FDB17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 626
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
FDB17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 626
File number: MLG 2535 of 2017 Judgment of: JUDGE CHAMPION Date of judgment: 21 July 2023 Catchwords: MIGRATION LAW – Safe Haven Enterprise Visa – Applicant sought protection because of alleged threats from political group in receiving country – Tribunal transcript cannot be employed to supplement Tribunal’s reasons – Whether exercise of Tribunal’s statutory discretion not to obtain oral evidence legally unreasonable – Evidence of Applicant so compromised that evidence from proposed corroborative witnesses could not affect the outcome Legislation: Migration Act 1958 (Cth) ss. 5AAA, 422B, 425, 426, 426A, 427 Cases cited: Acting Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v CWY20 (2021) 288 FCR 565
AYX17 v. Minister for Immigration and Border Protection [2018] FCAFC 103
BTF15 v Minister for Immigration and Border Protection [2016] FCA 647
DBD16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 362
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165
SZBEL v. Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZCSC v Minister for Immigration and Multicultural Affairs [2007] FCA 418
SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574
SZVBB v Minister for Immigration and Border Protection [2015] FCA 1414
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of last submissions: 9 May 2023 Date of hearing: 9 May 2023 Place: Melbourne Counsel for the Applicant: Mr Aleksov and Mr Thangarajah Solicitor for the Applicant: Bleyer Lawyers Counsel for the Respondents: Ms McInnes Solicitor for the Respondents: Clayton Utz ORDERS
MLG 2535 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FDB17
Applicant
AND: MINSTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE CHAMPION
DATE OF ORDER:
21 July 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant pay the First Respondent’s costs of $8,371.30.
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 CHAMPION:
INTRODUCTION AND SUMMARY
The applicant is a Pakistani citizen who was 39 years old at the time of the Tribunal hearing (Applicant) (CB29). He claimed that he ran a clothing shop in an area controlled by the Muttahida Quami Movement (MQM) and that MQM routinely threatened and extorted money from him (CB60-66). The Tribunal did not believe his account of events. The Tribunal’s decision of 17 November 2017 affirmed a decision of the delegate of the Minister (Delegate) to not grant the Applicant a protection visa (Class XE-790 Safe Haven Enterprise Visa).
In the course of the hearing and for reasons set out in its decision, the Tribunal refused to obtain oral evidence from four witnesses. The single ground of judicial review was that the Tribunal’s exercise of its statutory discretion under s. 427(1)(a) of the Migration Act 1958 (Cth) in refusing to obtain that oral evidence was legally unreasonable because it lacked a rational and intelligible foundation or was the product of irrational or unreasonable reasoning.
The Tribunal's reasons disclose a rational and intelligible foundation for its decision not to obtain the oral evidence: namely, that the Tribunal disbelieved the Applicant’s account of events and the Applicant’s credibility was so compromised that this was a case in which obtaining oral evidence from corroborative witnesses could not affect the outcome.
The application will be dismissed. I set out my reasons below.
THE DELEGATE’S DECISION
The Delegate had accepted that the Applicant had been a member of the PSG Sindhi shopkeepers association from Karachi and MQM had mistreated him as a shopkeeper (CB157). That is, the Delegate made a finding favourable to the Applicant insofar as the Delegate accepted that he was a Sindhi shopkeeper in Karachi. The Delegate did not accept that he was at future risk of harm from MQM if he returned to Pakistan (CB 154).
Subsequently, and contrary to the Delegate’s finding, the Tribunal did “not accept [that the Applicant] was a shopkeeper at a market” (CB348, [31]). In fact, the Tribunal disbelieved the Applicant as to his claims of being a shopkeeper and (in addition) disbelieved that MQM threatened him and extorted money from him.
The Tribunal put the Applicant on notice that it might depart from the Delegate’s finding: Tribunal transcript (P5:L39-41–P6:L13); SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [35]. The Applicant did not submit that the Tribunal breached its obligations of procedural fairness in making its own finding (contrary to the Delegate’s finding) that the Applicant was a shopkeeper.
TRIBUNAL DECISION
Before the Tribunal’s hearing, the Applicant’s response on 25 August 2017 (CB244–279) to the Tribunal’s hearing invitation (CB232–233) requested that the Tribunal obtain evidence from four named witnesses (his mother, father, brother and a friend) and set out a brief description of the evidence they would give (CB248–250). Each of the witnesses was resident in Pakistan. The Applicant provided a summary of the proposed evidence the named witnesses would give (CB251). Further details are set out below.
On 6 September 2017 the Applicant appeared before the Tribunal at the hearing (CB283). The Tribunal hearing record states that the Applicant and the four named witnesses were “in attendance” and listed their international phone numbers: (CB 283).
The Tribunal’s reasons included a summary of the Applicant’s key claims (CB319–20, [13]–[14]) as follows:
13.The applicant claims to fear persecution in Pakistan from Muttahida Quami Movement (MQM) party activists. His key claims as summarised are:
•In 2001 he opened a clothing shop named Siddiqui Cloth House at Bolton Market in Karachi.
•As a shopkeeper he paid extortion money to MQM activists, until he and other shopkeepers stopped giving money in 2008. The activists then hassled and threatened him and stole shop goods.
•On 28 December 2009 a Shia Ashura Day procession was suicide bombed in Karachi and that night the market watchman observed the MQM activists looting and burning market shops including the applicant's shop. The watchman phoned the applicant to tell what had happened.
•On 31 December 2009 the applicant filed with the police a written complaint against a named MQM activist. A copy of the complaint has been provided.
•The MQM activists became aware of the written complaint and demanded he withdraw it when they assaulted him two times in early 2012. Then on 5 March 2012 he was abducted and threatened with death.
•On 6 March 2012 he went to the police and withdrew the complaint, but then also lodged a fresh written complaint about the abduction. A copy of the second complaint has been provided.
•He was worried the MQM activists would become aware of the second complaint so in 2013 and 2014 he stayed for long periods with aunts in Sukkur city and Shekarbur city, and while he was away strangers asked after him three times.
•In November 2015 he used a genuine Pakistan passport to travel to Malaysia.
•In February 2016 he used a false identity to travel to Australia.
•Since he departed Pakistan, MQM activists have asked the family where he is and threatened to kill him if he returns to Pakistan. He provided a letter from the parents and a friend to support this.
14.The applicant claims he has a well-founded fear of returning to Pakistan arising from his:
•Political opinion. He fears the MQM party activists will harm him because of his political opinion (actual or imputed) against the MQM party. This arose when he refused to pay money to the party, and he then refused to withdraw a police report he had lodged against the party, and he then lodged a second police report against the party.
•Membership of a particular social group, of Sindhi shopkeepers in Karachi.
•Race. He fears the MQM party, other ethnic groups, and Urdu speakers will harm him because he is of Sindhi ethnicity.
The Tribunal set out its specific reasons for its decision not to obtain oral evidence from the four persons named in the Applicant’s response to the hearing invitation at CB320, [17]. Because whether the Tribunal’s reasons for not obtaining the oral evidence had a rational and intelligible foundation is the question on judicial review, the relevant passage from [17] of the Tribunal’s reasons is set out in full later in these reasons.
The Tribunal’s reasons (CB321–6, [22]–[42]) are titled: “Assessment of claims: credibility”. The Tribunal made a series of findings adverse to the Applicant’s credibility on nearly all of his claims. The Tribunal only accepted that the Applicant was a Pakistani national, a Sunni Muslim and a Sindhi: (CB321 [22]–[23]). Otherwise, the Tribunal (by and large) rejected the Applicant’s claims because it did not believe his account of events.
The Tribunal rejected that the Applicant was a businessman and shopkeeper
The Tribunal found “I do not accept that he was ever a businessman and shopkeeper as he claims”: (CB321, 24]). Despite the Applicant’s claims to have established a “ladies wholesale clothes” business and opened a shop in 2001, this claim was not “believable as in 2001 he had only turned age 17 and was finishing year 10 of high school” (CB322, [26]). The Tribunal found that the Applicant’s explanation for how “he managed to establish a business and operate a shop while at the same time undertaking college study including a degree course up to 2006 [was] unpersuasive” (CB322, [27]). The Tribunal found that (CB322, [28]):
I disbelieve that no tax records for such a business were kept other than in writing in the shop or that such records cannot be accessed now. Further, his evidence that he had no photos that showed the shop and him at the shop, is difficult to accept in light of his narrative that establishing the business and shop fulfilled a significant passion he had.
The Tribunal concluded its consideration of that part of the Applicant’s claim that he was a businessman and shopkeeper in the following terms (CB322–323, [30]):
Having considered the applicant's evidence and documentary evidence I disbelieve that as a 17 year old teenager completing Year 10, and with no business experience or expertise in wholesaling or shop operation or in women's clothes, he established a wholesale women's clothing business and opened a shop in a Karachi market. I disbelieve that over the next several years he was able to operate the business as sole owner while at times also completing courses including an Economics degree. It may be that there is a clothes shop operated by a family member in Karachi but I do not accept that the applicant was the shopkeeper and owner of the business. I find that the applicant is not a credible witness and has fabricated his claims and narrative about the business and shop operated by him and the related adverse interest of MQM activists.
The Tribunal rejected the Applicant’s claim that he attracted adverse interest from MQM activists
The Tribunal also rejected that the Applicant had attracted the adverse interest of MQM activists in the following terms (CB 323, [31]):
[…] As I do not accept he was a shopkeeper in a market I do not accept that: he came to the attention of MQM activists who extorted money from him; activists hassled him and stole from a shop he operated; activists torched a shop he operated; he lodged a complaint with the police; activists then assaulted, threatened and abducted him; he lodged a second complaint; thereafter activists searched for him, threatened the family and continue to have an adverse interest in him.
It rejected the Applicant’s claim that “MQM activists had looted and torched the shop” (CB323, [33]). The Tribunal found “it is difficult to accept that he failed to discuss this serious matter with any other shopkeepers whose shops were similarly destroyed” (CB324, [33]).
The Tribunal said the following at (CB325, [38]):
The applicant has given an account of increasingly violent interactions with the MQM activists finally leading to abduction with a violent assault and being threatened with death while two guns were placed to his head. At the hearing he agreed this had caused him great fear. In light of this it is difficult to accept his story that he went to the police and withdrew the written complaint dated 31 December 2009 but then immediately made another written complaint about the abduction by MQM activists whom he named and in which he fully explained why he was withdrawing the first complaint. The applicant responded to my concerns by saying that if he was later killed there was evidence of who had killed him, and his parents pressured him to make the second complaint. But as I pointed out it makes no sense for him to have made a second complaint so that it would be known who had killed him, if the making of the second complaint was the very action that would lead the activists to kill him. As I pointed out it is not likely that his parents would pressure him to do an act that would likely attract the adverse interest of the activists and lead to their son's murder. In sum I find improbable the applicant's narrative and evidence about withdrawing the first complaint because of a great fear of being murdered, but then lodging an even more detailed written complaint against the activists. My great concerns with the applicant's narrative and evidence, together with my findings that he is not a credible witness and has fabricated claims, and the country information about false and fraudulent FIRs from Pakistan, lead me to find the FIRs are fraudulent and I give the documents no weight.
More than three years passed before the Applicant departed Pakistan
The Tribunal also noted that in the Applicant’s narrative that – despite his abduction and being threatened with death in March 2012 – he had lived in Pakistan after his alleged abduction “for almost four years […] without incident” and that he only finally departed Pakistan in November 2015 which did not support his story of fleeing Pakistan as a result of the abduction and death threat: (CB325-326, [40]).
MQM’s adverse interest after the Applicant departs Pakistan
The Tribunal also did not accept the Applicant’s claim that the threats had intensified after he left Pakistan. At CB326, [41]–[42] the Tribunal held:
41 […] But as I pointed out, it is not believable that while he was in Pakistan from 6 March 2012 to November 2015 nothing bad happened to him and only after he was in Australia several years later did the activists then intensify their search for him and start making death threats.
Conclusion – Credibility
The Tribunal set out its adverse conclusions as to the Applicant’s credibility at [42]–[46] (CB326- 327). The Tribunal’s conclusion at (CB326, [43]) was as follows:
My great concerns with significant elements of the applicant's narrative and evidence lead me to find he is not a credible witness. I find that he has fabricated the story about owning and operating a shop in a market in Karachi, and coming to the adverse attention of the MQM and its activists. I do not accept that the MQM activists have in the past or now, any interest in him for the reasons he claims.
On 20 November 2017, the Tribunal made a decision affirming the Delegate’s decision to not grant the Visa (CB313).
JUDICIAL REVIEW APPLICATION
The Applicant’s further amended application on 26 April 2023 is as follows:
1.The decision by the Tribunal:
a.Is affected by an error of law; and
b.Denied the applicant procedural fairness.
[…]
3.The decision of the Tribunal is affected by legal unreasonableness, in that the Tribunal refused to call corroborative witnesses for reasons that were, or included invalid or unintelligible reasons.
[As written]
LEGISLATIVE FRAMEWORK
Section 5AAA
The First Respondent placed some reliance on s.5AAA (1) and (2) which are as follows:
5AAA Non‑citizen’s responsibility in relation to protection claims
(1) This section applies in relation to a non‑citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).
(2)For the purposes of this Act, it is the responsibility of the non‑citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.
Sections 5AAA and 427(1)(a) co-exist in the legislative scheme. The Applicant’s responsibility under s. 5AAA does not diminish the Tribunal’s obligation to exercise its s. 427(1)(a) statutory discretion in a legally reasonable way. It may still be the case that there will be a legally unreasonable exercise of the s. 427(1)(a) discretion notwithstanding the fact that s. 5AAA provides that the non-citizen must “specify all particulars of his or her claim”. By reason of the inquisitorial process in the Tribunal, it is the Tribunal, not the Applicant, which controls the process of obtaining oral evidence and necessitates that the statutory discretion to obtain that evidence be reasonably exercised.
Section 426
Section 426 provides a means by which an applicant who receives a hearing invitation may within 7 days give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
The Applicant’s written notice in this case did not engage s. 426(2) because he sent the notice to the Tribunal on 25 August 2017 after the expiry of the 7 day time limit in s. 426(2). It was not part of the Applicant’s case that the Tribunal did not comply with s. 426. Nonetheless, the Tribunal retained a discretion pursuant to s. 427(1)(a) as to the taking of evidence.
Section 427
Section 427(1)(a) is central to this application. Section 427(1)(a) is as follows:
427 Powers of the Tribunal etc.
(1) For the purpose of the review of a decision, the Tribunal may:
(a) take evidence on oath or affirmation
The interaction between ss. 426 and 427
In DBD16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 362, [46] Feutrill J held:
Section 426 does not confer power on the Tribunal to take evidence. The relevant power is in s 427(1)(a). Section 426 is a facultative provision through which an applicant makes it known to the Tribunal that the applicant wishes the Tribunal to exercise power under s 427(1)(a). In that event, s 426(3) imposes a mandatory requirement on the Tribunal to ‘have regard to’ the applicant’s wishes, but is not required to obtain the evidence. That is, s 426(3) confirms that a notice given under s 426(2) does not fetter the Tribunal’s discretion to exercise the power in s 427(1)(a) ‘for the purposes of the review of a decision’.
[Emphasis added]
AYX17 v Minister for Immigration and Border Protection
In AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103, in an extended passage from paragraphs [70]–[97], Tracey and Mortimer JJ (as her Honour then was) discussed the principles of legal unreasonableness in the context of the s. 427(1)(a) discretion. At [75] their Honours held:
The discretion in 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: see Li at [23]-[26] (French CJ); [63] (Hayne, Kiefel and Bell JJ); [88]-[92] (Gageler J).
One way in which the discretion may miscarry was if the “reasoning adopted (in the course of giving consideration) might be so irrational, or unreasonable, so as to indicate the exercise of power has miscarried”: AYX17 at [77] (emphasis added).
At [80] their Honours held:
A well-recognised function of a decision-maker hearing oral evidence is to assist the decision-maker in determining issues of credibility and reliability of a principal witness or party, and that oral evidence can achieve this objective in a way that written evidence cannot.
At [81] (approving what Rangiah J had said in SZVBB v Minister for Immigration and Border Protection [2015] FCA 1414 at [40]-[41]) their Honours held:
It is open to the Tribunal, in an appropriate case, to decide that the evidence of an applicant is so compromised that hearing the oral evidence of a corroborating witness could not affect the outcome: [citations omitted]
However, if evidence by a witness corroborating a part of the appellant’s evidence is given and is believed, that might suggest that the appellant is also telling the truth about other parts of his evidence: see W360/01A v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 449 at [2], [30]. For this reason, in many cases it will not be open to the Tribunal to refuse to obtain oral corroborating evidence on the sole basis of an assertion that the evidence could not affect the Tribunal’s assessment of the appellant’s credibility. It is one thing to hear evidence and reject it or to find that it is of no assistance. It is another thing to refuse to hear what is said to be corroborating evidence on the basis of an assumption that it could not possibly be credible or could not possibly assist in assessing the credibility of the appellant.
At [85] in AYX17 Tracey and Mortimer JJ held:
There is some caution, in our respectful view, needed before determining that it is open to a decision-maker to conclude that proffered corroborative evidence cannot “affect” the decision-maker’s view of the reliability or credibility of an applicant. If that conclusion is reached too readily it discounts the purpose of corroborative evidence, and it also tends to suggest a level of prejudgment which does not sit easily with the decision-maker’s task to make the correct or preferable decision on all the material before it.
The relevant passage concluded in AYX17 at [96]–[99]:
[96]While it is possible, by segmenting the Tribunal’s reasons, to strip the reasons of what might be seen to be any intelligible justification, and to highlight what might appear to be a misconception by the Tribunal of the scope of the evidence which each of the proffered witnesses could give, in our opinion (and not without some hesitation) the exercise of power by the Tribunal in this case is not susceptible to the characterisation of a legally unreasonable exercise of power.
[97]The Tribunal plainly had substantial concerns about the reliability and credibility of the appellant’s accounts of what had happened to him in the past, and why he had fled Turkey. Its concerns had accumulated through the Tribunal hearing, and on consideration of the material before the Tribunal. It was not given details about what the proposed witnesses would be able to say (cf BTF15). It was not given any real detail at all about the witnesses themselves. They were not close relatives of the visa applicant, who were said to be closely involved in the narrative which formed the basis for his account to have a well‐founded fear of persecution (cf CZBH). The Tribunal did not rush to make a decision to refuse to hear from the two witnesses and its reasons should be read as indicating that it continued to consider this issue after the hearing. The appellant did not submit the Tribunal’s statements at the hearing were false on this account.
[98] As we have explained above, the method by which evidence will be taken will generally not provide a sufficient justification for a decision‐maker to refuse to hear such evidence. Further, decision‐makers need to be careful to understand with some precision how a visa applicant explains the relevance and role of any proffered evidence. There will come a point where repeated statements by reviewing courts about these matters, if not taken to heart and applied by decision‐makers, may result in reviewing courts concluding that decision‐makers are taking an arbitrary or capricious approach to the exercise of this power.
[99] However, that is not this case. Looking at the whole of the circumstances, we consider the exercise of discretion was within the area of decisional freedom available to the Tribunal, particularly given the matters to which we have referred at [97] above.
[Emphasis added]
CONSIDERATION
As argued, the Applicant pressed a single ground of review that the Tribunal’s exercise of its statutory discretion to obtain evidence from witnesses under s. 427(1)(a) was legally unreasonable because the Tribunal’s reasoning was irrational or unreasonable in the requisite sense: see AYX17 at [77] (above).
The Applicant’s response to the hearing invitation
The Applicant’s response to the hearing invitation (CB248-250) set out that he wished the Tribunal to obtain evidence from three family members and a friend. He described the proposed evidence his family members and his friend would give and its relevance as follows:
My mother […] will give evidence that MQM have recently attended our family home asking about my whereabouts.
My father […] will give evidence that he has been approached in the community, in recent months, by MQM members asking questions about me.
Mr brother […] will give evidence that I still have high risk in Pakistan and MQM party searching for me to kill and still MQM party people come our home to ask about me
My friend […] will give evidence that [the applicant’s] life is not save in Pakistan many time I saw the MQM party people asking about him and they were talking about we will kill him whenever he will come in Pakistan
[As written]
With his response to the hearing invitation, the Applicant also forwarded to the Tribunal a single joint written statement each of the four proposed witnesses had signed (CB251):
To whom it may concern, [we] [4 names omitted], would like to inform you about the situation that what we are going through in Pakistan regarding our son’s [name omitted]'s case.
We are keep getting threats from Mohajir's community MQM and they are keeping an eye on our social activities. They (Mohajir's community MQM) stopped us on several occasions In last year and this year in public places and enquire about [the applicant] that where is he, what Is he doing? We want him. We also have a witness of this Incident. They also threat us that If they couldn't find [the applicant], they can also harm us. They are giving us a tough time.
We are requesting to respected Australian immigration that please allow our beloved son to live happy and safe in Australia.
[Names removed for anonymity; otherwise as written]
The scope of the proposed witnesses’ evidence as identified in the hearing invitation response
The Applicant had described the scope of the evidence the named witnesses would give in terms of ongoing MQM threats. He did not set out that the witnesses could give evidence as to whether he had been a shopkeeper. Because of the identity of the witnesses (that is, because of who they were: family members and a friend) they were well-positioned also to give evidence as to whether he was a shopkeeper. This was a case in which the issues shifted between the Delegate’s decision and the Tribunal hearing. At the date of the hearing invitation response (25 August 2017), the Applicant did not know that the fact that he was a shopkeeper was in contention, the Delegate having found in his favour as to that issue. There was no reason for him to explain that these witnesses could also give evidence that he was a shopkeeper. In my view, the fact that the witnesses could give this evidence arose as a matter of inference from the fact that they were family members or, in one case, a personal friend. Only on 6 September 2017, at the hearing, by its questions did the Tribunal communicate to the Applicant that (contrary to the Delegate’s finding) the Applicant’s credit as to his shopkeeper status was in issue insofar as the Tribunal was concerned.
In SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [79] Wigney J had observed:
The appellant’s submissions also tended to suggest that there was some obligation on the part of the Tribunal to further explore the contents of the witness statements by taking oral evidence from the witnesses. That is not correct. The Tribunal was entitled to approach the appellant’s request for oral evidence to be taken on the basis that their evidence would be what was stated in the s 426(2) notice and what was in their witness statements. The Tribunal was not obliged to speculate that further or different evidence could be obtained from the witnesses if the evidence in the written statements was further explored in the course of oral evidence.
[Emphasis added]
I do not read the observations in SZUIJ as detracting from the principle that an assessment of whether the exercise of a discretion was legally unreasonable will depend on the particular facts and context of the case at hand: see AYX17 at [87]. It ought to have been apparent to the Tribunal acting reasonably that the named witnesses (family members and a friend) were closely involved in the “narrative which formed the basis for … [the Applicant’s] account” (AYX17 at [97]) and they were therefore well-positioned to give evidence about additional issues to those described in the advance notice to the Tribunal (CB248–250): most particularly as to whether the Applicant was a Sindhi shopkeeper. Of course, the named witnesses were very much in the Applicant’s camp and may ultimately prove to be partisan, but it ought to have been apparent to the Tribunal that because of who they were the witnesses were well-positioned to be able to give relevant evidence as to whether the Applicant was a shopkeeper. This is not a case in which the Tribunal truly had to “speculate” (SZUIJ, above) on whether the witnesses would have relevant evidence to give about the Applicant’s narrative. The fact that the Applicant described the evidence they would give solely by reference to MQM (and not by reference to him being a shopkeeper) did not provide a rational or intelligible foundation to exercise a discretion not to obtain their evidence.
The Tribunal Transcript and the course of the hearing
On judicial review, a court cannot “employ” the Tribunal transcript to supplement and expand the Tribunal’s stated reasons: AYX17, [57]–[60].
The Tribunal transcript discloses that the Tribunal had growing and accumulating concerns as to the Applicant’s credit as to all the important aspects of his narrative. The Tribunal did not however turn directly to the issue of whether it intended to obtain oral evidence from the witnesses named in the Applicant’s response to the hearing invitation until relatively late in the hearing. At P28:L16-21 there was the following exchange:
MEMBER: So you provided a list of witnesses, your friend and your family, I don’t propose to phone them because I’m not going to phone the country you say you fear to return to, also I can’t know who I’m talking to. And I think I will make credibility findings about your story having listened to you. I do notice you’ve provided a statement, right so this is all the country information you’ve provided. I can only take into account what’s in English or has been translated.
[Emphasis added]
At the end of the hearing, the Tribunal indicated it would provide another seven days for the Applicant to provide any further material: (P35:L43–P36:L6). Nonetheless, by the time the hearing ended, it had effectively by its statement set out in the Transcript extract above already exercised its discretion under s. 427(1)(a) not to obtain the oral evidence. It incorporated its reasons for that procedural decision not to obtain oral evidence into its written reasons under s. 430 of the Act: see AYX17, [60].
What were the Tribunal’s reasons for not obtaining the oral evidence and did those reasons have a rational and intelligible foundation?
The Tribunal most specifically set out its reasons for not obtaining the oral evidence as follows (CB345, [17]):
The applicant listed people he wanted the Tribunal to phone as witnesses: his father, mother, brother and a friend. He indicated these witnesses would give evidence that the MQM were asking about the applicant's whereabouts and threatening him and the family. But as I pointed out to the applicant, the family members and friend were in Pakistan and I did not propose to call phone numbers in the country of reference, nor could I be sure of the identity of the person phoned. As well, he had already provided a letter signed by the family members and friend that made such claims.
[Emphasis added]
The Tribunal also said the following at (CB351, [42]):
[…] I give greater weight to my concerns with the applicant’s narrative and evidence than I do to the letter sent by family for the purposes of supporting the applicant’s Tribunal matter.
I will deal sequentially with each of those reasons at [17] (CB345).
As to the Tribunal not proposing to call phone numbers in the country of reference, I accept the First Respondent’s submission that the Tribunal’s reasons as to this issue must be understood as a concern that the Applicant’s status as an asylum seeker was at risk of inadvertent disclosure to other people in Pakistan, [RS41], perhaps by the phone call being “tapped” or monitored with the result that the Applicant’s security or welfare might be compromised: see SZCSC v Minister for Immigration and Multicultural Affairs [2007] FCA 418 at [47] (Mansfield J). The Applicant had, however, himself nominated the contact phone numbers for the named persons. The Tribunal’s review was in private: s. 429. In and of itself, the fact that the evidence was proposed to be obtained by way of calling international phone numbers in the country of reference did not provide a rational and intelligible foundation to exercise the discretion not to obtain the evidence.
As to the Tribunal not being sure as to the witnesses’ identity, Tracey and Mortimer JJ held in AYX17 at [36] and [90] (Charlesworth J agreeing at [108]) uncertainty in establishing witnesses’ identity was also not a sufficient reason “of itself” to refuse to obtain the evidence.
The Tribunal’s third express reason at [17] (CB345) and [42] (CB351) for not obtaining the oral evidence was more substantial: namely, that the Tribunal already had the signed letter (CB251) that the family members and friend would corroborate the Applicant’s narrative that “the MQM were asking about the applicant’s whereabouts and threatening him and the family.”The Tribunal decided that whatever oral evidence the family members and a friend might give about MQM it would not affect its view about the Applicant’s credibility: “I give greater weight to my concerns with the Applicant’s narrative and evidence.” (CB351, [42]). In effect, the Tribunal’s reasons reveal that the “well had been poisoned beyond redemption” (Ex parte Applicant S20/2002, below) and the “evidence of the Applicant was so compromised that hearing oral evidence of a corroborating witness could not affect the outcome” (SZVBB, below).
There are a series of authorities which stand for the proposition that there will be cases in which the Applicant’s credibility is so compromised that hearing further oral evidence from a corroborating witness or witnesses could not affect the outcome. In these cases, it cannot be irrational or illogical to exercise the discretion not to obtain the proffered oral corroborative evidence.
In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 McHugh and Gummow JJ held at [49].
[49] In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.
[Emphasis added]
A clear statement of this principle is in SZVBB v Minister for Immigration and Border Protection [2015] FCA 1414 (Rangiah J) at [41]:
It is open to the Tribunal, in an appropriate case, to decide that the evidence of an applicant is so compromised that hearing the oral evidence of a corroborating witness could not affect the outcome […]
In AYX17 Tracey and Mortimer JJ held: “The Tribunal plainly had substantial concerns about the reliability and credibility of the appellant’s accounts of what had happened to him in the past…” AYX17, [97]. In AYX17, the result was that the rational and intelligible foundation for the Tribunal’s exercise of its discretion not to obtain the oral evidence was that, on reading the whole of the Tribunal’s reasons, the proffered corroborative evidence could not have affected that Tribunal’s adverse view of the applicant’s credibility. Their Honours reached this conclusion even though the Tribunal’s reasons most specifically dealing with the decision not to obtain oral evidence (para [7] and [45] of the Tribunal’s reasons are set out in AYX17 at [31] and [32]) did not set out that particular foundation for the decision not to obtain the oral evidence with any great clarity.
In AYX17, Mortimer and Tracey JJ noted at [96] “it [may be] possible, by segmenting the Tribunal’s reasons, to strip the reasons of what might be seen to be any intelligible justification”. Reading the Tribunal’s reasons for not obtaining the oral evidence as confined to its specific discussion at paras. [17] and [42] but omitting from consideration its detailed adverse credibility findings from paras. [22]–[46] in an assessment of whether there was a rational and intelligible justification for not obtaining the oral evidence, segments the Tribunal’s reasons and strips them of an intelligible justification which is present when the reasons are read as a whole in the way discussed by Mortimer and Tracey JJ in AYX17. The Tribunal wrote that it “gave greater weight to […] concerns with the applicant’s narrative and evidence than […] to the letter sent by family for the purpose of supporting the applicant’s Tribunal matter” (CB351, [42]). The Tribunal there expressed the view that corroborative evidence could not overcome its concerns as to the Applicant’s own narrative and evidence.
Reading the reasons as a whole the Tribunal’s reasons disclose that the rational and intelligible foundation for not obtaining the oral evidence was that (in conjunction with the specific reasons set out at para. [17]) the Applicant’s credibility was so compromised that evidence from corroborating witnesses could not affect the outcome.
CONCLUSION
The application for judicial review will be dismissed. I will order that the Applicant pay the First Respondent’s cost of $8,371.30 pursuant to Schedule 2 of the Rules.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 21 July 2023
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