BTF15 v Minister for Immigration - [2015] FCCA 3293

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTF15 v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3293

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection visa – whether the Tribunal constructively failed to exercise its jurisdiction – whether the Tribunal acted unreasonably in declining to hear oral evidence – whether the Tribunal was required to comply with the rule in Browne v Dunn – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424, 426, 427(1)(a)(d), 428(2), 429A, 476

Browne v Dunn (1893) 6 R. 67, H.L
CZBH v Minister for Immigration and Border Protection [2014] FCA 1023

Applicant:

BTF15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2403 of 2015

Judgment of:

Judge Street

Hearing date:

9 December 2015

Date of Last Submission:

9 December 2015

Delivered at:

Sydney

Delivered on:

9 December 2015

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Kinslor Prince Lawyers

Counsel for the Respondents:

Mr M Smith

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2403 of 2015

BTF15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 4 August 2015, confirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Rwanda, and his claims were assessed against that country.
The applicant claimed to fear persecution for the reason of his political opinion as well as his ethnicity, being a Hutu. The applicant was initially invited to attend a hearing by letter dated 19 February 2015 to take place on 8 April. On 26 February 2015 the applicant completed the response to hearing invitation, which relevantly identified two witnesses in respect to whom the applicant was desirous of the Tribunal taking evidence.
At the time of that notification, the content of the proposed evidence was noted as being, “To be advised.” On 21 April 2015 the applicant received a further invitation to attend a hearing and give evidence and present arguments to take place on 26 May 2015. The applicant appeared on that date to give evidence and present arguments, and was assisted by an interpreter, as well as being represented by his registered migration agent.
Prior to the hearing, the Tribunal received a four-page statement of an alleged eye witness, being a person who resided in India addressing part of the applicant’s claims. That statement provided both telephone and email contact details for that witness. A further statement was provided to the Tribunal described as witness testimony by a particular person who lived in Canada. Both witnesses provided their telephone contact details in respect of the two-page statement.
The grounds of the application that are pressed are grounds 2 and 3 as follows:
2. The Tribunal constructively failed to exercise its jurisdiction to conduct a review of the delegate's decision.
PARTICULARS
a. The Tribunal failed to discharge its obligation to review the delegate's decision by declining to hear oral evidence from two witnesses put forward by the Applicant, despite that their evidence was highly relevant, thereby denying the Applicant a reasonable opportunity to present his case.
3. The Tribunal acted unreasonably in declining to hear oral evidence from two witnesses put forward by the Applicant.
PARTICULARS
a. The Tribunal's decision not to take oral evidence from two witnesses put forward by the Applicant, despite that their evidence was highly relevant, was arbitrary and lacked an evident and intelligible justification.
I note that Mr Karp, counsel for the applicant, abandoned ground 1.
It is convenient to deal with the grounds in the same order as they are dealt with by counsel for the applicant, and therefore I turn first to ground 3. The kernel of Mr Karp’s careful and skillful argument of alleged jurisdictional error were the Tribunal’s reasons in paras.78 and 79, which are as follows:
78. Mr Travers appeared at the hearing as a support person for the applicant and it is clear that he is unable to corroborate the applicant’s claims about events in Rwanda. As for the other two people who provided written statements, the Tribunal refrained from taking evidence from them over the telephone because of the risk that those communications could be intercepted and the privacy of the proceedings before the Tribunal would be breached. At any rate, the assertions these people make in their statements do not overcome the concerns the Tribunal holds about the applicant’s credibility and which have led the Tribunal to find that he is not a witness of truth.
79. Claims about bank accounts being blocked and the landlord claiming that the police came to the applicant’s former residence looking for him do not explain the various issues discussed above which impugn the applicant’s credibility and relate to events before he left Rwanda to come to Australia. The Tribunal finds that the evidence of the two people in Canada and India is a fabrication to support the applicant’s protection claims and the Tribunal gives no weight to that evidence.
Mr Karp identified the various sources of the powers of the Tribunal to take evidence of an oral nature from the two persons whose statements have been referred to. In that regard, Mr Karp referred to ss.424, 427(1)(a) and (d), 428(2) and 429A. It is, however, clear that the Tribunal appreciated that there was a request to take oral evidence, as is apparent from para.76 as follows:
76. The applicant advised the Tribunal of the contact details of two people in other countries (Canada and India) who were prepared to give evidence over the telephone. The Tribunal has discussed above the evidence of one of these people, referred to in this decision as the witness. The Tribunal has discussed how the evidence of that person has posed difficulties for the applicant because it is in contrast to letters before the Tribunal from the institute which span that same period and which convey a contrary view as to how the applicant was regarded by the institute at that time. The Tribunal was given a statement by another Rwandan national who said that she met the applicant for the first time in Australia in 2013. She claims to be a doctor with training in mental health and counselling. She said that after the applicant related his account of his experiences in Rwanda to her, she decided that he was traumatised.
It is also clear that the Tribunal had taken into account the statement of the evidence of the witness in India in the analysis identified in paras.22 to 25, and the Tribunal made a finding as to the inconsistency with that evidence with what appeared from the substance of a letter from a Dr X dated June 2012 and a grant of leave approval provided, dated 26 February 2013.
The applicant in this case arrived in Australia on 28 February 2013 as the holder of a TU subclass 576 visa, which was to cease on 3 April 2013, and the application for protection was made on 22 March 2013. Reference was also made to s.426 of the Act, which relevantly provides as follows:
(1) In the notice under section 425A, 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.
(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.
Allowing time for receipt of the letter by the applicant dated 19 February 2015, it would appear that there was notification given to the Tribunal within s.426(2), albeit that the date was then rescheduled to take place as a result of a further notification dated 21 April 2015.
Even if that seven-day period had not, in fact, been complied with, it’s clear from s.420 that the Tribunal must act according to substantial justice on the merits of the case and that the notification in requesting evidence to be taken from two witnesses in the document dated 26 February 2015 should be treated as a notification consistent with the requirements within s.426. However, subs.3 identifies that the Tribunal is not required to obtain such evidence, but must have regard to the request.
The reference in para.76 and the reasoning in paras.78 and 79 clearly identify the Tribunal had regard to the request of the applicant to contact the two persons that provided the statements for the purpose of obtaining oral evidence. I accept the criticism of Mr Karp that the reference to the risk of interception and privacy are not matters that would readily be perceived as a reasonable ground for not obtaining oral evidence where it is alleged that oral evidence is potentially corroborative of the applicant’s claims.
However, in the present case, the Tribunal provided a further reason, which was the finding of the Tribunal in relation to the applicant’s credibility, and, significantly, the finding by the Tribunal that the applicant was not a witness of truth. The Tribunal engaged in a thorough identification of the grounds for the adverse findings in relation to the applicant’s credit, and, at para.73, found the applicant was not a witness of truth.
I accept the first respondent’s submission that in those circumstances, given the adverse finding in respect of the applicant’s credit and that the applicant was not a witness of truth, the decision of the Tribunal not to contact the makers of the two statements to obtain alleged oral corroborative evidence of the applicant’s claims cannot be said to be unreasonable. In light of the Tribunal’s finding about the applicant not being a witness of truth, the decision of the Tribunal, in an area of discretion not to contact by telephone the makers of the two statements cannot be said to lack an evident and intelligible justification.
For these reasons, ground 3 fails to make out any jurisdictional error. I should note I have taken into account the finding made at the end of para.79 that the evidence from the witnesses who provided the statements in Canada and India, respectively, was a fabrication “to support the applicant’s protection claims” and that the Tribunal gave no weight to that evidence.
This is a case where the Tribunal had earlier identified an inconsistency with one of the statements with other material before the Tribunal in respect of certain correspondence in para.30 as follows:
30. The letter of June 2012 from Dr X put forward a picture of the applicant as somebody who was a valued member of staff at the institute and that impression was only confirmed by the letter signed for the rector in January 2013 and the subsequent permission granted to the applicant to take leave from his work. The letter signed for the rector in January 2013 is in direct conflict with the claims made by the witness (which the applicant told the Tribunal were correct) that in November 2012 the rector actually named the applicant as being opposed to the government and in January 2013 again said at another meeting the applicant was linked to opposition political parties and his employment could be terminated.
Given the inquisitorial nature of these proceedings, the Tribunal is not required to comply with the rule in Browne v Dunn (1893) 6 R. 67, H.L, and it was a matter for the Tribunal to determine what weight to give the evidence that was adduced.
This is not a case where there was a separate ground attacking the finding in respect of fabrication. For completeness, I note that I regard that finding as open on the material before the Tribunal. I also note that the present case is distinguishable from that decided in CZBH v Minister for Immigration and Border Protection [2014] FCA 1023, as the Tribunal provided an explanation for why it refused to take the oral evidence, namely the finding of the Tribunal that the applicant was not a witness of credit.
I accept the first respondent’s submission that this is a case that falls within the principles identified at para.58 of the decision in CZBH to the effect that there was a finding that the applicant’s evidence was so compromised that oral evidence of the corroborating witness could not overcome that finding.
Mr Karp, of counsel, suggested that the words “at any rate” suggested that the finding in respect of credit was an afterthought. The Tribunal’s reasons are not to be read with a keen eye for error. In my opinion, the last sentence of para.78 is a clear, separate and independent finding in relation to why the Tribunal declined to take oral evidence from the makers of the two statements.
Further, to the extent that Mr Karp focused on the language in the last sentence of para.78 referring to “their statements”, and submitted that this did not reflect a consideration of the possibility that the oral evidence may have assisted in the evaluation of the applicant’s credibility. In my opinion, it is clear, from a reading of the Tribunal’s decision as a whole, and specifically in para.76 together with paras.78 and 79, that the Tribunal was considering, and providing reasons for, why oral evidence was not taken in the circumstances of the present case.
In relation to ground 2, for reasons I have given, it is clear that the Tribunal provided the applicant with a genuine hearing, and the decision of the Tribunal not to take oral evidence from the two witnesses advanced by the applicant was a discretionary decision that was open to the Tribunal and does not reflect any constructive failure to exercise the jurisdiction of the Tribunal. Ground 2 fails to make out any jurisdictional error.
The application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 11 December 2015