BFK19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 118
•6 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BFK19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 118
File number(s): SYG 700 of 2019 Judgment of: JUDGE ZIPSER Date of judgment: 6 February 2025 Catchwords: MIGRATION - judicial review – decision of
Administrative Appeals Tribunal refusing to grant protection visa - whether Tribunal erred in deciding not to try to contact authors of two letters to obtain further evidence from them – whether Tribunal erred in finding that witness provided false evidence to Tribunal at applicant’s request – no jurisdictional error established – application dismissed.Legislation: Migration Act 1958 (Cth) s 425, s 426 Cases cited: AOO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 424
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593
AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; 262 FCR 317
AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494
Hazra v Minister for Immigration and Border Protection [2017] FCCA 688
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1
SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; (2015) 238 FCR 404
Division: Division 2 General Federal Law Number of paragraphs: 76 Date of hearing: 5 December 2024 Place: Parramatta Counsel for the Applicant: Mr G Schipp Solicitor for the Applicant: Legal Aid Commission of NSW Counsel for the Respondents: Mr G Johnson Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 700 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BFK19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
6 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $8,371.30.
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 ZIPSER
INTRODUCTION
On 22 March 2019, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the first respondent refusing to grant the applicant a protection (Class XA) visa under s 65 of the Act.
For the reasons that follow, the application is dismissed.
FACTUAL BACKGROUND
On 25 March 2015, the applicant, a citizen of Bangladesh, applied for a protection (Class XA) visa, claiming to fear harm on account of being a writer and critic, and due to his publication of a book (Applicant’s Book) which criticised Dr Maurice Bucaille’s book “The Bible, the Quran and Science”.
On 14 September 2015, the delegate of the first respondent, following an interview with the applicant on 9 September 2015, made a decision refusing to grant a protection visa. The delegate did not accept that the applicant published the Applicant’s Book. As the delegate did not accept this aspect of the applicant’ claims, the delegate did not accept that the applicant had ever been threatened with physical harm as a result of publication of the Applicant’s Book and the delegate found that the applicant did not face a real chance of serious harm if required to return to Bangladesh.
On 28 September 2015, the applicant applied to the Tribunal for review of the delegate’s decision.
On 20 August 2017, the applicant provided submissions and supporting documents to the Tribunal. In a context where a central issue was whether the applicant published the Applicant’s Book, the supporting documents included documents which on their face were:
(a)a letter from Abdul Hannan dated 19 September 2015 who stated that he was the owner of a bookshop which had sold the Applicant’s Book since February 2015; and
(b)a letter from Zahidul Haque Chowdhury “Razib” (the author of the letter appears to have both typed and handwritten the surname “Razib”), proprietor of the business Chaitanya Prokashon, dated 17 September 2015 who stated that he was the publisher of the Applicant’s Book.
The letters, if authentic, corroborated a central aspect of the applicant’s claims.
On 20 June 2018, the Tribunal sent the applicant a letter inviting him to attend a hearing on 9 August 2018. The letter invited the applicant to complete and return an enclosed document titled “Response to hearing invitation – MR Division” (Response Form), which gave the applicant an opportunity to ask the Tribunal to take oral evidence from witnesses. On 28 June 2018, a newly appointed representative of the applicant returned a completed copy of the Response Form to the Tribunal in which the applicant wrote that he was “still determining whether witnesses are available in my case” and “I will inform the Tribunal as soon as I am able whether witnesses are to be called”.
On 9 August 2018, the applicant appeared before the Tribunal to give evidence and present arguments. The applicant did not ask the Tribunal to take oral evidence from any witnesses during the hearing.
On 20 September 2018, the applicant’s representative provided a submission and supporting documents to the Tribunal. The submission referred to and attached a number of documents, including the letters from Mr Hannan dated 19 September 2015 and from Mr Razib dated 17 September 2015. The submission then stated:
In the event that the Tribunal has any doubts as to the veracity of any of the above documents, we submit that it remains open to the Tribunal to contact the authors of the correspondence on the contact details located on the correspondence to verify the authenticity of the documents and the information provided therein.
The submission repeated:
We submit that it would be unreasonable for the Tribunal to make any finding contrary to the above stated facts given the weight of the evidence provided. Further, it remains open to the Member to contact the authors of the documents enclosed with this submission if there are any concerns regarding the veracity of those documents or the information provided therein.
The submission repeated:
[The applicant] has provided a copy of a letter from his publisher, Chaitanya Prokashon, dated 17 September 2015 stating that they published the book. We submit that if the tribunal is concerned about the veracity of the letter it is open to the Member to call the publisher on the contact details provided on the letter.
On 14 November 2018, the Tribunal sent a letter to the applicant inviting him to a further hearing on 3 December 2018. The letter explained:
The Tribunal member advises that on reviewing the evidence it became apparent that there were several matters which required further discussion, and consequently another hearing has been scheduled in your case.
The letter from the Tribunal again invited the applicant to complete and return an enclosed Response Form. On 26 November 2018, the applicant’s representative returned a completed copy of the Response Form to the Tribunal in which the applicant asked the Tribunal to take oral evidence from the witness Mr Janal Uddin who worked at the National Library of Bangladesh and Dr Mohammad Mostak Ahmed (also known as Dr Mostak Deen) who was associated with a university.
On 3 December 2018, the applicant attended the further hearing before the Tribunal. During the hearing, the Tribunal member phoned the witnesses Mr Uddin and Dr Deen and took evidence from them.
On 25 December 2018, the applicant’s representative provided a further submission and supporting documents to the Tribunal. The submission stated in part:
Although we consider that the overwhelming evidence before the Tribunal supports a finding in support of [the applicant’s] claims for protection, we are currently attempting to seek out further information to support [the applicant’s] claims that he wrote and had published and distributed a book in Bangladesh that was perceived to be anti-Islam … We would be grateful if the Tribunal could afford us until COB 11 January 2018 to see if we can obtain any further evidence in support of [the applicant’s] case, consider same and provide it to the Tribunal if relevant.
On 10 January 2019, the applicant’s representative sent an email to the Tribunal which included further evidence from Mr Uddin and then added:
Further, we have also attached our emails to Mr Rajib, the publisher of [Applicant’s Book] in an attempt to obtain further information from him. Unfortunately, Mr Rajib has not responded to our emails. We are also instructed that [the applicant] has also attempted to contact Mr Rajib. In any event, we note that there is already overwhelming evidence before the Tribunal that supports a finding that Mr Rajib published [Applicant’s Book] and distributed it in Bangladesh.
On 27 February 2019, the Tribunal made a decision affirming the delegate’s decision.
TRIBUNAL’S DECISION
A central issue was whether the applicant wrote the Applicant’s Book and, if so, the manner and circumstances of its publication. Prior to addressing this central issue:
(a)The Tribunal addressed the applicant’s claim that he abandoned Islam many years ago and became an atheist. The Tribunal at [27] “found the applicant’s evidence regarding his religious beliefs and practices confused and unpersuasive”, and at [31] found that “he made this claim at the hearing in order to enhance his claim for protection in Australia”.
(b)The Tribunal addressed the applicant’s claim that he was a writer and had written articles relating to his beliefs since the 1980s. The Tribunal at [37] and [39] found that the applicant had not published or written anything between 1996 and 2015 apart from the Applicant’s Book.
(c)The Tribunal addressed a submission by the applicant’s representative that the applicant was an outspoken secular intellectual. The Tribunal accepted that the applicant spoke to close friends about his views on science and logic and his support for secularism, but the Tribunal did not accept that he expressed these views more broadly or that he was viewed as a secular intellectual outside his group of friends.
(d)Central to the applicant’s claim that he wrote the Applicant’s Book was that a well-known secular blogger Ananta Bijoy Das was a friend of the applicant who was instrumental in his decision to write the Applicant’s Book. The Tribunal at [61] did “not accept that the applicant was a friend or associate of Mr Das or that Mr Das played any role in the publication of” the Applicant’s Book. The Tribunal at [65] added that “these claims [concerning Mr Das] were all concocted by the applicant to support his claim for protection in Australia”.
The Tribunal then turned to the issue of whether the applicant wrote the Applicant’s Book and, if so, the manner and circumstances of its publication. The Tribunal:
(a)reviewed the documentary and oral evidence provided by the applicant;
(b)considered the oral evidence provided by Dr Deen and found at [129] that it did “not accept that Dr Deen has provided honest or accurate evidence regarding” various matters and Dr Deen “provided false evidence at the applicant’s request”; and
(c)considered the oral evidence provided by Mr Uddin.
The Tribunal then found at [121] “that the applicant has not provided an honest or an accurate account about the creation and publication of” the Applicant’s Book. The Tribunal at [122]-[129] provided six reasons in support of this finding. The Tribunal, after setting out the six reasons, found at [130] that the applicant “provided false evidence regarding the publication and distribution of [the Applicant’s Book] and the problems which this caused”. The Tribunal at [132] did “not accept that a book written by the applicant critiquing the work of Dr Bucaille was published and distributed for sale in Bangladesh in February 2015”.
The Tribunal, in making the findings summarised in the above paragraph, had regard to the letters from Mr Hannan and Mr Razib. For reasons provided by the Tribunal at [134]-[140], the Tribunal gave the two letters “little weight”. In making these findings, the Tribunal, within the same paragraphs:
(a)addressed a submission by the applicant’s representative that the evidence of Mr Hannan and Mr Razib should not be rejected without the Tribunal contacting the authors of the letters to allow the authors to confirm the authenticity of the letters; and
(b)provided reasons for not contacting the authors of the two letters.
One of the reasons concerned the spelling of the surname of the proprietor of the publishing business Chaitanya Prokashon. Evidence before the Tribunal, which the applicant’s lawyers appeared to accept in this Court, is that the surname is spelt “Rajib”. Yet, as explained in paragraph 6 above, the author of the letter dated 17 September 2015 typed and handwrote the surname as “Razib”. Since the Tribunal and parties’ lawyers spelt the surname “Rajib”, this spelling will be used in the remainder of these reasons.
The Tribunal went on to find that, while it accepted that the applicant was not an observant Muslim and the applicant held secular views, and believed in science and logic, he did not face a real chance of serious or significant harm on return to Bangladesh.
PROCEEDINGS IN THIS COURT
Application and amended applications
On 22 March 2019, the applicant filed in this Court an application for judicial review of the Tribunal’s decision. On 21 November 2024, the applicant filed a further amended application. The grounds are as follows (reproduced as written):
1.The Tribunal at [135]-[137] [137]-[140] of its reasons for decision exercised its discretion as to take evidence by telephone from two witnesses in Bangladesh pursuant to s. 429A s. 415(1) of the Migration Act in a way that was legally unreasonable.
Particulars
a.It was legally unreasonable for the Tribunal to fail to attempt to take evidence from Abdul Hannan, a bookshop owner, and Chowdhury Rajib, the applicant’s claimed publisher, because it is often not possible to independently establish identity of a person located abroad who is contacted by phone from
b.The Tribunal failed to consider whether it could establish the identity of the witness by questioning.
c.The Tribunal failed to consider the potential significance of the witnesses’ evidence to the applicant’s case.
d.It was legally unreasonable for the Tribunal to fail to attempt to contact Chowdhury Rajib because the applicant’s representative had been unable to contact him to obtain further information.
e.An additional premise upon which the Tribunal decided not to attempt to contact Messrs Rajib and Hannan, that another witness had given false evidence to it at the applicant’s request (and that raised issues about the usefulness of evidence given by other witnesses), was not grounded in probative evidence and was thus legally unreasonable.
At the hearing on 5 December 2024, the applicant was granted leave by consent to rely on an additional ground as follows:
2.The Tribunal at [129] of its reasons found that Mr Das gave false evidence at the applicant’s request such finding being made without probative evidence, and without providing procedural fairness.
It was common ground in the parties’ supplementary written submissions that the reference to “Mr Das” should have been a reference to “Dr Deen”.
Applicant’s submissions
On 21 November 2024, the applicant filed a written submission (AS) which addressed ground 1 in the further amended application filed on 21 November 2024. On 12 December 2024, the applicant filed a further written submission (AFS) which addressed ground 2 the subject of the grant of leave at the hearing on 5 December 2024. At the hearing on 5 December 2024, Greg Schipp of counsel appeared for the applicant and made oral submissions. The applicant’s written and oral submissions are summarised below.
Ground 1
Ground 1 of the further amended application takes issue with that part of the Tribunal’s reasons at [134]-[140] in which the Tribunal explained why it decided not to try to contact Mr Hannan or Mr Rajib to obtain evidence from them before making its decision dated 27 February 2019.
The applicant contends:
(a)The Tribunal had a discretion as to whether to contact Mr Hannan and Mr Rajib to obtain evidence from them, including in response to the invitation in the submission by the applicant’s representative dated 20 September 2018, which discretion had to be exercised “in a way that was legally reasonable”: AS [32].
(b)The Tribunal provided three reasons in its decision for not contacting Mr Hannan and Mr Rajib.
(c)The three “stated reasons for not contacting [Mr Hannan and Mr Rajib] lacked an evident and intelligible justification and its decision is thus affected by jurisdictional error”: AS [40].
Ground 2
The Tribunal, after finding at [129] that it did “not accept that Dr Deen has provided honest or accurate evidence”, continued that Dr Deen “provided false evidence at the applicant’s request”. Ground 2 takes issue with the finding that, in respect of false evidence which Dr Deen provided, Dr Deen provided the false evidence “at the applicant’s request”. The nub of ground 2 appears to be (see AFS [8]):
No notice was given to the applicant that it was considered that the applicant had procured false evidence. No question was put to the applicant, or Mr Deen, that suggested any such finding could be made and no opportunity was given to the applicant to respond. The Tribunal acted in breach of the requirements of procedural fairness encapsulated in s 425(1).
Similarly, it is stated at AFS [3] that “the aspect of natural justice relevant to this case is contained in s 425(1)” and at AFS [19] that “the Tribunal engaged in a process of reasoning that … did not afford the applicant the procedural fairness required by s 425(1) of the Migration Act in regard to the finding made in [129]”.
Although ground 2 also contends that the finding that Dr Deen “provided false evidence at the applicant’s request” was made “without probative evidence”, this complaint is not developed in any way in the AFS.
First respondent’s submissions
On 28 November 2024, the first respondent filed a written submission. At the hearing on 5 December 2024, Greg Johnson of counsel appeared for the first respondent and made oral submissions. The first respondent’s submissions are referred to further below.
CONSIDERATION
Ground 1
A central issue for the Tribunal was whether the applicant wrote the Applicant’s Book and, if so, the manner and circumstances of its publication.
The Tribunal found at [121] “that the applicant has not provided an honest or an accurate account about the creation and publication of” the Applicant’s Book, and at [130] that the applicant “provided false evidence regarding the publication and distribution of [the Applicant’s Book] and the problems which this caused”. The Tribunal continued at [132]:
I do not accept that a book written by the applicant critiquing the work of Dr Bucaille was published and distributed for sale in Bangladesh in February 2015. It follows that I do not accept that four extremists visited the applicant's wife on the day he was flying to Australia to enquire about his whereabouts because they objected to the book and wanted to harm him. I find that these claims were concocted to support the applicant's application for protection in Australia.
The Tribunal at [133] continued that:
In reaching this conclusion I have considered the supporting documentary evidence provided by the applicant regarding the publication and sale of his book. However, for the reasons set out below I did not find this evidence persuasive and I have given it little weight.
The “reasons set out below” referred to in the last sentence of [133] include the reasons at [134]-[140] in which the Tribunal considered the letters from Mr Rajib and Mr Hannan, explained why it gave the letters little weight, and explained why it decided not to accede to a proposal by the applicant’s representative in a submission dated 20 September 2018 to try to contact Mr Rajib and Mr Hannan to obtain further evidence from them.
First, the Tribunal at [134]-[136] explained why it did not find the two letters persuasive and gave them “little weight”. A summary of the Tribunal’s explanation is as follows:
(a)In relation to both letters, one reason the Tribunal gave at [134] was that “as the applicant confirmed at the hearing, corruption is widespread in Bangladesh and it is easy to obtain false documents or other forms of assistance”. The Tribunal’s concern about corruption in Bangladesh was not limited to obtaining false documents, but extended to obtaining “other forms of assistance”, referred to in the next sentence as “supporting evidence coming from Bangladesh”. On a fair interpretation of “other forms of assistance” and “supporting evidence coming from Bangladesh”, this could include the provision to the Tribunal of false oral evidence by a witness residing in Bangladesh.
(b)In relation to the letter from Mr Rajib, the Tribunal at [135] provided two additional reasons for giving the letter from Mr Rajib little weight. First, the author of the letter spelt his surname “Razib”. But the website for Chaitanya Publishing spelt the proprietor’s surname “Rajib”. The Tribunal stated that “it is unlikely that Mr Rajib would have spelled his name differently on the letter and website”. Second, the letter “provided by the applicant could easily have been manufactured by anyone with a computer and a printer”.
(c)In relation to the letter from Mr Hannan, the Tribunal at [136] provided one additional reason for giving the letter little weight, being that the letter “could have been easily created with a computer and printer”.
Second, the Tribunal at [137]-[140] addressed the “applicant’s representative’s submission that [the evidence in the letters from Mr Rajib and Mr Hannan] should not be rejected without contacting the authors of the letters who, it was suggested, would confirm their authenticity”. The Tribunal provided the following reasons for not acceding to this request:
(a)First, in relation to both Mr Rajib and Mr Hannan, the Tribunal stated at [137] that, “as discussed at the hearing, taking evidence from third parties located outside Australia presents particular difficulties as it is often not possible to independently establish the identity of the witness”.
(b)Second, in relation to Mr Hannan, the Tribunal at [138] explained that it was unable to locate an online entry in English for Mr Hannan’s bookshop. While the Tribunal did not expect a bookshop in Bangladesh to have an English language online presence, the absence of an English online presence “illustrates the difficulty involved in confirming Mr Hannan’s identity and occupation”.
(c)Third, in relation to Mr Rajib, the Tribunal at [139] “note[d] that recent attempts by the applicant and his representative to obtain further information from Mr Rajib have been unsuccessful and it appears unlikely that he would respond to a similar request from the Tribunal”.
(d)Fourth, in relation to both Mr Hannan and Mr Rajib, the Tribunal at [140] referred back to its finding at [129] that Dr Deen had provided false evidence to the Tribunal “at the applicant’s request”. The Tribunal at [140] continued that “the applicant’s willingness to recruit a friend or acquaintance to provide such evidence on his behalf clearly raises issues relating to the usefulness of evidence which other witnesses may provide”.
The applicant, in ground 1, attacks the Tribunal’s reasons for not contacting Mr Hannan and Mr Rajib. It is stated in AS [40] that these reasons “lacked an evident and intelligible justification”.
Both parties contended at the hearing on 5 December 2024, with reference to AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; 262 FCR 317 (AYX17), that the Court, in considering whether the Tribunal’s procedural decision not to try to contact the authors of the letters involved jurisdictional error, was limited to considering the Tribunal’s stated reasons. In AYX17 Tracey and Mortimer JJ, in reviewing reasons provided by the Tribunal for deciding not to accede to a request by an applicant to take evidence from two witnesses, stated at [59] and [61]:
[59] … the Tribunal’s reasons are set out in [45] of its decision, read with [7]. They must be read fairly, and in context …
[61] … the Tribunal chose to explain its exercise of discretion in its reasons given under s 430 of the Migration Act, and the Court is entitled to treat what is said there by the Tribunal as a complete explanation for why it chose to exercise the discretion as it did … if a decision-maker in the Tribunal’s position incorporates into its s 430 statement a set of reasons for the exercise of a procedural discretion, a Court on judicial review is entitled to take those to be the Tribunal’s explanation for the exercise of power, so that the Court can infer the matters to which the Tribunal does not refer were not matters activating the Tribunal when it exercised the discretion.
It is necessary to identify the Tribunal’s stated reasons for not trying to contact the authors of the two letters. As explained in paragraphs 38 to 40 above, the Tribunal’s consideration of the two letters was divided into two parts – one part at [134]-[136] in which the Tribunal gave reasons for giving “little weight” to the two letters, and another part at [137]-[140] in which the Tribunal provided reasons in response to the “applicant’s representative’s submission that [the evidence in the letters from Mr Rajib and Mr Hannan] should not be rejected without contacting the authors of the letters who, it was suggested, would confirm their authenticity”.
The Tribunal’s reasons at [137]-[140] are obviously reasons provided by the Tribunal for not attempting to contact the authors of the two letters. In relation to the Tribunal’s reasons at [134]-[136], I asked Mr Schipp and Mr Johnson at the hearing on 5 December 2024 whether these paragraphs formed part of the Tribunal’s reasons for deciding not to attempt to contact the two witnesses. Both counsel stated that these paragraphs formed part of the Tribunal’s reasons and the Court could consider the matters in these paragraphs in assessing the Tribunal’s reasoning process. I agree. It could be said that the matters at [134]-[136] were part of the “context” (AYX17 at [59]) of the Tribunal’s reasons at [137]-[140]. As accepted by Mr Schipp during the hearing on 5 December 2024, on a fair reading of the Tribunal’s reasons, the matters at [134]-[136] were on the mind of the Tribunal when it decided not to try to contact the authors of the letters.
Following on from the above, the Tribunal’s reasons for deciding not to try to contact Mr Rajib and Mr Hannan were as follows:
(a)In relation to both Mr Rajib and Mr Hannan, as stated by the Tribunal at [134], “corruption is widespread in Bangladesh and it is easy to obtain false documents or other forms of assistance”.
(b)In relation to Mr Rajib, as stated by the Tribunal at [135], “it seems unlikely that Mr Rajib would have spelled his name differently on the letter and website” and “the letter provided by the applicant could easily have been manufactured by anyone with a computer and printer”.
(c)In relation to Mr Hannan, as stated by the Tribunal at [136], the letter “could also have been easily created with a computer and printer”.
(d)In relation to both Mr Rajib and Mr Hannan, as stated by the Tribunal at [137], “taking evidence from third parties located outside Australia presents particular difficulties as it is often not possible to independently establish the identity of the witness”.
(e)In relation to Mr Hannan, as stated by the Tribunal at [138], that Mr Hannan’s bookshop did not have an English language online presence “illustrates the difficulty in confirming Mr Hannan’s identity and occupation”.
(f)In relation to Mr Rajib, as stated by the Tribunal at [139], recent attempts by the applicant and his representative to obtain further information from Mr Rajib have been unsuccessful and it appears unlikely that he would respond to a similar request from the Tribunal”.
(g)In relation to both Mr Rajib and Mr Hannan, as stated by the Tribunal at [140]:
… as discussed above, I found the evidence provided by Dr Deen to be lacking in credibility and believe he provided false evidence at the applicant’s request. The applicant’s willingness to recruit a friend or acquaintance to provide such evidence on his behalf clearly raises issues relating to the usefulness of evidence which other witnesses may provide, particularly witnesses who reside outside Australia and whose identity cannot be easily verified.
The applicant’s written submission addressed most of the reasons in (d) to (g) above.
In relation to the reason in paragraph 45(d) above, the applicant at AS [38]-[39] relies on AYX17 at [90] where Tracey and Mortimer JJ stated that “the fact that the witnesses were to give evidence by telephone (and therefore could not be identified) could not, of itself, provide a basis for an unfavourable exercise of discretion”. However, in that case, first, the applicant requested that the Tribunal take evidence from two witnesses by telephone within the time-frame stated in s 426 of the Act. Section 426 relevantly provided:
(2)The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(3)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.
In the present case, even if it could be said that the applicant asked the Tribunal to obtain oral evidence from Mr Hannan and Mr Rajib, the request did not engage the Tribunal’s duty in s 426(3). There is force in the first respondent’s written submission that “as no s 426 request was made in the present case, the applicant’s reliance on cases such as AYX17 is inapposite”. Instead, where an applicant asks the Tribunal to obtain oral evidence from a witness outside the time-frame in s 426, as stated in the first respondent’s written submission, relevant principles are explained in AOO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 424 (AOO16). In that case, where the Tribunal does not accede to a request by an applicant, made to the Tribunal outside the time-frame referred to in s 426(2), to obtain oral evidence from a witness, Colvin J stated at [35], [36] and [39]:
[35] … the issue is whether the failure to exercise the statutory discretion to take evidence from a particular person means that the review as a whole lacks the requisite statutory character such that there could be said to be a constructive failure to exercise the jurisdiction to undertake the review.
[36] If it is obvious that the person who was not asked to give evidence was a person who could give evidence about a critical fact and the person could be easily contacted then the failure to take evidence from that person may be a constructive failure to exercise jurisdiction.
[39] … it is only where the failure to take evidence from the particular person means that the whole review lacks the requisite reasonable character that jurisdictional error is demonstrated. That is because review for legal unreasonableness concerns the overall character of an administrative decision. Unreasonableness as to part is not sufficient to demonstrate jurisdictional error unless it founds a conclusion that the decision is unreasonable as to the overall outcome or the whole of the reasoning process used to support the decision: Tsvetnenko v United States of America [2019] FCAFC 74 at [82] –[85].
Second, even if the principles in AYX17 applied in the present matter, this was not a case in which “the fact that the witnesses were to give evidence by telephone … of itself provide[d] a basis for an unfavourable exercise of discretion”. Instead, as explained above, the Tribunal relied on a number of additional matters in deciding not to try to contact the authors of the two letters. Third, even if the principles in AYX17 applied in the present matter, Tracey and Mortimer JJ at [93] cautioned against reading each reason provided by the Tribunal in a particular matter in isolation and concluded at [99] that “looking at the whole of the circumstances, … the exercise of discretion [not to call the two witnesses] was within the area of decisional freedom available to the Tribunal”.
I consider that it was open to the Tribunal to have regard to the matter at [137] in deciding not to try to contact Mr Rajib and Mr Hannan. There is no irrationality or illogicality in the proposition that “taking evidence from third parties located outside Australia presents particular difficulties as it is often not possible to independently establish the identity of the witness”.
The reason in paragraph 45(e) above is not clearly challenged in the applicant’s written submission. Nor was it clearly challenged in the applicant’s oral submission at hearing on 5 December 2024. I cannot identify an error in the Tribunal’s reasoning process that the fact that Mr Hannan’s bookshop did not have an English language online presence “illustrates the difficulty involved in confirming Mr Hannan’s identity and occupation”.
In relation to the reason in paragraph 45(f) above, emails at pages 424-425 of the Court Book indicate that on 28 August 2018, 11 September 2018 and 21 November 2018 the applicant’s representative sent emails to Mr Rajib asking him to provide additional information, but he did not respond. It is contended at AS [37] that “for the Tribunal not to try to make a simple phone call because the applicant’s representative had not been able to contact Mr Rajib and the Tribunal guessed that its call would be unsuccessful also lacks an evident and intelligible justification”. I disagree. I consider that this reason provided an obvious justification for the Tribunal’s decision not to try to contact Mr Rajib.
In relation to the reason in paragraph 45(g) above, it is stated at AS [36] that “the assertion [that the applicant put up Dr Deen to giving false evidence] was not grounded in probative evidence, it was not put to Mr Deen at the hearing and there was no evident and intelligible basis for it”. The Tribunal’s reasoning at [140] relies on an earlier discussion at [129] where the Tribunal stated:
I accept that Dr Deen and the applicant are acquainted. However, after considering all of the relevant evidence, I do not accept that Dr Deen has provided honest or accurate evidence regarding the applicant’s involvement in secular causes, his association with Mr Das, the publication of his book, or the reaction to the publication of that book. I find that he provided false evidence at the applicant’s request and I have given it no weight.
The applicant appears to contend that the Tribunal’s finding that, in relation to the provision of false evidence by Dr Deen to the Tribunal (which finding the applicant does not challenge in the Court), the Tribunal’s further finding that Dr Deen provided false evidence “at the applicant’s request” “was not grounded in probative evidence … and there was no evident and intelligible basis for it”. At the hearing on 5 December 2024, it was not clear whether the applicant’s challenge to a finding at [129] fell within ground 1 of the further amended application. When I raised this with Mr Schipp, he eventually sought leave to add a second ground to the further amended application which directly challenged the Tribunal’s finding at [129]. Mr Johnson on behalf of the first respondent did not oppose the grant of leave. I granted leave, and directed the parties to file and serve within the following few weeks written submissions concerning the new ground 2.
I consider the applicant’s challenge to the Tribunal’s finding at [129] under the heading “Ground 2” below. If the applicant cannot establish a jurisdictional error in the Tribunal’s finding at [129], I consider there is no error by the Tribunal at [140] in relying on “the applicant’s willingness to recruit a friend or acquaintance to provide [false] evidence on his behalf” as a reason for not trying to contact Mr Rajib or Mr Hannan to obtain further evidence from them.
In relation to the reasons in paragraphs 45(a), (b) and (c) above, during the hearing on 5 December 2024, Mr Schipp appeared to accept these were part of the Tribunal’s reasons for deciding not to try to contact Mr Hannan or Mr Rajib. Mr Schipp did not contend there were any errors in these reasons.
It is stated in particular (b) of ground 1 that “the Tribunal failed to consider whether it could establish the identity of the witness by questioning”. This contention was not developed in the applicant’s written submission. I do not accept that the Tribunal failed to consider this matter. The Tribunal’s reasons, in particular at [137]-[138], indicate that the Tribunal considered, but was concerned about, its ability to establish the identity of the witnesses by questioning.
It is stated in particular (c) of ground 1 that “the Tribunal failed to consider the potential significance of the witnesses’ evidence to the applicant’s case”. This contention was not developed in the applicant’s written submission. I do not accept this contention involves a jurisdictional error in the Tribunal’s reasoning process at [134]-[140]. The Tribunal clearly considered the documentary evidence provided in the name of the two witnesses, but concluded at [133] that it “did not find this evidence to be persuasive”. The Tribunal also considered whether or not to contact the authors of the two letters and, for reasons provided by the Tribunal at [134]-[140], decided not to try to contact the authors. The reasons included the utility of this step, which relates to the potential significance of the witnesses’ evidence in the event the applicant was able to contact them.
In conclusion, I consider the Tribunal’s reasons at [134]-[140] provide an evident and intelligible justification for the Tribunal’s decision not to try to contact Mr Rajib or Mr Hannan to obtain further evidence from them. On application of the test in AOO16 at [39], this was not a case where the decision by the Tribunal not to try to contact Mr Hannan or Mr Rajib “means that the whole review lacks the requisite reasonable character”. Even if the test in AYX17 is applicable, I consider that, as in that case at [99], “looking at the whole of the circumstances, … the exercise of discretion was within the area of decisional freedom available to the Tribunal”.
Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2
The applicant’s principal contention in ground 2 is that, in respect of a finding made by the Tribunal at [129], the Tribunal “acted in breach of the requirements of procedural fairness encapsulated in s 425(1)” of the Act: AFS [8].
Section 425(1) of the Act provided at the time of the two hearings before the Tribunal in 2018:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
In SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1 (SZHKA) at [103] Besanko J stated in relation to s 425(1) of the Act:
An invitation to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review is an essential part of the review conducted by the Tribunal … I would add the following observations on the third argument advanced by the first respondent. The argument assumes that a broad meaning is to be given to the word issues in s 425(1) and that there is a far-reaching obligation on the Tribunal to advise the applicant for review of the issues. Those assumptions require examination. In order to succeed in showing that s 425(1) has not been complied with, an applicant for review must show that there is a matter which is an issue arising in relation to the decision under review and that he was not given the opportunity to appear before the Tribunal to give evidence and present arguments relating to that issue because it was not apparent to him that it was an issue and he was not warned by the Tribunal that it was or may be an issue. That is the nature of the obligation, although it must be accepted that questions of fact and degree will often be involved. Furthermore, there is a distinction between evidence relating to an issue and the issue itself and it seems to me that not every matter which might engage the obligation in s 424A involves a new issue or a further issue or a previously unidentified issue. In addition to these considerations, it must be remembered, as the High Court pointed out in SZBEL 228 CLR 152, that there may be many ways in which it will become apparent to an applicant for review that a particular matter is an issue.
His Honour, after recording two matters which the appellants contended were “issues” within the meaning of s 425(1), continued at [113]-[115]:
[113] …Whether a matter such as this constitutes an issue depends upon two requirements.
[114] The first is that the matter play a part in the Tribunal member’s decision on the application for review. Matters not playing any part cannot, in my view, be said to arise in relation to the decision.
[115] The second question is that the matter be substantial enough to constitute an issue. That depends, obviously enough, on the interpretation of the word issues in s 425(1). On a narrow interpretation, issues might be defined only as the main elements of an applicant’s claim. I do not think that such a narrow interpretation would be correct. In SZBEL, the High Court said that the reasons given by a delegate for refusing to grant an application identify the issues that arise in relation to that decision. Matters much more specific than the main elements might become issues in relation to a delegate’s decision by virtue of the delegate’s reasons. Equally, matters much more specific than the main elements, which the Tribunal considers to be in question irrespective of the delegate’s reasons, may constitute issues arising in relation to the decision under review within s 425(1). In my view, issues, relevantly, are all matters not of an insubstantial nature which the Tribunal considers to be in question.
In SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; (2015) 238 FCR 404 (SZTAP) the appellant contended that the question of whether a family member would be able to provide surety for the appellant was a dispositive issue within the meaning of s 425(1). Robertson and Kerr JJ stated at [79]:
However, on the facts of the present case, we would not accept that it was critical to the Tribunal’s finding, that the appellant could apply for bail and that bail was routinely given, that a family member was required to provide surety and that therefore it was plainly an issue for the Tribunal that the appellant’s family would be able to provide surety for him as a determinative factor in the mind of the Tribunal. It is to be recalled that what is, and what is not, an issue for the purposes of s 425(1) of the Act may be affected by what matters the Tribunal considers may be important to its decision: SZBEL at [47]. There is no such indication in the reasons of the Tribunal.
In Hazra v Minister for Immigration and Border Protection [2017] FCCA 688 (Hazra) at [13] Judge Smith stated in relation to the word “issues” in the almost identical provision in s 360(1) that “the word … is better understood as including any question of significance that the Tribunal considers it needs to decide.”
In the present matter, the Tribunal stated at [129] and [140]:
[129] I accept that Dr Deen and the applicant are acquainted. However, after considering all of the relevant evidence, I do not accept that Dr Deen has provided honest or accurate evidence regarding the applicant's involvement in secular causes, his association with Mr Das, the publication of his book or the reaction to the publication of that book. I find that he provided false evidence at the applicant's request and I have given it no weight.
[140] In addition, as discussed above, I found the evidence provided by Dr Deen to be lacking in credibility and believe he provided false evidence at the applicant's request. The applicant's willingness to recruit a friend or acquaintance to provide such evidence on his behalf clearly raises issues relating to the usefulness of evidence which other witnesses may provide, particularly witnesses who reside outside Australia and whose identity cannot be easily verified. In these circumstances I decided not to contact the authors of these letters.
Although the applicant relies on a breach of s 425, the applicant in the AFS does not address what the applicant contends was the applicable “issue arising in relation to the decision under review” or consider or refer to any case law other than SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152.
It appears that the applicant must contend that the applicable issue arising in relation to the decision under review was that the applicant asked Dr Deen to provide false evidence to the Tribunal regarding the applicant’s involvement in secular causes, the application’s association with Mr Das, the publication of the Applicant’s Book, and the reaction to the publication of the Applicant’s Book.
Whether the Tribunal contravened s 425 in a particular case is “fact specific” (SZTAP at [77]) and therefore requires consideration of the particular facts of the case.
But for one matter, on a fair reading of the Tribunal’s decision, whether or not the applicant asked Dr Deen to provide false evidence to the Tribunal was irrelevant to the Tribunal’s decision. The one matter to which this issue was relevant was, as correctly stated in the first respondent’s written submission, whether the Tribunal would try to contact Mr Rajib and Mr Hannan to obtain evidence from them. As explained in paragraph 45 above, the Tribunal at [134]-[140] provided seven reasons for its decision not to try to contact the authors of the letters. The Tribunal’s finding that the applicant asked Dr Deen to provide false evidence to the Tribunal was one, but only one, of those reasons.
In the particular circumstances of the Tribunal’s decision, whether or not the applicant asked Dr Deen to provide false evidence to the Tribunal was not an “issue arising in relation to the decision under review”. The matter was not “substantial enough to constitute an issue”: SZHKA at [115]. The matter was not “critical to the Tribunal’s findings” or “a determinative factor in the mind of the Tribunal” or a “matter the Tribunal considers may be important to its decision”: SZTAP at [79]. It was not a “central and determinative issue on the review” (AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494 at [102]) or a “question of significance that the Tribunal considers it needs to decide”: Hazra at [13]. To the contrary, the matter was “of an insubstantial nature” (SZHKA at [115]) compared to the many more substantial issues considered by the Tribunal.
It is asserted in ground 2, but not developed in any way in the AFS, that the Tribunal’s finding that the applicant asked Dr Deen to provide false evidence to the Tribunal was “made without probative evidence”. That the Tribunal did not, at [129], expressly set out the evidence on which it relied or its reasoning process in support of its finding that the applicant asked Dr Deen to provide false evidence to the Tribunal does not mean that the finding was made without probative evidence: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]-[47]. Further, the fact that Dr Deen was “willing to provide false evidence in support of the applicant’s case” (at [127]) is some evidence in support of a finding that the applicant asked Dr Deen to provide false evidence. I consider that, in the particular circumstances and having regard to other findings made by the Tribunal, once the Tribunal found that the evidence given by a witness called by the applicant concerning the applicant was false and not honest, it was open to the Tribunal to find that the witness provided false evidence “at the applicant’s request”. I do not accept that the Tribunal’s finding at [129] was made without probative evidence in a manner which constitutes jurisdictional error.
It is asserted in AFS [19] that the Tribunal’s “process of reasoning” at [129] in finding that the applicant asked Dr Deen to give false evidence to the Tribunal was “legally unreasonable”. If the circumstances in which the Tribunal’s exercise of power under s 425 might be legally unreasonable is different to the circumstances in which the exercise of power might be procedurally unfair are different, this is not explained in the AFS. I do not accept that the Tribunal’s process of reasoning was legally unreasonable in a manner which involved jurisdictional error.
Ground 2 does not identify a jurisdictional error in the Tribunal’s decision.
COSTS
Since work by the parties’ lawyers was not completed at the end of the hearing on 5 December 2024, I stated that I would hear submissions on costs at the time of delivering judgment.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 6 February 2025
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