FEDERAL COURT OF AUSTRALIA

SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant to pay the costs of the first respondent.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The appellant is a citizen of China. She has sought asylum in Australia because she says that she fears that she will be persecuted or harmed if she returns to China because she is a Falun Gong practitioner. Having failed, in the first instance, to secure the grant of a protection visa from the respondent, the Minister for Immigration and Border Protection, she applied to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) for a review of the visa refusal. She gave the Tribunal notice that she wanted the Tribunal to take oral evidence from three witnesses. As events transpired, the Tribunal did not take oral evidence from those persons. The Tribunal said that it did not need to hear from the witnesses because it accepted the facts that the appellant said the witnesses were being called to prove. The Tribunal affirmed the decision to refuse to grant a protection visa to the appellant.

2    The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia. Her main contention was that, in failing to take oral evidence from the appellant’s witnesses, the Tribunal failed to comply with s 426(3) of the Migration Act 1958 (Cth) and therefore erred in the exercise of its review jurisdiction. The primary judge in the Circuit Court rejected that contention and dismissed the application. The appellant appealed to this Court from the judgment of the primary judge.

3    The appeal raises two central questions: first, did the Tribunal give genuine consideration to the appellant’s request that oral evidence be taken from the witnesses; and second, was the Tribunal’s decision legally unreasonable?

4    For the reasons that follow, the answer to the first question is “yes” and the answer to the second question is “no”. The primary judge was correct to find that the Tribunal did not err in the exercise of its jurisdiction in not calling the oral evidence and the appeal must be dismissed.

The appellant’s protection visa application

5    The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958 (Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.

6    Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.

7    The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.

8    In her protection visa application, the appellant claimed that she met one or other of the criteria for the grant of a protection visa on account of her being a Falun Gong practitioner. Falun Gong is an ancient Chinese exercise and meditation system. The Chinese Government, however, considers Falun Gong to be a cult and since around 1999 has persecuted and meted out at times harsh treatment to Falun Gong practitioners. It was implicit in the appellant's protection visa application that she claimed that if she returns to China she will be persecuted or seriously harmed by the Chinese police or other authorities because she had in the past, and would continue to in the future, practice Falun Gong.

9    The appellant claimed that she was first introduced to Falun Gong in 2006 when her aunt gave her a book about it. She subsequently visited her aunt’s place to practice Falun Gong and delivered Falun Gong “materials” to nearby residential blocks. According to the appellant, in 2008 two people who claimed to be from the Fengman Public Security Bureau burst into her home, confiscated her Falun Gong book and materials and arrested her. She was taken to a local detention centre where she was questioned about “fellow believers” and beaten when she did not answer. The following day she was forced to watch a “brainwashing” video and asked to sign a “statement of remorse”. She refused and was again beaten. She was eventually released from detention a week later after her father had paid a “security bond” of 10,000 yuan. She was warned that if she continued to practice Falun Gong she would be sent to jail.

10    After the appellant’s release from jail, her parents advised her to give up Falun Gong, though she claimed that she refused to do so. Her son and husband travelled to Australia in 2011 on a student visa and a student guardian visa, respectively. They worried about the appellant’s safety, so she also left China for Australia in 2012. She arrived in Australia on a tourist visa and subsequently applied for a protection visa.

11    The appellant was interviewed by a delegate of the Minister in May 2013. She reiterated her claims about her involvement in Falun Gong in China and her arrest and detention in 2008. She also claimed that she had engaged in Falun Gong activities since arriving in Australia.

12    The delegate refused the appellant’s protection visa application. The delegate did not believe the appellant’s claims concerning her involvement in Falun Gong. The delegate did not accept that the appellant was a genuine Falun Gong practitioner and said that she had fabricated or embellished her claims of persecution. Importantly, the delegate also found that the appellant had attended Falun Gong activities in Australia for the purpose of strengthening her protection visa application. Her attendance at those events was not indicative of her being a genuine Falun Gong practitioner.

The review application

13    The appellant applied to the Tribunal for a review of the delegate’s decision. In January 2014 the appellant was invited to attend a hearing in the Tribunal. In her response to the hearing invitation, the appellant requested the Tribunal to take oral evidence from three witnesses: Jing Hou, Pei Yi Dong and Huiqing Ou. The appellant stated that each of the three witnesses “will provide evidence about my practice of Falun Gong in Australia”.

14    Shortly thereafter, the appellant (through her solicitor and migration agent) sent the Tribunal a number of documents. Those documents included statements from Jing Hou and Pei Yi Dong. The precise content of those statements is important to the resolution of the appeal.

15    Pei Yi Dong’s statement was in the following terms:

I am an Australian citizen. My home is in Auburn area. I have been practicing and cultivating Falun Dafa in Sydney for over seventeen years. I have always been a volunteer Falun Gong instructor.

I came to know [the appellant] in the middle of November 2012. I also learned that she had suffered persecution in [China] due to her cultivation of Falun Gong (Falun Dafa). She came to Australia on 10 November 2012 and had joined our Falun Gong activities in Canberra for the first time on 28 November 2012. She also had joined our group Fa-learning at Auburn. She has been with us all the time since then.

During the period of over one year in the past, I had witnessed her participation in our group Fa-learning at Auburn and Redfern on each Tuesday and Saturday. She also had joined our activity to celebrate World Falun Dafa Day on 13 May 2013 and our July-20 street demonstration and group Falun Gong activity. She often took part in other Falun Gong activities such as to promote Falun Gong at the tourist spot, to advise the others to quit the CCP and its associated [organisations], to join the waist drum dance team and to attend the nine-day Fa-learning session.

The purpose of her active involvement in Falun Gong and in its truth clarification activities is to let more kind and innocent people be aware of the persecution that Falun Gong practitioners are suffering, including the live organ harvest. It is also to seek the assistance from the kind people in the world so to stop this most vicious persecution.

I sincerely believe that [the appellant] is a genuine Falun Gong cultivator. The world needs “Truthfulness, Benevolence and Forebearance.” [The appellant] is willing to follow these principles to be a decent person. In today’s China, there is a collapse of moral standard. Falun Dafa has brought the fresh air to this world so it has the support among millions and millions of practitioners. It makes more and more innocent people understand the truth. However, CCP is continuing its brutal persecution against Falun Gong. In this situation, if [the appellant] returns to China, she would certainly be persecuted or mistreated. So it is my sincere wish that Department officer would offer her support on the ground of humanitarianism. In this circumstance, she would be able to pursue her cultivation legally in Australia. At the same time, it is also hoped that the situation of Falun Gong practitioners in [China] would have the world attention and help.

16    Hou Jing’s statement was in the following terms:

My name is Hou Jing. I started Falun Gong practice in 1998. My home address is xx/xx xxxxxx St, Auburn.

I came to know [the appellant] at our weekly group Fa-learning session. Since then, I would always meet her at our Tuesday group Fa-learning at Auburn. She also would join our Saturday evening Sydney Fa-learning and insight-sharing session.

I had witnessed her participation in many Falun Gong activities such as our weekend large group practice, Great Wall Truth Clarification activity and our news-releasing gathering at Canberra. Each Friday, she would also do the truth clarification to the Chinese tourists at Opera House. In addition to that, she also had joined Australia- wide Falun Gong practitioner insight sharing meeting and the large street demonstration.

The suppression on Falun Gong by CCP is known to all of us in the world.

Being so much involved in Falun Gong activities, her profile must be known to CCP agents. If she returns to China, she would certainly be arrested and be persecuted.

So I sincerely wish Department officer would approve her protection visa application so that she would not have to return to China. In this case, she would be able to pursue her Falun Gong belief in Australia – a free and democratic country.

17    The appellant also sent the Tribunal photographs that showed her participating in Falun Gong activities in Australia. She also provided a further statement which it appears was intended to address some adverse findings made by the Minister’s delegate about aspects of the appellant’s evidence. It did not include any evidence to meet the delegate’s adverse finding that the appellant’s practice of Falun Gong in Australia was not genuine, but was engaged in by the appellant for the purpose of strengthening her application for a protection visa.

18    The appellant attended the Tribunal hearing on 3 February 2014. She was accompanied by her solicitor and migration agent and the three witnesses that she wanted the Tribunal to obtain oral evidence from. The transcript of the Tribunal hearing records the following exchange at the commencement of the hearing. The transcript denotes that M is the Tribunal member, R is the appellant’s representative, and W is either the appellant or a witness.

M    I would just like to identify everyone here in the room today. We have the applicant who is [the appellant] who is accompanied by her representative Michaela Byers. We have three witnesses today. Now these are not the witnesses who put the written statements in are they?

R    So we have P.D and H Jing.

M    So two of them? Ok. Are they going to be saying anything different from what is in their statements.

R    It might be best to ask them, but I don’t think so.

W    No.

M    And the third witness, what evidence is she giving Ms. Byers?

R    I practiced this with her. I did not know her in China. I met her in Australia.

M    I’m not sure if I need to hear from them at this stage, but I will decide in the course of the hearing.

19    The Tribunal then gave the appellant an explanation of how the hearing would proceed. In the course of that explanation, the Tribunal said:

I may or may not speak to your witnesses. I am not sure at this stage. Two of your witnesses have provided written statements to the tribunal, so I will decide during the hearing whether I need to ask them any other questions. Whilst you are giving your evidence, I am going to ask them to wait outside.

20    Following that explanation, the Tribunal asked the three witnesses to wait outside and indicated that they would be called if they were needed. It may reasonably be inferred that the witnesses were present at the commencement of the hearing when the Tribunal asked whether the witnesses were going to say anything different from that which was in their statements. It is unclear whether the “no” response was given by the appellant or one of the witnesses.

21    The Tribunal questioned the appellant at some length concerning her protection visa claims. The questioning concerned the appellant’s claims about her practice of Falun Gong in China, including her arrest and detention. The questioning also extended to the appellant’s practice of Falun Gong in Australia. At the conclusion of that questioning, there was a short break in the hearing. When the hearing recommenced, the Tribunal said:

Now Ms. [appellant], I accept that you have been participating in Falun Gong activities in Australia. So I do not need to hear from the three witnesses outside. I would like to talk to your husband though.

22    Neither the appellant nor her representative queried the Tribunal concerning the decision not to call oral evidence from the three witnesses or the reason given by the Tribunal for that decision. Neither the appellant nor her adviser submitted at that stage that the Tribunal should take oral evidence from the witnesses despite the indication by the Tribunal that it accepted that the appellant had engaged in Falun Gong activities in Australia. It was not suggested, for example, that the witnesses would or could give evidence of matters going beyond the appellant’s Falun Gong activities in Australia.

23    Following that exchange, the Tribunal questioned the applicant’s husband by telephone. At the conclusion of that questioning, the Tribunal invited the appellant’s representative to make submissions. The representative took up that invitation and made some brief oral submissions. None of the oral submissions revisited the decision not to call the three witnesses. The appellant’s representative was also given leave to forward written submissions to the Tribunal following the hearing.

24    Following the hearing the appellant’s representative sent written submissions to the Tribunal. Those written submissions included the following:

Failure to take evidence from witnesses

After the adjournment of the hearing and before the Member telephoned the applicant’s husband, the Member made the finding “I accept you have participated in Falun Gong activities in Australia” and decided not to take evidence from the three witnesses who attended the hearing. However, after questioning the applicant’s husband the Member raised adverse information as the inconsistencies between the applicant and her husband’s evidence as to her practice of Falun Gong in Australia. The three witnesses have been Falun Gong practitioners for many years and were the most appropriate persons to give evidence as to the applicant’s practice of Falun Gong. Please do not hesitate to contact this office for further information.

(emphasis in original)

The Tribunal’s decision and reasons

25    The Tribunal found that it was not satisfied that the appellant met either the Refugees Convention or complementary protection criteria for the grant of a protection visa. The basal reason given by the Tribunal for its adverse finding in that regard was that it did not believe the evidence given by the appellant concerning relevant events in China. The Tribunal found that the appellant had fabricated her claims concerning her Falun Gong activities in China. It rejected her evidence concerning her arrest and mistreatment by the Chinese authorities. The Tribunal found that the appellant was not a genuine Falun Gong practitioner and that she would not seek to practice Falun Gong if she returned to China.

26    As for the appellant’s practice of Falun Gong while she was in Australia, the Tribunal accepted that the appellant had engaged in Falun Gong activities in Australia. It was not, however, satisfied that the appellant engaged in those activities otherwise than for the purpose of strengthening her claim to be a refugee within the meaning of the Refugees Convention. The Tribunal disregarded that conduct in determining whether the appellant satisfied the Refugees Convention criterion, as it was required to do by s 91R(3) of the Migration Act. The Tribunal also found that it was not satisfied that the Chinese authorities were aware of any of the appellant’s Falun Gong activities while she was in Australia. As a result, she was unlikely to be of any adverse interest to the Chinese authorities on account of those activities if she returns to China.

27    The factual findings made by the Tribunal were based almost entirely on an adverse conclusion that the Tribunal reached concerning the appellant’s credibility and the reliability of her claims and evidence. The factual findings completely undermined the basis of both the appellant’s claim that she feared she would be persecuted if she returned to China, and her claim that there was a real risk that she would suffer significant harm if she returned to China.

28    The appellant did not directly challenge any of the Tribunal’s findings of fact. Her Circuit Court application focused entirely on the Tribunal’s failure to take oral evidence from the appellant’s witnesses. Given the narrow scope of the appellant’s case in the Circuit Court, and on appeal, it is unnecessary to explore the Tribunal’s reasons in any detail, other than the reasons that directly or indirectly relate to the Tribunal’s decision not to call oral evidence from the witnesses. That includes a consideration of the Tribunal’s findings concerning the appellant’s activities in Australia.

29    As indicated earlier, the appellant herself gave evidence concerning her Falun Gong activities in Australia. The Tribunal did not reject that evidence. It did, however, note one aspect of the appellant’s evidence that gave it cause for concern that the appellant’s involvement in those activities was to gather evidence in support of her visa application. That concern is noted in paragraph 40 of the Tribunal’s reasons:

The applicant provided the Tribunal with five photographs of herself participating in these events. She states that the photographs were taken by Falun Gong practitioners. When asked why the photographs were taken, she stated that it was to record persecution. When asked how these photographs recorded persecution, she responded that it was for the purpose of recording the activities she participated in. The Tribunal has concerns that the applicant participated in these Falun Gong activities for the purpose of gathering evidence to support her visa application.

30    The Tribunal referred to the statements from two of the appellant’s witnesses at paragraph 42 of its reasons:

Following the hearing, the Tribunal received two written statements from Falun Gong practitioners; Pei Yei Dong dated 23 January 2014 and Hou Jing dated 22 January 2014. Both witnesses attested to the applicant attending various Falun Gong related activities in Australia. These two witnesses and a third named Huiqing Ou attended the hearing. The Tribunal did not obtain oral evidence from these witnesses as the Tribunal accepts that the applicant has attended various Falun Gong related activities in Australia. The Tribunal has had regard to the written statements from the two witnesses referred to above.

31    There is an obvious mistake in that paragraph. It is clear that the witness statements were sent to the Tribunal shortly before the hearing, not after it. That is apparent from the documents themselves, and from what was said by the Tribunal member during the hearing. Nothing of significance flows from this error in the reasons.

32    The Tribunal’s findings concerning the appellant’s practice of Falun Gong in Australia are encapsulated in paragraphs 49 and 50 of its reasons.

The Tribunal has considered the applicant’s conduct in Australia. The Tribunal accepts that the applicant has practised the Falun Gong exercises in a park, has attended Falun Gong classes to learn about the teachings of Falun Gong and has attended a number of Falun Gong related events.

The Tribunal has found that the applicant is not a credible witness and has rejected her claims in relation to Falun Gong related activities and events in China. The Tribunal is of the view that the applicant participated in Falun Gong related activities and events in Australia for the purpose of obtaining evidence to support her application for a Protection visa. The applicant has not satisfied the Tribunal that she engaged in these activities and events in Australia otherwise than for the purpose of strengthening her claims to be a refugee. The Tribunal disregards the applicant’s conduct in Australia in accordance with s 91R(3) of the Act.

33    The Tribunal reiterated its findings concerning the appellant’s Falun Gong activities in Australia in the context of its consideration of whether the appellant met the complementary protection criterion. After repeating its acceptance of the evidence that the appellant had attended Falun Gong related activities in Australia, the Tribunal concluded as follows at paragraph 60 of its reasons:

The Tribunal is not satisfied that the Chinese authorities are aware of the applicant’s Falun Gong related activities in Australia. There is no evidence before the Tribunal to suggest that she organised any of these activities of events or had any leadership role in these activities and events. In these circumstances, the tribunal is satisfied that because of the limited nature and extent of the applicant’s involvement in Falun Gong related activities and events in Australia and her likely behaviour on return to China she would not be of adverse interest to the Chinese authorities on her return to China.

34    The end result was that the Tribunal affirmed the decision not to grant the appellant a protection visa.

The Circuit Court judgment

35    The appellant’s sole ground of review in the Circuit Court was that the Tribunal “made a jurisdictional error in failing to provide a fair hearing in accordance with s 425 and/or s 426 of the Act”. While the review ground referred to s 425, it is quite clear that the appellant’s case in the Circuit Court hinged entirely on the contention that the Tribunal breached or failed to comply with s 426. The appellant’s contention that the Tribunal failed to provide a fair hearing was based entirely on the fact that the Tribunal did not take oral evidence from the appellant’s witnesses.

36    The primary judge rejected the contention that the Tribunal made a jurisdictional error in not taking oral evidence from the witnesses. Her Honour’s reasons for rejecting that contention are contained in paragraphs 68 to 72 of the judgment. Given that the appellant’s appeal grounds attack some of her Honour’s reasoning, those paragraphs should be extracted in full.

68    The transcript of the hearing makes clear that the RRT had a somewhat lengthy exchange with the applicant’s migration agent at the hearing following the presentation of the applicant’s evidence. At no stage during that exchange did the applicant’s migration agent revisit the applicant’s request for the RRT to take evidence from the applicant’s witnesses. The transcript makes clear that there was every opportunity for the migration agent to do so. The transcript also makes clear that there were no further attempts by the applicant’s migration agent to seek to call oral evidence from the third witness who had not provided a statement. In the circumstances, there can be no error on the part of the RRT in not taking oral evidence from the third witness.

69    In any event, as stated above, the RRT accepted the evidence of the witnesses that the applicant had engaged in Falun Gong related activities in Australia. The belief of the witnesses as to what may happen to the applicant in China was of so little weight, such that the RRT was not bound to have regard to those statements. The RRT’s adverse credibility findings in respect of the applicant’s claimed events in China were not matters on which the witnesses could give evidence. It was the RRT’s ultimate comprehensive adverse findings that led to it affirming the decision under review.

70    A fair reading of the RRT’s decision record and the transcript makes clear that the RRT did genuinely apply its mind to the contents of the applicant’s notice of her request to call oral evidence from the proposed witnesses (see Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 at [16] per Bennett, Nicholas and Yates JJ). The RRT did not decline to allow the applicant to call the two witnesses who provided statements until it had confirmed that there was nothing further they wished to say beyond what was contained in their witness statements. Further, as stated above, the RRT accepted the relevant evidence of those witnesses that the applicant had participated in various Falun Gong related activities in Australia.

71    This is not a case where the RRT promised that it would take evidence from the applicant’s witnesses. The applicant lost no opportunity to advance her case and no practical injustice occurred by reasons of the failure of the RRT to allow the applicant to give oral evidence (see Minister for Immigration and Border Protection v WZARH [2015] HCA 40 at [35]- [36] per Kiefel, Bell and Keane JJ).

72    It is well established that in keeping with the RRT’s inquisitorial nature, the RRT does not commit jurisdictional error if it decides not to obtain oral evidence from an applicant’s witnesses, despite being notified in accordance with the Act of a request to do so. Provided that the RRT has regard to the notice the applicant has given, there is no obligation on the RRT to take oral evidence from anyone other than the applicant (see Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118 at [38] per Kenny and Lander JJ).

37     The primary judge dismissed the appellant’s application with costs.

Appeal ground and submissions

38    The appellant’s sole ground of appeal was that the primary judge “erred in not finding that the Tribunal failed to provide the appellant an opportunity for a fair hearing in accordance with section 425 and/or section 426 of the [Migration] Act”. Consistent with the approach taken in the Circuit Court, the appellant’s case on appeal was that the primary judge should have found that, in failing to take evidence from the three witnesses, the Tribunal breached s 426(3) and failed to provide a fair hearing as required by s 425 of the Migration Act. It was not suggested that there was any other procedural defect or any other basis for concluding that the Tribunal failed to comply with s 425.

39    The appellant’s amended notice of appeal provided the following particulars of the errors in reasoning that were said to have led the primary judge to erroneously conclude that there had been no breach of s 426(3) of the Migration Act:

a.    Her Honour erred at paragraph [68] of the decision having regard to the fact that the Migration Agent “did not revisit the [Appellant’s] request for the [Tribunal] to take evidence from the witnesses as evidence that the Appellant had abandoned the Applicant and/or that the Tribunal had given the Applicant [sic] every opportunity to advance their case;

b.    Her Honour at paragraphs [69] and [71] of the decision by engaging in a “merit” based assessment by determining that the witnesses’ evidence about “what may happen to the [Appellant] was of so little weight, such that the [Tribunal] was not bound to have regard to those statements” [69] and that the Appellant lost no opportunity to advance their case and “no practical injustice occurred” [71] by reasons of the failure to take oral evidence.

40    Those particulars did not feature prominently in the appellant’s submissions on appeal. The submissions were ultimately directed almost exclusively to the proposition that the Tribunal committed jurisdictional because it failed to give any, or any real and genuine, consideration to the appellant’s request that oral evidence be taken from the three witnesses.

41    The appellant submitted that the transcript of the Tribunal hearing does not reveal that the Tribunal gave any consideration to whether oral evidence should be called from the witnesses. It was contended that neither the appellant nor her adviser abandoned the request to call oral evidence, that the witnesses were not invited to give evidence, despite their attendance, and that no explanation was given for the failure to call them. The written submissions filed on the appellant’s behalf went so far as to contend that the appellant was “precluded” from calling the witnesses and that the appellant was therefore not allowed to present her case and was accordingly denied procedural fairness.

42    The appellant’s case was presented in slightly more balanced, modest and realistic terms in oral submissions at the hearing. It was acknowledged that the Tribunal decided not to take oral evidence from the witnesses because it accepted that the appellant had engaged in Falun Gong activities in Australia. The nub of the appellant’s submission was that this did not amount to real or genuine consideration of the appellant’s request because there was no indication that the Tribunal had read the witness statements. Or, if the Tribunal had read the statements, it must have failed to appreciate or take into account the relevance of the evidence. Those contentions hinged on the proposition that the witness statements went beyond (it was submitted “well beyond”) the appellant’s Falun Gong activities in Australia. While the appellant advanced that proposition in various different ways, it ultimately came down to one sentence in the statement of Pei Yi Dong and two sentences in the statement of Hou Jing. The key sentence in Pei Yi Dong’s statement was: “I sincerely believe that [the appellant] is a genuine Falun Gong practitioner”. The key sentences in Hou Jing’s statement were:

Being so much involved in Falun Gong activities, her [the appellant’s] profile must be known to CCP agents. If she returns to China, she would certainly be arrested and persecuted.

43    It was contended, in effect, that if the Tribunal had given genuine consideration to the appellant’s request to call these two witnesses, it would have appreciated that their evidence was potentially relevant to two issues that were ultimately the subject of adverse findings by the Tribunal. Pei Yi Dong’s evidence was said to be relevant to whether the appellant was a genuine Falun Gong practitioner in Australia. Hou Jing’s evidence was said to be relevant to whether the appellant’s Falun Gong activities in Australia would have come to the attention of the Chinese authorities. In the appellant’s submission, the Tribunal’s acceptance of the fact that the appellant had engaged in Falun Gong activities in Australia did not justify the Tribunal’s decision not to obtain evidence from the witnesses concerning those two issues.

44    At the hearing, the attention of the parties was directed to two cases where decisions of the Tribunal not to call oral evidence from witnesses were attacked on the basis that the decisions were legally unreasonable: CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 and SZVBB v Minister for Immigration and Border Protection [2015] FCA 1414. The parties were given leave to file additional written submissions addressing those cases and their relevance to the appellant’s appeal. The appellant’s written submissions contended, in effect, that the Tribunal’s decision not to call oral evidence from the witnesses was legally unreasonable because it was based on a misconception that their evidence was limited to the appellant’s Falun Gong related activities in Australia. It was contended that the Tribunal failed to consider the witness statements or appreciate the scope of the oral evidence that would have been given.

Legal framework

45    It is unnecessary for the purposes of this appeal to address in any detail the relevant criteria for the grant of a protection visa. Suffice it to say that, as noted earlier, the Refugees Convention criterion involved the determination of whether the visa applicant had a well-founded fear of persecution for one or more of the reasons mentioned in the Refugees Convention.

46    Relevant to this appeal, at the time of the appellant’s visa and review applications, s 91R(3) provided as follows:

(3)    For the purposes of the application of this Act and the regulations to a particular person:

(a)    in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless:

(b)    the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

47    Division 4 of Part 7 of the Migration Act contained provisions that dealt with the Tribunal’s conduct of review applications. It is again unnecessary to give any detailed consideration to those provisions. It is sufficient to note that it is well accepted that the Tribunal’s review is inquisitorial in nature, not adversarial. 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 that evidence should be taken. The provisions in Div 4 of Pt 7 must also be considered in light of the overarching objective, spelt out in s 420, of “providing a mechanism of review that is fair, just, economical, informal and quick”.

48    Relevant to this appeal, s 425(1) provided that the Tribunal “must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”. Section 425A provided for the content of the notice of invitation to appear.

49    Section 426 provided as follows:

426    Applicant may request Refugee Review Tribunal to call witnesses

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

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

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

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

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

50    It is to be noted that, consistent with the inquisitorial nature of the review, it is the Tribunal who takes oral evidence from a person, even if that person could loosely be called the applicant’s witness because he or she is named in the applicant’s notice under s 426(2). It is abundantly clear that an applicant has no right to call, or require the Tribunal to call, a witness to give evidence. Section 426(3) makes it plain that, if an applicant does give the Tribunal notice under s 426(2), the applicant must have regard to the applicant’s wishes, but is not required to act on those wishes: see VJAF v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCAFC 178 at [23].

51    Importantly, however, the Tribunal’s consideration of the applicant’s wishes must be real and genuine. In Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304, Kenny and Lander JJ (Spender J agreeing) said the following (at 316-317 [37]-[38]) in relation to the analogue to s 426 that applied to reviews conducted by the then Migration Review Tribunal:

It is in keeping with the tribunal’s inquisitorial nature that the tribunal does not err if it decides that, notwithstanding the applicant wants oral evidence to be obtained from persons named in a notice under s 361(2), it decides not to obtain such evidence, always providing that it acts in conformity with s 361(3) of the Act and has regard to the notice that the applicant has given. In this circumstance, there is no obligation on the tribunal to take oral evidence from anyone other than the applicant.

It does not follow from this, however, that the appeal in this case should be upheld. By virtue of s 361(3), the tribunal is obliged to have regard to any notice given by an applicant under s 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 [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 (cf W360/01A v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 449 ; [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.

52     It is also necessary to consider the operation of s 426 in the context of the broader scheme for the conduct of reviews by the Tribunal. As already noted, reviews by the Tribunal are inquisitorial. While provision is made for the taking of oral evidence, it would appear that the review process “is a predominantly documentary process”: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 350 [192]. The evident purpose of s 426, considered in context, is to provide for the taking of oral evidence where the provision of evidence in a written or documentary form is for some reason inadequate or unsatisfactory. That would include cases where an applicant was unable to obtain written statements from his or her witnesses. It would also include cases where the taking of oral evidence would be likely to assist the Tribunal to determine the reliability or credibility of witnesses who had provided written statements: CZBH at [56]; SZVBB at [96].

53    The decision by the Tribunal whether or not to accede to an applicant’s request that oral evidence be taken from a witness or witnesses has been characterised as the exercise of a discretionary power that must be exercised reasonably: CZBH at [39], citing VJAF at [23]. The unreasonable exercise of that discretionary power, in the sense explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, would be beyond power and accordingly would constitute a jurisdictional error.

Resolution of questions raised by the appeal

54    The appeal raises two fundamental questions. The first is whether the Tribunal breached or failed to comply with s 426 of the Act because it decided not to call evidence from the appellant’s three witnesses. The second question is whether the Tribunal’s decision not to call oral evidence from the witnesses was legally unreasonable. If those two questions are answered adversely to the appellant, her appeal must fail. It is, however, necessary to also address the appellant’s criticisms of the primary judge’s reasons.

Was there a breach of s 426(3) of the Act?

55    Contrary to the appellant’s submissions, both before the primary judge and on appeal, there is no basis for concluding that the Tribunal breached or failed to comply with s 426(3) of the Act. When consideration is given to the content of the appellant’s notice under s 426(2), the content of the witness statements, and what was said and done at the Tribunal hearing, it cannot be concluded that the Tribunal failed to give genuine consideration to the appellant’s wish to have oral evidence obtained from the three witnesses.

56    The question whether the Tribunal gave genuine consideration to the appellant’s wishes must be considered in light of the following six important facts and circumstances.

57    First, the s 426(2) notice (or Response to Hearing Invitation notice) required the appellant, in respect of each prospective witness, to “describe this person’s evidence and how it is relevant to your case”. The appellant indicated, in respect of each witness, that “the witness will provide evidence about my practice of Falun Gong in Australia”. In having regard to the appellant’s “wishes”, for the purpose of s 426(3), the Tribunal was entitled to accept those descriptions as accurate descriptions of the asserted scope and relevance of the evidence.

58    Second, the appellant sent the Tribunal witness statements from two of the three prospective witnesses. In relation to those two witnesses, the Tribunal was entitled to approach the exercise of the s 426(3) power or discretion on the basis that the statements contained the evidence that the appellant wanted the Tribunal to have regard to. If the statements, read in the context of other evidence available to the Tribunal, raised no apparent questions of reliability or credibility, or the Tribunal had no other basis to doubt or reject the evidence in the statements, it would be open to the Tribunal to form the view that obtaining oral evidence from the witness was unnecessary. In short, if the Tribunal was prepared to accept the evidence in the witness statements without more, there was no need for the Tribunal to obtain oral evidence from the witnesses. The Tribunal was not obliged to speculate whether the witnesses could provide further or better evidence than that which was included in their witness statements. As for the third witness, the Tribunal could only assess the scope and relevance of the expected evidence of that witness from the description given in the s 426(2) notice.

59    Third, consistent with what was said in the appellant’s s 426(2) notice, the primary, if not sole, subject matter of the two witness statements was the appellant’s practice of Falun Gong in Australia. As noted earlier, the statement of Pei Yi Dong included a statement of belief by the witness that the appellant was a “genuine Falun Gong practitioner”. But that statement of belief could only have been based on the witness’s observations concerning the appellant’s participation in the activities as described in the statement. Likewise, the statement of Hou Jing included a statement of opinion or belief about the appellant’s “profile” and what might happen to the appellant if she returned to China. But that opinion or belief could only have been based on what the witness had observed concerning the appellant’s participation in Falun Gong activities in Australia. Those observations were set out in the statement.

60    Fourth, it can readily be inferred from the hearing transcript that the Tribunal was aware of and had read the two witness statements. Towards the beginning of the hearing, the Tribunal member asked the appellant and her adviser whether the witnesses were going to say anything different to what they said in their statements. While the adviser’s response was somewhat equivocal, the indication from either the appellant herself, or perhaps one of the witnesses, was unequivocal: the witnesses would not say anything that was different from their statements. Neither the appellant nor her adviser stated that the evidence of the witnesses went beyond what was in their statements, or that the Tribunal should obtain oral evidence from them that further explained or was in addition to the evidence in the statements.

61    The Tribunal also indicated that the decision whether oral evidence would be taken from the witnesses was under consideration and would be made during the course of the hearing. After hearing the appellant’s evidence, which included evidence concerning her Falun Gong activities in Australia, the Tribunal indicated that it accepted that the appellant had participated in Falun Gong activities in Australia “so I do not need to hear from the three witnesses”. It can be inferred from that exchange that the Tribunal’s reason for not needing to call oral evidence from the witnesses was that the evidence contained in their statements was accepted. As will be explained later, the Tribunal’s ultimate findings were not in any respect inconsistent with the Tribunal’s acceptance of the evidence contained in the statements, including the statements of opinion or belief.

62    Fifth, when the Tribunal gave its reason for not needing to obtain oral evidence from the witnesses, neither the appellant nor her adviser objected to that course. Neither said that, despite the Tribunal’s acceptance that the appellant had engaged in Falun Gong activities in Australia, the Tribunal should nevertheless obtain oral evidence from the witnesses. The silence of the appellant and her adviser at this point must also be considered in the context of two other matters. First, the delegate had found that the appellant attended Falun Gong activities in Australia for the purpose of strengthening her protection visa claim and that her attendance at those activities was not indicative of her being a genuine practitioner. Second, the tenor of the Tribunal’s questioning of the appellant about her activities in Australia tended to suggest some doubt or concern on the part of the Tribunal in relation to the appellant’s motives for attending the activities in Australia. It could not be suggested that the appellant was not alive to the fact that her motive for attending the activities in Australia, and the genuineness of her beliefs, was very much in issue.

63    Sixth, in post-hearing written submissions to the Tribunal, the appellant’s adviser referred to the fact that, after questioning the appellant’s husband, the Tribunal raised inconsistencies between the appellant’s evidence and her husband’s evidence concerning her Falun Gong activities in Australia. The adviser referred to the fact that the Tribunal had decided not to take evidence from the three witnesses and that the three witnesses “were the most appropriate persons to give evidence as to the applicant’s practice of Falun Gong”.

64    The following points can be made concerning that complaint. First, this complaint was not raised at the hearing when the Tribunal referred to the inconsistencies and when the witnesses were still available to be called. Second, the inconsistencies between the appellant’s evidence, and the evidence of her husband, did not lead the Tribunal to reject either the appellant’s evidence, or the evidence in the witness statements, concerning the events that occurred in Australia. While inconsistencies in the evidence of the appellant and her husband led the Tribunal to doubt the credibility of the appellant’s evidence generally, it did not lead the Tribunal to reject the evidence that the appellant attended Falun Gong events in Australia. Third, in the post-hearing submissions to the Tribunal, the appellant’s adviser did not suggest that the Tribunal should reconvene a hearing for the purposes of taking oral evidence from the three witnesses.

65    These six facts and circumstances, particularly when considered cumulatively, strongly indicate that the Tribunal did give genuine and meaningful consideration to the appellant’s wishes in relation to the obtaining of oral evidence from the three witnesses. Having raised the issue at the commencement of the hearing, and then having heard the appellant’s evidence, the Tribunal decided that it was unnecessary to obtain oral evidence from the witnesses because the evidence in their statements, such as it was, was accepted. There was no issue concerning the credibility or reliability of the witnesses or their evidence. The Tribunal gave reasons, albeit in brief terms, for not obtaining oral evidence from the witnesses. Neither the appellant nor her adviser took issue with the Tribunal’s reasons for not calling the witnesses, which were given in the course of the hearing.

66    The Tribunal’s finding that the appellant engaged in the activities in Australia for the purpose of strengthening her claim to be a refugee, and its finding that those activities were unlikely to have come to the attention of the Chinese authorities, were not inconsistent with the Tribunal’s acceptance of the evidence in the witness statements concerning the appellant’s attendance at Falun Gong events in Australia. Nor was it inconsistent with an acceptance of the belief expressed in Pei Yi Dong’s statement, or the opinion or belief expressed in Hou Jing’s statement.

67    The Tribunal could have accepted that Pei Yi Dong honestly believed that the appellant was a genuine Falun Gong practitioner, and yet still find that the appellant had attended the Falun Gong activities in Australia to strengthen her case for a protection visa. The factual question for the Tribunal was what the appellant’s motive for attending the events in Australia was, not what one of her witnesses believed the appellant’s motive was. The Tribunal was not obliged to obtain further oral evidence in respect of the basis of Pei Yi Dong’s belief concerning the genuineness of the appellant’s involvement in the activities, or otherwise speculate about what additional evidence the witness might have been able to give on that topic. It would have been open to the Tribunal to form the view, particularly in light of the other factual findings made by it, that there was nothing to be gained by further exploring that issue.

68    Likewise, the Tribunal could have accepted that Hou Jing genuinely believed that the appellant’s involvement in Falun Gong activities in Australia was such that the Chinese authorities must be aware of her “profile”, and yet still find that the appellant’s activities were not likely to have come to the attention of the Chinese authorities. The question for the Tribunal was whether the appellant’s Falun Gong related activities in Australia were likely to have come to the attention of the Chinese authorities, not what one of her witnesses believed to be the case in that regard. The Tribunal was not obliged to obtain further oral evidence in respect of the basis of Hou Jing’s belief or opinion about the appellant’s profile and the likelihood that it would have come to the attention of the Chinese authorities, or otherwise speculate about what additional evidence the witness might have been able to give on that topic. It would have been open to the Tribunal to form the view that there was nothing to be gained from further exploring that issue in oral evidence.

69    While the Tribunal did not expressly refer in its reasons to Pei Yi Dong’s statement of belief that the appellant was a genuine practitioner, or Hou Jing’s statement of belief or opinion about the appellant’s profile, it does not follow that the Tribunal did not have regard to those matters and give them such weight as they deserved. The Tribunal stated that it had regard to the statements of the two witnesses. There is no reason to doubt that the Tribunal did have regard to the statements. The expressions of belief or opinion in the statements were not of such apparent weight or cogency that it might be expected that the Tribunal would have referred to them in its reasons.

70    It follows that, contrary to the appellant’s submissions, there is no basis to conclude that the Tribunal either did not read, or did not understand or appreciate, or misconceived, the scope and potential relevance of the evidence of the witnesses. All the indications are that the Tribunal had not only read the statements, but well understood the scope and potential relevance of the evidence in the statements. All indications are that the Tribunal gave real and genuine consideration to the appellant’s wishes, but formed the view that there was nothing to be gained from calling oral evidence from the witnesses. The Tribunal accordingly did not breach or fail to comply with s 246(3).

71    Even if, contrary to this conclusion, it could be inferred that the Tribunal did not fully appreciate, or otherwise misconceived the nature and scope of the witness statements, it would not necessarily follow that the Tribunal failed to give real and meaningful consideration to the appellant’s wishes. The Tribunal may well have given real and meaningful consideration to the appellant’s wishes, reflected in the witness statements, but simply overlooked, or mistaken the import of, the very short passages in them that went beyond the witness’s evidence that the appellant engaged in Falun Gong activities in Australia. That would be hardly surprising given that the passages were simply statements of belief or opinion based on what the witnesses otherwise described in the statements in relation to the appellant’s involvement in Falun Gong activities in Australia. The significance and evidentiary weight of the expressions of belief or opinion was hardly self-evident.

72    It is perhaps possible to imagine a case where the Tribunal’s consideration of the applicant’s request to call oral evidence from a witness would be vitiated by the Tribunal’s serious misconception of the nature and relevance of the evidence of the witness. In this case, however, even if it could be concluded there was a misconception by the Tribunal, it was by no means a significant or serious misconception, such that it could be concluded that the Tribunal had not given the appellant’s wishes real or meaningful consideration.

Was the decision not to call oral evidence unreasonable?

73    The appellant’s contention that the Tribunal’s decision not to call oral evidence from the witnesses was legally unreasonable must also be rejected for essentially the same reasons. The Tribunal’s decision not to take oral evidence from the appellant’s three witnesses, for the reason it gave, was not unreasonable in any case.

74    It is unnecessary in the circumstances to discuss in any detail the concept of legal unreasonableness. The concept was given detailed consideration by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and by the Full Court of this Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; and Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158. The concept is not amenable to minute and rigidly-defined categorisation or a precise textual formulary: Stretton at 3 [2], 5 [10] (Allsop CJ), 19-20 [62] (Griffiths J) and 29 [91] (Wigney J); Eden at 172 [65].

75    There could be no doubt that legal reasonableness, or the absence of legal unreasonableness, was an essential element in the lawful exercise by the Tribunal of its power under s 426(3) to decline to call oral evidence from a witness when requested to do so by an applicant. The task of determining whether the Tribunal’s decision not to call oral evidence from the witnesses was legally unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the power in s 426(3) and the common law principles concerning reasonableness in decision-making: cf. Stretton at 4-5 [7], 5-6 [11] (Allsop CJ); Eden at 171-172 [63]. Because the Tribunal gave reasons, albeit fairly short reasons, for not calling oral evidence, the reasons provide the focus for the evaluation: Singh at 446-447 [45]-[47]; Eden at 172 [64]. While there is no precise test, as it were, for legal unreasonableness, expressions that have been utilised to describe legally unreasonable decisions include “plainly unjust”, “arbitrary”, “capricious”, “irrational” , “lacking in evident or intelligible justification” and “obviously disproportionate”.

76    The Tribunal’s decision to decline to take oral evidence from the appellant’s witnesses fits none of those descriptions. Nor is there any basis to conclude that the outcome of the Tribunal’s decision was in any sense unreasonable having regard to the subject matter, scope and purpose of s 426(3) of the Migration Act. As discussed earlier, a review by the Tribunal is inquisitorial, not adversarial. It is up to the Tribunal to determine how and in what circumstances it takes evidence for the purposes of the review, though it would appear that the process is intended to be predominantly documentary. The Tribunal’s objective is to provide a mechanism for review that is fair, just, economical, informal and quick. The evident purpose of s 426, considered in context, is to provide for the taking of oral evidence where the provision of evidence in a written or documentary form is for some reason inadequate or unsatisfactory. It is plain from the text of s 426(3) that, while the Tribunal is required to have regard to the applicant’s wishes, it is not required to take the evidence from the witness orally.

77    The Tribunal had regard to the witness statements provided by two of the three witnesses. It may also be inferred from what transpired at the hearing that the Tribunal had regard to what was stated in the appellant’s s 426(2) notice concerning the evidence to be given by each of the three witnesses. It is readily apparent that the Tribunal considered that it was unnecessary to take oral evidence from the witnesses because the Tribunal accepted their evidence concerning the appellant’s Falun Gong related activities in Australia. The Tribunal did not, and did not have any reason to, reach the view that the evidence in written form was inadequate or unsatisfactory for any reason and that oral evidence should therefore be taken. There was therefore an evident and intelligible justification for the decision. While it could perhaps be said that different decision-makers may have formed a different view (though even that is doubtful), or taken a different approach, the Tribunal’s decision was at the very least within the area of “decisional freedom” in relation to the exercise of the power under s 426(3): cf. Li at 351 [29] (French CJ), 363 [66] (Hayne, Kiefel and Bell JJ). While reasonable minds might have differed as to the correct decision or outcome in the circumstances, the decision was within the bounds of legal reasonableness and within the range of possible lawful outcomes of the exercise of the power.

78    The appellant’s contention that the decision was legally unreasonable was based on the premise that the Tribunal either had not read the statements, or misconceived the nature and scope of the evidence in the statements. For the reasons already given, that is a false premise. There is no basis for an inference that the Tribunal either did not read the witness statements, or read them but misunderstood the nature and scope of the evidence in them. The appellant’s submissions concerning legal unreasonableness tended to overstate the significance of the passages in the witness statements that contained the witness’s beliefs or opinions. The appellant contended that the statements went “much further” than what the Tribunal accepted: that the appellant attended various Falun Gong activities in Australia. That contention is at best doubtful. The stated beliefs or opinions of the witnesses could not have been based on anything more than the fact that they observed the appellant attend various Falun Gong related activities in Australia. The statements of belief or opinion could not have risen much higher than the evidence of what the witnesses in fact observed, which the Tribunal accepted.

79    The appellant’s submissions also tended to suggest that there was some obligation on the part of the Tribunal to further explore the contents of the witness statements by taking oral evidence from the witnesses. That is not correct. The Tribunal was entitled to approach the appellant’s request for oral evidence to be taken on the basis that their evidence would be what was stated in the s 426(2) notice and what was in their witness statements. The Tribunal was not obliged to speculate that further or different evidence could be obtained from the witnesses if the evidence in the written statements was further explored in the course of oral evidence. The beliefs or opinions of the two witnesses were not matters about which the Tribunal was obliged to conduct further inquiries: cf. Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15.

80    Finally, the appellant contended that the circumstances of the appellant’s case were comparable in some way with the circumstances considered in CZBH. It followed, in the appellant’s submission, that the Tribunal’s decision in the appellant’s case should also be held to be legally unreasonable. That submission has no merit. The circumstances of this case are not comparable in any relevant sense to the circumstances considered in CZBH. In any event, the evaluation of whether a decision is legally unreasonable is invariably fact dependent and requires careful consideration of the particular facts and circumstances of the case. Previous cases involving legal unreasonableness should not be approached as if they provide some kind of “factual checklist to be followed and applied in determining whether there has been a legally unreasonable exercise of a discretionary power”: Singh at 445 [42].

Criticisms of the primary judge’s reasoning

81    The findings that the Tribunal gave the appellant’s wishes real and genuine consideration, and that the decision not to obtain evidence was not legally unreasonable, are sufficient to dispose of the appeal. The appellant’s criticisms of the primary judge’s reasons should nevertheless be briefly considered. In short, those criticisms have no merit.

82    First, the appellant criticised the primary judge’s statement (at [68]) that “at no stage during that exchange [the exchange following the presentation of the appellant’s evidence] did the applicant’s migration agent revisit the applicant’s request for the RRT to take evidence from the applicant’s witnesses”. The appellant contended that this amounted to a finding by the primary judge that the appellant had abandoned her request for the Tribunal to call the witnesses. That is not a fair characterisation of what the primary judge said at [68], which was simply an accurate statement of what occurred at the Tribunal hearing. The Tribunal did not find that the appellant had abandoned her request. Nevertheless, the fact remained that neither the appellant nor her adviser said anything of relevance when the Tribunal informed them that it accepted that the appellant had been participating in Falun Gong activities in Australia and therefore did not need to take oral evidence from the witnesses. The fact that neither the appellant nor her adviser further pressed the appellant’s request to obtain oral evidence from the witnesses at that stage was plainly relevant to the question whether the Tribunal gave real and genuine consideration to the appellant’s witnesses.

83    Second, the appellant criticised the primary judge’s statement (at [69]) that the “belief of the witnesses as to what may happen to the applicant in China was of so little weight, such that the RRT was not bound to have regard to those statements”. The appellant appeared to contend that this “merit based” assessment of the evidence in the witness statements was erroneous. That criticism of the primary judge’s reasoning has no merit. The value or weight of the evidence that a witness was able to give may well be a relevant consideration for the Tribunal in deciding whether or not to obtain evidence orally from that witness. Where the value or weight of the evidence would, in all the circumstances, be very low, even if the evidence was accepted in its entirety, it would not be unreasonable or irrational in any sense for the Tribunal to decline to obtain oral evidence from the witness. It would have been open to the Tribunal in this matter to form that view in relation to the evidence of Pei Yi Dong and Hou Jing concerning their beliefs about the appellant’s practice of Falun Gong. That said, the Tribunal did not expressly state that it declined to take oral evidence from the witnesses on that basis.

84    As noted earlier, those two criticisms of the Tribunal’s reasons did not feature at all in the appellant’s oral submissions. They were also only faintly touched on in the appellant’s written submissions. In any event, they have no merit.

85    Finally, the appellant’s ground of appeal and written submissions assert in general terms that the failure by the Tribunal to call the appellant’s witnesses amounted to a denial of procedural fairness and a breach of s 425 of the Migration Act. As noted earlier, however, at the hearing the appellant conceded through her counsel that her contention that she was denied procedural fairness, and that the Tribunal breached s 425, rose or fell on the contention that the Tribunal breached or failed to comply with s 426(3). For the reasons already given, the Tribunal did not breach or fail to comply with s 426(3). There was accordingly no breach of s 425 and no denial of procedural fairness as alleged.

Disposition

86    The appellant has not demonstrated that the primary judge erred in rejecting the contention that the Tribunal breached or failed to comply with s 426 of the Migration Act. The primary judge was correct to reject that contention. The appeal must accordingly be dismissed with costs.

Associate:

Dated:    22 December 2016