for the organisation. The Tribunal found the contents of these documents did not overcome the Tribunal’s credibility concerns, and the Tribunal did not give them evidentiary weight. As the Tribunal found the first applicant not to be a witness of truth, the Tribunal disbelieved the first applicant’s claims about certain persons including two senior military officers harassing and threatening him in relation to a family home. The Tribunal did not accept that the evidence of the first and second applicants in that regard was true.

16. The Tribunal found there was no credible evidence about the first applicant’s political opinions, and did not believe that the first applicant will or will want to undertake any form of political activity in Rwanda either covertly or overtly. The Tribunal referred to the claim that the first applicant’s right to freedom of expression was restricted. The Tribunal found it had no credible evidence about the first applicant’s political opinions and that there was no credible evidence that he will have to refrain from expressing his views in Rwanda or modify his conduct in any sense in that respect that would amount to persecution. The Tribunal, in that regard, expressly referred to taking into consideration the written evidence of Witness 1, Witness 2, and Witness 3. The Tribunal accepted the applicant knows each of the persons, and the Tribunal accepted that the statements contained assertions supportive of the account given by the applicant on which the first applicant’s claims were based.

17. The Tribunal then summarised in detail the respective statements. In relation to Witness 1 the Tribunal referred both to the more recent statement and the earlier statement and the differences in that regard. The Tribunal referred in contrast to what was said by Witness 2 and that Witness 3 purported to corroborate the first applicant’s evidence about being in contact with people opposed to the government after returning to South Africa up until 2013. The Tribunal referred to a different letter from Witness 3 in which a number of claims about the first applicant were made that are in conflict with the first applicant’s own evidence. The Tribunal summarised what was said by Witness 3 in that regard, and that the first applicant did not claim to have been an outspoken critic of the government in Rwanda. The Tribunal referred to Witness 3’s assertion that the first applicant survived many attempted assassinations, and that the first applicant had not said in his protection claims that there were attempts to assassinate him.

18. The Tribunal also referred to other letters provided in support of the first applicant’s claims. The Tribunal considered the first applicant’s own evidence about the harm he suffered in Rwanda to be in stark contrast to the claims made about that in these documents which was clearly a reference to the witness statements.

19. The Tribunal found overall that the evidence from the various people was conflicting and did not overcome the Tribunal’s concerns about the first applicant’s credibility. The Tribunal did not give evidentiary weight to these documents. The Tribunal found it did not believe any of the claims made in the documents that purport to corroborate the first applicant’s evidence, namely from Witness 1 about the events arising from the first applicant’s travel to South Africa and from Witness 3 about the first applicant undertaking conversations with him about one of the alleged officers in South Africa and others after returning to South Africa.

20. The Tribunal found that there was no credible evidence before it about those matters, and that while the applicant did appear to know these people who claimed to have been in conflict with the Rwandan government, the Tribunal disbelieved the first applicant’s claims about his own conflict, and remains of the view that there is no credible evidence about his political opinions or his political convictions. The Tribunal referred to the first applicant providing false his evidence in his declaration and his evidence at the hearing about undertaking political activities in Australia. The Tribunal found because the first applicant is not a witness of truth, the Tribunal disbelieved the first applicant’s claims in his declarations and at the hearing about being threatened by other Rwandans living in Australia.

21. The Tribunal referred to material in a letter from the Australian chapter coordinator of the RNC and also referred to the statement from Witness 3 that the first applicant had been undertaking political activities in Australia. The Tribunal disbelieved this evidence given the claims Witness 3 made about the first applicant in his earlier letter that are in conflict in the respects identified by the Tribunal above. The Tribunal found there was no credible evidence before it about the applicant undertaking political activities in Australia.

22. The Tribunal referred to taking into account and carefully considering the evidence of the second applicant. The Tribunal found the first applicant failed to give consistent evidence about important aspects of his account. In other respects, the Tribunal found the first applicant’s account as inconsistent with and undermined by relevant country information as to his employer in a document from his claimed employer submitted with his application for a student visa. The Tribunal added to this the Tribunal’s own concerns about the first applicant’s behaviour in pursuing covert political activities after May 2012 and the most unconvincing evidence of both applicants as to why they were still in Rwanda on 19 January 2014. The Tribunal found the second applicant’s evidence on important events that took place on 19 January 2014 to have been inconsistent in significant respects.

23. The Tribunal then dealt with the submissions as to the taking of evidence from the three Witnesses relevantly in paragraphs 141 to 143 of the Tribunal’s reasons which are as follows:

    141. In the submissions of 1 February 2018, the representative stated that if the Tribunal still held concerns about the credibility of the applicant and his wife after considering the submissions and the statements from the three witnesses enclosed with those submissions then the Tribunal ought reconvene the hearing to take further evidence from the applicant and his wife and take oral evidence over the telephone from the three witnesses. The Tribunal has considered the representative’s statement but will not reconvene the hearing. The Tribunal believes that it has given the applicant ample opportunity through an oral hearing and through its invitation sent pursuant to s.424A of the Act to respond to concerns about his credibility. As the Tribunal has stated above, the delegate refused the application because of concerns about the credibility of the applicant’s evidence and his credibility was a key issue in determining the review.

    142. The Tribunal cannot see that anything further could be gained by reconvening the hearing to question the applicant about issues that have already been canvassed with him. That being the case, the Tribunal also can see nothing further can be gained by reconvening a hearing to question the applicant’s wife. The Tribunal cannot see that the applicant and his wife could add anything else to resolve the Tribunal’s concerns. As for the three witnesses, the Tribunal is willing to accept that they would, at a reconvened hearing, most likely repeat the claims they have made in their statements that were submitted by the representative on 1 February 2018. However, overall, as the Tribunal has made clear above, the evidence from these witnesses and the evidence in the other letters submitted to support the applicant’s claims, in the respects discussed above, conflict with the applicant’s own claims. The Tribunal has given reasons above why it does not give weight to any of these letters or written statements.

    143. Further, it is only to a very limited extent that the three witnesses could give evidence about matters that would purport to corroborate the applicant’s claims and that would not overcome the totality of the concerns the Tribunal holds about the applicant’s credibility. In view of all of these matters, reconvening the hearing to take evidence from the witnesses or the applicant and his wife would not result in the emergence of evidence that would cause the Tribunal to depart from its view of the credibility of the applicant and his wife as well as its finding not to give weight to the evidence in the statements from the witnesses and the other letters that were submitted.

24. The Tribunal found there was not a real chance that the applicants will suffer serious harm in Rwanda, and found they do not hold a well-founded fear of persecution based on any Refugees Convention related ground. The Tribunal found the applicants failed to meet the criteria under s 36(2)(a) and s 36(2)(aa) and affirmed the decision under review.

The ground

1. The ground in the application advanced is as follows:

   1. The Tribunal's decision to refuse to exercise its power under s 427(1)(a) and 429A of the Migration Act 1958 (Migration Act) to take evidence on oath or affirmation from one or more of three Witnesses who had given statements in support of the applicant's claims was unreasonable and irrational, unfair and unjust in breach of s 422B(3) of the Migration Act and/or constituted a constructive failure by the Tribunal to exercise its jurisdiction.

   Particulars

   a. In support of his claims, the applicant provided to the Tribunal three Witness statements corroborating critical aspects of his evidence.

   b. The Tribunal failed to take evidence on oath or affirmation from any of those Witnesses.

   c. The applicant provided the Tribunal with the contact details of each of the three Witnesses, to enable the Tribunal to exercise its power to take evidence on oath or affirmation from these Witnesses.

   d. The three Witnesses confirmed, in their written statements, their willingness to give oral evidence to the Tribunal.

   e. The applicant advised the Tribunal that it would be procedurally unfair for the Tribunal to reject the evidence of the Witnesses without providing them with an opportunity to give oral evidence.

   f. In circumstances where the proposed oral evidence of the three Witnesses was highly relevant to the Tribunal's assessment of the applicant's credibility, and the Tribunal determined that it would reject the evidence of the applicant in respect of issues addressed by the statements provided by the three Witnesses, it was unreasonable and irrational for the Tribunal to determine that it would not seek to obtain evidence from any one or more of these Witnesses.

2. Mr Johnson of counsel for the applicant, contended that the Tribunal had effectively closed its mind to the possibility of further explanations or evidence beyond the corroborative claims identified in the statements that may have impacted on the corroboration of the first applicant’s claims and the credibility of the first applicant. Mr Johnson took the Court to the witness statements referred to above as well as what was said in the Tribunal’s reasons, in particular concerning the change of name and office of the particular person who allegedly wrote the letter in June 2010.

3. Mr Johnson submitted that just as the Tribunal must reasonably exercise its discretion in respect of other statutory provisions, the discretion under s 429A and s 427(1)(a) of the Act to call witnesses to give evidence must be exercised reasonably. In the present case, Mr Johnson submitted the requirement for the Tribunal to consider whether to exercise its discretion to take oral evidence from the applicant’s Witnesses arose after the two hearings that had taken place before the Tribunal in respect of the three witnesses. Mr Johnson submitted that the Tribunal had acted unreasonably in respect of its decision by refusing to take oral evidence from one or more of the three Witnesses, and that this was sufficient to establish jurisdictional error such that relief ought to be ordered.

1. Mr Johnson referred to the submissions in support of the statements and that each witness had indicated that they were happy to submit to an examination and that the representative had submitted that evidence should not be rejected without taking the opportunity to interview the witnesses and test their credibility. Mr Johnson referred to the witnesses having provided a telephone number and contact details and referred to the submissions which referred to the fact that one witness resided in Australia and could possibly have given evidence in person.

2. Mr Johnson contended the Tribunal did not identify an evident and intelligible justification for refusing to take further evidence from the witnesses when to do so might have alleviated the Tribunal’s concerns about certain critical concerns it harboured in relation to parts of the applicant’s claims. Mr Johnson contended that the Tribunal had falsely assumed, or assumed with no rational basis, that if called to give evidence, the witnesses would most likely repeat the claims they have made in their statements.

3. Mr Johnson observed that one of the advantages of calling witnesses would have been that they could have been asked questions about the evidence in their statements and could have been asked to address perceived conflicts in the evidence, and may have been able to address the Tribunal’s concerns. Mr Johnson submitted that the Tribunal entirely overlooked this obvious value to the calling of Witnesses to give evidence.

4. Contrary to Mr Johnson’s argument, there was no false assumption by the Tribunal in respect of the exercise of the discretion. The reference to the words “most likely” made clear the Tribunal was not being definitive or making an assumption that no other corroborative evidence might be elicited from the witnesses. Mr Johnson accepted that the substance of his argument in relation to the witnesses being able to address concerns was in substance providing further corroboration to the applicant’s claims.

5. It is clear from the Tribunal’s reasons that the Tribunal understood that the three witnesses could give evidence about matters that would purport to corroborate the applicant’s claims, because the Tribunal expressly referred to the same. However, there is no warrant for construing the Tribunal’s reasons as having excluded the possibility that the taking of oral evidence could not have provided further corroboration or explanation in relation to the applicants’ claims. A fair reading of the Tribunal’s reasons reflect the Tribunal was alive to the potential for the witnesses to corroborate the applicant’s claims. The Tribunal however, explained correctly that there is only a very limited extent to which the witnesses could corroborate the applicant’s claims. That was because as the Tribunal’s reasons reflect, there were other claims in respect of which the Tribunal had identified logical and rational reasons for adverse credibility findings.

6. In this case, Mr Johnson accepted that there was a logical and rational basis for the Tribunal to hold that there were inconsistencies and conflicts between the witnesses’ corroborative material and the applicants’ claims. It was not contended that the Tribunal had not engaged in a genuine and meaningful consideration of the applicants’ submissions and took into account the substance of the statements in determining the exercise of the statutory discretion in the present case. Nor was it argued that the Tribunal’s concerns in relation to the first applicant’s credibility were not open on the material before the Tribunal.

7. The Tribunal provided reasonable, logical and cogent reasons in relation to the exercise of its discretion in circumstances where the Tribunal correctly identified that two of the three witnesses had earlier provided statements and where the Tribunal took into account that the witnesses could most likely provide corroborative material. The reference to “most likely repeat the claims they have made in their statements” should not be read as meaning that the Tribunal was excluding the possibility that the witnesses could give other corroborative material or provide further explanation. The reference to the words “most likely” supports that conclusion. Further, the Tribunal in its reasons referred to:

   “overall as the Tribunal has made clear the evidence from these Witnesses and the evidence in the other letters submitted to support the applicant’s claims in the respects identified by the Tribunal conflict with the applicant’s own claims”

   That was a finding that was open to the Tribunal for the reasons given by the Tribunal, and it was a logical and relevant consideration to take into account in relation to the exercise of the discretion.

8. The Tribunal also referred to that part of its reasons where it had decided not to give weight to the written statements, and there is no suggestion that that finding was not open to the Tribunal on the material before the Tribunal, and was a further logical and relevant consideration to take into account in the exercise of the discretion. The Tribunal also identified that it “is only to a very limited extent” that the three Witnesses could give evidence that would purport to corroborate the first applicant’s claims, and the reasoning of the Tribunal that this would not overcome the totality of the Tribunal’s concerns about the first applicant’s credibility was a finding open to the Tribunal for the reasons given by the Tribunal was reasonable and was a relevant consideration in relation to the discretion.

9. The Tribunal’s reference to all of these matters in considering whether to call witnesses and concluding that it would not result in the emergence of evidence that would cause the Tribunal to depart from its view of the credibility of the first and second applicants was a finding open to the Tribunal, as was the finding by the Tribunal no to give weight to the evidence in the statements from the Witnesses for the reasons given by the Tribunal. This is not a case where it could be said that the failure by the Tribunal to exercise its powers to call witnesses is legally unreasonable or that the Tribunal’s reasons in that regard lack an evident and intelligible justification.

10. It is apparent from the Tribunal’s reasons that the Tribunal understood and engaged with the content of the statements, the material contents of the statements, and understood the potential corroborative effect of those witnesses. The Tribunal is not bound by evidentiary rules of the kind in Browne v Dunn (1893) 6 R 67 and the adverse exercise of the discretion in the present case was the subject of an evident and intelligible justification, as identified in the Tribunal’s reasons.

11. I accept the first respondent’s submission that it was not necessary for the Tribunal to reconvene a hearing and call the three witnesses to address any perceived conflicts. I accept the first respondent’s submission that the Tribunal was not obliged to test the accounts of the three witnesses or to give them an opportunity to elaborate upon their statements before coming to an adverse conclusion about their evidence. Further, the Tribunal gave detailed and cogent reasons as to why it did not relevantly accept the witnesses’ evidence.

12. Further, contrary to the applicant’s submission, the Tribunal did not effectively reject the veracity of the witnesses’ evidence. The Tribunal identified manifest inconsistencies that arose from witnesses’ evidence and accordingly expressed to Tribunal’s disbelief insofar as that and other documentary evidence purported to corroborate the first applicant’s claims and decided to give the same no weight. This is not a finding of fabrication case by the witness. Nor did the Tribunal fail to consider the corroborative statements.

13. Further, it will not generally be unreasonable to decline to take evidence where, on the face of the material before the Tribunal, there is no reason to suppose that the witnesses could ameliorate the concerns the Tribunal has about the applicants’ credibility (See: CWR16 v Minister for Immigration and Border Protection [2018] FCA 859 at [90]). Further, it cannot be said that the decision not to take oral evidence was so arbitrary or capricious as to demonstrate legal unreasonableness. The decision not to take oral evidence fell squarely within the category where the Tribunal had a genuinely free discretion or discretionary freedom subject to legal unreasonableness. No legal unreasonableness is made out in respect of the exercise of the discretion of the present case.

14. The Tribunal’s decision does not fall outside the range of possible acceptable outcomes which are defensible in respect of fact or law. Whilst a different decision maker might have come to a different approach, different decision maker might reasonably have also come to the same conclusion. In circumstances where the Tribunal gave proper and careful consideration to the substance of the witness statements and gave detailed reasons for not according any weight, legal reasonableness did not oblige the Tribunal to reconvene a hearing to take oral evidence.

15. There was no legal unreasonableness in the failure to exercise discretion under the statutory power under s 429A and s 427(1)(a) of the Act in the present case. No jurisdictional error as alleged in ground 1 is made out.

16. As the amended application fails to make out any jurisdictional error, accordingly, the application is dismissed.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 27 July 2018