FEDERAL COURT OF AUSTRALIA

SZVBB v Minister for Immigration and Border Protection [2015] FCA 1414

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The appellant appeals against a judgment of the Federal Circuit Court of Australia given on 25 August 2015. By that judgment, the Federal Circuit Court dismissed the appellant’s application for review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of the first respondent to refuse the appellant the grant of a Protection (Class XA) visa.

2    The grounds of the application to the Federal Circuit Court and the appeal to this Court focus on the refusal of the Tribunal to take oral evidence by telephone from the appellant’s wife and brother in India.

3    For the reasons that follow, the appeal must be dismissed.

the tribunal’s decision

4    The appellant is a citizen of India. On 25 June 2013, he applied for a protection visa. On 24 January 2014, a delegate of the first respondent made a decision refusing the grant of the visa.

5    The appellant then applied to the Tribunal for review of the delegate’s decision.

6    On 30 July 2014, the appellant appeared before the Tribunal to give evidence and present oral argument. The Tribunal’s hearing was conducted with the assistance of a Malayalam language interpreter.

7    In a form entitled “Response to Hearing Invitation”, the appellant requested that the Tribunal take oral evidence from his wife in India and stated that her evidence was relevant because “She suffered from the same trauma that I did whilst in Kerela”. He also requested that the Tribunal take oral evidence from his brother as the brother “was contacted by the people after my life, and he was warned against the consequences”.

8    The appellant claimed protection on the basis that Muslims in the area in which he lived in India would harm him because of activities he and his father had undertaken for the Bharatiya Janata Party (“BJP”) and Rashtriya Swayamsevak Sangh (“RSS”) political party, and because he was a Hindu priest.

9    The appellant gave evidence before the Tribunal that after he finished his high school education in 1987 he set up a photocopying shop. He said he assisted the BJP and RSS by making copies of leaflets, attending party meetings and going to houses to persuade people to support those parties. He claimed that because of these activities, Muslims came and attacked the shop, damaged it and set it on fire.

10    The appellant closed the shop in approximately 1992. He then worked as a priest at a temple, while continuing to undertake political activities for the BJP and the RSS. He did this until 2007 when he travelled to the United Kingdom where he lived for approximately five years. He said that he had left India and went to the United Kingdom because of his fear of being harmed by Muslims.

11    The appellant returned to India in 2012. He said that he resumed his activities with the BJP and RSS. He gave evidence of an incident where he and some others from the RSS warned a Muslim man against forcing a Hindu woman to marry him. He claimed that in response some Muslims came to his home, threw stones at it, damaged his bike, made threatening phone calls to him and attacked his temple.

12    The appellant also gave evidence that in June 2012 his father was killed when he was hit by a truck. The appellant believed that this was an attack by Muslims because his father was involved with political parties and was also a priest at the temple. He claimed that he went to the police to complain, but the police were influenced by Muslims and said that the incident was a traffic accident. He said that as a result of his complaint to police, the Muslims would come to his house once in a while and threaten to kill him and they punched him on one occasion.

13    The Tribunal noted a number of inconsistencies between the appellant’s evidence to the Tribunal and other statements he had made. Such inconsistencies included his failure, in the parts of the visa application form requiring details of countries of former habitual residence and countries other than his home country to which he had travelled, to mention that he had lived in the United Kingdom from 2007 to 2012; saying instead that he was in India from 2003 to 2013. Another example is that the applicant told the delegate that he had lived in Saudi Arabia from 1990 to 1998, but said that he had forgotten to tell the Tribunal that. Another example was that he was asked by the Tribunal whether his temple was ever set on fire and responded that he could not remember, whereas in a written statement he had asserted that the temple was set on fire as a result of the attack by Muslims in 2012. The Tribunal noted that even though the appellant claimed to have fled from India to the United Kingdom in 2007, he did not seek asylum there and returned to India. There were a number of other inconsistencies and improbabilities noted by the Tribunal.

14    The Tribunal decided that the appellant’s claims were false. It found that there was no real chance that the appellant would suffer serious harm in India, and that he did not have a well-founded fear of persecution based on any Convention ground. The Tribunal also found that the appellant did not meet the complementary protection criterion. It affirmed the delegate’s decision not to grant the appellant a protection visa.

15    In the course of its reasons, the Tribunal discussed the appellant’s request to obtain telephone evidence from his wife and brother in India. The Tribunal said:

22.     In addition, in his response to the hearing invitation, the applicant gave the name of his wife and brother in India and their telephone numbers for the Tribunal to contact them and receive evidence from them over the telephone. The Tribunal is cautious in taking evidence from witnesses over the telephone from other countries without the benefit of having those persons before the Tribunal in person to be able to be certain of their identity and that they are giving an independent account of events. Further, proceedings before the Tribunal are in private and the Tribunal told the applicant at the hearing that if it was to telephone his wife and brother those calls could be intercepted and the privacy of the hearing would be breached.

23.    The applicant said that his wife and brother would tell the Tribunal that he had to leave India because of the difficulties he had with Moslems due to his political activities. The Tribunal decided not to telephone the applicant’s wife and his brother because it could not see that this would benefit the applicant in the assessment of his credibility. The concerns about his credibility set out above so significantly discredit him as a witness that claims made by witnesses in other countries purporting to corroborate what he has said would not persuade the Tribunal that this applicant has given a truthful account. In the Tribunal's view, they would only be attempting to corroborate what is a false account.

The Federal Circuit Court

16    The appellant applied to the Federal Circuit Court for the issue of constitutional writs against the Tribunal. The appellant’s application set out two grounds. The first was to the effect that the Tribunal had failed to give genuine consideration to his request to take oral evidence from the overseas witnesses. The second was that the Tribunal had failed to perform the statutory duty required of it under s 420 of the Migration Act 1958 (Cth).

17    The Federal Circuit Court noted that the applicant was self-represented and was not in a position to advance oral argument to support his grounds.

18    As to the second ground, the primary judge referred to the opinion of French CJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [12] that the requirements of s 353 (the equivalent of s 420) were not “expressed in terms or in a context which would support a claim of jurisdictional error based on the non-observance of any of them”. His Honour held that the Tribunal had committed no jurisdictional error.

19    The primary judge held that the appellant’s first ground raised an issue of significance. His Honour noted that the Tribunal had advanced three factors relevant to declining to telephone the appellant’s wife and brother in India. The first was that the Tribunal was concerned about the need to be certain of the identity of the persons giving evidence and their capacity to give an independent account of events. The second factor was that Tribunal proceedings are conducted in private and if the Tribunal were to telephone the appellant’s wife and brother, those calls could be intercepted and the privacy of the hearing would be breached.

20    However, the primary judge held that “the real reason” why the Tribunal did not contact the witnesses was found in [23] of the Tribunal’s reasons. In that paragraph, the Tribunal found that the appellant was so significantly discredited as a witness that claims made by the proposed witnesses purporting to corroborate what he said would not persuade the Tribunal if the appellant had given the truthful account.

21    His Honour considered that the Tribunal had not acted capriciously in refusing to take oral evidence from the witnesses. His Honour accepted that it was open to the Tribunal to conclude that the evidence of the appellant was so compromised that hearing the oral evidence of corroborating witnesses would not affect the outcome. Accordingly, his Honour dismissed the application.

The appeal

22    The appellant’s grounds of appeal to this Court are as follows:

1.     The Federal Circuit Court Judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant’s claims and ignoring the aspect of persecution and harm in terms of Sec.91 R of the Act. The respondent committed jurisdictional error when determining whether it could hear from witnesses from overseas as requested by the applicant and did not give genuine consideration to the request, failing to perform the statutory duty required of it by s426(3) of the Migration Act 1958.

2.    The second respondent committed jurisdictional error by failing to address the applicant’s claims in the way they were made.

23    The appellant represented himself in the appeal with the assistance of an interpreter. He did not file any written submissions. The only oral submission he made was to assert that there were some problems in India and he could not go back.

24    The second ground may be dealt with shortly. The Tribunal’s detailed reasons show that it did address the appellant’s claims. The Tribunal did not misunderstand the appellant’s claims and it did address the claims accordingly to the way they were made. The appellant cannot succeed on his second ground.

25    The appellant’s first ground contains three separate allegations. The first is that the Tribunal acted in a manifestly unreasonable way when dealing with the appellant’s claims. The second is that the Tribunal ignored the aspect of persecution and harm in terms of s 91R of the Migration Act. The third is that the Tribunal did not give genuine consideration to the appellant’s request to hear oral evidence from the appellant’s witnesses.

26    The first allegation, although referring to the way in which the Tribunal dealt with the appellant’s claims, seems to assert that the Tribunal’s decision that the delegate’s decision should be affirmed was manifestly unreasonable. It can be concluded that a decision is unreasonable if it lacks an evident and intelligible justification: Minister for Immigration and Citizenship v Li at [76]. However, the Tribunal reached its conclusion because it found that the appellant’s claims were not credible; and there were substantial reasons for the Tribunal’s conclusion that the appellant’s claims were not credible. The assessment of credibility was a matter for the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67]. Once the Tribunal disbelieved the appellant’s claims, his application could not succeed. The Tribunal’s decision was not unreasonable.

27    As to the second aspect of the first ground of appeal, the Tribunal did not ignore any aspect of persecution or harm or s 91R of the Migration Act. The Tribunal’s reasons demonstrate that it correctly understood the legislative provisions and took into account all of the appellant’s claims.

28    The third allegation in the first ground is that the Tribunal failed to give genuine consideration to the appellant’s request to take oral evidence from his wife and brother in India.

29    Division 4 of Part 7 (ss 422B to 429A) of the Migration Act deals with the conduct of reviews by the Tribunal.

30    Section 425(1) provides that the Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.

31    Section 425A(1) requires the Tribunal to give an applicant notice of the time, date and place of the hearing. Section 426 provides:

426    Applicant may request Tribunal to call witnesses

(1)    In the notice under section 425A, the Tribunal must notify the applicant:

(a)    that he or she is invited to appear before the Tribunal to give evidence; and

(b)    of the effect of subsection (2) of this section.

(2)    The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

(3)    If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.

32    The appellant notified the Tribunal in accordance with s 426(2) that he wanted the Tribunal to obtain oral evidence from his wife and brother in India.

33    The Tribunal is required to give genuine consideration to an applicant’s wish for the Tribunal to obtain oral evidence: Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118 at [38]. This requires that the Tribunal cannot decline the applicant’s wishes capriciously, but must take into account relevant matters such as the relevance and potential importance to the outcome of the review of the evidence that could be given: Maltsin at [38]. The Tribunal is required to exercise its discretion as to whether obtain the oral evidence reasonably: Minister for Immigration and Citizenship v Li at [63].

34    The Tribunal’s discussion as to the appellant’s request that the Tribunal obtain oral evidence appears at [22] and [23] of the Tribunal’s reasons. Paragraph [22] is curious. The Tribunal began by saying:

The Tribunal is cautious in taking evidence from witnesses over the telephone from other countries without the benefit of having those persons before the Tribunal in person to be able to be certain of their identity and that they are giving an independent account of events.

35    In this passage the Tribunal appears to suggest that as a general proposition the Tribunal is wary of taking oral evidence for the reasons advanced. It is difficult to understand why there should be particular caution about taking oral evidence compared to written statements. When a written statement is provided, the Tribunal can be no more certain of the identity of the author, or that the person is giving independent evidence. In fact, as counsel for the first respondent accepted before the Federal Circuit Court, taking oral evidence offers the advantage of allowing the identity of the witness to be ascertained by questioning.

36    The primary judge noted that the significance of any concern about ascertaining the identity of a witness will vary from case to case. In cases where the witnesses are close relatives, the question of identity may be less significant than where the proffered witness has claimed to be a public figure. I respectfully agree.

37    The Tribunal continued at [22]:

Further, proceedings before the Tribunal are in private and the Tribunal told the applicant at the hearing that if it was to telephone his wife and brother those calls could be intercepted and the privacy of the hearing would be breached.

38    This statement is also curious. The Tribunal did not make it clear by whom it thought that the telephone calls could be intercepted, but, presumably, the Tribunal was referring to Indian intelligence agencies. As the primary judge noted, the Tribunal regularly conducts hearings by telephone or videolink and it would be surprising if the telephone or videolink facilities in India were any more prone to interception than in Australia. The possibility of interception was mere speculation on the Tribunal’s part, and it would be capricious or unreasonable for the Tribunal to refuse to obtain oral evidence on the basis of that speculation.

39    However, I consider that the primary judge was correct to find that the matters set out in [22] were commentary about what the Tribunal member perceived to be the Tribunal’s general approach, rather than providing reasons why the Tribunal refused to obtain oral evidence in the particular case. I agree that the Tribunal’s “real reason” for refusing to take the oral evidence is found in [23]. That reason was:

The Tribunal decided not to telephone the applicant’s wife and his brother because it could not see that this would benefit the applicant in the assessment of his credibility. The concerns about his credibility set out above so significantly discredit him as a witness that claims made by witnesses in other countries purporting to corroborate what he has said would not persuade the Tribunal that this applicant has given a truthful account. In the Tribunal’s view, they would only be attempting to corroborate what is a false account.

40    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: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [49], CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 at [58], Huynh v Minister for Immigration and Border Protection (2015) 232 FCR 497 at [96], [102].

41    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.

42    The Tribunal’s conclusion that corroborating evidence from the appellant’s wife and brother would not persuade the Tribunal that the appellant had given a truthful account was a strong one. It involved a conclusion to the extent that they gave evidence that corroborated the appellant’s account of difficulties he had with Muslims due to his political activities in India, those witnesses must be lying. The contrary is certainly arguable. It is arguable that the witnesses might be believed as to the incidents alleged by the appellant, and that would bolster the appellant’s credibility.

43    However, it must be remembered that it is not a matter for a Court to substitute its view as to the exercise of the discretion to obtain oral evidence for that of the Tribunal. The function of a Court is limited to deciding whether there was jurisdictional error; relevantly in this case, deciding whether the exercise of the Tribunal’s discretion was capricious or unreasonable.

44    The case is perhaps a marginal one, but I consider that it was open to the Tribunal, and not capricious or not unreasonable, to conclude that the oral evidence of the witnesses could not affect its view of the appellant’s credibility. A number of the inconsistences in the appellant’s evidence were glaring and his explanations for those inconsistencies were quite improbable. The nature and extent of the discrepancies and the improbability of the explanations was so great that I think it was open to the Tribunal to conclude that the appellant’s credibility could not be repaired by corroborative oral evidence concerning the alleged incidents in India.

45    Therefore, I do not consider that the Tribunal failed to give genuine consideration to the appellant’s request for the Tribunal to take oral evidence. Nor do I consider that the refusal of the Tribunal to do so was unreasonable.

46    I wish to emphasise that the outcome of this case has turned on its particular facts. I do not wish to be taken as suggesting that simply because the Tribunal takes an adverse view of the appellant’s credit, it may automatically decline to obtain oral evidence as requested by the appellant purely on that basis. Unless the case is clear, the reasoning in W360/03A suggests that a decision to decline to obtain oral evidence on the sole basis that the evidence could not possibly assist the Tribunal may be regarded as unreasonable.

47    In my opinion, the primary judge made no error when finding that the Tribunal’s decision did not involve jurisdictional error. The appeal must be dismissed with costs.

Associate:

Dated:    11 December 2015