CMU19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 309
•7 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CMU19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 309
File number(s): SYG 1576 of 2019 Judgment of: JUDGE ZIPSER Date of judgment: 7 March 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal’s assessment of applicant’s credibility was legally unreasonable or overlooked effect of lapse of time on memory and recollection and applicant’s psychological and mental health conditions – whether Tribunal’s refusal to call witness was unreasonable – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) s 426, s 427(1) Cases cited: AOO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 424
AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; 262 FCR 317
BEL16 v Minister for Home Affairs [2019] FCA 1678
Division: Division 2 General Federal Law Number of paragraphs: 66 Date of hearing: 26 February 2025 Place: Parramatta Solicitor for the Applicants: Mr M. Jones of Michael Jones Solicitor Counsel for the Respondents: Mr G. Johnson Solicitor for the Respondents: Minter Ellison ORDERS
SYG 1576 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CMU19
First Applicant
CMV19
Second Applicant
CMW19
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
7 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The third applicant is removed as a party to the proceeding.
3.The application is dismissed.
4.The first and second applicants pay the first respondent’s costs in the sum of $5,600.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 25 June 2019, the applicants lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 28 May 2019. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicants protection (Class XA) (subclass 866) visas under s 65 of the Act.
For the reasons that follow, the application is dismissed.
FACTUAL BACKGROUND
On 8 March 2009, the first and second applicants, citizens of Bangladesh, arrived in Australia on student visas. The first applicant (Applicant) was the primary applicant. The second applicant is the Applicant’s partner. The third applicant, a child of the Applicant and second applicant, is no longer a party to this Court proceeding.
On 30 June 2015, the applicants lodged an application for protection (Class XA) (subclass 866) visas. The application included a statutory declaration from the Applicant dated 30 June 2015 which set out his claims.
Following an interview on 14 December 2015, on 13 May 2016 a delegate of the first respondent made a decision refusing to grant the visas.
On 20 May 2016, the applicants applied to the Tribunal for review of the delegate’s decision.
On 18 March 2019, the Tribunal sent the applicants a letter inviting them to attend a hearing on 29 April 2019.
On 29 April 2019, the Applicant appeared before the Tribunal to give evidence, accompanied by a representative.
On 30 April 2019, the Tribunal sent a letter to the applicants inviting them to comment on or respond to information which the Tribunal considered might be a reason for affirming the decision under review.
On 20 May 2019, the applicant’s agent provided documents to the Tribunal, including a statutory declaration from the Applicant dated 20 May 2019, in response to the invitation to comment.
On 29 May 2019, the Tribunal made a decision affirming the delegate’s decision not to grant the applicants protection visas.
TRIBUNAL’S DECISION
The Tribunal at [2]-[36] outlined the evidence before it, including statements made by the Applicant in his protection visa application in June 2015, the Applicant’s evidence to the Tribunal at the hearing in April 2019, and documents provided to the Tribunal on 20 May 2019.
By email to the Tribunal dated 23 April 2019, the applicants’ representative requested that the Tribunal take oral evidence over the telephone from two witnesses in Bangladesh. The Tribunal at [45] explained why it decided not to contact the witnesses.
The Applicant claimed to have been physically attacked in Bangladesh on three occasions between 2006 and 2008. These attacks formed the basis of the Applicant’s claims for protection. The Applicant gave a detailed account of the three attacks in his statutory declaration dated 30 June 2015. In contrast, at the hearing on 29 April 2019 the Applicant was unable to describe details of the attacks and, to the extent he recalled some details, was confused concerning the details. The Tribunal at [49]-[53] considered discrepancies between the detailed description in the Applicant’s statutory declaration and the Applicant’s inability to describe the attacks at the hearing on 29 April 2019.
The Tribunal at [56] considered inconsistencies in the Applicant’s evidence concerning a claimed incident with drug dealers.
The Tribunal at [57]-[58] considered medical reports concerning the Applicant which were before the Tribunal.
The Tribunal at [59]-[60] considered additional documents provided by the Applicant to the Tribunal.
The Tribunal at [61], based on its concerns explained in previous paragraphs, did not find the Applicant a reliable witness and rejected his claims concerning events he claimed occurred in Bangladesh.
The Tribunal at [65]-[66] concluded that the Applicant faced no real chance of serious harm in Bangladesh, and the applicants did not meet the criteria for a protection visa in s 36(2) of the Act.
PROCEEDINGS IN THIS COURT
Application and steps up to 25 February 2025
On 25 June 2019, the applicants lodged an application in this Court seeking judicial review of the Tribunal’s decision. Following a period of inactivity, on 12 December 2024 the parties were notified that the matter was listed for hearing on 26 February 2025. On 29 January 2025, the applicants lodged a further amended application (Amended Application). The Amended Application contains two grounds as follows (as written):
Ground 1
The Tribunal failed to exercise its jurisdiction to assess the credibility of the First Applicant in a professional manner or exercised it in a manner that was unreasonable.
Particulars
The Tribunal compared different accounts that the Applicant had given of certain incidents that had occurred over a decade previously and relied on discrepancies in those accounts to conclude that his claim was a fabrication. In doing so the Tribunal applied a naïve and widely discredited view of memory resulting in a failure to assess the Applicant's credibility in a professional manner, or else made an assessment that was so unreasonable that no reasonable Tribunal could have assessed it in that manner.
Ground 2
The Tribunal's refusal to call a witness was so unreasonable as to amount to jurisdictional error.
Particulars
The Applicant requested the Tribunal to call a witness who was a Bangladeshi lawyer who the Applicant said could give evidence concerning particular police documents and how he had obtained them. The Tribunal's only justification for refusing to call the witness was that it did not believe the Applicant to be a credible witness. It failed to provide any cogent reason for not calling the witness to test his written evidence and credentials to determine whether he could have corroborated the claim.
On 3 February 2025, the applicants filed a written submission (AS). On 12 February 2025, the first respondent filed a written submission.
Hearing on 26 February 2025
At the hearing on 26 February 2025, Michael Jones, solicitor, appeared for the applicant. Greg Johnson of counsel appeared for the first respondent. A Court Book (CB) containing the Tribunal’s decision and the documents before the Tribunal was tendered. Mr Jones read an affidavit annexing a transcript of the hearing before the Tribunal on 29 April 2019.
Mr Jones made oral submissions on behalf of the applicants. Mr Jones’ written and oral submissions are referred to below. Mr Johnson made oral submissions on behalf of the first respondent.
CONSIDERATION
Ground 1
The applicants’ protection visa application lodged in June 2015 included a statutory declaration from the Applicant dated 30 June 2015 which set out his claims in detail. The declaration, in a clear and detailed manner, described, among other matters:
(a)a first occasion the Applicant claimed to have been attacked in March 2006;
(b)a second occasion the Applicant claimed to have been attacked in December 2006;
(c)an event in 2007 when the Applicant reported some of his party members to the police for drug dealing and they were jailed;
(d)a third occasion the Applicant claimed to have been attacked in January 2008; and
(e)two occasions in 2006 when the Applicant or his parents filed, or attempted to file, complaints at a police station.
At the hearing before the Tribunal on 29 April 2019, the Tribunal attempted to discuss with the Applicant the claims in his declaration dated 30 June 2015. A review of the transcript of the hearing indicates that the Applicant was unable to give a coherent answer to many questions by the Tribunal concerning the detailed claims in the above paragraph.
In relation to the Applicant’s claims concerning being attacked on three occasions, referred to in paragraph 24 above, the Tribunal stated at [52]-[53]:
52.However, at hearing on 29 April 2019 the applicant was unable to describe the details of the alleged attack in March 2006 instead appearing to describe the attack that allegedly happened to him in December 2006 but then he failed to describe the same alleged injuries. He was also unable to consistently identify the reasons why he allegedly became involved, that is in his statement he said it was because Jamaat was forcing students to join their group and trying to expel the poor students but at hearing he only identified that Jamaat was forcing students to join. In addition, he provided inconsistent evidence in relation to how many times and when he was attacked, that is he initially stated he was attacked three or four times but then stated he was attacked once or twice and then said twice and that he was last attacked in 2006/2007 at a fair in Satkhira when a person from the crowd stabbed him in the stomach even though this incident was not in his written statement which suggests that the last time he was attacked was in 2008 when he was chased by attackers wielding hockey sticks and an axe.
53.In sum, the Tribunal finds that if the applicant had been attacked by Jamaat Shibir on the two occasions that he identified in his statement of 30 June 2015, then he would have been able to provide even basic details about those events including the injuries that he sustained as opposed to the vague and inconsistent details that he actually gave at hearing. Equally, if he had been attacked in an incident attributed to Boni Alam he would have been able to provide consistent evidence in relation to where he fled after the alleged attack. In reaching all of these conclusions, the Tribunal has considered the applicant's claims at hearing that he was nervous because his train had been delayed and hence, he was late for the hearing however the Tribunal did indicate to him at hearing that his adviser had told the Tribunal what was happening and the Tribunal had waited. After hearing, the applicant provided a statement saying that he had mental health issues, he was stressed since his train was late, his little one was crying and they were running and trying not to be late. He also stated that he was under the treatment of a psychiatrist previously and it had been three years since he had detached from treatment and he thought that might be a contributing factor. He also stated that the attacks took place a long time ago so he forgot the dates and months and that it was difficult to provide precise details in relation to those incidents.
In relation to the Applicant’s claims concerning reporting some party members to the police for drug dealing, the Tribunal stated at [56]:
In addition, the applicant’s evidence at hearing was inconsistent with his written statement in relation to what happened to the alleged drug dealers, that is when asked at hearing if the alleged drug dealers were charged with anything he stated he could not remember but said that even if they were they were released and nothing happened to them however his statement said they were arrested and jailed. The applicant’s written statement is also inconsistent with his evidence at hearing in relation to what happened when he was allegedly attacked in 2008, that is in his statement he said he managed to hide inside a garage of an apartment but at hearing he stated he ran for his life and straight away went to the police station. After hearing, the applicant stated that he had stated at hearing he could not remember everything clearly, one of them ran away and avoided being caught by the police and the others were arrested and jailed but were released soon after however in the Tribunal’s view being arrested and jailed is different from his initial statement at hearing which was that the two alleged drug dealers that did not escape were released. When this was put to the applicant at hearing and he was also asked if the two alleged drug dealers were charged, he stated that he could not remember. In the Tribunal’s view, the applicant’s changing testimony and lack of interest in details such as whether the alleged drug dealers were charged or whether he managed to hide before going to the police after he was attacked is indicative of someone who is not talking about events that have occurred but is making up his evidence.
The Tribunal, after addressing other parts of the Applicant’s evidence and claims, made the following conclusive finding at [61]:
For all of the reasons above, the Tribunal does not find the applicant a reliable witness and does not accept his evidence in relation to any of the alleged events in Bangladesh, that is the Tribunal does not accept that the applicant was political, or from a political family or that his father was a freedom fighter or that his uncle was murdered or that the applicant was an active member of the Bangladesh Chatro (student) League or joint general secretary of Satkhira District student league. The Tribunal does not accept that he opposed Jamaat Islam Chhatra Shibir or that he was attacked by them or BNP at any time. Neither does the Tribunal accept that he discovered that members of the Awami League were involved in drug dealings, or that he contacted the police or was subsequently attacked. Neither does the Tribunal accept that the applicant or his family fled to Australia or that his wife was confronted by the applicant’s party enemies when she returned to Bangladesh. Given the applicant’s lack of credibility, the Tribunal does not accept that he is or was an Awami League supporter or activist, or that he fears harm from BNP or Jamaat or intra party violence from Sayedur Opu, Boni and Horan or anyone else in the Awami League. In reaching this conclusion, the Tribunal has considered the various documents and certificates in support of the claims that the applicant and his family were political however having listened to the applicant the Tribunal is not persuaded of the truth of any of those documents or certificates.
Ground 1 complains that the Tribunal fell into jurisdictional error in assessing the Applicant’s credibility. To the extent that the Tribunal was concerned about the significant discrepancy between the Applicant’s detailed account in his declaration dated 30 June 2015 and his inability to recall most of that account at the hearing in the Tribunal on 29 April 2019, it is stated in the particulars to ground 1 that “the Tribunal applied a naively and widely discredited view of memory resulting in a failure to assess the Applicant's credibility in a professional manner, or else made an assessment that was so unreasonable that no reasonable Tribunal could have assessed it in that manner”.
The nub of ground 1 in the applicant’s written submission appears at AS [28] where it is contended:
… the Tribunal’s assessment of the Applicant’s credibility fell below the standard of reasonableness required of a person in the position of the Member in this case, specifically by not appreciating:
(a)the known effect of the lapse of time between the events (2006-2008), the Applicant's original statement (2015) and the hearing (2019) on the Applicant's recall of specific details of the assaults …;
(b)the recognised effect of recounting experiences over time …;
(c)the evidence concerning the Applicant's psychological conditions and the likely effect on his performance in a stressful situation such as the Tribunal hearing;
(d)the manner of questioning of the Tribunal, including suggesting in long, disconnected recitals that the Applicant's claims were contradictory or confusing because he had not mentioned all of the same facts in different accounts, without identifying actual contradictions …;
(e)the claim of inconsistency, rather than obvious mental confusion, between the Applicant's account of the drug dealing presumably because at the hearing he said "nothing happened" but then he named two who had escaped from prison and others who had been released later, while in his written statement he only named one who had escaped …
At the hearing on 26 February 2025, I asked Mr Jones to identify any specific error in any part of the Tribunal’s detailed reasons leading to its findings at [61]. Subject to one matter explained in the next paragraph, for the purpose of ground 1, Mr Jones did not contend there was any specific error in any part of the Tribunal’s reasons up to and including [61]. His argument appeared to be to the effect that, because the Tribunal found the Applicant was not a reliable or credible witness and did not accept his claims, therefore the Tribunal overlooked the matters listed in AS [28].
The single finding Mr Jones challenged was the finding in the first sentence of [56] that “the applicant’s evidence at hearing was inconsistent with his written statement in relation to what happened to the alleged drug dealers”. Mr Jones contended there was no inconsistency between the applicant’s evidence at the hearing in April 2019 and his 30 June 2015 declaration. However, a comparison between the Applicant’s declaration dated 30 June 2015 (in which the Applicant stated that the drug dealers were arrested and jailed) and the Applicant’s evidence at the hearing on 29 April 2019 (when the Applicant repeatedly stated that “nothing happened” to the drug dealers - see pages 14 and 15 of transcript) indicates an obvious inconsistency.
It is contended at AS [28(a)] that the Tribunal did not appreciate “the known effect of the lapse of time between the event (2006-2008), the Applicant’s original statement (2015) and the hearing (2019) on the Applicant’s recall of specific details of the assaults”. However:
(a)the Tribunal at [53] expressly considered the Applicant’s excuse “that the attacks took place a long time ago so he forgot the dates and months and that it was difficult to provide precise details in relation to these incidents”; and
(b)the Tribunal at [54] accepted that, by lapse of time, an applicant may forget some details of claims.
I do not accept that the Tribunal did not appreciate the effect of lapse of time. Mr Jones could not identify any part of the Tribunal’s reasoning process from which an inference could be drawn that the Tribunal did not appreciate the passage of time between 2006 – 2008 and the hearing in April 2019 and its impact on memory and recollection.
It is contended at AS [28(b)] that the Tribunal did not appreciate “the recognised effect of recounting experiences over time”. The meaning of this contention is not clear. If the contention is that the Tribunal failed to have “regard to imperfections in memory that naturally occur over time” (see BEL16 v Minister for Home Affairs [2019] FCA 1678 at [16] referred to at AS [23]), I do not accept that the Tribunal failed to have regard to this matter. For example, Mr Jones could not identify any part of the Tribunal’s reasoning process from which an inference could be drawn that the Tribunal made this error.
It is contended at AS [28(c)] that the Tribunal did not appreciate “the evidence concerning the Applicant’s psychological conditions and the likely effect on his performance in a stressful situation such as the Tribunal hearing”. However:
(a)the Tribunal at [53] expressly considered the Applicant’s excuse that “he had mental health issues, he was stressed since his train was late … he was under the treatment of a psychiatrist previously”;
(b)the Tribunal at [54] expressly “accept[ed] the applicant was nervous and may indeed have forgotten the dates and months the alleged attacks took place”; and
(c)the Tribunal at [57]-[58] carefully considered two reports of a psychologist provided by the Applicant to the Tribunal which described his psychological condition, and did not dispute the psychologist’s opinion that the Applicant suffered from depression and traumatic stress disorder.
I do not accept that the Tribunal did not appreciate the evidence concerning the Applicant’s psychological conditions and the likely effect on his performance in a stressful situation such as the Tribunal hearing. Mr Jones could not identify any part of the Tribunal’s reasoning process from which an inference could be drawn that the Tribunal did not appreciate the matters at AS [28(c)].
During the hearing, Mr Jones added that the Tribunal should have considered, but failed to consider, the detrimental effect of the Applicant’s PTSD diagnosis on his ability to recall events. However, as Mr Jones acknowledged, there was no expert evidence before the Tribunal that a PTSD diagnosis has a detrimental effect on memory and the Applicant did not make this claim to the Tribunal. I do not accept that the Tribunal erred by not considering this matter.
It is contended at AS [28(d)] that the Tribunal did not appreciate “the manner of questioning of the Tribunal”. The meaning of this contention is unclear. Mr Jones did not identify in written or oral submissions, with reference to the transcript of the hearing before the Tribunal in April 2019, any unfairness or other error in the Tribunal’s manner of questioning the Applicant.
It is contended at AS [28(e)] that the Tribunal did not appreciate “the claim of inconsistency, rather than obvious mental confusion, between the Applicant's account of the drug dealing presumably because at the hearing he said "nothing happened" but then he named two who had escaped from prison and others who had been released later, while in his written statement he only named one who had escaped”. This appears to be a complaint about the Tribunal’s finding of inconsistency in the first line of [56] discussed in paragraph 32 above. For reasons explained in paragraph 32 above, the Tribunal’s finding in the first line of [56] that the Applicant’s evidence was “inconsistent” was clearly open to the Tribunal.
Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2
On 18 March 2019, the Tribunal sent the applicants a letter inviting them to attend a hearing on 29 April 2019. On 23 April 2019, the applicants’ representative sent an email to the Tribunal requesting that the Tribunal take oral evidence over the telephone at the hearing from two witnesses in Bangladesh: CB 316. One of the witnesses was “Anit Mukherjee, Advocate”. On 24 April 2019, the representative emailed the Tribunal a statement in the name of Mr Mukherjee dated 21 April 2019 which stated (CB 329):
I know [the Applicant] personally for more than 25 years.
While he was involved in politics in Bangladesh and used to protest against several illegal activities done by people both from his own party and also from opposition parties, he created many enemies among them and was attacked by them brutally.
I verified and confirm the authenticity that [the Applicant] filed a general diary on 5 Nov 2006 GD #116 and again on 20 Dec 2006 GD #812, since his life was under threat.
Based on the evidence before the Tribunal, a “general diary” is a written record of a complaint made by a person to a police station which is stamped by the police station upon receipt or acceptance. The applicant provided to the Tribunal two such stamped complaint documents dated 5 November 2016 and 20 December 2016: CB 150 – 154. If the Tribunal accepted the two complaint documents as authentic, this would corroborate the Applicant’s claims that he made written complaints to the police on 5 November 2016 and 20 December 2016. According to the statement in the name of Mr Mukherjee, Mr Mukherjee could assist in establishing the authenticity of the two “general diary” documents.
The representative stated in a covering email which attached Mr Mukherjee’s statement: (CB 327)
We note that Mr Anit Mukherjee, advocate will provide evidence by phone from Bangladesh. Phone number [XX]
We respectfully request the Tribunal to take reasonable steps to call the witness because the legal opinion of the lawyer would carry significant weight in relation to the authenticity of General Diary. Mr Mukherjee noted in his letter what steps he has taken to verify the documents.
At the hearing on 29 April 2019, the Tribunal questioned the Applicant about his claims, including the two “general diary” documents. The Applicant’s evidence was unclear and not consistent with his written claims. The Tribunal at [21]-[22] described the Applicant’s evidence concerning the “general diary” documents as follows:
21.When asked how many times he had managed to file a general diary or complaint with the police he stated he had made a written complaint twice, in 6/2007 and perhaps 2008. When asked what circumstances led to him filing a GD he stated they were trying to attack and kill him. When asked for specifics he stated it was an internal group matter and there was a person called Sayedur Opu. The applicant stated he was against drugs and complained to the police. When asked for clarification he stated he could not remember whether his successfully lodging a general diary was drug-related or against his attack. The Tribunal put to him that his statement said that he had complained many times to the police who had ignored him but that he managed to lodge a general diary with them on more than one occasion and again asked for the circumstances that led to him successfully lodging a general diary complaint. He stated he complained verbally and not in writing because if he did his name would be on the list of complainers who the powerful people he was complaining against could find. He stated when he was not successful orally he put in two written complaints, one when the internal Awami League people were threatening him and he could not remember the other incident.
22.The Tribunal put to him that his statement stated that one time he managed to lodge a GD and he stated maybe that was correct. When the Tribunal put to him he could not say when or what the circumstances were, he stated it could be the internal party matter and related to drugs. The Tribunal also put to him that he provided two documents, one about lodging a GD with police in November 2006. The Tribunal put to him that he had said that every time he went to the police they would not let him lodge anything and then he lodged something in November 2006 based on events after October 2006 but then that general diary did not refer to any incident other than the incidents in his statement which he said the police were not interested in. The Tribunal also put to him that there was another document that stated it was lodged on 20 December 2006 and talked about what happened to him in December 2006 however his written statement had said the police were not interested in his story at that point and the police did not want to file the case. He stated in December 2006 there was a GD but he could not remember.
At the hearing in this Court on 26 February 2025, Mr Jones did not challenge this description.
After the Applicant gave evidence at the hearing before the Tribunal on 29 April 2019, the Tribunal put its concerns about the Applicant’s evidence to the Applicant and his representative. The concerns included concerns about the “general diary” documents as follows (T21/14-15):
In relation to his general complaints when he actually managed to file complaints with the police, I'm not sure I heard details that were consistent with his statement. The other thing is, there are two documents on file that suggest that he did lodge two complaints with the police. The first document suggests that it was lodged in November 2006 and that it was a result of disputes that he encountered outside of details in his statement. However, that document then does not disclose any of the alleged reasons that led to its actual lodgement but instead talks about all of the details in his statement which he says he was unable to lodge complaints with the police about. The second document details what allegedly happened in December 2006. However, [the applicant’s] statement says in relation to that incident the police did not want to file the case. So I have concerns about all of that.
There was then a discussion about the representative responding in writing to the Tribunal member’s concerns. The member then stated: (T22/45-49)
Well, I am going to give him a chance, an opportunity to put everything in writing, his response in writing. If I have to write to him I will. The other thing is, you have asked me, I’m going to talk to your lawyer but please interpret, you have asked me to talk to two people. If you want those people to put anything further I’m going to get you to do that in writing.
By letter dated 30 April 2019, the Tribunal put its concerns to the applicants, including in relation to the two “general diary” documents and invited the applicants to respond.
On 20 May 2019, the applicant’s representative emailed to the Tribunal documents including:
(a)a statutory declaration of the Applicant dated 20 May 2019; and
(b)a report from a psychologist dated 10 May 2019 after seeing the Applicant on 7 May 2019.
The Applicant stated in the statutory declaration at [18]:
I request the Tribunal to contact my witness I provided if it has any further credibility issues. It is very important to my case.
The applicants’ representative, although on notice from the hearing on 29 April 2019 that the Tribunal had serious concerns about the Applicant’s evidence, including the “general diary” documents, did not provide to the Tribunal a further statement from Mr Mukherjee.
The Tribunal did not try to contact Mr Mukherjee before making its decision.
In relation to the requests by the applicants for the Tribunal to take evidence from Mr Mukherjee at the hearing on 29 April 2019, and then after the hearing, the Tribunal stated in its decision at [45]:
At hearing, the applicant nominated two witnesses, SK Tohiduzzaman Chapal and Anit Mukherjee, both of whom were located in Bangladesh and both of whom had already provided statutory declarations. The Tribunal chose not to talk to those witnesses but indicated instead that the applicant could provide any further written material that he wanted. After hearing, the Tribunal wrote to the applicant pursuant to section 424A and in his response, the applicant requested the Tribunal to contact his witnesses. While the Tribunal has considered this request, it has also considered that the applicant has already provided statutory declarations from these two witnesses and the Tribunal indicated to the applicant at hearing that he could provide any further written material and also wrote to him under section 424A. In these circumstances, the Tribunal finds there was nothing to stop the applicant from submitting all the evidence that he wanted the Tribunal to consider and indeed, what he has submitted over the course of his protection visa application is considerable. The Tribunal considers that in these circumstances, it has given the applicant a fair opportunity before, during and after hearing to provide all the evidence that he wanted the Tribunal to consider.
It is contended in ground 2 that the Tribunal’s procedural decision, or decisions, not to try to contact Mr Mukherjee to take evidence from him was legally unreasonable.
To evaluate this contention, it is necessary to consider the statutory framework.
Section 426 of the Act provided:
(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.
Section 427(1) of the Act relevantly provided:
For the purpose of the review of a decision, the Tribunal may:
(a)take evidence on oath or affirmation; …
Where an applicant asks the Tribunal to obtain oral evidence from a witness within the timeframe in s 426(2), in AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; 262 FCR 317 (AYX17) the Full Court discussed the nature of the Tribunal’s obligation under s 426(3) to consider whether to accede to a request under s 426(2).
Where an applicant asks the Tribunal to obtain oral evidence from a witness outside the timeframe in s 426(2), relevant principles are explained in AOO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 424 (AOO16). In that case, where the Tribunal did not accede to a request to obtain oral evidence from a witness outside the timeframe in s 426(2), Colvin J stated at [35], [36] and [39]:
[35] … the issue is whether the failure to exercise the statutory discretion to take evidence from a particular person means that the review as a whole lacks the requisite statutory character such that there could be said to be a constructive failure to exercise the jurisdiction to undertake the review.
[36] If it is obvious that the person who was not asked to give evidence was a person who could give evidence about a critical fact and the person could be easily contacted then the failure to take evidence from that person may be a constructive failure to exercise jurisdiction.
[39] … it is only where the failure to take evidence from the particular person means that the whole review lacks the requisite reasonable character that jurisdictional error is demonstrated.
Mr Jones accepted at the hearing on 26 February 2025 that the applicant’s requests in the present matter fell outside s 426(2). Mr Jones did not contend that the approach in AOO16 was not applicable to the present matter.
It appears to me that the Tribunal made decisions on two occasions not to try to contact Mr Mukherjee. I consider each occasion in the following paragraphs.
The first occasion was towards the end of the hearing on 29 April 2019. As explained above, once the Applicant completed giving evidence, the Tribunal had serious concerns about the Applicant’s evidence, including the authenticity of the “general diary” documents, and the Tribunal put its concerns to the applicants and gave them an opportunity to provide any further documents they wished to the Tribunal. In the circumstances, I consider that it was not unreasonable for the Tribunal not to try to phone Mr Mukherjee at this point in time for the reasons given by the Tribunal at [45]. Further, this was not the case where “it is obvious that [Mr Mukherjee] could give evidence about a critical fact”: A0016 at [36]. Mr Jones did not identify the “critical fact”, let alone any additional fact, about which Mr Mukherjee could give evidence. I consider that the Tribunal’s decision not to try to contact Mr Mukherjee did not mean that the whole review “lack[ed] the requisite reasonable character”: AOO16 at [39].
The second occasion was in response to the Applicant’s further request to the Tribunal to contact Mr Mukherjee in paragraph 18 of his statutory declaration dated 20 May 2019. In circumstances where the Tribunal had given the Applicant an opportunity to file a further statement from Mr Mukherjee after the Tribunal raised its concerns with the Applicant about the “general diary” documents and the Applicant chose not to file a further statement from Mr Mukherjee, I again consider that it was not unreasonable for the Tribunal not to try to contact Mr Mukherjee for the reasons given by the Tribunal. Again, Mr Jones did not identify a “critical fact”, let alone any fact, about which Mr Mukherjee could give oral evidence. Further, with reference to “the reasoning pathway adopted by the Tribunal” (AOO16 at [66]), it is difficult to conceive of any evidence Mr Mukherjee could have given which would have affected the Tribunal’s decision. Based on the Tribunal’s reasons, Mr Mukherjee’s evidence was of marginal relevance. I consider that the Tribunal’s decision not to try to contact Mr Mukherjee did not mean that the whole review “lack[ed] the requisite reasonable character”: AOO16 at [39].
Ground 2 does not identify a jurisdictional error in the Tribunal’s decision.
COSTS
At the conclusion of the hearing, the Court invited submissions from the parties on costs. The first respondent sought costs in the sum of $5,600. Mr Jones did not oppose this amount. The order should be against the first and second applicants.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 7 March 2025
0