BZAGX v Minister for Immigration

[2015] FCCA 1535

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAGX v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1535

Catchwords:
MIGRATION – Protection (Class XA) visa – where applicant requested tribunal to call witnesses – where tribunal did not call witnesses – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.420(2)(b), 422B(1), 422B(3), 424, 425, 426, 426(2), 426(3), 474(2), 476

Cases:
C P Ventures Pty Ltd v McKean (as President of the Corporation and Securities Panel) (1999) 32 ACSR 660
Dissanayake v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 976
Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALR 225
M100 of 2004 and Anor v Minister for Immigration and Anor [2007] FMCA 829
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908
SZDEM v Minister for Immigration [2006) FMCA 763
SZMOK v Minister for Immigration [2009] FCAFC 83
SZTMD v Minister for Immigration and Border Protection [2015] FCA 150
VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459

Applicant: BZAGX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 359 of 2014

Judgment of: Judge Jarrett

Hearing date: 28 April 2015

Date of Last Submission: 28 April 2015

Delivered at: Brisbane

Delivered on: 5 June 2015

REPRESENTATION

Counsel for the Applicant: Mr Markwell (direct brief)

Counsel for the First Respondent: Mr McGlade

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The amended application filed on 11 July, 2014 is dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 359 of 2014

BZAGX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of a refugee review tribunal made on 31 March, 2014 that affirmed a decision of a delegate of the first respondent to refuse the grant of a Protection (Class XA) visa to the applicant. 

2. The first respondent opposes the application.  The second respondent enters a submitting appearance.

BACKGROUND

1. The applicant is a person of Tamil ethnicity and Hindu religious faith. He was born in Sri Lanka and prior to coming to Australia, he had lived in Sri Lanka his whole life.  He left Sri Lanka by boat on 11 May, 2012 and arrived in Australia on 29 May, 2012.

2. On 31 August, 2012 the applicant applied for a Protection (Class XA) visa.  The applicant claimed to fear persecution for a number of reasons if he return to Sri Lanka.

3. One of his claims centred upon his work for his Uncle.  When in Sri Lanka the applicant worked in his Uncle’s mobile telephone sales and repair shop.  A man who was later to be referred to as Elmaiselan brought a mobile phone to the shop to be repaired.  The applicant repaired the phone but was unable to contact Elmaiselan when the repairs were complete.  He inserted a sim card into the phone and commenced using it.  He claimed that this brought him to the attention of the Sri Lankan authorities who subjected him to detention and physical injuries from beatings.

4. Further, the applicant claimed that he was detained by the Sri Lankan authorities on two occasions, once in March, 2011 and then again in January, 2012.  He claimed that on 31 January, 2012 the Police dragged him into a vehicle, beat him up and asked him questions.

5. Another of the applicant’s claims for protection centred on his involvement with the United National Party, a political party specifically addressing the aspirations of the Tamil minority in Sri Lanka.  He claimed that because of his involvement with the UNP he would be persecuted by political opponents of the UNP (namely supporters of the Pudijana Eksepramana party – who regarded the applicant as a threat to their political advancement in Sri Lanka) if he returned to Sri Lanka.

6. The applicant claims to have assisted a relative, Sajith Mohan, who was active in the UNP.  He claimed a relationship with Mohan, but was unable to precisely identify that relationship.  In his Statement of Claims he referred to Mohan as his friend and cousin.

7. There were a number of other incidents raised by the applicant upon which he relied to establish his claim to protection including an incident where he was attacked in his home and another incident where his Uncle had been approached by the authorities after the applicant left Sri Lanka requesting to know the whereabouts of the applicant.

8. On 19 February, 2013 a delegate of the first respondent refused the grant of the visa.  The delegate formed the view that the applicant was a low-level UNP supporter who had a relatively low profile as a UNP member.  Based on that, and other factors, the delegate formed the view that the applicant did not face a real risk of persecution or harm at the hands of supporters of the Pudijana Eksepramana party in the event that he had to return to Sri Lanka.

9. On 25 February, 2013 the applicant applied for a review of the delegate’s decision by a migration review tribunal.  The tribunal invited the applicant to attend a hearing to give evidence and make submissions in support of his review application.  The tribunal held two hearings.  The first hearing was on 7 June, 2013 and the second hearing was on 8 July, 2013.

10. The applicant provided to the tribunal two items of correspondence from Mohan in support of the applicant.  The first is a letter dated 4 August, 2012 where Mohan refers to the applicant as his “cousion (sic) brother”.  The letter suggests that the applicant was a “well known active supporter of the UNP since 2006”.  The other is also a letter from Mohan, undated, which purports to contain information in relation to the applicant’s involvement with the UNP.  That letter stated that, after the 2011 election, the applicant “worked in [Mr Mohan’s] office as an active committed volunteer”.

11. The applicant also provided correspondence dated 25 August, 2012 from Joseph Michael Perera, someone he claimed to be a member of the UNP and a Member of Parliament – Gampaha District, Assistant Leader of the UNP.  That letter provided that the applicant was “highly involved in [UNP] activities from 2006 to 2012 General Election times”.

12. After the second hearing, by letter dated 22 October, 2013 the tribunal wrote to the applicant and identified a number of significant problems with the evidence he had given before the tribunal.  That letter provided the applicant with an opportunity to respond to the issues raised by the tribunal. The applicant took up the opportunity.  His migration agent provided three responsive letters.

13. On 31 March, 2014 the tribunal affirmed the delegate’s decision.  As the first respondent points out, the tribunal’s decision is a long one.  Relevantly, the tribunal accepted that:

    a)the applicant had a membership card for the UNP;

    b)was generally supportive of the UNP;

    c)had attended some events in which UNP politicians were present; and

    d)if the applicant were to return to Sri Lanka, he would continue to be generally supportive of the UNP and might attend some events in which UNP politicians were present.

14. However, the tribunal did not accept that the applicant had a high level of involvement with the UNP or that he was a person who had a political profile of any material significance which would attract adverse attention from rival political parties.  The tribunal was of the view that the applicant was a low-level UNP supporter who did not face any real chance of persecution or harm at the hands of rival political opponents were he to return to Sri Lanka.

15. The main reason the tribunal rejected the applicant’s contention that he was a high­level UNP figure was because, in the tribunal’s view, the applicant was not credible.  As the first respondent points out, the tribunal’s decision went into considerable detail about the numerous problems that the tribunal considered existed with the evidence presented by the applicant.  The tribunal’s discussion about the applicant’s credit and the issues that concerned the tribunal are lengthy and detailed.  The tribunal articulated clear reasons for where the tribunal rejected the applicant’s credit.

16. The letters from Mr Mohan and Mr Perera were an important part of the applicant’s case.  The tribunal dealt specifically with the letters from Mr Mohan and Mr Perera.  The letters were examined by a Document Examiner but “no irregularities had been detected”.

17. Nonetheless, the tribunal considered that there were a number of problems with the reliability of those letters.  In particular, the tribunal noted, amongst other things:

    a)at the departmental interview the applicant said that Mr Mohan was his “friend’s brother” (despite claiming before the tribunal that Mr Mohan was his cousin);

    b)the applicant gave evidence that he was not a heavily involved supporter of the UNP between 2006 and 2010.  He also gave evidence that he was not well known in public as a UNP supporter until 2011 (contrary to the letters indicating that the applicant was actively involved with the UNP since 2006);

    c)the applicant had little knowledge about relevant political events and elections prior to 2011 which an actively involved UNP member would likely know (contrary to the letters indicating that the applicant was actively involved with the UNP since 2006); and

    d)the applicant himself had given evidence to the tribunal that he did not (and “could not”) work for Mr Mohan after the 2011 elections (contrary to the content of Mr Mohan’s letter).

18. The tribunal found that the information contained in the letters was unreliable particularly given that the applicant’s own evidence was at odds with a number of the statements made in the letters.

19. The applicant invited the tribunal to call Mr Mohan and Mr Perera.  The tribunal elected not to do so.  The tribunal said:

    [126] ... While the applicant invited the tribunal to call either of these people, the tribunal does not consider it necessary to do so. The tribunal accepts that the authors of the letters have been willing to give evidence to this effect but does not accept that the information they have provided is reliable.

The grounds of review

1. The applicant’s grounds of a review are set out in the amended application filed on 11 July, 2014 as follows (errors in the original):

   1. The Second Respondent has not taken into account a relevant consideration and has therefore made a jurisdictional error.

   2. The Second Respondent has not provided the applicant with procedural fairness and has therefore made a jurisdictional error.

   3. The Second Respondent has reached a mistaken conclusion and has therefore made a jurisdictional error.

   4. The Second Respondent has taken into account a number of irrelevant considerations and has therefore fallen into jurisdictional error.

   Particulars

   A. In relation to Ground 1, it is set out at paragraph 126 and at page 37 of the Second Respondent's decision, ("The Decision") that the Second Respondent has elected to not call either Mr Sajith Mohan or Mr Michael Joseph Perera. even though he was invited to by the Applicant. Both persons named occupy prominent public positions in Sri-Lanka with Mr Perera being a Member of Parliament for the Gampaha District and Mr Mohan being a member of the Municipal Council, Nogombo. Sri-Lanka and also is a Justice of the Peace (See pages 186; 356 and 366 of the Bundle of Relevant Documents" ("BRD")). All of the documents have been provided in English and on substantial letterhead. Mr Mohan's documents were undated, but Mr Perera's document was dated 25 August 2012. Had the Second Respondent called Mr Mohan and/or Mr Perera then they may have been able to assist the Second Respondent by providing sworn evidence that would either have properly established the Applicant's claims for Protection, or debunk these claims. By not calling Mr Mohan and/or Mr Perera then the Second Respondent has not taken into account a relevant consideration and therefore fallen into jurisdictional error.

   B. In relation to Ground 2, the Second Respondent has not exercised it's discretion under s424 of the Migration Act 1958 ("The Act") and has elected to not call either Mr Perera and Mr Mohan, so that they may have been able to assist the Second Respondent in the same manner as set out above in Particular A. By the Second Respondent not exercising it's discretion under s 424 of the Act, then the Second Respondent has denied the Applicant procedural fairness and therefore a jurisdictional error has occurred.

   C. In relation to Ground 3, the Second Respondent has reached a mistaken conclusion when it stated at Paragraph 126 of the Decision. "The Tribunal accepts that that the authors of the letters have been ·willing to give evidence to this effect but does not accept that the information they have provided is reliable." As set out in Particular A, Mr Perera and Mr Mohan occupy prominent public positions in Sri-Lanka with Mr Mohan being a Justice of the Peace and therefore the information that he provides must be deemed to be accurate and reliable at first instance. The Second Respondent by not calling Mr Perera and Mr Mohan has not provided them with an opportunity to establish whether their information is reliable and as stated has reached a mistaken conclusion and therefore a jurisdictional error has occurred.

   D. In relation to Ground 4, the Second Respondent has taken into account a number of irrelevant considerations by considering the Applicants evidence too strictly. At paragraph 114 of the Decision whilst considering the relationship between Mr Mohan and the Applicant and also at paragraphs 68; 69 and 70 of the Decision. whilst considering the time taken too fix a customer's mobile phone. The Second Respondent has made further jurisdictional errors.

2. Ground 4 was abandoned by Counsel for the applicant in his written submissions.

3. According to the applicant’s written submissions: “all of the above jurisdictions flow from the Second Respondent’s error in refusing to call Mr Joseph Michael Perera and Mr Sajith Mohan to provide evidence on behalf of the applicant, even though the applicant invited the Second Respondent to take evidence from these witnesses.”  As the particulars to the grounds of review show, each ground of review that is pressed relies upon the failure of the tribunal to call Messrs Mohan and Perera to give evidence and the proposition that the tribunal’s failure to do so was an error in the tribunal’s process.

4. The applicant argues that:

   a)it was appropriate for the tribunal to call the witnesses;

   b)both Mr Mohan and Mr Perera were “significant witnesses in their own right”, with Mr Mohan being a Justice of the Peace and a member of the Municipal Council of Negombo while Mr Perera a Member of Parliament – Gampaha District and Assistant Leader of the UNP;

   c)the letters provided by Mr Perera and Mr Mohan are on “substantial letterhead” and Mr Perera’s English “appears to be very good”, and Mr Mohan’s English also “appears to be very good”; and

   d)there is little doubt, that Mr Perera and/or Mr Mohan would have been able to assist the tribunal and “they may have corroborated the applicant’s evidence”.

5. The applicant further submits that whilst: “…the Second Respondent was under no obligation to accept Mr Perera’s or Mr Mohan’s testimony, … the Second Respondent may have let escape a valuable method of establishing the applicant’s credibility.”

6. Underlying the applicant’s submissions seem to be two alternative propositions, namely that:

   a)the tribunal was, as a matter of law, obliged to call the witnesses that the applicant sought for it to call; or

   b)alternatively, if it was not so obliged, it ought to have done so in the circumstances of the case.

7. In either case, the applicant claims that the tribunal’s failure to call the witnesses amounted to a jurisdictional error or led the tribunal into jurisdictional error in that the tribunal:

   a)has not taken into account a relevant consideration;

   b)has not provided the applicant with procedural fairness; or

   c)has reached a mistaken conclusion.

Consideration

1. On 30 April, 2013 the tribunal sent an invitation to the applicant to appear before it to give evidence and present arguments.  The invitation enclosed a three-page form entitled “Information About tribunal Hearings” and a two-page form entitled “Response to Hearing Invitation”.  The Information Sheet outlined to the applicant that he might request that the tribunal call another person to give evidence. As the first respondent points out, relevantly, the Information Sheet provided:

   …

   Can I ask the tribunal to obtain evidence?

   You may request that the tribunal obtain oral evidence from another named person or persons. You may use the ‘Response to hearing invitation ‘form to nominate persons you wish the tribunal to take oral evidence from ...

   While the tribunal will consider any request you make, the tribunal may decide not to obtain the evidence  ...

   …

2. The applicant returned the “Response to Hearing Invitation” form to the tribunal on 30 April, 2013.  To that part of the form that asked the applicant if he wished for the Tribunal to take oral evidence from a person or persons, he ticked the “No” box. 

3. Notwithstanding that answer, subsequently the applicant somewhat obliquely invited the tribunal to call the witnesses Mohan and Perera.  He suggested, referring to Mr Mohan and Mr Perera:

   …

   If the tribunal has any doubts they can contact either of these people they would confirm my involvement.

   …

4. Section 426 of the Migration Act1958 deals with the calling of evidence by the tribunal where an applicant gives to the tribunal written notice that the applicant wants the tribunal to obtain oral evidence from a person or persons named in the notice.  The section is in the following terms:

   426   Applicant may request Refugee Review tribunal to call witnesses

   (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.

5. Section 426(3) makes it clear that whilst there is an obligation on the tribunal to have regard to the applicant’s wish that the tribunal obtain oral evidence from a person, there is no obligation on the tribunal to obtain such evidence. Thus, even if the applicant had indicated “Yes” to the relevant question in the response to the hearing notice, the tribunal was not obliged to obtain evidence (orally or otherwise) from a person named by the applicant. The Act does not impose any duty on the tribunal to take evidence from anyone other than an applicant.

6. That approach is consistent with the way in which the powers conferred on the tribunal by s.424 of the Act operate. As the first respondent points out, whilst the tribunal is empowered to seek to obtain information by s.424 of the Act, the powers in s.424 of the Act are permissive and not mandatory. The fact that a tribunal did not use those powers does not necessarily indicate any error of law on the tribunal’s part: Dissanayake v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 976 at [18]; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27].

1. The first respondent draws to my attention the decision in SZDEM v Minister for Immigration [2006] FMCA 763. Factually, that case was similar to this application. In that case, the applicant did not request that the tribunal obtain evidence from any person in the response to hearing invitation form but, at a later time during the tribunal proceeding did request that the tribunal obtain evidence from other people. The tribunal did not obtain that evidence.

2. Lloyd-Jones FM (as his Honour then was) held that the tribunal had no obligation to consider the applicant’s request, and even if it did, there was no obligation to accede to the request.  Nonetheless, it was apparent on the face of the tribunal’s decision that it had considered the applicant’s request (despite refusing to accede to it).  In those circumstances, Lloyd-Jones FM concluded that the tribunal had fulfilled any duty it owed to the applicant.

3. So too here, the tribunal’s reasons for decision demonstrate that it considered the applicant’s request for evidence to be obtained from Mr Perera and Mr Mohan. It gave reasons why it did not accede to the request:

   126.  The Tribunal notes that the applicant has submitted that he was not “totally involved” with the UNP between 2006 and 2010. As set out above, it finds that he himself has failed to give a credible account of his political involvement from 2006. The applicant himself gave evidence that during 2006 he was not a member who was well known in public. The Tribunal does not accept that the applicant was in any way “highly involved” in UNP activities from 2006 to 2012. It does not regard the information in the letter from Mr Perera to be reliable. It may be that, as suggested by the applicant, the applicant’s mother approached Mr Perera to write a letter. However, the Tribunal does not accept that the information in the letter is reliable.  The Tribunal finds that the statements by Mr Mohan that the applicant was a well known active supporter of the UNP since 2006 and that he worked in Mr Mohan’s office after the election as a committed volunteer are at odds with the applicant’s own evidence. Mr Mohan’s statement that the applicant is his cousin is at odds with evidence the applicant gave at interview. In all the circumstances the Tribunal does not regard the information in the letters from Mr Mohan as being reliable. For reasons set out above, the Tribunal also does not accept as reliable the information about Mr Mohan being the applicant’s cousin or relative. The Tribunal also attaches some weight to the omission from Mr Mohan’s first letter of any mention of a number of significant matters that are referred to in the second letter. In making these findings, the Tribunal has had regard to the applicant’s submissions of 20 November 2013 about the letters in which he states that Sajith Mohan’s letter is correct and Joseph Perera’s letter is also correct. While the applicant invited the Tribunal to call either of these people, the Tribunal does not consider it necessary to do so. The Tribunal accepts that the authors of the letters have been willing to give evidence to this effect but does not accept that the information they have provided is reliable.

4. In my view, there was no obligation at law upon the tribunal to call either Mohan or Perera to give evidence before the tribunal. Moreover, the tribunal was not obliged to even consider that course because the response to the hearing invitation indicated that the applicant did not want the tribunal to obtain oral evidence from any person. In those circumstances s.426(3) was not engaged. Nonetheless, I accept the first respondent’s submissions that to the extent that the tribunal had any duty to consider the applicant’s request to seek evidence from Messrs Mohan and Perera, the tribunal discharged that duty. The tribunal explained why it did not call either Mr Mohan or Mr Perera. The course that it took was clearly open to it.

5. To the extent then that the applicant’s case rests upon the proposition that the tribunal had a duty to call either Mr Mohan or Mr Perera or both, the applicant’s case must fail.  There was no such duty.

   Given the applicant’s submissions, it follows that the applicant’s contention that the tribunal failed to take into account a relevant consideration must fail.  As the first respondent submits, the applicant does not suggest with any precision, what the “relevant consideration” is that the tribunal failed to take into account.  It may be that the applicant contends that the relevant consideration is the possibility that Mr Mohan or Mr Perera might give evidence which might corroborate some aspects of the applicant’s claims.  If so, the argument misapprehends the nature of the obligation in that regard.  A failure to take into account a relevant consideration can only constitute error if the decision-maker was bound to take into account that consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39.

6. Moreover, the applicant’s submission pays no attention to the accepted proposition that evidence before a tribunal does not constitute a “relevant consideration” for the purposes of the rule under discussion.  As the first respondent points out, ordinarily it does not: Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALR 225 at 236; C P Ventures Pty Ltd v McKean (as President of the Corporation and Securities Panel) (1999) 32 ACSR 660 at [33]; M100 of 2004 and Anor v Minister for Immigration and Anor [2007] FMCA 829 at [27].

7. By not calling either Mohan or Perera and thereby not taking into account whatever they might have said orally, the tribunal did not fail to take into account a relevant consideration as the applicant submits.

8. Nor did the tribunal fail to afford the applicant procedural fairness under Part 7 Division 4 of the Act as he contends.  In that respect, the applicant argues that:

   a)pursuant to s.425 of the Act, the tribunal must invite the applicant to appear before the tribunal to give evidence and present arguments relating to the issues arising in relation to the Decision under review;

   b)that places an obligation upon the second respondent to give effect to the applicant’s request to call the witnesses Perera and Mohan notwithstanding that he did not make that request in the way specifically provided in s.426(2) of the Act; and

   c)by not exercising the discretion it had available by reason of s.424 of the Act, the tribunal “did not provide the applicant with procedural fairness under section 422B of the Act. Accordingly, the Second Respondent did not act in a way that is fair and just.”

9. Further, the applicant points to ss.420(2)(a) and (b) of the Act which provide that:

   a)the tribunal is not bound by technicalities, legal forms or rules of evidence; and

   b)must act according to substantial justice and the merits of the case.

10. The applicant develops his argument by submitting that the tribunal “is in breach of section 422B, because it is being bound by technicalities and is not acting according to substantial justice and the merits of the case.” when it refused to call evidence from Mohan or Perera.

11. The applicant’s argument, however, must be rejected because:

    a)as set out above, there was no duty on the tribunal to call evidence from the two witnesses;

    b)s.420(2)(b) of the Act does not give rise to any common law procedural fairness requirements: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [16];

    c)s.420(2)(b) of the Act does not give rise to substantive obligations which, if breached, are capable of infecting a tribunal decision with jurisdictional error: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [16]; SZTMD v Minister for Immigration and Border Protection [2015] FCA 150 at [26].

12. To the extent that the applicant relies upon s.422B(3) of the Act, that reliance is of no assistance in the present case because:

    a)whilst s.422B(3) might arguably impose substantive obligations capable of giving rise to jurisdictional error if breached, the concepts of “fairness” and “justice” in s.422A(3) are construed by reference to general law concepts of procedural fairness and natural justice: Minister for Immigration and Citizenship v Li (2012) 202 FCR 387 at [28]; SZMOK v Minister for Immigration [2009] FCAFC 83 at [18];

    b)because 422B(1) of the Act provides that Part 7, Div 4 of the Act exhaustively outlines the natural justice requirements “in relation to the matters it deals with’’, where a section of Part 7, Div 4 of the Act “deals with a matter” there is no scope for a contention that s 422A(1) of the Act has been breached:  SZMOK v Minister for Immigration [2009] FCAFC 83 at [15];

    c)s.426 of the Act expressly deals with the tribunal’s obligation to call witnesses requested by the applicant: Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 at [51] which deals with the cognate provision relating to the migration review tribunal; and

    d)given that s.426 of the Act expressly deals with such natural justice requirements, there is no scope for s.422B(3) of the Act to expand on the tribunal’s natural justice requirements.

13. The applicant argues that the tribunal has reached a mistaken conclusion by finding that the information provided by Mr Perera and Mr Mohan is unreliable in circumstances where the tribunal did not call them to give evidence as to their written statements. 

14. The applicant emphasises that both Mr Mohan and Mr Perera, are, “what could be called substantial persons in Sri Lanka, in that they are Members of Parliament”.  But that of itself is no justification for calling them to give evidence.  The tribunal gave reasons for why it considered that the evidence of either witness would not help it.

15. The applicant submits that the tribunal has not “interpreted the law correctly in relation to Part 7 Division 4 of the Act.”  He argues that whilst the tribunal has invited the applicant to appear, it has not given effect to the applicant’s wishes and requests to call either Mr Perera or Mr Mohan as his witnesses. 

16. But as I have discussed above, it was not obliged to do so.  Moreover, to suggest that the applicant had expressed a desire or wish to call the relevant witnesses is to put the matter too highly.  I have set out the form of the request earlier in these reasons.

17. Whilst the applicant submits that the strongest part of the applicant’s case was the prospective testimony of Mr Perera and Mr Mohan, it is difficult to see how that could be so.  As the tribunal demonstrated by its reasons, the evidence of the applicant was inconsistent in significant respects with the written evidence of Mr Mohan and Mr Perera.  It was the province of the tribunal to determine what weight might be accorded the evidence from Mr Perera and Mr Mohan and by its transparent reasons, the tribunal set out why it would not give that evidence any weight.  Had the witnesses been called, there were two possibilities.  They might have given evidence that was consistent with their written evidence which was, in any event, inconsistent with the applicant’s own claims as found by the tribunal.  Alternatively, they might have given evidence which was inconsistent with their earlier written evidence.  Either way it is difficult to see how the applicant’s case could have been advanced.

18. Moreover, even if the tribunal has reached a mistaken conclusion about the reliability of the witnesses Mohan and Perera that is no more than an error of fact within jurisdiction and not amenable to judicial review.

Conclusion

1. As no jurisdictional error can be established by the applicant the decision is a privative clause decision under s.474(2) of the Act and is not reviewable under s.476 of the Act. The amended application must be dismissed with costs.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 5 June, 2015.

Associate: 

Date:         5 June 2015