BWU16 v Minister for Immigration
[2018] FCCA 3051
•26 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BWU16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3051 |
| Catchwords: MIGRATION – Application for a remedy under s.476 of the Migration Act 1958 (Cth) in relation to a decision of the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether Tribunal made any jurisdictional error by declining offer made in the course of a hearing before it to contact witnesses located in applicant’s country of nationality – whether the reasons the Tribunal gave for declining offer to telephone witnesses inconsistent with Tribunal’s ultimate finding that applicant did not face a real chance of serious harm if returned to his country of nationality – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.353(1), 361, 425, 425A, 426, 427(1), 476, 429A(a) |
| Cases cited: AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103 Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 |
| Applicant: | BWU16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1927 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 22 September 2017 |
| Date of Last Submission: | 22 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 26 October 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Hodges of Hodges Legal |
| Counsel for the First Respondent: | Mr D Hughes |
| Solicitors for the First Respondent: | Mills Oakley Lawyers |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1927 of 2016
| BWU16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant applies for a remedy under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming a decision of the first respondent (Minister) not to grant the applicant a protection (class XA) visa (Protection visa).
The principal questions that arise are whether the Tribunal made a jurisdictional error by declining the applicant’s offer made during the hearing before the Tribunal that it contact by telephone two potential witnesses, and whether the reasons the Tribunal gave for declining that request manifest irrationality or unreasonableness in the manner in which the Tribunal assessed the risk of the applicant’s being harmed if he were to be returned to Sri Lanka.
To be in a position to consider these issues, it will be necessary to set out the applicant’s claims for protection, those parts of the hearing before the Tribunal where the applicant requested or is claimed he requested the Tribunal contact witnesses, the additional claims the applicant made after the hearing, and the Tribunal’s reasons for affirming the delegate’s decision not to grant the applicant a Protection visa.
Claims for protection
The applicant is a national of Sri Lanka, a Tamil, and a Hindu. He left Sri Lanka illegally and arrived in Australia by boat on 28 July 2012. He applied for a Protection visa on 8 May 2013, and in a statutory declaration that formed part of his application the applicant claimed as follows:[1]
a)The applicant was born in the Central Province. Between 1990 and 1994 he studied at a particular school which had two curriculums, one for Tamils, and one for Sinhalese. The applicant had a misunderstanding with one of the Sinhalese children. The child’s father, who was a police officer, came to the school and insisted that the applicant be removed. The applicant changed schools.
b)From 1994 to 2011 the applicant lived in Negombo. From 2011 the applicant would stay in Eravur when he was not working.
c)The applicant’s wife’s and her mother’s land are within the army camp area in Eravur. The Sri Lankan Army (SLA) took over the land during the civil war but did not return it.
d)About one month before he left Sri Lanka, the applicant went to see the SLA to ask the SLA to give back the land or to give other land in exchange for it. “They” said the applicant was a Tamil and so could not ask for the land, and “they” threatened the applicant that if he continued to ask for the land “they” would put the applicant away by telling the authorities the applicant was linked to the Liberation Tigers of Tamil Eelam (LTTE). “They” also told the applicant that any Tamil person living in Eravur is linked to the LTTE, and that the applicant had married a girl from the LTTE. “They” were furious the applicant had dared to ask for the return of the land, “they” made the applicant give them his mobile number, and “they” threatened the applicant and told him to be careful, noting that Tamil men were being kidnapped and interrogated and the same would happen to the applicant.
e)When the applicant told his wife what happened she was terrified. The applicant went to Negombo where he stayed with a friend and then fled Sri Lanka.
f)The agent who arranged for the applicant to come to Australia was detained with the applicant after they arrived in Australia, and the applicant owes the agent 450,000 rupees. The agent told the applicant he would hurt the applicant’s wife and kidnap the applicant’s children if the applicant did not pay what he owed the agent. The agent has returned to Sri Lanka. Being Sinhalese, the authorities will not take any action against the agent, and the applicant is scared that if he returns to Sri Lanka the agent will punish him for not paying the agent the money.
g)If the applicant is forced to return to Sri Lanka he fears he will be punished for leaving the country illegally. The authorities will know he made complaints against them, and the authorities believe that Tamils who make complaints about them are linked to the LTTE. For those reasons, the applicant is scared he will be detained, interrogated, beaten, and then imprisoned. The applicant is also afraid the SLA will hurt the applicant because he dared to ask for the return of the applicant’s wife’s and her mother’s land, and that the SLA will provide false information about the applicant.
[1] CB49-52
After the delegate decided not to grant the applicant a protection visa the applicant made a further statutory declaration in support of his claims for protection.[2] The applicant there stated his wife had been visited several times after the applicant left Sri Lanka by unknown people in civilian clothes who asked her about the applicant’s whereabouts. The applicant also provided “some more detail about how” the applicant made his complaint about the return of the land because the applicant said he did not feel he “was able to explain this in full to the case officer”.
[2] CB162-164
Hearing before the Tribunal
The applicant appeared before the Tribunal on 16 April 2015. After the Tribunal explained to the applicant how the hearing was going to proceed, the Tribunal asked the applicant whether he had any new information he would like to tell the Tribunal. The applicant referred to his second statutory declaration, and in particular “[a]bout the visitation to home and giving trouble to wife”, and that “[t]hese things my wife told me recently, so I have given this to the lawyer”.[3] The Tribunal asked the applicant why he says the applicant’s wife “has suddenly said these things to the” applicant. The applicant said that his wife told him she had “hidden” the visits from the applicant because she told the applicant she was worried about him and did not want the applicant to be stressed about it. The Tribunal then asked the applicant that he says “it has happened several times and nothing has happened”. The applicant responded:[4]
Okay ….. trouble for her. And I give her telephone number. You can talk to her and find out straight from her.
[3] T5.5. A transcript of the hearing before the Tribunal is annexed to the affidavit of D Baddeley made on 21 September 2017.
[4] T5.25
The Tribunal did not respond to the applicant’s offer of his wife’s telephone number, but instead asked “[w]hat trouble [?]”. The Tribunal then asked questions about whether anything had occurred as a result of the visits. This included the following exchange:[5]
[5] T6.10-T6.40
[TRIBUNAL MEMBER]: But what I put to you was you say this has happened several times, but nothing has happened to her. And then you said “No, she has had troubles.” And then I asked you what those troubles were, and you started talking about yourself. And then when I asked you again what troubles did she have, well, there’s still what I originally put to you: nothing has happened to her.
THE INTERPRETER: The problem is that they are asking question [sic] about me, so she can’t face them and she can’t give them proper answer about me.
[TRIBUNAL MEMBER]: And you also said it has happened several times. So several times she has been asked about you and several times nothing has happened to her. I understand you say it upsets her. I understand you say you don’t know what might happen in the future. But that doesn’t change that so far nothing has happened.
THE INTERPRETER: Okay. Nothing happened, but if it happens then she’s – she said it’s – after happening something, you can’t be worried about it.
[TRIBUNAL MEMBER]: The important word there is “if”, and it’s my job to assess what’s the chance of that “if”. So I just want to clarify you say that these things have happened several times and that no harm has happened to your wife.
THE INTERPRETER: So she is scared and to ….. them any – she doesn’t give them any answer, listen to them, and if she talks too much, so they will do something - harm to her. That’s why she gets out of the house and go to the house of her aunt.
[TRIBUNAL MEMBER]: You’re repeating yourself. I understand.
THE INTERPRETER: Okay. So she has two small kids, so – and if something happens to her, then it will hurt the future of those children. That’s why she doesn’t want to get into any trouble.
[TRIBUNAL MEMBER] Yes, and you’ve already said that as well. It’s not necessary to repeat. Okay. Any other new information?
Later in the hearing the Tribunal asked the applicant questions about his movements in 2007 and 2008 and his employment during those years. The applicant said he was only able to rent a house in Negombo for six months. In that context the following exchange occurred:[6]
THE INTERPRETER: Okay. The person who had rented me the house, I have his telephone number. You can talk to him, and he will explain all the problems I had. He’s a Sinhalese man.
[TRIBUNAL MEMBER]: I don’t speak Sinhalese.
THE INTERPRETER: He can talk English.
[TRIBUNAL MEMBER]: All right. I’m not going to call anybody today in Sri Lanka. So you don’t need to say, “I’ve got this person’s phone number, that person’s phone number.” You’re telling me that you fear to go back to this country, and that there’s a real chance that you will be seriously harmed if you go back to Sri Lanka. So I don’t think it’s right that I call Sri Lanka and talk to people about you. I don’t know who might be able to listen to that phone call. So that would be putting the people that I speak to, possibly, at an unnecessary risk. So that’s why I’m not going to call anybody in Sri Lanka. Do you understand?
THE INTERPRETER: Yes. My intention was so that somebody can prove . . . my story. . . . . my intention was that
[TRIBUNAL MEMBER]: And I actually said to you, “I can see it being possible that your landlord didn’t want to rent a house to you anymore”. I’ve already said that. To me, that seems plausible. Where I’m less accepting of your claims is that you say there’s nowhere else in Negombo that you and your wife could live, and I don’t think, if I even spoke to that gentlemen, he would really be able to tell me about that. He doesn’t need to find somewhere to live. He’s Sinhalese, and he’s got somewhere to live. Okay?
[6] T13.10-T13.35
Claims made after hearing
On 8 December 2015, after the hearing before the Tribunal, the applicant submitted a further statutory declaration in which the applicant set out “further information to the Tribunal about things that have happened since my hearing”.[7] The applicant said that about three months ago he received a call threatening the applicant that if he were to return to Sri Lanka “they will kill me, and that they are waiting for me to come”. The applicant said the call was from the son of the people smuggler. The applicant further stated that his wife received a threatening call at about that time. The applicant’s wife was very scared and moved with their two children to another house about 20 kilometres from where they lived before. The applicant no longer owes money to the people smuggler because his wife paid the debt prior to the telephone calls. The applicant said he believes the people smuggler is still threatening the applicant because of what happened in the detention camp, and that the applicant had reported the smuggler to the case manager.
[7] CB185
Tribunal’s reasons
Near the beginning of its reasons the Tribunal referred to the applicant’s offer of telephone numbers of potential witnesses. In a passage on which the applicant relies the Tribunal said:[8]
During the hearing the applicant offered to provide the telephone numbers of potential witnesses in Sri Lanka and invited the Tribunal to receive evidence from those people to corroborate his evidence. The Tribunal declined to do so. The Tribunal considered it reasonable not to telephone those people. It explained to the applicant during the hearing it considered the applicant had made claims of serious harm in Sri Lanka. The tribunal could not be certain of the identity of whom it spoke with on the telephone. The Tribunal could not be certain whether doing do [sic] would put the applicant or the witness at the risk of future harm.
[8] CB196, [6]
The Tribunal first considered the applicant’s claim based on his approaching the SLA for the return of the land. The Tribunal was prepared to “give the applicant a very generous benefit of the doubt that he was threatened by the army officer”[9]. Even so, the Tribunal was not satisfied there is a real chance the applicant would face serious harm if he were to return to Sri Lanka because he approached the SLA for the return of his wife’s land.[10] The Tribunal relied on the following matters:
a)The applicant did not make any formal complaint against the SLA, but only had one conversation with an army officer.
b)The applicant’s wife, not the applicant, is the registered owner of the land.
c)Giving the applicant the “considerable benefit of the doubt” that unidentified men had called the applicant’s mobile telephone, the call was answered by the applicant’s wife, unidentified men came to the applicant’s wife’s home, and the unidentified men were from the SLA, the men did not contact the applicant’s wife again since 2012 and have not made any threat to the applicant’s wife to harm her or the applicant.
d)Although the applicant claimed his wife told him the post-war assistance payments had ceased, and the applicant suspects this was due to his contacting the SLA about the land, the Tribunal found the applicant’s suspicion to be speculation.
e)Even if the SLA officer threatened the applicant, these were empty threats made in the context of a heated argument and there is, therefore, a speculative and remote chance and, therefore, not a real chance, the Sri Lankan authorities would target the applicant for harm if he returns to Sri Lanka.
f)The applicant said he would take no further steps to reclaim his wife’s land, and the applicant had taken no steps between 2007 and 2012 to reclaim the land.
[9] CB203, [40]
[10] CB203-204 at [40]
Although the Tribunal was willing to accept the people smuggler threatened the applicant in the past, it considered there was only a remote or speculative chance, and therefore not a real chance, the people smuggler will target the applicant for serious harm now or in the reasonably foreseeable future if the applicant returns to Sri Lanka. The Tribunal relied on the people smuggler having voluntarily returned to Sri Lanka before the applicant complained about him; the people smuggler was not made aware of the applicant’s complaint to his case manager and, for that reason, the people smuggler would not bear a grudge towards the applicant; between 2013 and the date of the Tribunal’s decision the people smuggler made only one attempt to contact the applicant or his wife; and the applicant has fully paid his debt to the people smuggler.
The Tribunal also assessed the applicant’s claims on the basis that he feared harm because he was a Tamil, a failed asylum seeker, and a person who departed Sri Lanka illegally. For reasons it is not necessary to set out here the Tribunal was not satisfied the applicant faced a real chance of serious harm for any of these reasons. The Tribunal also concluded there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm.
Ground of application
The application contains two grounds of application, but the applicant only relies on ground 1, which is as follows (emphasis in original):
The decision of the AAT is affected by error because the AAT failed to give “genuine consideration” to the applicant’s wish for the Tribunal to obtain oral evidence from “potential witnesses” to corroborate his evidence/claims for protection in Australia. See: Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC [118].
PARTICULARS
(i) At [7] “During the hearing the applicant provided telephone numbers of potential witnesses in Sri Lanka and invited the Tribunal to receive evidence from these people to corroborate his evidence.
(ii) The reasons the AAT considered it reasonable not to telephone the “potential witnesses” was due to [7],
a. The AAT being unable to satisfy itself who it was that it would contact via the telephone numbers provided.
b.“The Tribunal could not be certain whether doing do [so] would put the applicant or the witness at the risk of future harm”
(iii) It is submitted that one of the reason/s the ATT refused to telephone the potential witnesses was due to a possible risk of future harm to the applicant or the witness.
(iv) At [69] the AAT accepted the following,
a. The people smuggler has criminal connections and made demands against the applicant for the applicant to repay the debt.
b. The applicant did receive a phone call from the people smuggler.
(v) At [66] the AAT “noted if the applicant paid the debt owed to the people smuggler, there would appear not to be a real chance the applicant would be harmed by the people smuggler”
(vi) The applicant had stated the following [24]
…The applicant further states his wife already fully repaid the people smuggler …
The Tribunal did not dispute the fact that the debt to the people smuggler has been fully paid [70].
(vii) On the basis of the AAT’s assertion “if the applicant paid the debt owed to the people smuggler, there would appear not to be a real chance the applicant would be harmed by the people smuggler” [66] and the applicant’s claim that the debt had been paid by the wife, it could be inferred the applicant was not at risk of being harmed by the people smuggler.
(viii) Despite the absence of a risk of harm to the applicant from the people smuggler, the AAT’s reasoning at [7] seems to suggest that contacting potential witnesses would put the applicant or the witness at the risk of future harm.
(ix) The AAT committed jurisdictional error, not only due to having declined the applicant’s wishes capriciously, refusing to contact potential witnesses, but also because its reasoning at [7] to refuse to contact the potential witnesses is indicative of a real chance of serious/significant harm to the applicant if contact was established.
(x) The applicant’s claim was, that he was threatened by the people smuggler and feared returning to Sri Lanka due to threats made by the people smuggler. The AAT did not reject or disbelieve this claim but concluded at [70],
The Tribunal considers there to be on a remote or speculative chance and therefore not a real chance the people smuggler will target the applicant for serious harm now or in the reasonably foreseeable future, if the applicant returns to Sri Lanka
Therefore as there were no credibility concerns with regard to this particular claim any “corroborative oral evidence” by potential witnesses was likely [sic] than not to strengthen the applicant’s claims which would have resulted in a favourable outcome.
The ground, when read with the particulars, relies on what is claimed to be inconsistent positions the Tribunal adopted in its reasons for decision. On the one hand, it is asserted, the Tribunal found the applicant was not at risk of being harmed by the people smuggler; yet, on the other hand, the Tribunal, it is also asserted, was of the view that contacting the witnesses would put the applicant at risk. The ground then relies on this asserted inconsistency to make two claims. One is that the Tribunal’s declining to contact the witnesses was capricious because the reason it is asserted the Tribunal gave for declining to contact the witnesses, namely, that it would put the applicant at risk, was inconsistent with the Tribunal’s finding the applicant was not at risk of being harmed by the people smuggler. The second claim is that the Tribunal’s conclusion that the applicant did not face a real chance of harm if he were returned to Sri Lanka was irrational or unreasonable, given that the Tribunal’s declining to contact the witnesses by telephone was based on the Tribunal’s view that contracting the witnesses could put the applicant and witness at risk of harm.
Competing submissions and issues arising
The applicant’s written submissions repeat the substance of the ground and particulars to the ground. The written submissions, however, expressly rely on s.426 of the Act, which 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.
The ground, the particulars to the ground, and the applicant’s written submissions do not identify the witness or witnesses from whom it is claimed the applicant requested the Tribunal to obtain evidence. There were, in fact, only two witnesses or potential witnesses – the applicant’s wife, and the applicant’s former landlord; and I have set out earlier in these reasons the transcript of those parts of the hearing before the Tribunal in which the applicant offered telephone numbers of the applicant’s wife and the applicant’s former landlord.
In oral address Mr Hodges, who appeared for the applicant, submitted the Tribunal failed to avail the applicant of the opportunity to have the applicant’s wife as a witness. Mr Hodges submitted the Tribunal asked “a lot of questions” of the applicant about the visits that the applicant’s wife said she had received and, for that reason, the Tribunal “clearly” thought these “were matters relevant to the outcome”.[11] Mr Hodges submitted, in effect, that the Tribunal ought to have asked those questions of the applicant’s wife instead of asking the applicant to “give evidence of what would be hearsay, even second-hand hearsay in some cases”,[12] further noting that any answer the applicant would have given “would surely be inferior to an answer to that same question given by the wife”.[13] After referring to the passage from the transcript where the applicant offered to give the Tribunal the telephone number of the landlord, Mr Hodges submitted the Tribunal did not “either in respect of the wife or in respect of the landlord/employer [have] any regard to the evidence that those witnesses might give”.[14]
[11] T13.40
[12] T3.45
[13] T5.30
[14] T7.10
The Minister, in his counsel’s written submissions, makes three submissions. First, there is no inconsistency between the Tribunal’s refusing to telephone witnesses out of a concern of harm, and its ultimately finding that the applicant does not face a real risk of harm because the Tribunal’s decision not to call the witnesses was made during the hearing at a time before the Tribunal considered the application; and, for that reason, the Tribunal did not act capriciously in declining to contact the witnesses at the time it declined to do so.[15] Second, in relation to the former landlord, the Minister gave additional reasons why it would not call the former landlord, that reason being that it was already prepared to accept the proposition about which the witness was offered to give evidence.[16] Third, counsel relies on the lateness of the applicant’s request. This submission is premised on the proposition that the Tribunal’s decision is to be assessed by reference to legal reasonableness.[17]
[15] First Respondent’s Submissions, [15]
[16] First Respondent’s Submissions, [16]
[17] First Respondent’s Submissions, [17]
The competing submissions raise the following issues.
a)What obligation or obligations on the part of the Tribunal, if any, were engaged by the applicant’s offer that the Tribunal telephone the applicant’s wife and his former landlord?
b)Assuming the applicant’s offer engaged an obligation or obligations on the part of the Tribunal, did the Tribunal discharge that obligation or those obligations?
c)Assuming the Tribunal failed to discharge any obligation that accrued on the applicant’s offering the telephone numbers of the applicant’s wife and former landlord, did that result in the Tribunal’s decision being infected by jurisdictional error?
d)Quite apart from how the first three issues are determined, do the reasons the Tribunal gave in its reasons for decision and during the hearing before it for declining to telephone witnesses manifest unreasonableness or irrationality in the Tribunal’s ultimate finding that the applicant does not face a real chance of serious harm if he returned to Sri Lanka?
Obligations engaged by offer of telephone numbers
As I have already noted, the applicant relies on s.426 of the Act. He also relies on authorities that have examined the duty the section imposes on the Tribunal. One of those authorities – Minister for Immigration andMulticultural and Indigenous Affairs v Maltsin[18] - is included in the ground itself. That case considered s.361 of the Act, which is equivalent to s.426. The Full Federal Court there said:[19]
It does not follow from this, however, that the appeal in this case should be upheld. By virtue of s 361(3), the Tribunal is obliged to have regard to any notice given by an applicant under sub-ss 361(2) or (2A) of the Act. This means that the Tribunal must genuinely apply its mind to the contents of the notice and, in particular, to the question whether it should take the oral evidence of the nominated individuals in accordance with the applicant’s wishes. The Tribunal must not merely go through the motions of considering the applicant’s wishes as expressed in the notice. As the respondents’ counsel said, the authorities establish that the invitation to appear before the Tribunal must be “real and meaningful and not just an empty gesture”: NALQ at [30]; SCAR at [37]; and Mazhar at 188 [31]. It follows that the consideration that the Tribunal gives to the wishes of the applicant concerning the evidence to be taken at the hearing must also be genuine. The Tribunal must not decline to comply with the applicant’s wishes capriciously, but must take account of such relevant matters as the relevance and potential importance to the outcome of the review of the evidence that could be given by a nominated witness (compare W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211(“W360/01A”) at [2] per Lee and Finkelstein JJ and [30]-[32] per Carr J)), the sufficiency of any written evidence that has already been given by a witness, and the length of time that would afford the applicant a fair opportunity to put his or her case before the Tribunal. These considerations flow from the nature of the Tribunal’s overarching objective, which is to provide a review that is “fair, just, economical, informal and quick”: see s 353(1). The Tribunal must bear in mind this statutory objective when considering the weight to be given these matters.
[18] [2005] FCAFC 118
[19] [2005] FCAFC 118 at [38]
Mr Hodges also relied on the judgment of Ranghiah J in CZBH v Minister for Immigration and Border Protection, where his Honour said:[20]
Section 426(3) requires that the Tribunal give genuine consideration to an applicant’s wish that the Tribunal obtain oral evidence from a nominated witness. Section 426(3) also requires that the Tribunal exercise its discretionary power reasonably. The two requirements overlap. They overlap at least where a decision not to obtain oral evidence is made arbitrarily or capriciously.
[20] [2014] FCA 1023 at [44]
It would also be useful to set out the following passage from the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection:[21]
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].
[21] [2016] FCA 1574 at [52]
It is apparent from the text of s.426 of the Act that the obligations it imposes on the Tribunal are engaged only if an applicant gives a notice under s.426(2) of the Act. The applicant in the case before me, however, gave no such notice to the Tribunal. Under cover of its letter to the applicant dated 18 February 2015 by which the Tribunal invited the applicant to appear before it to give evidence and present arguments,[22] the Tribunal provided the applicant with a document titled “Response to Hearing Invitation”.[23] The Tribunal referred to this document in its letter as follows:[24]
[22] CB139
[23] CB159-161
[24] CB140
The enclosed leaflet ‘Information about Tribunal hearings’ contains important information about hearings and your rights.
Please read and complete the enclosed ‘Response to hearing invitation’ form to confirm your attendance at the hearing. Please use this form or attach additional information if you have any requests or any new information which you wish the tribunal to consider. . . .
Please return the completed form to the Tribunal within 7 days after receiving this information.
Part 3 of the “Response to Hearing Invitation” that was sent to the applicant states as follows:[25]
[25] CB159
Part 3 – Witnesses
You may request that the Tribunal take oral evidence from a person or persons. If you make such a request, the Tribunal will consider your request carefully but may decide that it is not necessary to take oral evidence from a person you nominate.
Unless you advise the Tribunal otherwise we will assume that you will make arrangements for any witness to be available to give evidence.
The form then contains the words “I/we request that the Tribunal take oral evidence from another person”, and gives the person completing the form the option of placing a mark in one of two boxes, one which precedes the word “No”, and one which precedes the word “Yes”. The applicant ticked the box preceding “No”. In other words, by completing and returning to the Tribunal the “Response to Hearing Invitation” the applicant communicated to the Tribunal that it did not request the Tribunal to take oral evidence from another person.
That s.426 of the Act was not engaged in the circumstances of this case does not mean the Tribunal came under no obligation in relation to the applicant’s offer to the Tribunal that it contact by telephone the applicant’s wife and his former landlord. There are other provisions of the Act which may have given rise to an obligation. One is s.425 of the Act. As I have noted elsewhere,[26] from the fact that s.425(1) of the Act requires the Tribunal to invite an applicant to appear to give evidence and present arguments, it has been held that the resulting hearing itself should be conducted according to certain standards. It has been said, for example, that: [27]
Pursuant to s 425 of the Act the Tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture . . . .
[26] BVM15 & Ors v Minister for Immigration & Anor [2017] FCCA 3141, at [37]
[27] Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126, at [33]
And in Minister for Immigration and Citizenship v SZNVW, Perram J said:[28]
There are, for present purposes two aspects of these observations which warrant particular emphasis. First, the question is not whether the applicant has, or has not been treated fairly; rather, it is whether the process contemplated by s 425 has been “subverted”. Secondly, that subversion matters because if established it undermines the due administration of Part 7.
[28] [2010] FCAFC 41, at [83]
Also relevant are s.427(1) and s.429A(a) of the Act. Subsection 427(1) empowers the Tribunal to take evidence on oath or affirmation; and s.429A(a) empowers the Tribunal to take evidence by telephone. It has been held that s.427(1)(a) “is like any other statutory discretion: unless there is a clear contrary intention, it is to be understood as conditioned by a requirement that it be exercised in a legally reasonable way”.[29] The same principle applies to the power conferred by s.429A(a) of the Act.
[29] AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103, at [75]
The upshot of this discussion is that although the applicant’s offer that the Tribunal telephone the applicant’s wife and the applicant’s former landlord did not engage s.426 of the Act, the request was one which engaged the Tribunal’s powers under s.427(1)(a) and s.429A(a) of the Act. That means the Tribunal was under an obligation to act reasonably when considering the applicant’s request. The reasonableness of the Tribunal’s response to the applicant’s requests must be assessed having regard to the subject matter, scope, and purpose of s.427(1) and s.429A(a) of the Act, the apparent relevance and significance of the evidence the applicant’s wife or former landlord would or could give and, where the Tribunal gave reasons, whether the reasons the Tribunal gave for not agreeing to the request disclose an evident or intelligible justification for its not agreeing.[30] The Tribunal was also under a duty when considering the applicant’s request not to do anything that would render the hearing an empty gesture or otherwise subvert the process contemplated by s.425 of the Act in the circumstances of the applicant’s case.
[30] I have relied on the summary I gave in SZVMG v Minister for Immigration & Anor [2016] FCCA 631 at [15] of the principles for judicial review based on unreasonableness as summarised by the Full Federal Court in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 (Allsop CJ, Griffiths and Wigney JJ)
Did the Tribunal fail to comply with any duty?
I first consider the applicant’s offer that the Tribunal telephone the applicant’s wife.
In its reasons for decision the Tribunal refers to the applicant having offered telephone numbers of potential witnesses and sets out the reasons why it declined to contact the witnesses. The Tribunal does not identify the witnesses but, as I have already noted, the applicant offered the telephone numbers of only two potential witnesses, the applicant’s wife and the applicant’s former landlord. The Tribunal suggests that the reasons it declined to telephone the witnesses applied to all witnesses – in this case to the applicant’s wife and the applicant’s former landlord. The transcript of the hearing, however, does not bear this out. At the hearing the Tribunal gave reasons why it declined to contact the applicant’s former landlord; but, as I have already noted, the Tribunal did not respond to the applicant’s offer that it telephone the applicant’s wife. In those circumstances, I am not prepared to find that the reasons the Tribunal gave in its reasons for decision for declining the applicant’s offer to telephone witnesses applied to the applicant’s offer that the Tribunal telephone the applicant’s wife. The question, then, is whether the Tribunal acted unreasonably in not responding to the applicant’s request and, by not responding, declining the applicant’s request that the Tribunal contact the applicant’s wife.
The answer to that question depends, at least in the first instance, on the relevance or apparent relevance of the evidence the applicant’s wife could reasonably be supposed to have given had the Tribunal telephoned her. The transcript shows that the applicant’s offer was made in response to the Tribunal’s asking whether anything had happened to the applicant’s wife when she received the visits which the applicant claimed she had received. The offer was that the Tribunal telephone the applicant’s wife about the “trouble to her”. The Tribunal asked the applicant: “[w]hat trouble [?]”. After a few more questions, the applicant said: “Okay. Nothing happened”, but he claimed something might happen to the applicant in the future.
The applicant’s response to the Tribunal’s questions constitutes, or could reasonably have been taken by the Tribunal to constitute, an unequivocal statement by the applicant that nothing happened to the applicant’s wife as a result of or in the course of the visits the applicant claimed the applicant’s wife had received. In those circumstances there was nothing before the Tribunal that ought reasonably to have caused it to consider whether it should telephone the applicant’s wife to confirm what the applicant had unequivocally stated. Put another way, it was reasonably open to the Tribunal to accept as true, which in its reasons for decision it did accept,[31] the applicant’s unequivocal statement that nothing had happened to the applicant’s wife as a result of or in the course of the visits the applicant claimed the applicant’s wife had received, without having to have that fact confirmed by the applicant’s wife by telephone. It follows, therefore, that the Tribunal did not act unreasonably in not taking up the applicant’s offer to telephone the applicant’s wife by telephone. It also follows that the Tribunal’s not taking up the applicant’s offer did not render the hearing before it an empty gesture or otherwise subvert the process contemplated by s.425 of the Act.
[31] CB203, [40]: “ . . . the evidence before the Tribunal is they did not contact the applicant’s wife again since 2012 and have not made any threat to the applicant’s wife’s to herm her or the applicant.”
I then turn to the applicant’s offer that the Tribunal telephone the applicant’s former landlord. As counsel for the Minister submitted, the reasons the Tribunal gave at the hearing for not telephoning the applicant’s former landlord were not restricted to the potential risk to the applicant that might arise from the Tribunal making the telephone call. The transcript of this part of the hearing that I have reproduced earlier in these reasons shows that the Tribunal also considered the potential relevance of the evidence the applicant’s former landlord might be expected to give, and concluded the landlord would not be in a position to give relevant evidence. I do not accept it was not reasonably open to the Tribunal to rely on the reasons it did for declining to telephone the applicant’s former landlord and, for that reason, I am not satisfied the Tribunal acted unreasonably in declining to telephone the applicant’s former landlord, or that it’s so declining rendered the hearing before it an empty gesture or otherwise subverted the process contemplated by s.425 of the Act.
Jurisdictional error in any event?
Assuming, contrary to what I have concluded, the Tribunal acted unreasonably in declining to telephone the applicant’s wife or the applicant’s former landlord, the next question is whether the Tribunal’s decision would be infected with jurisdictional error. That, in turn, is to be determined by considering whether the Tribunal’s having acted reasonably “could have resulted in the making of a different decision”.[32]
[32] Hossain v Minister for Immigration and Border Protection [2018] HCA 34, at 31 (Kiefel CJ and Gageler and Keane JJ)
In paragraph (x) of the particulars to ground 1, it is asserted that corroborative oral evidence from potential witnesses was more likely than not to strengthen the applicant’s claims. The paragraph does not explain, and Mr Hodges, either in his written or in his oral submissions, has not explained, how the applicant’s claims would or could have been strengthened had the Tribunal accepted the applicant’s offer to telephone the applicant’s wife and his former landlord.
In my opinion even if the Tribunal telephoned the applicant’s wife and the applicant’s former landlord, that could not have resulted in the Tribunal making a different decision. Although the Tribunal expressed doubts about the credibility of the applicant’s evidence, it decided the applicant’s case on the basis that his evidence was credible. At best, all that would have occurred had the Tribunal telephoned the applicant’s wife is that the applicant’s wife would have corroborated the applicant’s evidence which the Tribunal had accepted. In the case of the applicant’s former landlord, the Tribunal considered it plausible that the landlord would not want to rent the house to the applicant, but otherwise was of the view the applicant’s former landlord would not be able to tell the Tribunal anything about whether the applicant and his wife could have lived elsewhere in Negombo. In any event, nothing in the Tribunal’s reasons for decision turned on whether the applicant was able to obtain alternative accommodation in Negombo in 2008. Thus, even if the Tribunal had telephoned the applicant’s former landlord, at best the landlord would have given evidence that would have confirmed a matter which had no bearing on the matters on which the Tribunal relied for affirming the delegate’s decision.
Irrationality or unreasonableness in ultimate assessment of risk of harm?
The final question is whether the reasons the Tribunal gave for declining to telephone the applicant’s former landlord disclose unreasonableness or irrationality in the Tribunal’s ultimate finding the applicant does not face a real chance of harm if he returned to Sri Lanka. As I have already noted, in the ground on which the applicant relies, it is claimed there is an inconsistency between the Tribunal giving as a reason for declining to contact a witness that this might expose the applicant to risk of harm, and the Tribunal concluding that the applicant did not face a real chance of harm if he were to return to Sri Lanka.
In my opinion, for the reasons counsel for the Minister has submitted, there is no inconsistency. The Tribunal’s decision not to telephone any witness in Sri Lanka was made in the course of the hearing before the Tribunal considered and determined the applicant’s claim. The Tribunal’s declining to contact the applicant’s former witness was expressly premised, not on the Tribunal’s having at that stage formed the view the applicant faced a real risk of significant harm, but on the applicant’s “telling [the Tribunal] that you fear to go back to this country, and that there’s a real chance that you will be seriously harmed if you go back to Sri Lanka”. Assuming this was the reason for which, or one of the reasons for which, the Tribunal declined to contact the applicant’s wife or the applicant’s former landlord, the Tribunal’s declining to do so was made on the basis that the Tribunal might, after the hearing, and after considering the applicant’s claims, be satisfied that the applicant does have a real chance of harm if he returns to Sri Lanka.
Conclusion
For these reasons, the ground on which the applicant relies fails. I propose to order that the application be dismissed.
There is no reason why costs should not follow the event, but I will hear submissions about costs at the time I pronounce my order dismissing the application.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 26 October 2018
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