SZVGP v Minister for Immigration
[2016] FCCA 3210
•13 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVGP v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3210 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal exercised its discretion unreasonably – whether Tribunal misinterpreted s.429 of the Migration Act 1958 (Cth) – whether Tribunal denied the Applicant procedural fairness – legal professional privilege. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 426, 429 |
| Cases cited: CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 NAQS v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 424; [2003] FCA 1137 SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 230 CLR 486; [2006] HCA 49 |
| Applicant: | SZVGP |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2831 of 2014 |
| Judgment of: | Judge Barnes |
| Hearing date: | 4 November 2015 |
| Delivered at: | Sydney |
| Delivered on: | 13 December 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Parish Patience Lawyers |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ in the nature of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent made on 12 September 2014 in Tribunal case number 1319869.
A writ in the nature of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review of the decision of the delegate of the First Respondent made on 6 December 2013.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2831 of 2014
| SZVGP |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) dated 12 September 2014. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Pakistan, applied for a protection visa on 27 June 2013. The application was refused. He sought review by the Tribunal. He attended a Tribunal hearing on 13 August 2014. A transcript of the Tribunal hearing is in evidence as an annexure to the affidavit of Winnie David affirmed on 13 January 2015.
The Applicant initially claimed to fear he would suffer harm from terrorists in Pakistan because of his father’s service in the Pakistan military. In a statutory declaration of 6 August 2014 and oral evidence to the Tribunal, he also claimed he would suffer harm from his family and the family of a woman with whom he had been in a relationship (referred to hereafter as Miss K) in circumstances where he would be unable to comply with the wishes of both families as to whom he should marry.
He claimed that in 2009 he had met Miss K, who was disabled and from a different caste, and commenced a relationship with her. He claimed that his father had discovered this and warned Ms K’s parents not to let her see the Applicant, but that Miss K had persuaded her parents to accept the relationship. The Applicant claimed he told Miss K’s parents he wanted to marry her, but that he needed time to complete his studies and convince his parents to allow him to marry Miss K. The Applicant claimed that Miss K’s brothers said that “if something happened against her dignity and honour, they warned that they would not hesitate to kill [him] as well”. The Applicant claimed that after he came to Australia he tried to convince his family to accept the relationship, but his father told him he had to marry a woman from his own caste and if he married anyone outside the caste, he would kill him.
The Applicant claimed that in July 2014 his brother told him that a ceremony had been held by his family in Pakistan to celebrate the Applicant’s engagement to a cousin. He claimed that when he rang his family his father said he would kill him if he did not marry this cousin. After he told Miss K the news she had tried to kill herself. He claimed that her family blamed him for ruining her life and that Miss K let him know that her brothers had warned that if he did not marry her they would kill both of them.
The Applicant claimed to fear he would be a victim of an honour killing and that either his family or Miss K’s family would harm him. His new representative provided a detailed written submission, including in relation to this claim, a copy of the “engagement ceremony invitation”, telephone accounts for a number said to have been used by the Applicant to call Miss K and written statements of support, including from Miss K (discussed below) and a record of university results for Miss K as well as documents relating to other aspects of the Applicant’s claims.
The Tribunal found that the Applicant was not a witness of truth, that the evidence on which his protection claims were based was not credible and that there was no credible evidence that he was harmed in Pakistan or that anyone in Pakistan wished to harm him.
The Tribunal addressed in some detail its concerns about the Applicant’s credibility, including the fact that he had not included the claim concerning his relationship Miss K in his 2013 protection visa application.
The Tribunal rejected the Applicant’s explanation for the late claim, which was to the effect that he had applied for protection in June 2013 because his family told him there was a “threat” in Pakistan and the situation was not good and that he should stay in Australia, but that he did not consider this risk to his safety truly arose until after he learned about the July 2014 engagement ceremony. The Tribunal was of the view that the Applicant “well knew” by the time of his June 2013 protection visa application that he was at risk of harm in Pakistan (from Miss K’s brothers or from his father) because of his promise to Miss K’s family. It observed that the Applicant had failed to convince his father to accept his wish to marry Miss K and expressed the view that he “would have well-known that had he gone ahead and married her, his father would harm him”. The Tribunal found that the Applicant’s failure to mention this claim when he applied for protection was not credible.
The Tribunal also found that it was not credible that the Applicant’s parents had arranged with another family for him to marry his cousin and had held an engagement ceremony in Pakistan for that purpose without having any prior discussions with him about this, particularly in circumstances where he claimed that in the intervening period he had tried a number of times to convince his father to accept his wish to marry Miss K. It considered, but did not accept, the Applicant’s explanations. It found that, considering how serious the matter was for the family, including threats by the Applicant’s father to kill the Applicant if he did not go ahead with the marriage to his cousin, his claim that no prior discussions were held with him about this was not credible.
Nor did the Tribunal find credible the Applicant’s claim that he had planned to return to Pakistan in 2013 because he had not then been afraid for his safety, given his claimed failure to secure his father’s agreement to marry Miss K.
As discussed further below, in response to Tribunal questioning the Applicant said that he had not told the representative assisting him with his protection visa application about his relationship with Miss K because, at that time, he had not been engaged to marry his cousin and no threat had been made to him by his father or the family of Miss K. The Tribunal did not accept as credible that the Applicant would have failed to tell the representative assisting him at the time he prepared his protection visa application (or at any stage prior to July 2014), about the serious situation he faced because of his relationship with Miss K in Pakistan for the reasons he advanced, in circumstances where he had tried and failed a number of times to have his father accept his wishes.
The Tribunal also expressed concern about the promise the Applicant claimed he had made to Miss K’s parents. In particular, it expressed difficulty in accepting that Miss K’s parents had not discussed a time frame for the marriage with him, given that the brothers’ threats to kill him (and Miss K) if he did not marry her indicated this was a very significant matter for her family. It found the Applicant’s evidence in this respect was not convincing and did not bear the ring of truth.
The Tribunal also addressed the Applicant’s claim to fear harm on the basis of threats said to have been made to his father by terrorists. He initially claimed that this had occurred because his father had worked in the Army, including for a time in a counter-terrorism unit. The Applicant claimed that after his father retired he began receiving threatening phone calls (in 2006) and that in 2007 his father’s shop was destroyed in an explosion. He claimed that thereafter his father only rarely received threatening phone calls, but that once or twice shots had been fired at the family home. The Applicant claimed that terrorists wanted to target his father and the family and that this was why he came to Australia.
The Tribunal expressed concern about the Applicant’s additional claim that at the time he applied for protection in June 2013 and at the time of his departmental interview in October 2013, he had not been told by his family of a serious incident in March 2013 that he later relied on, in which people opened fire on his father and brother in their car and injured his father. The Applicant claimed this incident had occurred because his father had worked with the intelligence services or the army after his retirement and had given some information to the police about terrorists.
The Tribunal did not find persuasive the Applicant’s explanation that he did not mention this aspect of his claim in his protection visa application or his interview with the delegate because he was not aware of such incidents at that time (and that although his parents had told him to stay in Australia because there was a “threat” they had not explained further). The Tribunal did not believe that if the Applicant’s family had told him before he made his protection visa application to remain in Australia for his safety, his parents would not also have told him about the attack on his father and brother because of further work the father had done for the army or intelligence services. The Tribunal did not believe that the Applicant’s parents would withhold that information so as not to worry him.
The Tribunal also had regard to inconsistent evidence (which it detailed) about the claimed employment history of the Applicant’s father and in relation to where the family had lived in Pakistan.
The Tribunal found that, considered cumulatively, these concerns led it to find that the Applicant was not a witness of truth and that the account of events on which his protection claims were based was false.
The Tribunal continued at paragraphs 37 to 38 of its reasons for decision:
… At the hearing the applicant suggested that the Tribunal could contact Miss K in Pakistan by telephone and she would give evidence in support of his case. The applicant provided a statement dated 7 August 2014 from her in which she repeated the claims made by the applicant about their relationship and why that places them at risk.
The Tribunal carefully considered the applicant’s request to contact this person but the Tribunal declined it. The Tribunal advised the applicant that the proceedings before the Tribunal were to be private and if the Tribunal was to telephone Miss K and the call intercepted, the privacy of the Tribunal proceedings would be breached. Instead, the Tribunal gave the applicant a period of two weeks to provide a further written statement from her containing whatever evidence the applicant wished the Tribunal to receive from her. He submitted an affidavit from this person in which again she repeats the claims made by the applicant about their relationship.
The Tribunal acknowledged that the content of the “statements” from Miss K “purport to corroborate” the Applicant’s claims about their relationship and the risk at which they were placed, but found that the concerns it held about the Applicant’s credibility “significantly discredit him as a witness” and that the claims made by Miss K did not overcome these concerns. The Tribunal found that those claims were “false” and did not give weight to the written statements from Miss K.
The Tribunal considered copies of telephone accounts issued to another person and a statement from that person saying that calls listed in accounts were made by the Applicant. These were said to show the Applicant’s telephone contact with Miss K in Pakistan. He also provided a copy of her university degree from Pakistan. However the Tribunal found that none of these documents demonstrated that the Applicant’s claims about being in a relationship with a woman in Pakistan that had placed his safety at risk were true. The documents were said to indicate nothing more than that some telephone calls were made from someone’s telephone and that a female in Pakistan had obtained a university degree.
The Tribunal also considered documents submitted by the Applicant to corroborate his claims that his father was in the Pakistani Army (including letters from senior officers and photographs); a police record in relation to a report of an attack on his father and brother in March 2013; as well as photographs said to be of family members with the cousin the Applicant claimed he was to marry; and a copy of an invitation issued by his parents for the July 2014 ceremony for the engagement of the Applicant and his cousin. However the Tribunal had regard to country information about the wide availability of false documents in Pakistan. It found that the content of these documents did not overcome its concerns about the Applicant’s credibility.
The Tribunal recorded that the Applicant had suggested that it could confirm with appropriate agencies in Pakistan that the documents were all genuine, but it saw “no purpose in the Tribunal making enquiries in Pakistan about these documents given that the applicant has been significantly discredited as a witness” in view of its credibility concerns. For these reasons and in the light of country information, the Tribunal did not give “evidentiary weight” to these documents and found that their contents were false. The Tribunal also found that it had no credible evidence as to the identity of the people depicted in the photographs.
The Tribunal did not accept that an explanatory affidavit from the Applicant’s father (in relation to his post-retirement employment) overcame an inconsistency in the evidence about the father’s claimed employment. It did not believe that the Applicant would have been unaware of his father’s business as he had claimed and as his father had stated, given that he was relying on it in support of his application for a student visa. The Tribunal did not give “evidentiary weight” to the father’s affidavit.
Similarly, the Tribunal gave no “evidentiary weight” to an affidavit from the Applicant’s uncle supporting the claim that the Applicant’s father and family had been resident at a property the uncle had owned since 2002 (as indicated by documents he provided which were said to have been issued by the Pakistani authorities), beyond accepting that “the applicant may well have an uncle who owns this particular property”. It found that the claims made by the uncle, the Applicant and his father that the family also resided at that address were not consistent with the evidence in the Applicant’s student visa application and that these claims and further evidence did not outweigh the Tribunal’s credibility concerns.
The Tribunal found that because the Applicant was not a witness of truth and the account of events on which his protection claims were based was false, it disbelieved his claims that his father or any relative of his ever worked for the Pakistani military; that the family lived in different places in Pakistan for that reason; that the Applicant and his father were attacked in 1999; that a business operated by his father was damaged by an explosion in 2007; that telephone threats were received related to the father; that the family home was shot at on occasions; that the Applicant’s father and brother were attacked in March 2013; or that the Applicant’s uncle told him to stay in Australia and not to return to Pakistan for safety reasons.
The Tribunal disbelieved the Applicant’s claims that he was in a relationship with a woman in Pakistan and all the events he claimed flowed from that, including that he told her parents he would marry her once he completed his studies and had convinced his father to allow the relationship. The Tribunal also disbelieved the Applicant’s claims that his parents had arranged for him to marry his cousin; that they had threatened to kill him if he did not do so; and that threats were made to him by the family of “another woman” for not marrying her.
The Tribunal referred to other documents on the departmental file, including in relation to the Applicant’s student visa cancellation and review and an application for Ministerial intervention. It found that these documents did not support or detract from the Applicant’s protection claims. It also referred to 2013 medical and psychological reports in relation to the Applicant, but found that at the hearing the Applicant had appeared to be “well able” to comprehend the Tribunal’s questions and respond to him and that he “appeared physically well”. It found that the Applicant had had a meaningful opportunity to participate in the hearing.
The Tribunal considered the representative’s written submissions, but found that as it disbelieved the Applicant’s claims, there was no need for it to determine whether claimed particular social groups existed.
Insofar as it had been submitted that the Applicant would suffer harm for holding an anti-Taliban political opinion or for being imputed with that opinion, the Tribunal found that this appeared to be based on the claim that his father worked for the Pakistani Army involved in counter-terrorism activities and as it did not believe these claims did not accept that he feared harm on this basis. It observed that the Applicant may well not approve of the Taliban, but that he had never claimed to have expressed such views publicly. It was of the view that there was no credible evidence that he had suffered harm in Pakistan.
The Tribunal found that all the Applicant’s claims were false and also that the risk of him suffering serious harm due to violence or insecurity in Pakistan was remote. It found that it had not been demonstrated how the situation in Pakistan led to a real chance of the Applicant suffering serious harm.
The Tribunal concluded that there was no credible evidence the Applicant or any member of his family was harmed in Pakistan; that anyone in Pakistan wished to harm him; as to why he left Pakistan (except to study in Australia); or as to why he did not want to return. For these reasons it found that there was not a real chance that the Applicant would suffer serious harm in Pakistan and that he did not hold a well-founded fear of persecution based on any Convention ground.
For the same reasons, the Tribunal found that the Applicant did not meet the complementary protection criterion. The Tribunal acknowledged submissions about violence and insecurity in Pakistan, but for the reasons already given found there was not a real risk of the Applicant suffering significant harm on that basis.
The Tribunal affirmed the decision not to grant the Applicant a protection visa.
The Applicant sought review by application filed in this court on 13 October 2014. He now relies on a further amended application filed on 22 October 2015. There are three grounds in the further amended application.
Exercise of Discretion not to take evidence from Miss K
The first ground is as follows:
1. The Tribunal exercised its discretion not to take evidence from a witness in a manner that was unreasonable and not based on any logical foundation.
Particulars:
The Applicant requested the Tribunal to take evidence by telephone from a person in Pakistan. The Tribunal refused to do so. The only explanation for this refusal was that “if the Tribunal was to call [the person] and the call intercepted, the privacy of the Tribunal proceedings would be breached”. No evidence or argument was referred to by the Tribunal to suggest that there was any danger of the call being intercepted. The Tribunal’s exercise of its discretion to take evidence from the witness was unreasonable and not based on any logic or foundation.
The Tribunal sent the Applicant (through his then lawyer and authorised recipient) an invitation dated 9 July 2014 to a Tribunal hearing on 13 August 2014. Included with that document was a response to hearing invitation form. However, as notified to the Tribunal by facsimile of 25 July 2014, on 24 July 2014 the Applicant appointed a new representative/authorised recipient. A Tribunal officer telephoned the new representative on 29 July 2014 about the notice of hearing invitation that had been sent to the previous representative. The new representative returned a completed response to hearing invitation form to the Tribunal on 29 July 2014. In that form the Applicant did not request that the Tribunal take oral evidence from another person.
However on 6 August 2014 the Applicant’s new representative provided the Tribunal with the Applicant’s statutory declaration in which he set out the new claim concerning his relationship with Miss K and explained why he had not included this claim in his protection visa application.
On 7 and 8 August 2014 the new representative also sent the Tribunal a detailed written submission and other supporting documents, including a signed statement from Miss K dated 7 August 2014 that was as follows:
I [Miss K] daughter of … confirmed below mention statement that I was born in 23 February 1986 at Gujranwala and now I am living in capital of Pakistan, Islamabad. I and [the Applicant] were neighbors at … Islamabad. I am in relationship with [the Applicant] since 2009 when he was in Pakistan. We both love each other and our families knows about our relationship. [The Applicant]’s family organized his engaged ceremony with her cousin on 10 July 2014 without asking him, they refused for our marriage because I am a disable person due to polio and different cast (sic) from them. Our cast (sic) is … and their’s [another caste]. I have 2 brothers they are very angry on [the Applicant] why his family engaged him with other girl they thread (sic) me and [the Applicant] if he marry with her cousin my brother will kill both of us. They warned him before if [the Applicant] did not marry with me they will harm him.
Miss K also provided her address and mobile telephone number and a document said to be in relation to her university results.
In an accompanying letter of 8 August 2014 the Applicant’s new adviser indicated:
Our client has instructed us that Ms. [K] will also give the oral evidence over the phone from Pakistan in support of his Protection Visa Application.
A contact mobile telephone number for Miss K in Pakistan was provided.
At the hearing, the Tribunal questioned the Applicant about his claims, including in relation to his wish to marry Miss K, their relationship and the views of the two families. The following exchange occurred towards the end of the hearing, after the Tribunal had raised with the Applicant various issues about his evidence and the availability of false documents in Pakistan (in the course of which the Applicant pointed out that Miss K’s university results also showed her address and suggested that documents he had provided could be confirmed), (transcript, p.26):
Tribunal: Okay. And then you’ve given me a statement from [Miss K] and you’ve said that I can telephone her.
A. INTERPRETER: Yes.
Q. And I assume that if I did that [Miss K] would tell me what you’ve told me today.
A. INTERPRETER: Yes, whatever that’s - so far what I have - I have told her about my - my additional statement. She - she knows that.
Q. Well, under the law here, the proceedings before the Tribunal are to be private. If I was to telephone [Miss K] in Pakistan there is a risk that the call might be intercepted and the privacy of the review would be breached. What I would be willing to do is to give you a period of two weeks to provide another statement from [Miss K], if you want to do that.
A. WITNESS: Okay.
A. INTERPRETER: A statement about what?
Q. Well, whatever it is you want [Miss K] to say about your case. She has already given a statement here, which just repeats what you’ve told me. But I’m willing to give you a period of two weeks to - if she wants to say something else.
A. INTERPRETER: I just want to ask that - that what member want to ask her, or what she wants to tell. What should be there?
Q. Whatever you want her to say about your case.
A. WITNESS: Okay (not transcribable).
In its reasons for decision the Tribunal (incorrectly) stated that at the hearing on 13 August 2014 the Applicant had suggested that it could contact Miss K in Pakistan by telephone. The request had in fact been made in the representative’s letter of 8 August 2014.
The Tribunal addressed this issue in its reasons for decision (as set out at [19] above). The reason the Tribunal member gave for refusing this request was that the proceedings were to be private and that if he were to call Miss K and the call was intercepted, the privacy of the Tribunal proceedings would be breached.
Subsection 426(1) of the Act provides that in the s.425A notice of invitation to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, the Tribunal must notify the applicant of the effect of subsection (2) of s.426.
Subsections (2) and (3) of s.426 relevantly provide:
(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.
It was conceded that in this case the Applicant did not give the Tribunal notice in accordance with s.426(2) in respect of a proposed witness. However the solicitor for the Applicant pointed to the remarks of Hill J in NAQS v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 424; [2003] FCA 1137 at [28]-[29] to the effect that s.426 went only to the Tribunal’s power to obtain evidence from a person and did not limit the more general entitlement of an applicant “to require the Tribunal to have regard to oral evidence of a witness called by the applicant, although only if that evidence is relevant to the issues before the Tribunal”.
The Applicant submitted that while he had not given written notice to the Tribunal in accordance with s.426 of the Act, it was nonetheless necessary for the Tribunal to exercise its discretion to refuse to hear from Miss K reasonably. Reliance was placed on Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76] per Hayne, Kiefel and Bell JJ in support of the proposition that a decision in relation to the exercise of a discretion which lacked an evident and intelligible justification may be found to be unreasonable, even where some reasons had been given by the decision-maker.
The Applicant addressed the reason given by the Tribunal, but submitted that the possibility of a call to a private number in Pakistan being “intercepted”, especially when there was no suggestion of any political or police involvement, could only be described as “extremely speculative”. It was pointed out that the Tribunal had not referred to any evidence to suggest that the likelihood of any such “interception” would be anything more than remote and submitted that none was apparent on the material before the Tribunal.
The Applicant submitted that the fact that the Tribunal had referred to no evidence in this respect could lead to the inference that it had none (see Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108 at [94] and [98]). It was submitted that, as in SZLSP, an inference should be drawn that the Tribunal had constructively failed to exercise its function of review as there was no reference in the Tribunal’s decision to any basis for the statement in the hearing (referred to in the reasons) that there was some risk of the specific telephone call between the Tribunal and Miss K, a private person in Pakistan, being intercepted.
It was submitted that, consistent with the approach taken by the majority in SZLSP, in the absence of any evidence of knowledge or appreciation on the part of the Tribunal of any serious or even significant risk that the telephone call might be intercepted, the court could draw the inference that the Tribunal had not exercised its discretion in this respect on any reasonable basis. Rather, the Tribunal was said to have exercised its discretion on the basis of an unreasonable surmise or speculation that any telephone call might be intercepted. It was contended that this was not a reasonable basis on which to say that it was therefore a risk to the privacy of the hearing to make this particular telephone call. While it was acknowledged that this was not an absence of evidence case, it was submitted that the absence of evidence led to the inference that there was an unreasonable exercise of the Tribunal’s discretion.
The Applicant also pointed out that this was not a case in which the Tribunal had provided a justification that it would not call a person on a number provided by the Applicant because it would have no guarantee about who was at the other end of the line (cf SZCSC v Minister for Immigration and Citizenship [2007] FCA 418 at [47]).
While the Tribunal did not refer to the statutory basis for its assertion that “the proceedings before the Tribunal were to be private” it appears that this may have been a reference to s.429 of the Act which provides:
The hearing of an application for review by the Tribunal must be in private.
Insofar as the Tribunal justified its refusal to call Miss K on the basis of a concern that if the call was intercepted the privacy of the Tribunal proceedings would be breached, the Applicant submitted that in SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 230 CLR 486; [2006] HCA 49 the High Court had made the point (at [26]) that while the requirement in s.429 of the Act was that the hearing of an application for review by the Tribunal must be in private, it was:
… consistent with the statutory purpose, and with common use of language, to treat the concept of privacy as embracing, not only the agents of an applicant, but also persons whom an applicant desires to be present and thus to be made privy to what occurs at a hearing.
On this basis it was suggested that given the Applicant’s desire to have his girlfriend, Miss K, participate in the hearing, her involvement by way of giving evidence over the telephone would not destroy the privacy of the occasion.
The Applicant also pointed out that apart from the matters discussed in relation to ground 2 which, as discussed below, were said to involve a misinterpretation of the “direction” under s.429 of the Act that the Tribunal hearing be private, the Tribunal gave no indication of any broader concern about the infringement of any person’s privacy in referring to the privacy of the review. It was submitted in that respect that in a situation such as this, where it was proposed to call a witness for the Applicant for a brief period, the issue of maintaining the privacy of the review did not really arise. Further, if the Tribunal’s concern was in relation to Miss K’s privacy (albeit this was not the manner in which the Tribunal had expressed itself in paragraph 38 of its reasons for decision), it was suggested that any such concern also proceeded on the unexplained basis that there was a risk that the telephone call would be intercepted and that such interception would be by an entity or person who posed a risk to Miss K. There was said to be no evidence cited by the Tribunal or raised by the Applicant to support any such concern.
The Applicant submitted it was also relevant to have regard to the significance of the request to take oral evidence from Miss K in support of his case in assessing whether the Tribunal exercised its discretion reasonably. It was pointed out that there was evidence in the form of the written statement from Miss K before the Tribunal indicating the matters in relation to which she sought to give evidence and that these related to an aspect of the Applicant’s claims which the Tribunal found not to be credible. It was said to be well-established that a Tribunal hearing is a central feature of the review process under the Migration Act (see, for example, Li at [60]) which is to give an Applicant the entitlement to present evidence. It was submitted that, especially in circumstances where credibility was in issue, the taking and testing of oral evidence was the method best adapted to the interests of procedural fairness (see CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 at [56] per Rangiah J).
In particular, the Applicant submitted that his credibility in relation to his claims about his relationship with Miss K was in issue. It was suggested that had the Tribunal taken oral evidence from Miss K it would have had the opportunity to test her credibility and the credibility of his claims. In these circumstances the Applicant submitted that it was not a satisfactory response to his request that the Tribunal take oral telephone evidence from Miss K, for it to give him two weeks to put in a further written statement from her.
On this basis it was submitted that the Tribunal fell into jurisdictional error in the manner contended for in ground 1 of the further amended application.
The First Respondent pointed out that the conditions for the exercise of the Tribunal’s discretion under s.426 of the Act had not arisen, in essence because the Applicant did not give the requisite written notice to the Tribunal requesting it to obtain oral evidence from Ms K within seven days after being notified of the hearing invitation and the effect of s.476(2) of the Act.
Nonetheless, the Minister accepted that the Tribunal retained a discretion to telephone Miss K and that it was necessary to consider whether the Tribunal’s decision not to call Ms K constituted an unreasonable exercise of a discretion. It was submitted that it should be borne in mind that it would be a rare case in which a court would find that a discretion given to an administrative decision-maker had been exercised unreasonably (see Li at [113] per Gageler J).
There were said to be at least two reasons why it could be said that in all the circumstances of this case the Tribunal’s decision not to telephone Miss K was not an unreasonable exercise of its power under the Migration Act. First, it was submitted that any suggestion that the Tribunal acted unreasonably would create “disharmony” in the statutory scheme. This submission was put on the basis that had the Applicant availed himself of the statutory procedure available under s.426 of the Act, the Tribunal would have been bound under s.426(3) to do “no more” than to take the Applicant’s wishes into account. It was submitted that the Applicant “could not have been in a better position by attending the hearing and saying that he wished to call a witness” (see WADA v Minister for Immigration and Multicultural Affairs [2002] FCAFC 202 at [38]) and that this was relevant in considering whether the Tribunal’s discretion was exercised unreasonably.
The First Respondent also pointed out that the Tribunal had noted in its reasons for decision that it had “carefully considered the applicant’s request” to contact Miss K. It was submitted that had such request been set out in a document that complied with s.426(2) of the Act, that would have been “the end of the matter” because all that was said to be required under s.426(3) was that the Tribunal “genuinely apply its mind to the contents of the notice” and not act “capriciously”. Reliance was placed on the remarks of Kenny and Lander JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118 at [38]. Their Honours were considering s.361 of the Act (the comparable provision in relation to the Migration Review Tribunal) and in that context expressed the view (at [36]) that the provisions of the relevant part of the Act (Part 5) including s.361 and, in particular, subsection (3), “emphasise that the Tribunal’s process is essentially inquisitorial in nature”, that a review was not to be conducted on the adversarial model and that:
… Under the regime established by the Act, it is for the Tribunal, not the applicant, to gather the evidence for the purposes of a review and to decide the manner in which the evidence will be taken. The use of the word “obtain” in sub-ss 361(2) and (2A) must be understood in this context. In this context, it is the Tribunal, and not the applicant, who “obtains” or “acquires” the evidence for the purposes of a review, whether or not the evidence is volunteered or compulsorily acquired.
Kenny and Lander JJ observed that it was in keeping with the Tribunal’s inquisitorial nature that it did not err if, notwithstanding that the Applicant wanted oral evidence to be obtained from persons named in a notice under s.361(2), it decided not to obtain such evidence, provided it acted in conformity with s.361(3), which (like s.426(3)), required that if the Tribunal was notified in accordance with the section the Tribunal must have regard to the Applicant’s notice but was not required to comply with it.
Their Honours stated (at [38]):
…By virtue of s 361(3), the Tribunal is obliged to have regard to any notice given by an applicant under subss 361(2) or (2A) of the Act. This means that the Tribunal must genuinely apply its mind to the contents of the notice and, in particular, to the question whether it should take the oral evidence of the nominated individuals in accordance with the applicant’s wishes. The Tribunal must not merely go through the motions of considering the applicant’s wishes as expressed in the notice. As the respondents’ counsel said, the authorities establish that the invitation to appear before the Tribunal must be “real and meaningful and not just an empty gesture”: NALQ at [30]; SCAR at [37]; and Mazhar at 188 [31]. It follows that the consideration that the Tribunal gives to the wishes of the applicant concerning the evidence to be taken at the hearing must also be genuine. The Tribunal must not decline to comply with the applicant’s wishes capriciously, but must take account of such relevant matters as the relevance and potential importance to the outcome of the review of the evidence that could be given by a nominated witness (compare W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211 (“W360/01A”) at [2] per Lee and Finkelstein JJ and [30]–[32] per Carr J)), the sufficiency of any written evidence that has already been given by a witness, and the length of time that would afford the applicant a fair opportunity to put his or her case before the Tribunal. These considerations flow from the nature of the Tribunal’s overarching objective, which is to provide a review that is “fair, just, economical, informal and quick”: see s 353(1). The Tribunal must bear in mind this statutory objective when considering the weight to be given these matters.
In addition, the First Respondent submitted that the Tribunal could not be said to have acted unreasonably in deciding not to take evidence directly from Miss K where it instead nominated another course, namely that she give evidence in the form of a statement, in circumstances where, had the prescribed process in s.426 of the Act been followed, a decision to not take evidence from her directly would not have been unreasonable.
It was submitted that in any event the reasonableness of the Tribunal’s approach must be considered in light of all the circumstances of the case. In this case the Tribunal was said to be mindful of concerns surrounding privacy and the integrity of the telephone system which, it was suggested, were matters which it had a legitimate entitlement to consider (see SZCSC at [47]). Further, the Tribunal had proposed an alternative method for Miss K to give evidence in suggesting she should provide a further written statement. It was submitted that there was no suggestion that hearing from Miss K in person was necessary so as to assess the credibility of her evidence and suggested that the Applicant had agreed with the proposition that Ms K would simply confirm the matters about which he had already given evidence and had made no protest about the approach suggested by the Tribunal. Indeed it was submitted that the Applicant had seemed to have “embraced” the Tribunal’s suggestion. Moreover, there was said to be no indication of what evidence might be given by Miss K such that the Tribunal could assess whether or not that could be dealt with orally or in writing. This was said to be relevant to the court’s assessment of the totality of the circumstances, bearing in mind that, as stated in Li, it would be a rare situation in which a Tribunal would be found to have acted unreasonably.
Counsel for the First Respondent submitted that the Tribunal’s decision not to telephone Miss K did not lack an “evident and intelligible justification” in the sense considered in Li at [76].
Consideration
The principles in relation to the reasonableness of the exercise by the Tribunal of a discretionary power were considered in Li and by the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1.
In particular, in Li Hayne, Kiefel and Bell JJ (at [63]-[66]) discussed the basis on which the law requires a standard of reasonableness in the exercise of a discretionary power given by statute. Their Honours pointed out (at [63]) that the legislature is taken to intend that such a discretionary power will be exercised reasonably and continued at [66]:
This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested (footnotes omitted).
Their Honours went on to explain (at [72]) that the standard is considered “by reference to the scope and purpose of the statute”; that unreasonableness “is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power” (at [76]); and that it “is a conclusion which may be applied to a decision which lacks an evident and intelligible justification” (ibid).
In Singh the Full Court of the Federal Court also considered the exercise of a discretionary power to adjourn a Tribunal review under s.363(1)(b) of the Act. In concluding that the exercise of power was legally unreasonable, the Full Court (Allsop CJ, Robertson and Mortimer JJ) discussed the principles underlying legal unreasonableness at [43]-[51]. The Court pointed out that the concept of legal unreasonableness “can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process... [and] … can also be outcome focused, without necessarily identifying another jurisdictional error” where “the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”” (at [44]).
Where, as in this case, reasons are given for the decision “the court is able to follow the reasoning process of the decision-maker through and identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable” (at [45]).
In Singh their Honours were inclined to the view that where reasons were given it was those reasons that should be considered and that the “intelligible justification” must lie within those reasons (at [47]).
The Court continued at [48]:
The standard of legal reasonableness will apply across a range of statutory powers, but the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case. As we have said, unlike some other grounds for review of the exercise of power, the reasoning process in review for legal unreasonableness will inevitably be fact dependent. That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as “intelligible justification” must involve scrutiny of the factual circumstances in which the power comes to be exercised.
In this case the Applicant’s contentions about legal unreasonableness reflect the approach suggested by Hayne, Kiefel and Bell JJ in Li at [72]. Their Honours addressed the relationship between specific errors in decision-making which “may also be seen as encompassed by unreasonableness” and also stated:
… Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.
Ground one asserts that the Tribunal’s exercise of its discretion not to take oral evidence by telephone from Miss K was not reasonable and was not based on any logical foundation. It is not in dispute that the Tribunal had such a discretion, despite the First Respondent’s suggestion that the source in the scheme of the Migration Act of any residual power to take oral evidence from a witness was unclear.
The Tribunal’s power to take oral evidence from a witness outside the provisions of s.426 of the Act was considered in NAQS. In that case the applicant had indicated in a response to hearing invitation form that she wished evidence to be taken from one particular witness. However she also provided numerous written statements from other persons and at the Tribunal hearing indicated that she wished to call five such witnesses, all of whom were waiting outside the hearing room. In other words, as in this case, the applicant sought to call witnesses in relation to whom she had not complied with the s.426 procedure. The Tribunal member asked the applicant what the witnesses would address. The Tribunal indicated that it did not wish to hear from witnesses who wished to give evidence as to what had happened in Australia and, as it accepted what the applicant had said about events in China, did not wish to hear from the witnesses who could give evidence about events in China.
Hill J was of the view that as the evidence from witnesses as to events in China was irrelevant to the issues before the Tribunal, it could properly refuse to hear that evidence. However, his Honour stated at [28]-[29]:
…If Parliament had intended that the Tribunal was not required at all to take evidence from a person named in the applicant’s notice it would have been easy for Parliament to have expressed itself in that way. The word ‘obtain’ suggests to my mind that s 426(3) relieves the Tribunal from an obligation itself to seek out a witness for the purpose of that witness giving evidence but is silent concerning the obligation of a Tribunal to listen to evidence which an applicant wishes the Tribunal to hear whether evidence is relevant in the proceedings.
In my view, it is implied in Division 4 of Pt 7 of the Act and indeed from the very obligation imposed on the Tribunal to entertain a ‘review’ that an applicant is entitled to require the Tribunal to have regard to oral evidence of a witness called by the applicant, although only if that evidence is relevant to the issues before the Tribunal.
Even if the Applicant is not entitled to “require” the Tribunal to hear oral evidence from a proposed witness, it is, at the least, implicit in Division 4 of Part 7 of the Act and the Tribunal’s obligation to afford a “meaningful” opportunity to an applicant to participate in a s.425 hearing (see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 at [33] and [37]), that the Tribunal has power to take evidence from a person the Applicant calls to be a witness (even if not requested to do so in accordance with the procedure in s.426 of the Act) and that, consistent with Li, the Tribunal must exercise its discretion in that respect reasonably.
Regard must be had to the statutory context in which the Tribunal exercised its discretion to refuse to take oral evidence from Miss K. It was exercising its power of de novo review of a decision to refuse a protection visa and conducting a hearing under s.425 of the Act, which is intended to afford an applicant the opportunity to give evidence to the Tribunal in relation to the issues arising in relation to the decision under review.
One basis for the Applicant’s claim to fear harm in Pakistan was his relationship with Miss K and the resulting claimed consequences, including threats from her brothers and from his father. This claim was, as the Tribunal recognised, a new claim. It was first raised with the Tribunal after the Applicant obtained a new representative. It appears from the Courtbook that that occurred after the Tribunal had invited the Applicant to a hearing. The Tribunal contacted the newly appointed representative on 29 July 2014 to discuss the hearing invitation to the previous representative by letter dated 9 July 2014. It appears that by that date the time for making a request under s.426(2) of the Act had passed. On that day the representative provided a completed hearing response form in which there was no request that the Tribunal take oral evidence from a witness. In other words, s.426 was not enlivened.
However, on 6 August 2014 the new representative provided the Tribunal with the Applicant’s statutory declaration of that date in which he made the claim in question. On 8 August 2014 the representative provided a short statement in English from Miss K and indicated that she would “also” give oral evidence by telephone in support of the Applicant’s protection visa application.
The advantage of oral rather than written evidence was considered by Ranjiah J in CZBH. While his Honour was considering the power of the Tribunal to obtain oral evidence from witnesses contemplated under s.426 of the Act and other powers given to the Tribunal to facilitate the taking of oral evidence (including by telephone), his remarks are relevant to the Tribunal’s exercise of its discretion to take oral evidence from a proposed witness such as Miss K. Ranjiah J pointed out (at [56]) that, apart from the relevance of oral evidence, where an applicant had been unable for some reason to obtain a written statement from a witness:
… s 426 must also contemplate that obtaining oral evidence may assist the Tribunal to decide upon the credibility of a witness who has provided a written statement. In Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; (1987) 164 CLR 180, Mason CJ and Brennan and Deane JJ held at 189:
A witness who gives evidence orally demonstrates, for good or ill, more about his or her credibility than a witness whose evidence is given in documentary form.
Although that statement was made in the context of considering a criminal trial conducted by a court, it is also true of oral evidence given before a Tribunal which is engaged in an inquisitorial process. In Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 at 599 and 602, the Full Court indicated that an oral hearing before the Minister’s delegate may be required where issues of credibility arise. The Tribunal may find oral evidence given under oath or affirmation more persuasive than evidence given by written statement. If oral evidence is obtained by the Tribunal, it will also have the opportunity to test the credibility of the evidence given in any written statement by questioning a witness in the same way that it has the opportunity to test the evidence of an applicant (emphasis added).
In this case oral evidence from Miss K may have assisted the Tribunal to decide on the credibility of her written statement. This in turn would have been relevant to the Tribunal’s consideration of the credibility of the Applicant’s claims. Instead, based on its rejection of the Applicant’s credibility, the Tribunal found (at paragraph 39):
The contents of these statements from Miss K purport to corroborate the claims made by the applicant about their relationship and the risk at which they are placed. However, the concerns the Tribunal holds about the applicant’s credibility as discussed above significantly discredit him as a witness and the claims made by Miss K do not overcome those concerns. Accordingly, the Tribunal finds that those claims are false and the Tribunal does not give weight to these written statements.
However, in his statutory declaration and evidence the Applicant had made both general and specific claims beyond the matters addressed in Miss K’s written statement of 7 August 2014. Miss K may have been able to corroborate such claims, including the circumstances of Miss K’s move to Islamabad, where she lived and where the Applicant lived; the circumstances in which their relationship started and developed; the circumstances in which the Applicant’s father saw them together and spoke to them and to Miss K’s family; the circumstances in which she persuaded her family to accept the relationship; the circumstances in which her brothers warned the Applicant they would kill him; whether she tried to commit suicide after hearing of his engagement; the details of her brothers’ threat or threats to kill both her and the Applicant; and his claim that she had advised him in July 2014 that her family would not pardon him and would take revenge against him. However there is nothing to suggest that the Tribunal gave consideration to such a possibility. The Tribunal’s stated reasons for refusing to telephone Miss K reveal no consideration of such issues. Its only reason was said to be a concern that if it was to telephone Miss K and the call was intercepted, the privacy of the Tribunal proceedings would be breached.
Regard must be had to the Tribunal’s reasons and whether there was an evident and intelligible justification for refusing to take oral telephone evidence from Miss K. The Tribunal stated (at paragraph 38):
The Tribunal carefully considered the applicant’s request to contact this person but the Tribunal declined it. The Tribunal advised the applicant that the proceedings before the Tribunal were to be private and if the Tribunal was to telephone Miss K and the call intercepted, the privacy of the Tribunal proceedings would be breached. Instead, the Tribunal gave the applicant a period of two weeks to provide a further written statement from her containing whatever evidence the applicant wished the Tribunal to receive from her.
The Applicant’s acknowledgment of the Tribunal’s decision in this respect (to which he responded “Okay”) was not such as to amount to “embracing” the alternative of a further written submission as the First Respondent suggested. The Tribunal did not make any such suggestion in the context of providing reasons for the exercise of its discretion.
While it may be accepted, for present purposes, that (as the First Respondent submitted) the Applicant could not be in a “better” position by attending the hearing and saying he wished to call a witness than had he followed the s.426 procedure, I do not accept that the Tribunal’s statement that it “carefully considered the Applicant’s request” was “the end of the matter” as the First Respondent submitted. The reasonableness of the exercise of the discretion under s.361 of the Act (the equivalent of s.426) was apparently not raised or in issue in Maltsin. In any event, the remarks of Kenny and Lander JJ in Maltsin at [38] (set out at [65] above) make it clear that the Tribunal must not act “capriciously” and must take into account matters such as the relevance and potential importance to the outcome of the review of the evidence that could be given by a nominated witness, the sufficiency of any written evidence from the witness and the time that would afford an applicant a fair opportunity to put his case before the Tribunal. However the Tribunal’s reasons and what occurred at the hearing do not suggest that it took into account such matters or considered whether a further written “statement” from Miss K would afford the Applicant the requisite meaningful opportunity to provide credible corroborative evidence. The Tribunal dismissed the further written statement from Miss K as repeating the claims made by the Applicant about their relationship.
As to the justification for not making a phone call to Miss K in Pakistan, there is no suggestion that there was any evidence before the Tribunal to support any concern about interception of the telephone call. Indeed, if the Tribunal’s reasoning was correct (that is because a telephone call to a potential witness could be tapped and if that occurred it would breach the privacy of the proceeding the Tribunal should not make such a call) that would be a reason for refusing to make any telephone call to a potential witness. Such an approach is contrary to s.429A of the Act which provides that the Tribunal may allow the giving of evidence by any person by telephone. Moreover, the Applicant expressed no such concern. There is no suggestion that either the Applicant or Miss K was a public figure or otherwise such that there might be a particular vulnerability to a telephone tap. This was not a case in which there was any obvious concern about government intervention or government surveillance of Miss K. Rather, there was simply a request to call a private party in Pakistan. The Applicant had not expressed any concern about telephones being tapped or the telephone of Miss K being tapped.
Importantly, the Tribunal gave no reasons whatsoever for its asserted concern about the risk of the telephone being tapped. As the Applicant submitted, the fact that the Tribunal referred to no evidence in this respect supports an inference that it had none (see SZLSP at [72] per Kenny J). The material in the Courtbook and Tribunal’s reasons do not disclose any material by reference to which a rational decision-maker could have formed this view. The fact that the Tribunal stated that it gave “careful consideration” to the request does not overcome this difficulty. In the absence of any evidence of knowledge or appreciation of any realistic risk that the telephone call might be intercepted, there was no more than speculation by the Tribunal that any telephone call to Miss K might be intercepted. Such speculation was not a reasonable basis on which a decision-maker could conclude that there was a risk to the privacy of the Tribunal proceeding in making this particular telephone call.
In response to the Applicant’s submission that a warning had to be given by the Tribunal at the point at which it asked the Applicant whether he told his lawyer that he had the problem that if he did not marry Miss K he would get killed, the First Respondent submitted that there had already been an act by the Applicant that was inconsistent with the maintenance of privilege and that there was therefore no need for the Tribunal to give any warning at all. Such a waiver was said to have occurred when the Applicant “volunteered” that he had told his previous adviser “my whole situation”. What followed was said to be just an exploration of “the whole situation”. It was also pointed out that there was no suggestion or intervention by the Applicant’s representative indicating that the Tribunal was traversing into terrain it should not enter.
The First Respondent submitted that given the nature of the Tribunal’s questioning and the issues under consideration this was not a case in which the Tribunal was obliged to provide a warning or advice to the Applicant.
Consideration
In SZHWY, Lander J made it clear (at [74]-[77]) that for the obligation on the Tribunal to advise an applicant of his or her right to claim legal professional privilege to arise there had to be a question asked that would tend to invite the disclosure of privileged information. As his Honour stated:
74. A decision maker who exceeds the authority or power given by the Act under which the decision maker is empowered to act commits jurisdictional error.
75. In my opinion, the Tribunal was under an obligation to advise the appellant that he was entitled to refuse the questions which the Tribunal asked of him if they were to disclose the contents of a confidential communication with his lawyer had for the purpose of obtaining or giving legal advice or assistance or for use in the proceedings before the Tribunal.
76. That obligation arises because the Tribunal, like any other administrative decision maker, is not entitled to exercise a power to destroy a freedom of communication which the law seeks to protect: Baker v Campbell per Dawson J at 131. The Tribunal was in the same position as an administrative decision maker who has the power to require documents to be produced. The decision maker should not exercise the power to require a party to produce documents which are subject to legal professional privilege: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 537; Arno v Forsyth (1986) 9 FCR 576. A decision maker should not purport to exercise a power to require a person to answer a question which the law would excuse that person from answering.
77. In my opinion, the Tribunal, when conducting its inquiry and in the exercise of its inquisitorial function, should advise a person of their right to claim privilege against self-incrimination or legal professional privilege if it appears that a question asked of the person may give rise to a legitimate claim of that privilege.
His Honour acknowledged (at [60]) that the benefit of the privilege may be waived, stating:
The benefit of the privilege may be waived: Mann v Carnell (1999) 201 CLR 1. A party may expressly waive the privilege attaching to a communication between the party and his or her solicitor. The privilege also may be waived by implication where the party acts inconsistently with a claim for privilege: Benecke v National Australia Bank (1993) 35 NSWLR 110. That will occur when it would be unfair to allow a party to maintain the claim for privilege: Maurice per Mason and Brennan JJ at 487, Deane J at 492–493 and Dawson J at 497.
Rares J expressed the view (at [158]):
… An impertinent inquiry by the tribunal seeking the disclosure of a communication to which legal professional privilege attaches is not authorised by the Act and is, thus, unlawful. In the context in which the tribunal was questioning the appellant, it is understandable that its curiosity was engaged when he told it about some issues he had not discussed with his solicitor.
In the alternative, Rares J was of the view (at [163]) that in that case the Tribunal had exceeded its powers: “in asking and pursuing questions to elicit the content of the appellant’s conversation with his solicitor which was the subject of legal professional privilege” (and see [169]).
Rares J also addressed the issue of waiver, but stated at [171]-[172]:
171. The Minister pointed out that in Mann v Carnell (1999) 201 CLR 1 at 13 [29], Gleeson CJ, Gaudron, Gummow and Callinan JJ said that an implied waiver occurred when particular conduct was inconsistent with the maintenance of a confidentiality which the privilege is intended to protect. If an intentional act of disclosure was inconsistent with the maintenance of the confidentiality of the communication, the Court may, where considerations of fairness suggest this course, hold that a waiver occurred (Carnell 201 CLR at 13 [29]).
172. There are no considerations of fairness here which would suggest that the appellant intentionally waived any privilege in his communications with his solicitor. To the contrary, he was the subject of questioning by a government official, the tribunal member, in respect of his claim for refugee status. The questions were designed by the official to elicit what he had told his solicitor. He was not made aware of his rights. This is far from any consideration of fairness dictating a conclusion that the appellant had waived his rights.
First, there is no suggestion that the Tribunal must in every hearing provide a general warning about an applicant’s right to claim legal professional privilege. Rather, the Applicant’s contention is that in the particular circumstances of this case the Tribunal was obliged to warn or advise the Applicant that he had a right to claim legal professional privilege.
It is clear that it is necessary to have regard to the particular circumstances of this case. The obligation was said to have arisen at the point at which the Tribunal asked the Applicant about what he told his first legal representative, Mr Chaudhry (who had acted for him in connection with his protection visa application in June 2013). The Tribunal directly questioned the Applicant about what he told Mr Chaudhry as follows (transcript p.21, line 48):
… So you told [Mr Chaudhry] that you had this problem, that if you didn’t marry [Miss K], you’d get killed?
The Tribunal’s question about what the Applicant told Mr Chaudhry specifically asked about the subject matter of his communication with his former lawyer. It was a question which might elicit or result in the disclosure of confidential communications with Mr Chaudhry. The question sought to ascertain the content of a privileged communication. Hence, unless the Applicant had waived the privilege the Tribunal was under an obligation to advise him that he was entitled to refuse to answer the questions the Tribunal asked “if they were to disclose the contents of a confidential communication with his lawyer had for the purpose of obtaining or giving legal advice or assistance or for use in the proceedings before the Tribunal” as Lander J stated at [75] in SZHWY (and see Rares J at [150]).
Waiver may be express or implied (see Mannv Carnell at [29]). There was no express waiver. I am not satisfied that there was an implied waiver earlier in the hearing in the manner contended for by the First Respondent. The Applicant’s evidence set out above was in response to Tribunal questioning about what he was going to do (in 2013) about the problem he had that if he did not marry Miss K then, as the Tribunal put to him, “you were going to get killed?”.
The Applicant responded that at that time he was not engaged and “I didn’t have any problem anyway”. He agreed however that as he had not convinced his father he was going to have a problem when he went back to Pakistan. He stated that he would try to convince his family, who he hoped would accept the relationship and would understand him (transcript p.21, lines 1-31). The Tribunal then asked: “Well, at that time did you ever think about getting advice from someone as to how you might be able to stay in Australia so that at least you have a safe place to be?”.
The Applicant replied “Yes”. The Tribunal then asked “So did you?” This was not the point which the Applicant contended gave rise to the obligation on the Tribunal to give a warning.
The Applicant’s response to this direct question is to be seen in its entirety. As indicated, he stated: “Yes. Like, my friends and my first representative and then I spoke with her and I told my whole situation”.
This was not inconsistent with the maintenance of the confidentiality of the content of communications with his first lawyer which legal professional privilege was intended to protect. The Applicant did not voluntarily disclose communications between himself and his first lawyer (cf SZTRY). He responded to a specific question from the Tribunal about whether he had sought advice from someone as to how he might be able to stay in Australia. He did not otherwise disclose the content of any such conversations. Indeed, given that his first lawyer was a male (Mr Chaudhry), while his lawyer who was at the Tribunal hearing was a female (a Ms Nemati); it cannot be assumed that when he said “then I spoke with her and I told her my whole situation” this was a reference to his conversation with Mr Chaudhry, particularly as that would be contrary to his subsequent evidence that he had not told Mr Chaudhry his whole situation. Rather, in response to the Tribunal question (transcript p.21, line 48) in relation to his lawyer who helped him make his protection visa application: “So you told him that you had this problem, that if you didn’t marry [Miss K], you’d get killed?” The Applicant responded: “No. I - I - I didn’t tell him that because there was nothing like that at that time” (transcript p.21, line 50 – p.22, line 1). As set out at [105] above, when this issue was pursued by the Tribunal the Applicant explained that at the time of his application and interview (when Mr Chaudhry was acting for him) he was still hopeful he would be able to convince his parents to agree to his marriage to Miss K and that it was after his engagement to his cousin that he felt fear of his parents.
I am not satisfied the Applicant waived privilege in relation to communications with Mr Chaudhry in the manner contended for by the First Respondent. His conduct at that point was not inconsistent with the maintenance of the confidentiality of his communications with Mr Chaudhry, his lawyer at the time he lodged his protection visa application. Hence, as the Applicant submitted, the Tribunal was under an obligation to advise him that he was entitled to refuse to answer questions in a manner that might breach legal professional privilege. This ground is made out.
The application should be remitted for reconsideration according to law.
I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 13 December 2016
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