BGN19 v Minister for Home Affairs
[2019] FCCA 1757
•28 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BGN19 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1757 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant temporary protection visa – whether the Tribunal’s decision not to obtain evidence from the applicant’s father was legally unreasonable – whether the Tribunal made a finding that was legally unreasonable – whether Tribunal failed to consider an integer of the applicant’s claims – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36(2)(aa), 414, 426. |
| Cases cited: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 |
| Applicant: | BGN19 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 727 of 2019 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 20 June 2019 |
| Date of Last Submission: | 20 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Moutasallem |
| Solicitors for the Applicant: | Malik Lawyers |
| Solicitors for the Respondents: | Ms J Strugnell of Minter Ellison Lawyers |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 727 of 2019
| BGN19 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The principal question that arises on this application for judicial review is whether the second respondent (Tribunal), in the course of affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Temporary Protection visa (TPV), exercised unreasonably the power it has under s.426(3) of the Migration Act 1958 (Cth) (Act) by deciding not to obtain oral evidence from the applicant’s father.
To understand this, and the other questions that arise on this application for judicial review, it will be necessary first to set out the background preceding the applicant’s lodging an application for a TPV, the applicant’s claims for protection, the course of proceeding before the Tribunal, and the Tribunal’s reasons for affirming the delegate’s decision not to grant the applicant a TPV.
Background
The applicant is a national of Pakistan. He arrived in Australia on 21 July 2018 as the holder of a student visa. On 22 July 2018 the student visa was cancelled because the applicant supported his application for a student visa with fraudulent academic transcripts. Given the student visa was cancelled before the applicant was granted immigration clearance, the applicant was detained at an immigration detention centre. The applicant then applied for a TPV on 25 July 2018.
Claims for protection
In his form of application for a TPV the applicant said he left his country because of a serious threat to his life, and that he fears that if he returns to his country he will be killed. The applicant gave no further details, stating that these matters were “to be discussed at interview”.
The applicant later stated his claims for protection in a statement dated 8 August 2018.[1] He there claimed as follows:
a)He was born in Swat, Pakistan, and all his family lives in Swat.
b)The applicant’s family are supporters of the Pakistan Awami National Party (ANP) who are against the Taliban.
c)In 2008 the ANP started operations against the Taliban. The Taliban responded by killing supporters of the ANP; and they started attacking the houses of members of the ANP.
d)The Taliban destroyed the applicant’s father’s gemstone business and started threatening him and putting him under constant fear.
e)The applicant’s father is a member of the Village Defence Committee (VDC) which is supported by the Pakistan Army Security Force which is against the Taliban and its supporters.
f)In May 2017, when returning home from college, a few armed people came out of the street and forced the applicant into their car and took him to an unknown place. The applicant’s whereabouts were not known by the applicant’s family for about a week. Then “someone contacted” the applicant’s father after getting his number from the applicant “and started calling him”. They told the applicant’s father that if he wanted to ensure the applicant’s safety he must pay 30 lakes rupees.
g)One night, for reasons not known to the applicant, his captors were transporting him to another location. The applicant’s captors saw a police car on the road, and tried to turn around. The police gave chase resulting in the captors abandoning the vehicle and the applicant. The police took the applicant to the police station and called his father to collect him.[2]
h)After the police rescued him, the applicant filed a “First Information Report”, the police promised to try and find the kidnappers, but they had no power over the Taliban.[3]
[1] CB83
[2] CB269, [57], third dot point. This part of the applicant’s statement is not reproduced in the court book, which suggests that only part of the applicant’s statement was reproduced in the court book.
[3] CB270, [61]. This part of the applicant’s statement is also not reproduced in the court book, which suggests that only part of the applicant’s statement was reproduced in the court book.
The applicant supported his application for a TPV with a letter from his migration agent dated 22 November 2018 which, in turn, attached a number of documents.[4] These included the following:
a)A certificate purportedly provided by the ANP stating that the applicant is an active supporter of the ANP; the ANP requested army action against the Taliban; the applicant and his father “extended their personal cooperation to the government”; as a result of terrorists being killed and arrested, the “Terrorists became soul enemies of” ANP workers, killing innocent workers, elders, and members of the ANP; the applicant and his father are “on the hit list of the terrorists”, several threats “were delivered to him”, and terrorists “are visiting his house and asking about him”; and his “life was unsafe”.[5]
b)A letter purportedly from the applicant’s uncle stating that the applicant “was targeted by TTP in 2012 and the responsibility for the attack was accepted by the TTP spokesmen”; since then “my family is under continuous threat and receiving threatening calls from the TTP”; the TTP “attack in our house and our family members”, and “burn our family our family member houses”.[6] This letter was written on the letterhead of an association (Association), and the author of the letter stated he was the president of that association.
c)A copy of the applicant’s father membership card of the “Swat Gems Merchants Association”.[7]
d)A letter purportedly from a social welfare society (Society) stating that the applicant’s father is a member of the Society; that many members of the Society were injured and killed in the war against terrorists and tension in the Swat district; the applicant’s father has stood by the Society in every effort against the terrorists; “exemplary peace now prevails in Swat district as a result of full cooperation among Pak Army, social organisations and defence committees”, but “terror incidents still take place occasionally”; and the applicant has arrived in Australia, and hopes that the government of Australia “take concrete steps to help save the lives of members of our organisation”.[8]
e)A purported first information report, being a report of a violent incident that occurred on 3 August 2012.[9] It appears to be intended to relate to the incident referred to in the letter from the applicant’s uncle.
[4] CB117-120
[5] CB129
[6] CB130
[7] CB133
[8] CB125
[9] CB134
In his letter, the applicant’s migration agent also stated that in 2008 the applicant’s father’s cousin was “incidentally killed” by the Pakistani Army when it responded to a home intrusion by the Taliban, and that a “copy of the relevant death certificate is able to be provided to the Department”.[10]
[10] CB118
Before the Tribunal
By letter dated 18 January 2018 the Tribunal invited the applicant to appear before the Tribunal on 1 February 2018 to give evidence and provide arguments.[11] The letter attached a form titled “Response to hearing invitation – MR Division” (Response to Hearing Invitation). Part 3 of the Response to Hearing Invitation invited the applicant to state whether he wished to request that the Tribunal take oral evidence from a person or persons, and if so to identify the person or persons and their contact details, and to describe each person’s evidence and how it is relevant to the applicant’s case.
[11] CB184
The applicant completed the Response to Hearing Invitation, and he requested the Tribunal take oral evidence from two persons, one being the applicant’s cousin, and the other being the applicant’s father.[12] Under the words “Describe this person’s evidence and how it is relevant to your case”, which appeared below the name and contact details of the applicant’s father, the applicant wrote “HE KNOWS ALL HAPPENINGS”.
[12] CB204
The applicant’s agent also provided to the Tribunal a document titled “Submission”.[13] The submission responds to particular findings of the delegate. In relation to one of those findings, namely, that “the applicant was not kidnapped”, the agent responded as follows:[14]
The applicant was kidnapped but he or his family did not formally lodge an FIR with Police under the fear of Talban [sic] thinking that if they did that the Talban [sic] will kidnap him again and kill. Applicant’ [sic] father can be interviewed on phone at the time of hearing with the Member.
[13] CB210-216
[14] CB213
The agent did not suggest that the applicant’s father be interviewed in relation to the other findings to which the agent responded.
At the hearing before the Tribunal, the applicant gave further information about his claimed kidnapping. The applicant said:[15]
a)he had been kidnapped on 6 May 2017 when he was returning from college, but he did not know the day on which that occurred;
b)the kidnappers did not talk to the applicant at any stage, and he did not hear anything; he said the kidnappers abducted him because his father was a member of the VDC and the applicant’s family are all ANP supporters;
c)during the first week, the kidnappers tried to reach his father on his mobile telephone, without success, then they obtained the applicant’s father number and were able to reach the applicant’s father; but when the Tribunal asked the applicant to clarify this, the applicant said he was not sure how the kidnappers got a number by which they could reach his father;
d)the kidnappers spoke to the applicant’s father and demanded the ransom; the applicant’s father was ready to pay the money, and was making arrangements to do so, but the applicant only found this out from subsequent discussions with his family; and
e)the ransom was not paid because his rescue happened in the meantime.
[15] CB269, [58]
Tribunal’s reasons
Early in its reasons the Tribunal identified the evidence that was before it, and the pre-hearing and post-hearing submissions it had received from the applicant’s migration agent. The Tribunal noted that the applicant’s migration agent invited the Tribunal in a pre-hearing submission to contact the applicant’s father in Swat. The Tribunal said its “consideration of this request is given below”. I will refer to what the Tribunal said later in this section of my reasons.
The Tribunal then considered the applicant’s claims under a number of headings.
Links with ANP
The Tribunal accepted the applicant’s family supports the ANP, and that “the applicant shares this preference”.[16] It also accepted that the applicant “prefers the ANP (as do other family members), and that he may have formally joined the” National Youth Organisation in 2016. The Tribunal, however, did not accept the applicant was politically active or that he any kind of profile, even locally.[17] The Tribunal relied on what it found was the applicant’s “somewhat repetitive and superficial account of his activities, the lack of reliable contemporary evidence, and broader concerns about his credibility (such as whether he was or was not hiding during the mid-2018 election campaign)”.[18]
[16] CB264, [34]
[17] CB265, [40]
[18] CB265, [40]
The “broader concerns” about the applicant’s credibility may reasonably be taken to be a reference to the Tribunal’s two findings under the heading “Credibility of the applicant’s claims and evidence”. One is that the applicant’s evidence about the historical events in Swat, and in particular the conflict between the Pakistan security forces and the militants during 2007 to 2009, tended “to blur the distinction between these events, and contemporary conditions in Swat, exaggerate their adverse effect, and misconstrue them as relevant to his current and prospective circumstances”.[19] The second is that the applicant’s conduct in 2017 and 2018, and his reliance on a fraudulent document, “raise some questions about his needs for protection, and his credibility”.[20] The conduct to which the Tribunal refers is the applicant’s having continued with his studies until August 2017, even though the applicant claims he was kidnapped in May 2017, and, after he completed his studies, remaining in his local area while the applicant’s father set about obtaining a student visa for the applicant.[21]
[19] CB263, [27]
[20] CB253, [29]
[21] CB263, [29]
Personal profile
The Tribunal accepted it was plausible, but far from certain, that the applicant’s father is a member of a particular VDC, as the applicant claimed. The Tribunal, however, was not satisfied the applicant’s father engaged in any more than low-level duties and tasks for the VDC “of the kind that males from every family in the area did”.[22] The Tribunal relied on the applicant’s vague description of his father’s role, the applicant’s father’s continued residence and ongoing business activities, and the Tribunal’s assessment of his past activities (to which I refer later). Nor was the Tribunal satisfied that the applicant’s father acquired any pronounced anti-Taliban profile as a result of participating in his (low level) activities with the VDC, or because he held a VDC identity card; or that the applicant acquired any anti-Taliban profile through his association with his father.[23]
[22] CB266, [44]
[23] CB266, [44]
The Tribunal accepted that the applicant’s father engaged in some welfare activities, because this was consistent with the applicant’s father’s local role as a businessman. The Tribunal, however, did not accept that the applicant’s father undertook activities with the Society that, either individually or when considered with his membership of the VDC, gave him or the applicant an anti-Taliban profile.
Claimed incidents before applicant’s departure from Pakistan
The Tribunal considered the applicant made a number of claims in relation to the period 2007 to 2009 when militants (being the name by which the Tribunal identified the persons whom the applicant identified as “Taliban”) stepped up their campaign against the Pakistan authorities and civilians. After referring to country information to the effect that by late January 2009 militants occupied almost all of Swat, that some 60% of Swat’s population had been displaced because of increased violence as the militants and Taliban occupied more territory, that thousands of homes were damaged, that the Pakistani Army launched a counter-insurgency operation resulting in regaining control of Swat, and that during the offensive more than 1.5 million people were registered as internally displaced in the month after the offensive began,[24] the Tribunal identified the following as claims the applicant made:[25]
a)the applicant and his family had been displaced in 2009 during the counter-insurgency operation;
b)the Taliban attacked the applicant’s home on several occasions, and destroyed his father’s gemstone business; and
c)the Taliban killed various relatives and friends, including the applicant’s father’s cousin who was accidentally killed by the Pakistan Army while attacking the Taliban, and burned their homes.
[24] CB266-267, [48]
[25] CB267, [49]
The Tribunal accepted that violence and displacement took place in Swat some ten years ago, and it had a lasting impact on residents, causing them to worry about the future. The Tribunal observed, however, that country information indicates the security environment is much improved. The Tribunal found that while the applicant was drawing on his and his family’s experiences at the height of the conflict, he tended to exaggerate this. The Tribunal relied on the applicant’s having completed his studies in Swat “without notable incident”, the applicant’s father’s continued business operations there, and the applicant’s family’s other circumstances “as indicative that they were not subject to continued harassment or targeting, or living in fear”.[26]
[26] CB267, [50]
The Tribunal accepted that the author of the letter written on the Association letterhead and the applicant are related, but it found that, “taking into account the applicant’ limited knowledge of him personally”, the applicant “exaggerated their closeness”.[27] The Tribunal also appears to have accepted that the author of the letter, who the Tribunal accepted was an uncle of the applicant, was attacked, but the Tribunal did not accept that the extremist attacks on the uncle directly affected the applicant’s family.[28] The Tribunal concluded this part of its reasons as follows:[29]
In sum, the Tribunal accepts that the applicant and his family were negatively affected by events in Swat, particularly in the period from 2007 to 2009; and that ongoing militant violence, some of it directed to members of their extended family have been of concern to them. However, taking into account the applicant’s and his father’s low level of support for the ANP; his father’s low level engagement with the [VDC]; and the applicant’s and his family’s conduct, it does not accept that they have been the subject of any ongoing, direct and credible threats since 2009.
[27] CB268, [52]
[28] CB268, [53]
[29] CB268, [54]
Militants target applicant
The Tribunal did not accept the applicant was abducted, detained, mistreated, or held for ransom, and, for this reason, the Tribunal rejected “all associated claims”.[30] The Tribunal found the applicant left Pakistan in July 2018 after obtaining a student visa for reasons unrelated to his protection claims. It did not accept the applicant left Pakistan because of his and his family’s low level support for the ANP or his father’s membership of the VDC, or because of any incidents involving his extended family, or because of any kidnapping or threats made to the applicant.[31]
[30] CB271-272
[31] CB272, [70]
The Tribunal relied on a number of matters:
a)Although the applicant stated clearly the date on which he says he was kidnapped, the applicant was hesitant about the day of the week on which he was kidnapped and whether the day was a day of regular college attendance.[32]
b)The applicant claimed he had been blindfolded for the entire period of his kidnapping, and not to have heard any substantive conversation between his captors. In those circumstances, the Tribunal found the applicant’s confidence about his captors’ motives of kidnapping him – his and his family’s affiliations with the ANP, and the applicant’s father’s membership of the VDC – to have been contrived.[33]
c)The Tribunal found difficult to believe the applicant’s account of his captors transporting him to a different location, turning around after they sighted a police car, because the applicant claimed he was blindfolded and unable to hear conversations.[34]
d)In his TPV application the applicant claimed he filed a “First Information Report” in relation to his kidnapping, and the police promised to try and find the kidnappers, but they had no power over the Taliban. Before the Tribunal, however, the applicant said that he and his family decided not to lodge a “First Information Report”.[35]
e)After his escape from his kidnappers the applicant returned to college and completed his examinations; and he remained living in the family home although he said he sometimes stayed with his maternal uncle.[36]
f)The Tribunal found the applicant’s evidence about his activities from mid-2017 until his departure from Pakistan a year later to be unforthcoming and unreliable.[37]
[32] CB269, [59], first dot point
[33] CB270, [59], second dot point.
[34] CB270, [59], third dot point.
[35] CB270, [62]
[36] CB270, [63]
[37] CB271, [68]
The Tribunal also addressed written and oral statements on which the applicant relied to support his claims. The Tribunal referred to the following:
a)The applicant’s cousin gave evidence that he was aware of the applicant’s problems in Pakistan; and that he returned to Pakistan in early 2018, and saw the applicant briefly, but he did not discuss his circumstances at that time.[38]
[38] CB271, [66], first dot point
b)The applicant nominated his father to give oral evidence. The Tribunal said:[39]
The Tribunal decided not to call him, particularly in light of the applicant’s claims that his father was in danger in their home area. The Tribunal acknowledges the father’s readiness to give evidence. However, in light of the applicant’s comment that his father arranged his student visa for Australia, including the provision of false documents, the Tribunal places little weight on the father’s evidence as independent, reliable corroboration of the applicant’s claims.
c)The letter from the applicant’s uncle on the Association letterhead.[40]
d)The letter from the ANP. Here the Tribunal referred to the letter referring to terrorists having come to the applicant’s home asking for him, being a claim the Tribunal said it could not detect the applicant made. The Tribunal said:[41]
Even allowing for what appears to be a poor English translation of [the] text, it appears to be a poor reflection even on the applicant’s own claimed experiences. In the Tribunal’s view, it has the character of a letter intended to assist a constituent or a compatriot, whose contents are unreliable.
e)The letter from the Society.[42]
[39] CB271, [66], second dot point
[40] CB271, [66], third dot point
[41] CB271, [66], fourth dot point
[42] CB271, [66], fifth dot point
The Tribunal then made the following findings:[43]
The Tribunal places minimum weight on these witness statements as evidence of the applicant’s claimed past experiences. First, for the main part they are broad in scope, referring to past violence and unrest in Swat over a period of time, and the impact on the community, rather than addressing the applicant’s particular circumstances. Second they provide scant independent corroboration for the applicant’s claims; his father, cousin and other well-wishers appear to be motivated to help the applicant succeed in this application. Finally, the applicant’s presentation of false documents to secure entry into Australia strongly suggest he is willing and able to provide misleading information to also achieve permanent residency (and, more immediately, release into the community).
[43] CB271, [67], [68]
Having made these findings, and for reasons it is not necessary to set out here, the Tribunal was not satisfied the applicant was a “refugee” within the meaning of s.5H of the Act, or that he satisfied the criterion provided for by s.36(2)(aa) of the Act.
Before I leave this part of my reasons, it would be useful if I note two matters about the Tribunal’s decision not to obtain evidence from the applicant’s father. The first is that the Tribunal assumed the applicant’s father, if called, would have given evidence that would have purportedly corroborated the applicant’s claims. That is evident from the Tribunal’s finding that it did not consider the evidence the applicant’s father would give would be “independent, reliable corroboration of the applicant’s claims”.[44]
[44] CB271, [66], second dot point
The second matter to note is that the question the Tribunal considered was whether, had the father been called to give oral evidence, it would have given any or any significant weight to the father’s evidence. The Tribunal decided it would give only little weight to that evidence. The Tribunal so decided, however, not because it found the applicant’s evidence was so compromised that no amount of corroborating evidence could have affected the outcome. The Tribunal instead relied on matters that related to the applicant’s father’s credibility. Those matters arose from the applicant’s father’s having arranged the granting to the applicant of a student visa on the basis of false documents. The Tribunal found that this suggested the father, together with the cousin who gave evidence, and the other persons who had provided written statements, were “motivated to help the applicant succeed in this application”,[45]and, for that reason, the father’s evidence would not have been “independent, reliable corroboration of the applicant’s claims”.
[45] CB271, [67]
Ground 1
The applicant relies on three grounds of application contained in the further amended application. The first ground is as follows:
The Tribunal committed a jurisdictional error by breaching s 426(3) of the Migration Act, or in the alternative was unreasonable in declining to call the father of the applicant.
Particulars
a)At [66] the Tribunal noted that the applicant had nominated his father to give evidence;
b)At [66] the Tribunal noted that it decided not to call the father;
c)At [66] the Tribunal said that it places little weight on the father’s evidence given the father’s involvement in arranging the applicant’s student visa which included the provision of false documentation;
d)The Tribunal denied the applicant procedural fairness and natural justice by pre-determining the weight that it would give the father’s evidence without first hearing from him;
e)The father’s evidence would have allowed the applicant to shed light on the circumstances of the provision of the false documents during the student visa application process; and
f)The father’s evidence would have allowed the applicant to shed light on the extent of the father’s involvement in the [VDC].
The ground, as particularised, is directed to the Tribunal’s decision not to obtain evidence from the applicant’s father because, based on the applicant’s comment to the Tribunal that the applicant’s father arranged the student visa, including the provision of false documents, the Tribunal placed little weight on the father’s evidence as independent, reliable corroboration of the applicant’s claims.
The ground makes two claims. The first is that the Tribunal breached s.426 of the Act because it denied the applicant procedural fairness and natural justice by pre-determining the weight that it would give the father’s evidence without first hearing from him. The second claim is that the Tribunal acted unreasonably “by declining to call the father of the applicant”.
Parties’ submissions
The applicant’s written submissions are broader than the ground as particularised. Relying on the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection,[46] the applicant submits that a decision by the Tribunal to decline to call a witness can be challenged by reference to s.426(3) of the Act, which involves a consideration of whether the Tribunal’s consideration of an applicant’s wishes were real and genuine, and by reference to legal unreasonableness.[47] The applicant then submitted as follows:
[46] [2016] FCA 1574
[47] Written Submissions of Applicant, [10]
a)It ought to have been obvious to the Tribunal that the evidence of the applicant’s father would have been “highly relevant”.[48] There were “many matters” to which the applicant’s father’s evidence would have been relevant. These are the circumstances in which the student visa was obtained, including the use of false documents; the extent of the applicant’s involvement in the VDC; and the circumstances of the claimed kidnapping of the applicant.[49]
b)By denying the applicant’s request to call evidence from his father the applicant was denied the opportunity to corroborate many of his key claims, or address some of the Tribunal’s concerns, or shed light on the circumstances of the use of the false documents the applicant used to be granted a student visa.[50]
c)The Tribunal’s calling the applicant’s father would have been consistent with the purpose of s.426 of the Act, given that this was “clearly a case where the documentary evidence before the Tribunal was clearly inadequate and unsatisfactory”.[51]
d)The factors on which Wigney J in SZUIJ relied for concluding that the Tribunal in that case did not act contrary to s.426 of the Act or otherwise act unreasonably are not present in the facts of the case before me.[52]
e)In all the circumstances the applicant was not given a fair opportunity to present his case.[53]
f)It “would not have been possible to reasonably assess the utility of the evidence of the father without having heard from him or have considered a statement where he indicate[d] what oral evidence he would be prepared to give”.[54]
g)The applicant’s father’s credibility “was prematurely undermined” in circumstances where “fairness would have required the Tribunal to call the father and test his version”.[55]
h)There is a “strong element of arbitrariness in being dismissive of a witnesses’ credibility without hearing from him or at least considering a written statement of the witness”.[56]
i)The “manner in which the credibility of the father’s evidence was prematurely undermined at [66] of the Tribunal’s decision is particularly problematic”.[57] Fairness would have required the Tribunal to call the father “and test his version”, but the applicant was denied a fair opportunity to address the Tribunal’s concerns.
[48] Written Submissions of Applicant, [14]
[49] Written Submissions of Applicant, [15]
[50] Written Submissions of Applicant, [16]
[51] Written Submissions of Applicant, [17]
[52] Written Submissions of Applicant, [18], [19]
[53] Written Submissions of Applicant, [20]
[54] Written Submissions of Applicant, [19],[20]
[55] Written Submissions of Applicant, [22]
[56] Written Submissions of Applicant, [23]
[57] Written Submissions of Applicant, [22]
In his oral address counsel for the applicant laid particular emphasis on the Tribunal’s decision not to accept the applicant’s father’s credibility without first deciding to take evidence from the applicant’s father. Counsel submitted the Tribunal acted unreasonably by making an assessment of the usefulness of the evidence the applicant’s father would give without first hearing from the father. Counsel emphasised that, unlike the witness the Tribunal in SZUIJ decided not to call, the evidence the applicant’s father could have given could have corroborated the applicant’s claims. Counsel particularly relied on the judgments of Rangiah J CZBH v Minister for Immigration and Border Protection,[58] and SZVBB v Minister for Immigration and Border Protection.[59] Counsel submitted that those judgments are authority for the proposition that it is not open to the Tribunal to decide not to call evidence that is or might be corroborative of an applicant’s claims in the absence of a finding that the applicant’s evidence is so compromised that the hearing of the corroborating or potentially corroborating evidence could not have affected the outcome. Counsel submitted that the Tribunal did not make any finding that the applicant’s evidence had been so compromised that evidence from the father could not have affected the outcome; and, in those circumstances, it was not open to the Tribunal not to obtain oral evidence from the applicant’s father.
[58] [2014] FCA 1023. Counsel relied particularly on his Honour’s reasons at [40], [41], and [46]
[59] [2015] FCA 1414
In his written submissions the Minister submitted that, provided the Tribunal gives genuine consideration to an applicant’s request under s.426(2) of the Act that it obtain oral evidence, it will not make a jurisdictional error only because it declines such request. The Tribunal, the Minister submits, gave genuine consideration to the applicant’s request, and gave cogent reasons for deciding not to obtain oral evidence from the applicant’s father. The Minister submitted that the Tribunal in effect found that nothing the applicant’s father could have said would have changed its view of the evidence; and there was nothing unreasonable in the Tribunal having so decided.
Questions arising
In the light of these submissions, the following questions arise:
a)Is it the case, as counsel for the applicant submits, that it is not open to the Tribunal to decide not to call evidence that is or might be corroborative of an applicant’s claims in the absence of a finding that the applicant’s evidence is so compromised that the hearing of the corroborating or potentially corroborating evidence could not have affected the outcome?
b)Assuming (a) is answered in the negative:
i)Did the Tribunal fail to consider genuinely the applicant’s request to obtain evidence from the applicant’s father?
ii)Assuming (i) is answered in the negative, did the Tribunal act unreasonably in deciding not to obtain evidence from the applicant’s father?
Before I consider these questions, it will be necessary to say something about the nature, scope, and purpose of s.426(3) of the Act, because at least the second set of questions must be assessed by reference to those matters.
Nature, scope, and purpose of s.426(3) of the Act
Ground 1 is directed to the Tribunal’s exercise of the power conferred on it by s.426(3) of the Act. The occasion for the exercise of the power arises in the circumstances provided for by s.426(1) and s.426(2), which are as follows:
(1) . . . . the Tribunal must notify the applicant:
(a)that he or she is invited to appear before the Tribunal to give evidence; and
(b) of the effect of subsection (2) of this section.
(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.
Subsection 426(3) of the Act then provides:
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.
The power s.426(3) of the Act confers on the Tribunal is to obtain evidence, orally or otherwise, from a person named in a notice an applicant gives pursuant to s.426(2). As is apparent from the text of s.426(3) of the Act itself, when the occasion for the exercise of the power under s.426(3) arises, the Tribunal is required to consider the applicant’s wishes. As is also apparent from s.426(3) of the Act, however, the Tribunal is not required to obtain the evidence. It has a discretion whether it should do so or not. The text of s.426(3), therefore, mandates a particular activity – having regard to a request that evidence be obtained from a person or persons named in a notice given under s.426(2) of the Act – and, on the Tribunal undertaking that activity, it also grants the Tribunal a discretion to obtain evidence from the person or persons named in a notice under s.426(2).
Both the mandatory and discretionary aspects of s.426(3) of the Act have been considered by the authorities. In Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Maltsin Kenny and Lander JJ (with Spender J agreeing) said the following about the mandatory aspect of s.426(3): [60]
[T]he Tribunal must genuinely apply its mind to the contents of the notice and, in particular, to the question whether it should take the oral evidence of the nominated individuals in accordance with the applicant’s wishes. The Tribunal must not merely go through the motions of considering the applicant’s wishes as expressed in the notice. As the respondents’ counsel said, the authorities establish that the invitation to appear before the Tribunal must be “real and meaningful and not just an empty gesture”. . . . It follows that the consideration that the Tribunal gives to the wishes of the applicant concerning the evidence to be taken at the hearing must also be genuine.
[60] Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Maltsin [2005] FCAFC 118, at [38] (Kenny and Lander JJ; Spender J agreeing). The judgment concerned s.361 of the Act, which is the Part 5 equivalent of s.426 of the Act.
The discretionary aspect of s.426(3) of the Act has been more extensively considered. I begin with the four authorities on which the applicant relies. First there is Maltsin where, immediately after the passage from the judgment of Kenny and Lander JJ I have set out above, their Honours said:
The Tribunal must not decline to comply with the applicant’s wishes capriciously, but must take account of such relevant matters as the relevance and potential importance to the outcome of the review of the evidence that could be given by a nominated witness (compare W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211 (W360/01A) at [2] per Lee and Finkelstein JJ and [30]-[32] per Carr J)), the sufficiency of any written evidence that has already been given by a witness, and the length of time that would afford the applicant a fair opportunity to put his or her case before the Tribunal. These considerations flow from the nature of the Tribunal’s overarching objective, which is to provide a review that is “fair, just, economical, informal and quick”: see s 353(1). The Tribunal must bear in mind this statutory objective when considering the weight to be given these matters.
Second, there is the judgment of Wigney J in in SZUIJ where his Honour said:[61]
It is also necessary to consider the operation of s 426 in the context of the broader scheme for the conduct of reviews by the Tribunal. As already noted, reviews by the Tribunal are inquisitorial. While provision is made for the taking of oral evidence, it would appear that the review process “is a predominantly documentary process”: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (2005) 228 CLR 294 at 350 [192] The evident purpose of s 426, considered in context, is to provide for the taking of oral evidence where the provision of evidence in a written or documentary form is for some reason inadequate or unsatisfactory. That would include cases where an applicant was unable to obtain written statements from his or her witnesses. It would also include cases where the taking of oral evidence would be likely to assist the Tribunal to determine the reliability or credibility of witnesses who had provided written statements: CZBH at [56]; SZVBB at [96].
[61] [2016] FCA 1574, at [52]
Third, there is the judgment of Rangiah J in CZBH v Minister for Immigration and Border Protection.[62] In that case, during the hearing before the Refugee Review Tribunal (RRT), the appellants requested that the RRT telephone the applicants’ families overseas and take evidence from them. Towards the end of the hearing the RRT said it would not contact the fathers. The RRT appeared to have been unaware that the appellants had provided statements of their fathers. When considering its decision, the RRT became aware that the appellants had submitted statements from their fathers, but in its reasons for decision found that the statements of the fathers were contrived to support the application for protection. The RRT gave no reasons for not obtaining the oral evidence of the fathers.
[62] [2014] FCA 1023
Rangiah J found that the reasons the appellants wished the Tribunal to obtain the oral evidence, “which would be given under oath or affirmation, was to allow the Tribunal to test the evidence of the corroborating witnesses by asking them questions”.[63] His Honour concluded there were “cogent reasons for the Tribunal to obtain the oral evidence of the fathers” but, because the Tribunal gave no reasons for refusing to take oral evidence, it did not identify “any countervailing factors” and, in those circumstances, no “evident and intelligible justification for the [RRT’s] decision not to obtain the oral evidence of the fathers is discernible”.[64]
[63] [2014] FCA 1023, at [57]
[64] [2014] FCA 1023, at [60]-[61]
Rangiah J made the following observations about s.426 of the Act:[65]
The Tribunal’s core function pursuant to s 414(1) is to review decisions of the first respondent or his delegates that fall within s 411(1). Its process is inquisitorial. Its task is to make the correct or preferable decision on the materials before it: Li at [10] per French CJ. Section 426 and the ancillary provisions dealing with the taking of oral evidence recognise that in some cases the opportunity given to an applicant to present the evidence of witnesses in written form may not be enough. The purpose of those provisions must include assisting the Tribunal to arrive at the correct or preferable decision through the advantages that may be conferred by obtaining the oral evidence of witnesses.
One of the circumstances evidently contemplated by s 426 is where an applicant has been unable for some reason to obtain a written statement from a witness. Importantly, s 426 must also contemplate that obtaining oral evidence may assist the Tribunal to decide upon the credibility of a witness who has provided a written statement. In Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180, Mason CJ and Brennan and Deane JJ held at 189:
A witness who gives evidence orally demonstrates, for good or ill, more about his or her credibility than a witness whose evidence is given in documentary form.
Although that statement was made in the context of considering a criminal trial conducted by a court, it is also true of oral evidence given before a Tribunal which is engaged in an inquisitorial process. In Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 at 599 and 602, the Full Court indicated that an oral hearing before the Minister’s delegate may be required where issues of credibility arise. The Tribunal may find oral evidence given under oath or affirmation more persuasive than evidence given by written statement. If oral evidence is obtained by the Tribunal, it will also have the opportunity to test the credibility of the evidence given in any written statement by questioning a witness in the same way that it has the opportunity to test the evidence of an applicant.
[65] [2014] FCA 1023, at [55]-[56]
The fourth case is SZVBB v Minister for Immigration and Border Protection.[66] In that case, Rangiah J found the RRT did not make a jurisdictional error by declining the appellant’s request to take oral evidence from his wife and brother because the RRT found that nothing they could have said could have affected the RRT’s assessment of the credibility of the appellant. Counsel for the applicant relied on the following passage from his Honour’s judgment:
It is open to the Tribunal, in an appropriate case, to decide that the evidence of an applicant is so compromised that hearing the oral evidence of a corroborating witness could not affect the outcome . . .
However, if evidence by a witness corroborating a part of the appellant’s evidence is given and is believed, that might suggest that the appellant is also telling the truth about other parts of his evidence: see W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211; (2002) 124 FCR 449 at [2], [30]. For this reason, in many cases it will not be open to the Tribunal to refuse to obtain oral corroborating evidence on the sole basis of an assertion that the evidence could not affect the Tribunal’s assessment of the appellant’s credibility. It is one thing to hear evidence and reject it or to find that it is of no assistance. It is another thing to refuse to hear what is said to be corroborating evidence on the basis of an assumption that it could not possibly be credible or could not possibly assist in assessing the credibility of the appellant.
[66] [2015] FCA 1414
It will be seen that Wigney J and Rangiah J made observations about the apparent scope and purpose of s.426 of the Act by reference to the Tribunals’ functions in undertaking a review under s.414 of the Act, and in particular, by reference to the process before the Tribunal being “inquisitorial”. Their Honours, however, did not refer to what the High Court and the Full Federal Court have said about the nature of the inquisitorial processes provided for by Part 7 of the Act; and any assessment of the scope and purpose of s.426 of the Act cannot be made without reference to what has been said about the nature of this inquisitorial process.
A useful starting point is following passage from the judgment of the plurality in Minister for Immigration and Citizenship v SZIAI, which notes that “inquisitorial”, when used in the context of the Tribunal’s functions, does not carry its full ordinary meaning:[67]
[P]roceedings before the tribunal are inquisitorial, rather than adversarial in their general character. There is no joinder of issues as understood between parties to adversarial litigation. The word “inquisitorial” has been used to indicate that the Tribunal, which can exercise all the powers and discretions of the primary decision-maker, is not itself a contradictor to the cause of the applicant for review. Nor does the primary decision-maker appear before the Tribunal as a contradictor. The relevant ordinary meaning of “inquisitorial” is “having or exercising the function of an inquisitor”, that is to say “one whose official duty it is to inquire, examine or investigate”. As applied to the Tribunal “inquisitorial” does not carry that full ordinary meaning. It merely delimits the nature of the Tribunal’s functions. They are to be found in the provisions of the Migration Act. The core function, in the words of s 414 of the Act, is to “review the decision” which is the subject of a valid application made to the tribunal under s 412 of the Act.
[67] [2009] HCA 39, at [18]. The plurality were speaking of the Refugee Review Tribunal.
Then, there are statements to the effect that the process before the Tribunal, although referred to as inquisitorial, largely consists of the Tribunal responding to a case and evidence presented by the applicant for review. Thus it has been said that “it is for the applicant for a protection visa to establish the claims that are made”;[68] it is “for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason”, and that the “Tribunal must then decide whether that claim is made out”;[69] “notwithstanding the fact that the Tribunal performs an inquisitorial function . . . it remains the primary responsibility of a claimant to present such evidence and to advance such submissions as are considered relevant to the claims being made”;[70] the “function of the Tribunal . . . is to respond to the case that the applicant advances”;[71] if “a claimant makes a claim, be it for refugee status or otherwise, it remains for the claimant to present evidence and advance arguments adequate to enable the decision-maker to make a decision favourable to the claimant:[72] and the Tribunal “is required to deal with the case raised by the material or evidence before it”.[73]
[68] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [40].
[69] Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576 (Gummow and Hayne JJ)
[70] SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97, at [140
[71] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [78] (Kirby J)
[72] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52, at [69]
[73] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 at [58] (Black CJ, French and Selway JJ)
Also relevant is a matter to which Wigney J referred in the passage I have reproduced above, namely, that the procedure before the Tribunal “is a predominantly documentary process”. These words appear in the following passage from the judgment of Hayne J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs”:[74]
Part 7 of the Act, and Div 4 in particular, contains various provisions whose evident purpose is to afford procedural fairness to applicants. No doubt s 425 is a prominent example of such provisions. But it is not right to see the applicant’s appearance before the Tribunal pursuant to s 425, to give evidence and present arguments, as the focus or culmination of the review process. It is no more than one step in what otherwise is a predominantly documentary process.
[74] [2005] HCA 24, at [192]
Finally, it is necessary to refer to the overarching notion of legal unreasonableness. That is so because the power vested in the Tribunal to obtain evidence from a person or persons identified in a notice given under s.426(2) of the Act is discretionary; and “[l]ike any statutory discretionary power, it is subject to the presumption of the law that the legislature intends the power to be exercised reasonably”; [75] and the applicant claims the Tribunal exercised its power under s.426(3) unreasonably. And here it would be useful to refer to some principles:
a)What constitutes an unreasonable exercise of a discretionary power has been expressed in a number of ways, both positively and negatively. Thus it has been said that the exercise of the power must be legal and regular, not arbitrary, vague, or fanciful;[76] it must be “exercised within the limit, to which an honest man competent to discharge of his office ought to confine himself”;[77] and a discretionary power must not be exercised in a way that is so unreasonable that no reasonable person in the position of the person exercising the power would so exercise it.[78] This last formulation intends to convey “the point that judges should not interfere with official decisions on this ground”;[79] but it is not to be considered as limiting legal unreasonableness to “what is in effect an irrational, if not bizarre, decision, which is to say one that is so unreasonable that no reasonable person could have arrived at it”.[80]
b)At least where the discretion in question is ill-defined it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object; the “legal standard of reasonableness must be the standard indicated by the true construction of the statute”.[81]
c)A “conclusion of legal unreasonableness may be outcome focused – where, for instance, there is no “evident and intelligible justification” for the decision””;[82] and “[r]eview by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process’ but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’”.[83]
[75] Minister for Immigration and Border Protection v SZVFW & ORS [2018] HCA 30, at [1] (Keifel CJ) referring to Minister for Immigration and Citizenship v Li [2013] HCA 18, [63]
[76] Minister for Immigration and Citizenship v Li [2013] HCA 18, at [65] referring to Sharp v Wakefield [1891] AC173, at page 179
[77] Minister for Immigration and Citizenship v Li [2013] HCA 18, at [65]
[78] This being the effect of the formulation given by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, at page 230
[79] Minister for Immigration and Citizenship v Li [2013] HCA 18, at [108] (Gageler J quoting from Woolf, Jowell and Le Sueur, De Smith’s Judicial Review, 6th ed (2007), para [11-108])
[80] Minister for Immigration and Citizenship v Li [2013] HCA 18, at [68]
[81] Minister for Immigration and Citizenship v Li [2013] HCA 18, [67]
[82] Minister for Immigration and Border Protection v SZVFW & ORS [2018] HCA 30, at [82] referring to Minister for Immigration and Citizenship v Li [2013] HCA 18, [105]
[83] Minister for Immigration and Citizenship v Li [2013] HCA 18, at [105] (Gageler J referring to Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221 [47])
On the basis of the general principles of legal unreasonableness I have identified, and the more specific observations that have been made about the discretionary power conferred by s.426(3) of the Act, it possible at the very least to state a few principles concerning the scope and purpose of s.426(3), and the matters the Tribunal should consider when determining whether to exercise the power.
a)First, as Wigney J observed in SZUIJ, the purpose of s.426(3) of the Act is to provide for the taking of oral evidence where the applicant is unable to obtain written statements from his or her own witnesses, or where the provision of evidence in a written or documentary form is for some other reason inadequate or unsatisfactory. What may be considered to be inadequate or unsatisfactory, however, must be assessed having regard to the nature of the process by which the Tribunal is required under the Act to undertake its review of decisions. In particular, it must be assessed by reference to the general principle that it is for the applicant to advance whatever evidence or argument he or she wishes to advance in support of his or her contention that he or she has a well-founded fear of persecution for a Convention reason, and that the Tribunal must then decide whether that claim is made out. Thus, that an applicant has failed to provide evidence in support of his or her case or an essential element of his or her own case would not, by itself, render the evidence the applicant has provided inadequate or unsatisfactory such as to trigger an obligation on the Tribunal to consider obtaining or to obtain evidence the applicant failed to present to the Tribunal.
b)Second, when considering whether the Tribunal should exercise its discretion under s.426(3) of the Act in favour of obtaining evidence from a person identified in a notice given under s.426(2) the Tribunal should have regard to the evidence the person may be expected to give, the relevance and potential importance of that evidence to the outcome of the review, the sufficiency of the evidence that is before the Tribunal, and whether the taking of oral evidence would be likely to assist the Tribunal to determine the reliability or credibility of witnesses who had provided written statements.
I now turn to the first of the question I identified above, and that is whether, as counsel for the applicant submitted, it was not open to the Tribunal to conclude it would give limited weight to the applicant’s father’s evidence in the absence of a finding that the applicant’s credibility was so compromised that the hearing of corroborating or potentially corroborating evidence from the applicant’s father could not have affected the outcome.
Could the Tribunal decide not to obtain evidence in the absence of general adverse credibility finding against applicant?
Counsel particularly relies on the judgments of Rangiah J in CZBH and SZVBB. The judgments of Rangiah J, however, do not support the submission that his Honour was of the view that the Tribunal can decide against obtaining evidence from a person who is capable of providing corroborative evidence only if the Tribunal first finds that an applicant’s credibility has been so compromised that the hearing of corroborating or potentially corroborating evidence from the person could not have affected the outcome.
In CZBH Rangiah J held that the Tribunal acted unreasonably because it offered no intelligible justification for its decision not to take evidence from the appellants’ fathers.[84] It is true his Honour observed that the Tribunal did not make any finding that obtaining the oral evidence from the appellants’ father could not have affected its view of the credibility of the appellants;[85] but his Honour did not say that this was the only kind of evident or intelligible justification on which a Tribunal could rely in order to comply with s.426(3) of the Act. His Honour’s judgment goes no further than holding that a Tribunal’s decision not to obtain oral evidence from a person, when the occasion arises for considering whether it should obtain such evidence, will be held to be legally unreasonable if there is no evident or intelligible justification for the Tribunal’s decision.
[84] [2014] FCA 1023, at [61]
[85] [2014] FCA 1023, at [59]
In SZVBB Rangiah J said that “in many cases it will not be open to the Tribunal to refuse to obtain oral corroborating evidence on the sole basis of an assertion that the evidence could not affect the Tribunal’s assessment of the appellant’s credibility”. There are two things to note about this statement. First, it suggests his Honour was of the view that there are cases where it may be open to the Tribunal to refuse to obtain oral corroborating evidence on the sole basis of finding that the evidence could not affect the Tribunal’s assessment of an applicant’s credibility. Second, his Honour does not say that the only cases in which it would be open to the Tribunal to refuse to obtain such oral corroborating evidence is where the Tribunal has formed a general adverse assessment of the applicant’s credibility. There is an obvious case where it would reasonably be open to find that obtaining oral corroborating evidence could not assist the Tribunal in its assessment of the credibility of an applicant, and that is where it is reasonably open to find that what purports to be corroborating evidence itself is not reliable. That, in substance, is the reason the Tribunal gave for deciding not to obtain oral evidence from the applicant’s father.
I therefore do not accept counsel’s submission that it was not open to the Tribunal to conclude it would give limited weight to the applicant’s father’s evidence in the absence of a finding that the applicant’s credibility was so compromised that the hearing of corroborating or potentially corroborating evidence from the applicant’s father could not have affected the outcome.
Did the Tribunal fail to consider genuinely the applicant’s request to obtain evidence from his father?
I did not understand counsel for the applicant to submit the Tribunal did not genuinely consider the applicant’s request that oral evidence be obtained from his father. To the extent the applicant makes that submission, however, I do not accept it. The Tribunal was aware the applicant had requested that the Tribunal contact the applicant’s father to provide evidence from him, and the Tribunal gave reasons for deciding not to call the applicant’s father, thus implying that the Tribunal considered the applicant’s request. Further, given, as will appear later in these reasons, I am satisfied the Tribunal gave an evident and intelligible justification for its decision not to obtain evidence from the applicant’s father, it follows that I am also satisfied that the Tribunal genuinely considered the applicant’s request.
Was the Tribunal’s decision not to obtain evidence from the applicant’s father legally unreasonable?
The applicant seeks to make good the claim the Tribunal acted unreasonably by relying on a number of matters. Whether these matters establish the Tribunal acted unreasonably depends, at least in the first instance, on whether they are asserted facts and, if so, whether there is evidence to support the asserted facts, and whether in any event the asserted facts and other matters on which the applicant relies, even if true, are relevant to determining whether the Tribunal acted unreasonably.
First, the applicant relies on an assertion of fact, namely, that his father could have given evidence on “many matters”, and in particular the circumstances in which the student visa was obtained, including the use of false documents, the extent of the applicant’s involvement in the VDC, and the circumstances in which the applicant claimed he was kidnapped. This assertion, together with the assertion the applicant made in the Response to Hearing Invitation that the applicant’s father “KNOWS ALL HAPPENINGS”, do not identify, and cannot reasonably be taken to identify, the matters about which the applicant’s father was in a position to give evidence.
There is evidence before me, however, on the basis of which inferences can reasonably be drawn about the evidence the applicant’s father would or could have given, if called; and that evidence is the written submissions dated 28 January 2019 the applicant’s agent provided to the Tribunal.[86] In that document, the agent set out findings the delegate hade made, including findings concerning the applicant’s father, and questions the delegate had asked, and set out submissions responding to those findings and questions. The findings concerning the father, and the agents response to those findings, are as follows:
[86] CB210
Delegate’s findings of questions
Agent’s response
The applicant and his family may be ANP supporters, however they do not have an adverse profile with any non-state actors, including the Taliban, for this reason.
In reply to the above, [t]he applicant provides the following document:
A certificate Issued by [ANP] . . . The certificate is self-explanatory to the question raised by the delegate.
His father does not have an adverse profile with the Taliban for any of this or any other reason claimed.
In reply to the above, [t]he applicant provides the following document:
A certificate Issued by [ANP] . . . The certificate is self-explanatory to the question raised by the delegate
The applicant was not kidnapped in May 2017
The applicant was kidnapped but he or his family did not formally lodge an FIR with Police under the fear of Taliban thinking that if they did that the Taliban will kidnap him again and kill. Applicant’s father can be interviewed on phone at the time of hearing with Member
When did his father join the [VDC]. The date and the role of his father in [VDC].
His father had membership of the [VDC] since 2008. A membership card can be provided. His role was to educate members and the community at large to promote good values of Human Rights, rights of children, rights of women and rights of free life.
Why does his father continue to operate the gemstone business in the same location if he has been attacked by Taliban previously?
His father has been in Gemstone business since childhood. He has a passion for it. When Taliban destroyed his business, he worked secretly.
Have there been any recent threats to the father because he is a [VDC]?
The risk always remain there.
Why did his father not pay the ransom?
His father was going to pay the money but meanwhile the applicant luckily got release[d] accidentally
Why did they not kill him after a week? Even after the father said that he would pay the ransom?
They might have killed him but they were expecting money.
In addition to these specific responses, the applicant’s agent stated that the applicant’s father “spoke to a clever agent in Pakistan and the agent somehow got a student visa for him for Australia”.
An inference is reasonably available to be drawn, and I draw such inference, that the Tribunal formed the view that the evidence the applicant’s father would give would at the very least reflect the information contained in applicant’s agent’s written submissions and would otherwise purport to corroborate the applicant’s claims. The basis of that inference is that the Tribunal proceeded on the basis that the applicant’s father would give evidence that would purport to corroborate the applicant’s claims.
The second matter on which the applicant relies is the submission that, by denying the applicant’s request to call evidence from his father, the applicant was denied the opportunity to corroborate many of his key claims, or address some of the Tribunal’s concerns, or shed light on the circumstances of the use of the false documents the applicant used to be granted a student visa. I do not accept this submission. The Tribunal assumed the applicant’s father, if called to give evidence, would have purported to corroborate the applicant’s claims. The Tribunal, however, did not call the applicant’s father because, although the Tribunal assumed the applicant’s father’s would have given evidence that would have purportedly corroborated the applicant’s claims, it found that the applicant’s father’s corroborating evidence would not have been independent of the applicant and, for that reason, concluded it would not have been reliable.
The third matter on which the applicant relies is that this was “a case where the documentary evidence before the Tribunal was clearly inadequate and unsatisfactory”. By “inadequate” and “unsatisfactory” the applicant appears to intend to submit there was no written statement by the applicant’s father. There are two things to be said about this part of the applicant’s case. First, the Tribunal assumed that if called the applicant’s father would have given evidence that purported to corroborate the applicant’s claims. In other words, it is as if the Tribunal proceeded on the basis that there was before it a written statement by the applicant’s father that purported to corroborate the applicant’s claims. Thus, given the assumptions on which the Tribunal proceeded, I do not accept that the documentary evidence before the Tribunal was inadequate and unsatisfactory, or that the Tribunal ought reasonably to have considered that the documentary evidence before it was inadequate or unsatisfactory. Second, to the extent it could be said that the state of the documentary evidence before the Tribunal was “inadequate and unsatisfactory”, that would have been the consequence of the applicant’s failure to present whatever evidence he wished to advance in support of his claims. The applicant did not submit to the Tribunal that he was unable to obtain a written statement from his father; that the applicant’s agent in his written submissions recorded information concerning the applicant’s father, and also was in a position to provide to the Tribunal the applicant’s father’s membership card of the VDC, suggests there were no difficulties in the way of the applicant obtaining a written statement from his father. It is beyond the scope and purpose of s.426(3) of the Act that it remedy gaps and inadequacies in the evidence an applicant provides in support of his or her claims, at least where there is no claim that such failure is due to difficulties in obtaining evidence.
The fourth matter on which the applicant relies is that the factors on which Wigney J in SZUIJ relied for concluding that the Tribunal in that case did not act contrary to s.426 of the Act or otherwise act unreasonably are not present in the facts of the case before me. Even if true, that could not even suggest the Tribunal’s decision not to obtain oral evidence from the applicant’s father was legally unreasonable; and that is because there were matters present before the Tribunal in the case before me that were not present in SZUIJ.
The fifth matter on which the applicant relies is the submission that it would not have been possible “to reasonably assess the utility of the evidence of the father without having heard from him or have considered a statement where he indicate[d] what oral evidence he would be prepared to give”. There are two things to note about this submission. First, the Tribunal assumed that the applicant’s father, if called to give evidence, would give evidence that would purport to corroborate the applicant’s claims. Thus, it cannot be said the Tribunal assessed the applicant’s father’s evidence without considering the evidence the applicant’s father would give. Second, the submission is made without reference to the ground on which the Tribunal decided it would not accept the applicant’s father’s evidence, namely, that the corroborating evidence the Tribunal assumed the applicant’s father would give was not independent, reliable corroboration of the applicant’s claims. That finding was based on a fact that was not in dispute, namely, the applicant’s father’s involvement in the procurement of the student visa which involved the presentation of false documents. It is not apparent how hearing the applicant’s father could have altered or otherwise have affected the Tribunal’s decision to rely on a fact that was not in dispute in concluding that the applicant’s father’s evidence would not be independent, reliable corroboration of the applicant’s claims.
The sixth matter on which the applicant relies is the submission that there is a “strong element of arbitrariness in being dismissive of a witnesses’ credibility without hearing from him or at least considering a written statement of the witness”. Like the previous submission, this submission is made without reference to the ground on which the Tribunal decided it would not accept the applicant’s father’s evidence. Further, the Tribunal’s reason for not accepting the applicant’s father’s evidence would be independent, corroborating evidence, is not arbitrary. The Tribunal’s use of the word “independent”, and its characterising the applicant’s father’s corroborating evidence as one that could not be characterised as “independent”, reflects the common sense reasoning the common law has applied to determining what evidence was capable of constituting corroboration. This common sense reasoning was described by Johnson J in Jeans v Cleary as follows (emphasis added):[87]
Corroboration is not a technical term. It simply means confirmation: Director of Public Prosecutions v Hester (1973) AC 296 at 325. The essence of corroborative evidence is that it confirms, supports or strengthens other evidence in the sense that it renders that other evidence more probable: Doney v The Queen (1990) 171 CLR 207 at 211. Corroborative evidence ordinarily meant supportive and confirmatory evidence in the sense of independent evidence arising from a source other than the alleged victim: R v E (1996) 39 NSWLR 450 at 457-459. At common law, it was necessary that corroboration be independent from the person to be corroborated. In R v Baskerville (1916) 2 KB 658, Viscount Reading CJ at 665 observed that corroborative evidence must be independent testimony. It was necessary that the evidence be extraneous to the witness who was to be corroborated: R v Whitehead (1929) 1 KB 99 at 102. In referring to these common law principles, I am not seeking to apply these legal principles to this case. Rather, the law’s approach to corroboration reflects the common sense position that ordinarily a person cannot corroborate himself.
[87] [2006] NSWSC 647, at [93]
The Tribunal found that because the applicant’s father arranged to obtain the applicant’s student visa which involved the provision of false documents, the applicant’s father was motivated to help the applicant succeed on his application for a protection visa. The Tribunal, in turn, relied on that finding to find that the corroborating evidence it assumed the applicant’s father would give would not be independent, reliable corroboration of the applicant’s claims. It was reasonably open to the Tribunal to so reason.
The seventh matter on which the applicant relies is the submission that fairness would have required the Tribunal to call the father “and test his version”, but the applicant was denied a fair opportunity to address the Tribunal’s concerns. There are a number of difficulties with this submission. First, it implies the Tribunal owed the applicant and perhaps the applicant’s father a duty of “fairness”. The applicant, however, does not identify the source of any such duty. Second, the submission implies that the asserted duty of fairness required the Tribunal to test the evidence the applicants father could have given. That, however, would be inconsistent with the scheme of the Act pursuant to which the Tribunal is required to review decisions. It is largely a documentary process; and, in any event, it was for the applicant to present the evidence and arguments on which it relied and for the Tribunal to consider such evidence. Third, the submission ignores the ground on which the Tribunal decided it would not accept the applicant’s father’s evidence, namely, the applicant’s father having arranged to obtain the applicant’s student visa which involved the provision of false documents. This was not a matter about which the Tribunal could have benefitted from oral evidence from the applicant’s father because it was based on an undisputed set of facts.
Conclusion
None of the matters on which the applicant relies satisfies me that the Tribunal’s decision not to obtain evidence from the applicant’s father was legally unreasonable. The Tribunal gave an evident and intelligible justification for deciding not to obtain such evidence, namely, that although it assumed the applicant’s father would give evidence that would purportedly corroborate the applicant’s claims, that evidence would not be independent, reliable corroborative evidence of the applicant’s claims; and the Tribunal so found because the applicant’s father arranged to obtain the applicant’s student visa which involved the provision of false documents, which in turn implied the applicant’s father was motivated to help the applicant succeed on his application for a protection visa. Further, the reasons on which the Tribunal relied were rational; it was reasonably open to the Tribunal to find for the reasons that it did that what it assumed would purport to be corroborating evidence from the applicant’s father would not be reliable. And there is nothing, either as a matter of common sense, or under any aspect of the statutory scheme pursuant to which the Tribunal was required to exercise its jurisdiction to review the applicant’s claims for protection, that rendered it unreasonable for the Tribunal to decide it would not accept the applicant’s father’s corroborating evidence as independent corroborating evidence for the reasons on which it relied without first hearing from the applicant’s father. I am also not satisfied that the Tribunal’s decision not to obtain evidence from the applicant’s father, was one that no reasonable decision-maker in the position of the Tribunal would have made. Ground 1, therefore, fails.
Ground 2
Ground 2 is as follows:
Having accepted that the applicant’s claim that his father was a member of the [VDC] was plausible (see [44]) the Tribunal committed a jurisdictional error in finding that the applicant’s father had a low level of engagement (see [54]) with the [VDC].
Particulars
a)The only evidence of the father’s engagement with the [VDC] came from the applicant. There was no evidence to support that finding that father had a low level of engagement; or
b)The finding was unreasonable in that it was not supported by logical and cogent reasoning.
This ground misstates what the Tribunal’s found. The Tribunal did not find that the applicant’s father had a low level engagement with the VDC. The Tribunal found that it “is not satisfied that the applicant’s [father] engaged in any more than low-level duties and tasks for the [VDC], of the kind that males from every family member in the area did”. This does not manifest any positive finding; at most it manifests a preparedness by the Tribunal to accept in part the claims the applicant made about his father’s role in the VDC. Further, the Tribunal identified the matters on which it relied for accepting that the applicant’s father was a member of the VDC, but not accepting that the applicant’s father had any higher role. These were the documents that purported to be the applicant’s father’s membership card of the VDC; the applicant’s “vague description” of his father’s activities; the applicant’s father’s continued residence in Swat; and the applicant’s father’s continuing business activities in Swat. It was reasonably open to the Tribunal to make the findings that it did for the reasons it gave.
Ground 2, therefore, also fails.
Ground 3
Ground 3 is as follows:
The Tribunal committed a jurisdictional error in not accepting the applicants [sic] claim that he had been kidnapped on 6 May 2017.
Particulars
a)In rejecting this claim the Tribunal was critical of the fact that the applicant claimed to be blindfolded at all times and was never spoken to but was still confident that the kidnapper’s motives was the applicant’s father [sic] involvement in the ANP and [VDC] (see [59]);
b)The finding ignored the claim made by the applicant that he had a subsequent discussion with his family where he was advised of the kidnappers’ demand for ransom (see [58]);
c)In the circumstances that finding was unreasonable; and
d)In the circumstances the Tribunal failed to consider an integer in the applicant’s claim in that he had a subsequent discussion with his family.
The substance of this ground is that the Tribunal ignored the fact that the applicant had a discussion with his family after his claimed kidnapping and it, therefore, did not consider that, by this means, the applicant obtained an account of what occurred during his kidnapping, even though he was blindfolded and not spoken to during the claimed kidnapping. There is no substance to this ground. The Tribunal did consider this very possibility, but rejected it (emphasis added):[88]
[T]he applicant’s account of his captors, while transporting him to another location, turning around after sighting a police vehicle is difficult to believe, if as claimed, he was blindfolded and unable to hear conversations. The Tribunal is not satisfied that he reconstructed these events following any discussions with the police or his family.
[88] CB270, [59], third dot point.
Ground 3 also fails.
Conclusion and disposition
The applicant fails on all three grounds on which he relies, and I propose to order that the application be dismissed.
The parties agreed at the hearing that costs should follow the event. Given that the Minister has succeeded, I propose to order that the applicant pay the Minister’s costs. Ms Strugnell, who appeared for the Minister, submitted that if the Minister were to succeed he would seek that costs be assessed in the sum of $5,600. That amount is reasonable. I also propose to order that the costs be set in the amount of $5,600.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 28 June 2019
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