FEDERAL COURT OF AUSTRALIA
AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
2. The appellant pay the first respondent’s costs of and incidental to the appeal, to be fixed in a lump sum.
3. If the parties agree on a lump figure in relation to the first respondent’s costs, they are to file a joint minute of proposed orders on or before 4 pm on 9 July 2018.
4. In the absence of any joint minute of proposed orders, pursuant to paragraph 3 of these orders:
(a) on or before 4 pm on 16 July 2018, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS) dated 25 October 2016.
(b) on or before 4 pm on 23 July 2018, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).
5. In the absence of any agreement having been reached on or before 30 July 2018, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
TRACEY AND MORTIMER JJ:
1 The appellant appeals from orders of the Federal Circuit Court dismissing his application for judicial review of a decision by the second respondent, the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant the appellant a protection visa.
2 The two grounds of appeal set out in the appellant’s notice of appeal filed on 5 October 2017 reflect the grounds of judicial review advanced before the Federal Circuit Court. In that sense, the error identified by the appellant in the decision of the Federal Circuit Court is a failure to accept the arguments put on judicial review about the Tribunal’s exercise of power.
3 The appellant challenges an exercise of discretionary power by the Tribunal concerning a decision not to take evidence from witnesses, where the appellant had requested that evidence be taken. The discretionary power was said by the appellant to be located in ss 426(2) and (3) of the Migration Act 1958 (Cth). The appellant’s challenge has two different legal bases:
(a) the Tribunal failed to give real and genuine consideration to the appellant’s request to obtain oral evidence from the two nominated witnesses; and
(b) in deciding to refuse the appellant’s request, the Tribunal exercised the power in a way which should be characterised as legally unreasonable.
4 We consider the appeal should be dismissed. As we explain below, although the timing of the Tribunal’s decision about whether or not to call a witness could be critical to the view it reaches about the exercise of the discretion to call suggested witnesses, the legislative scheme is not prescriptive about when the discretion is to be exercised. Here, the Tribunal waited until after the review hearing, and (we have inferred) decided, at a time where it had already expressed some substantially adverse views of the credibility of the appellant during the hearing, not to take evidence from the suggested witnesses. Although the timing of its decision on the suggested witnesses meant it was much more likely the request would be refused, that does not lead to the exercise of the discretion being affected by either of the legal errors identified by the appellant.
Background
The appellant’s circumstances
5 The appellant was found by the Tribunal to be a citizen of Turkey, and was accepted by the Tribunal to be of Kurdish and Alevi ethnicity. As the appellant’s submissions summarised, before the Tribunal, the appellant’s claim for protection identified several bases:
his religion, being either of Alevi or Christian faith (or both) and having criticised Islam in the past;
his ethnicity, being Kurdish and Alevi;
his political opinion (being opposed to the Turkish government and President Erdogan); and
because he would return to Turkey as a failed asylum seeker.
6 The Minister submitted, correctly, that the appellant’s claims were of a much narrower compass at his arrival interview, and widened in the lodging of his protection visa application, and then widened again on review before the Tribunal. The Minister submitted, and it is clear, that the Tribunal’s reasons disclose this was one of the factors contributing to the adverse view of the appellant’s credibility ultimately taken by the Tribunal. It is no part of the grounds of appeal that it was not open to the Tribunal to take this course, and we say no more about it.
7 A key aspect of the appellant’s claims as put to the delegate was that he attended a protest in Gezi Park in May 2013. The Gezi Park protests were, the delegate accepted, widely reported and a significant event in Turkish politics at the time. The delegate quoted from an Amnesty International report which described the protests:
On 30 May police in Istanbul broke up a small demonstration by several hundred environmentalists, using teargas, beating protestors and burning their tents. The cause of the protestors and the abusive response of the authorities touched a nerve. Within days, tens of thousands of protestors had taken to the streets across the main cities of Turkey. By the middle of June hundreds of thousands had taken part in “Gezi Park protests” that spanned almost every one of Turkey’s 81 provinces.
8 The delegate described the appellant’s claim about his attendance at the protest, in the following terms:
The applicant stated that on the morning of 28 May 2013, he went to Gezi park with seven others, arriving around 730am to 8am. He was motivated to go, because the (opposition) Alevi party leader of The Republican People’s Party (Turkish; Cumhuriyet Halk Partisi, CHP), [redacted] sent telephone and text messages to all supporters to protest the Sunni plan to build a Mosque in Gezi Park, which was the only green area around. He carried a placard calling for (Prime Minister) Erdoğan to resign.
9 It is not necessary for the purposes of the appeal to set out the detail of the appellant’s claims before the delegate, nor the delegate’s findings. Ultimately the delegate rejected the appellant’s claims. The delegate’s specific findings need only be addressed in one respect. At the start of the delegate’s findings, the following findings are made:
I accept that the applicant may have attended protests in Gezi Park sometime in 2013 along with an estimated 3.5 million other Turkish nationals. The applicant did not convince that he is politically active nor a political activist nor a member of any left-wing political party. He denied having an interest in, or belonging to any environmental groups which were the first present at Gezi Park.
I do not accept that he attended Gezi Park on 28 May 2013 for reasons already stated.
10 The significance of this passage is that the delegate made a finding favourable to the appellant that he did attend the Gezi Park demonstration. Accordingly, if the Tribunal departed from this finding by the delegate without informing the appellant that it might consider doing so, this is likely to have constituted a denial of procedural fairness: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [35]. The Tribunal gave the appellant no such notice, and the review was accordingly conducted on the basis that the fact of the appellant’s attendance at the Gezi Park protests was not in issue before the Tribunal.
The appellant’s request to obtain oral evidence from two witnesses
11 The appellant sought review of the delegate’s decision in the Tribunal on 24 August 2016. The application form indicates he was in immigration detention in Western Australia when he made the application for review. The form indicates, and it is not disputed, that he was not represented during the review. It appears he was represented, to some extent, by a migration agent before the delegate, but had been in immigration detention since his entry to Australia.
12 On 8 September 2016, the Tribunal issued a hearing invitation through a letter to the appellant. That letter enclosed two other documents: a leaflet entitled “Information about hearings – MR Division” and another called “Response to hearing invitation – MR Division”.
13 The Administrative Appeals Tribunal letter stated, about this second document:
Please read and complete the enclosed ‘Response to hearing invitation - MR Division’ form to confirm your attendance at the hearing. Please use this form or attach additional information if you have any requests or any new information which you wish us to consider. Any documents or written arguments sent to us should be in English or be translated by a qualified translator.
14 The appellant filled out the “Response to Hearing Invitation” form as requested. After a section about who was to take part in the hearing (the appellant indicated only he would) and what language the appellant spoke and whether an interpreter was required (the appellant answered Turkish and “yes” respectively), the form contained a section headed “Witnesses”. This part of the form, as filled out by the appellant in handwriting (which we have indicated by using italics) was as follows:
Witness 1
Full name: [Redacted]
Relationship to you (e.g. spouse, partner, mother, father, brother, sister, employer, social worker etc.): Fryend Friend
Address: Turkey Istanbul – they have moved address
If this witness cannot attend the hearing in person, please provide his/her telephone number: [Redacted] (We will contact the witness on this number during the hearing if necessary)
Describe this person’s evidence and how it is relevant to your case: He knows everything about my case
Witness 2
Full name: [Redacted]
Relationship to you (e.g. spouse, partner, mother, father, brother, sister, employer, social worker etc.): Friend
Address: Turkey – Istanbul – they have moved address
If this witness cannot attend the hearing in person, please provide his/her telephone number: [Redacted]
(We will contact the witness on this number during the hearing if necessary)
Describe this person’s evidence and how it is relevant to your case: He knows everything about my case
15 The Tribunal then had to reschedule the hearing and the appellant was advised of this. The hearing was rescheduled for 13 October 2016, by video link to Yongah Hill Immigration Detention Centre where the appellant was detained. The Tribunal member and interpreter were in Perth.
16 When a new hearing invitation for the rescheduled date was sent to the appellant, the information in the first hearing invitation was repeated and it appears the same two documents were sent again to him. He was asked in the letter (which is clearly standard form) to fill in the “Response to Hearing Invitation” form again, which he did. On the second occasion he filled it in slightly differently, although the differences are not material to the outcome of the appeal, nor to the arguments made:
Witness 1
Full name: [Redacted] (friend)
Relationship to you (e.g. spouse, partner, mother, father, brother, sister, employer, social worker etc.):
Address: Istanbul Turkey – have moved address
If this witness cannot attend the hearing in person, please provide his/her telephone number: [Redacted] (We will contact the witness on this number during the hearing if necessary)
Describe this person’s evidence and how it is relevant to your case: He knows everything about my case
Witness 2
Full name: [Redacted]
Relationship to you (e.g. spouse, partner, mother, father, brother, sister, employer, social worker etc.): Friend
Address: Istanbul – Turkey
If this witness cannot attend the hearing in person, please provide his/her telephone number: [Redacted] (We will contact the witness on this number during the hearing if necessary)
Describe this person’s evidence and how it is relevant to your case: He knows everything about my case
17 It should be noted that, contrary to the Migration Act, this form presupposes that the only method by which the Tribunal is able to, or will, contact a suggested witness, is telephone. As we set out below, s 429A empowers the Tribunal to take evidence from witnesses through any method of communication it chooses.
18 In the Appeal Book is a document entitled “MRD Hearing Record” which lists the appellant and each of his witnesses, with their respective telephone numbers, as “In attendance”.
19 The Tribunal Member completed in handwriting the third page of that hearing record, showing the start time (9.30 am WAST) and finish time (12.40 pm WAST) and ticking a box that a written statement of reasons will be prepared after the hearing.
20 The Court has before it a transcript of the Tribunal hearing. It is necessary to focus only on those parts of the transcript about the appellant’s proposed witnesses. Not long after the start of the hearing the following exchange occurred:
INTERPRETER: Is it possible to call the witnesses who are in Turkey at the moment?
MEMBER: Well, I was going to ask you about those. Why do you want me to talk to those two people?
INTERPRETER: They are the two witnesses that know everything in detail. One of them is an engineer and one of them is an officer in charge at this (Indistinct) house building construction company.
MEMBER: And what are they likely to tell me?
INTERPRETER: What happened – they are going to tell you what I had encountered during this Gezi Park incident and how long I was hiding and where I was hiding after the incident and that Christians and Armanians and Alavies, they are not wanted in Turkey at the moment and this dispute is accelerating in Turkey and all TV stations, all TVs are now switched off or they are banned to broadcast at this moment in Turkey. This is what they are going to tell us.
MEMBER: Well, Mr [redacted], the tribunal decides what witnesses it will hear. As far as your claims that these two people will give me information about the circumstances in Turkey, I don’t take advice from people that I don’t know. I have no idea who these people are, they could be anyone. I have independent country information here from the Department of Foreign Affairs and Trade and I will rely on that to get other sources of information about what’s going on in Turkey.
I’m not telling you that I won’t speak to them, but if I do think it’s necessary I’ll speak to them towards the end of the hearing. But my very big problem is that I have no idea who I’m talking to, it’s just a voice at the other end of the phone. You could have got them to put something in writing that I then could have checked, so I’m very uncomfortable talking to people that I don’t know who I’m talking to.
INTERPRETER: This was my case manager’s suggestion. The case manager has asked me if I had any witnesses so that the Member can talk to them, and I said yes. So I have got nothing to do with that decision.
MEMBER: Sure. Yes. Well, let’s move on and if I decide I would have some benefit from speaking to them, I will call them. But I want to now move on and ask you some more questions please.
21 The Tribunal later took a short adjournment during the hearing. On return from that adjournment, the following exchange occurred:
MEMBER: Mr [redacted], are you okay to continue now?
INTERPRETER: Sure, we can, sir.
MEMBER: Madam Interpreter, okay to continue?
INTERPRETER: Thanks, sir. Yes, I am ready.
MEMBER: Yes, good. Mr [redacted], what I usually do after we’ve had a short break is just invite the applicant, you, to tell me if there’s anything you want to say before I continue asking my questions.
INTERPRETER: Are we going to call the witnesses?
MEMBER: No, I don’t plan to call the witnesses at this stage. I want to ask you some more questions.
INTERPRETER: Sure, Member.
22 At the end of the hearing the transcript records the following:
Mr [redacted], I am going to end this hearing now. I’ll just end it by reference to the two people that you wanted me to contact by telephone. I don’t plan to contact them. I’ll go through all the information after this hearing, and if I decide that I need some more information, then we might have another hearing, and I might contact them, but I don’t necessarily have to contact them to make a decision.
INTERPRETER: They are not normal human beings, one of them is an engineer and the other one is an officer in charge.
MEMBER: My statement stands. I will not contact them now. If I decide that I need to contact them, we will have another hearing and I’ll contact them while you can hear what I say or what they say to me.
23 Thus, the way the Tribunal left the matter when it adjourned the review hearing was that it had not made a final decision on whether or not it would hear from the appellant’s suggested witnesses. Counsel for the appellant did not submit the Tribunal should not be believed in what it said in this passage of the transcript. The Tribunal had made it clear to the appellant that if it decided to take evidence from the witnesses, a further hearing would be convened.
24 The Minister invited the Court to examine the transcript in some detail to appreciate the way in which the Tribunal expressed an increasingly negative attitude to the appellant’s credibility, on the basis of the appellant’s evidence. It is not necessary to set out the transcript in detail to reach that conclusion. It is apparent from the Tribunal’s account of the hearing in its reasons, as well as the transcript, that is what occurred. We accept this fact contributes to the explanation of the course taken by the Tribunal concerning the appellant’s suggested witnesses.
THE TRIBUNAL’S DECISION
25 It is necessary only to deal with those parts of the Tribunal’s reasoning that can be seen as relevant to the grounds of appeal.
26 The Tribunal records the appellant’s account of what he said happened to him at Gezi Park in the following terms:
He said they went to Gezi Park early in the morning, at around 8 o’clock. He said he was taking pictures of the demonstrators and of the police burning their tents. He said he was shooting the video so he could take it to the EU Human Rights Commission. The Tribunal put it to the applicant that it appeared he did not tell the Department prior to this that he had been filming the activities of the police at the demonstration. He said he could not recall this before.
…
He said the policeman had a dog and he did not know if the policeman was going to shoot him. The police told him to stop filming but the applicant ignored the request.
27 The Tribunal set out what it described as the “essence” of the appellant’s claims at [41]:
The essence of the applicant’s refugee protection claims is that he fears he will be arrested and detained by the Turkish authorities who are loyal to the current President. He claims this will occur because of the applicant’s political activities and political opinion which is in opposition to the current President and governing regime. He has also made a further claim that he will be seriously harms for reasons of being Alevi Kurd and a Christian.
28 The Tribunal rejected the appellant’s claim to fear harm because of his political activities or opinion (in part based on his participation in the Gezi demonstration) by the following findings:
42. The applicant claimed that he attended a demonstration at Gezi Park Istanbul on 27 June 2013. The Tribunal accepts country information confirms that protests did occur at Gezi Park around that time and confirms that some Kurdish groups were prominent in supporting those protests. The applicant’s claim in respect of his attendance at the protests is consistent and credible. However, the Tribunal finds the applicant failed to refer to his claimed Gezi Park activities at his first interview with the Department on 3 November 2015. While he mentioned this to the delegate at the PV interview, it appears he failed to mention that he was filming the demonstration and that he was chased and then detained by police because he failed to stop filming. The Tribunal found the late addition of this claim to his claims overall to give rise to serious doubts as to their credibility. It considers this omission to mention at the first interview, and at the PV interview, that he was filming the demonstration undermines the credibility of that claim. The Tribunal finds the applicant has in fact embellished his claims for the purpose of the application for the visa. It does not accept the applicant in fact filmed the demonstration, or that he was singled out for detention or arrest as he claims. While it accepts the applicant may have attended the demonstration, together with many thousands of other people, it does not accept that he was a leader, or an organiser in any way. Nor does it accept on the evidence before it that he was identified as a critic or opponent of the government or that he was arrested, detained, or harmed in any way.
43. The Tribunal has reached this conclusion having regard to all the evidence, and in particular the evidence that the applicant delayed his departure from Turkey for some 29 months in circumstances where he claims he faced serious harm. Further, this delay occurred in circumstances where the applicant actually claimed he was unable to afford to leave, while at the same time saying his friends were well off (rich, then not rich) and lent him money. The Tribunal found the applicant’s evidence on the delay in departing Turkey in his claimed circumstances seriously undermines his claims that he feared harm, or that he faces serious harm were he to return to Turkey now or in the reasonably foreseeable future.
44. The Tribunal considered the applicant’s claim where he asserts he was arrested and detained for 6 days and then released. He then also claimed that one day after his release an arrest warrant was re-issued but that he had fled to Tuzla by that stage and that he remained there for about 20 months. The Tribunal found the applicant’s account of this scenario as lacking credibility. First, it appears to make little sense that the authorities would release the applicant from arrest if he was in fact considered a person of ongoing interest, only to have an arrest warrant re-issued the day after his release. Further, the Tribunal finds his evidence that he simply relocated to Tuzla, a suburb of Istanbul where he was able to remain for 20 months without apparent detection or detention and harm, further suggest the applicant is not a person of interest to the Turkish authorities. Based on the evidence before it, the Tribunal does not accept the applicant was arrested and detained for 6 days, or that an arrest warrant was subsequently reissued. The Tribunal notes the applicant has been unable to provide any documents to corroborate his claimed arrest, and while the Tribunal accepts that it will not always be possible for an applicant to obtain corroborating documents, at other times it might be reasonable to obtain such documents. In this case, the Tribunal places some weight on the fact that in his circumstances he was unable to provide any documentary evidence to support his claimed arrest and detention.
….
46. At the hearing, the Tribunal referred the applicant to country information indicating that there were thousands of people at the Gezi Park protest and asked the applicant why he in particular would be targeted at the time, or in the future, because of his claimed involvement. The Tribunal considered his reply to this question, which was that many of the demonstrators fled the country and those who did not leave were executed. The Tribunal asked the applicant for detail as to his role in the Gezi Park demonstration and found his description of his role to be somewhat vague and lacking the detail it would expect he would recite if he in fact had an active role that might have attracted the attention of the Turkish authorities. In particular, he talked of it as being “kind of a strike” and that it was in opposition to the President Erdogan, and that he went there early in the morning. He then said that he was taking pictures of the demonstrators and of the police burning their tents because he was planning to take the film to the EU Human Rights Commission. However, as put to the applicant at the hearing, it appeared his claim to be filming the events was a late addition to his evidence. In the circumstances of this case, the Tribunal does not accept that a significant activity such as filming a demonstration in the particular context would have been omitted for lack of recall.
47. The Tribunal accept the applicant’s claim that the Gezi Park demonstration attracted television coverage and reporters. The applicant named three journalists from the television stations who were reporting on the demonstration. However, the Tribunal does not accept the fact that a demonstration was reported by television gives rise, of itself or in combination with all the other circumstances, to a real chance that the applicant faces serious harm now or in the reasonably foreseeable future in Turkey.
48. The Tribunal accepts the applicant’s claim that the police carried out activities to disperse the crowd at the demonstration. The relevant country information confirms this. However, having regard to all of the evidence, the Tribunal does not accept the applicant was involved in any significant way in the demonstration, or was targeted for arrest, or that he was even caught up in the arrests of ordinary demonstrators. It does not accept his claim that he was filming and that a policeman started chasing him. Having regard to all the evidence, and to its assessment of the applicant as an unreliable witness, the Tribunal does not accept he was holding a poster which said “Erdogan Resign” and that he was therefore targeted for arrest.
49. The Tribunal considered the applicant’s claim that he is an Alevi Kurd and that he always attended Republican People’s Party activities. He also referred to [redacted] as its leader. As put to the applicant at the hearing, the Tribunal noted the applicant had not raised this claim before the delegate and it was concerned this later addition may have been a fabrication. In response the applicant referred to receiving the delegate’s decision record and that he tore that up. Having regard to all the evidence, the Tribunal does not accept the applicant attended activities of the Republican People’s Party as claimed, or that he would be targeted for harm now or in the reasonably foreseeable future in Turkey for reasons of his activities with that entity context.
50. The applicant claimed he was detained for the six days after his involvement in the Gezi Park demonstration, then taken to court and charged with taking part in the demonstration. The Tribunal notes his claim that he does not have documents to prove this and this claim that his wife went to court to get some documents as evidence. However, as it does not accept the applicant was in fact arrested, it does not accept that he was taken to court or charged as he claims.
29 In the middle of this reasoning (at [45]) is the Tribunal’s explanation for not acceding to the request to call the two witnesses. The Minister places some emphasis on the fact that the Tribunal’s reasons appear in the middle of what are, on any view, extensive findings adverse to the credibility of the appellant on all of his claims.
30 Aside from [45], there is another passage in the Tribunal’s reasons where it deals with the appellant’s request that it hear evidence from the two nominated witnesses in Turkey.
31 At [7] the Tribunal stated:
At the Tribunal hearing held on 13 October 2016, the applicant began his oral evidence by saying he is a secular person and he applies for protection as a secular human being. He told the Tribunal that his two nominated witnesses would tell the Tribunal what he encountered at Gezi Park, how long he had been in hiding, and where he was hiding, and that Christians and the Alevis are not wanted in Turkey. He said they could also give other information such as broadcast channels being censored in Turkey. The Tribunal advised the applicant that it would rely on its own independent country information rather than take evidence from a person or persons it would not be able to identify.
32 Then at [45], the Tribunal stated, in the findings section of its reasons:
The Tribunal considered the applicant’s claim that he was able to nominate two witnesses currently in Turkey and would tell the Tribunal what he encountered at Gezi Park, how long and where he had been in hiding, and that Christians and the Alevis are not wanted in Turkey. He offered that they could give a range of country information as well. The Tribunal declined the offer to take oral evidence over the telephone from the two nominated witnesses. It considered they would add little to the applicant’s claim that he attended Gezi Park, which the Tribunal accepts. It also considered it would be unlikely to place weight on their evidence as it would not be able to verify their identity or their evidence. As explained to the applicant at the hearing, insofar as country information is concerned, the Tribunal prefers to rely on country information from independent sources such as the sources cited in this decision record.
33 The remainder of the Tribunal’s reasons after [50] is taken up with its findings and reasons for rejecting the remaining bases of the appellant’s claims, and need not be set out here. Suffice to say there were adverse findings about the reliability and credibility of the appellant’s evidence throughout the Tribunal’s reasons.
THE FEDERAL CIRCUIT COURT’S DECISION
34 The Federal Circuit Court referred to the Full Court decision of Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118; 88 ALD 304. As the Court noted, the discretion in issue in that case was contained in s 361(3) of the Migration Act and related to the Migration Review Tribunal. The Pt 7 provision is in a different form, but there was no dispute on this appeal, correctly in our view, that the principles set out by the Full Court applied to the nature of the task in s 426(2) and (3). We return to Maltsin below. The Federal Circuit Court also dealt with the case of W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211; 124 FCR 449, on which the appellant relied before this Court. On the second ground, his Honour referred to Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 and Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158.
35 There is no debate that on both grounds his Honour addressed the relevant principles and authorities.
36 At [33], the Federal Circuit Court set to one side the Tribunal’s observation about the difficulty in establishing the identity of the witnesses. It was correct to do so: there are often likely to be issues about the reliability of the identity of a witness, especially if the Tribunal only hears from the person by telephone. The prospect of such issues arising is inherent in the process established by the Act and is not, in itself, sufficient justification to refuse to hear from a person or persons an applicant has nominated as a witness.
37 After setting out the relevant principles, the parties’ competing arguments, and the Tribunal’s reasons, the Federal Circuit Court concluded on the first ground (at [37], [39] [40]-[42]):
37. Did that consideration amount to a real and genuine consideration of the applicant’s request to adduce evidence from two nominated witnesses? In my view it did.
…
39. Ms Lucas contended that the Tribunal correctly concluded that the version of events given by the applicant was lacking in the detail it would have expected the applicant to have recited if in fact the applicant had an active role attracting the attention of the authorities. Bearing in mind that the Tribunal found the applicant’s evidence to have been vague and lacking in detail it could not be said that the outcome before the Tribunal would have changed if the named witnesses had been permitted to give evidence. After all, the Tribunal took the view that the applicant’s own evidence was vague and that it lacked detail. Other witnesses may have filled in certain details that were missing from the applicant’s evidence. But the applicant’s own evidence was not thereby enhanced. The evidence from the two named witnesses may have rendered more probable the occurrence of a particular event but the Tribunal’s state of satisfaction based on the applicant’s own evidence would have remained unchanged. Put simply, the Tribunal was not persuaded that the applicant’s own evidence was anything but vague and lacking in detail. But in any event, it seemed to me to be off topic to be considering whether the evidence of the two other witnesses may have rendered more probable the occurrence of a particular event. An application for a visa is not equivalent to a court case. Rules of evidence do not apply to a visa application. Issues about the burden of proof do not apply. Questions about proving a fact with corroborative evidence do not apply In this field of administrative law the relevant issue is whether the applicant has demonstrated to the satisfaction of the delegate or the Tribunal that the visa applicant has met the criteria for the grant of the relevant visa. It is not to the point that the visa applicant takes the view that when the totality of his material is assessed, he satisfies the relevant criteria for the grant of the visa. Nor is it to the point that the visa applicant believes that on the balance of probabilities he or she has adduced sufficient evidence to warrant the grant of a visa. Questions of evidence, weight of evidence, sufficiency of evidence and the like are ordinarily not germane to whether an applicant has satisfied the criteria for the grant of the visa.
40. Returning to the narrative, it was necessary for me to address whether the evidence of the two nominated witnesses was “potentially of high relevance to the applicant’s claims” as the applicant said. In my view that submission was an overstatement of the position. I agree that if it had been received at all, the evidence of the two nominated witnesses may have informed the Tribunal about certain events. The applicant failed to demonstrate the veracity of his claim. Additional evidence of whatsoever nature was wasted because the applicant remained in the position that the Tribunal did not accept his claim. In other words, the Tribunal was not satisfied that the applicant had made out his claim and therefore there was no claim to corroborate.
41. When properly understood, it seemed to me that the applicant’s contentions about ground 1 amounted to the propositions that –
a) an applicant should be permitted to put before the Tribunal a body of material from sources of his own choosing showing that in total, that material had satisfied the Tribunal that the applicant met the prescribed criteria for the grant of a visa; and
b) it was legally unreasonable to not permit the applicant to call such evidence as he chose.
42. I reject that proposition. It flies in the face of the express statutory provision in s 426(3) of the Act that provides that the Tribunal is not required to obtain evidence from a person of the applicant’s nomination. It would be a peculiar result indeed if on the one hand the Tribunal was not required to obtain evidence from a nominated person and on the other hand the Tribunal could be seen to have acted legally unreasonably by so doing.
(Footnotes omitted.)
38 On the second ground, the Federal Circuit Court set out a passage from the Full Court decision in Eden and then identified its approach to the second ground in the following way:
45. Any consideration of the doctrine of legal unreasonableness must take into account at least four seminal authorities on point. They are Minister for Immigration and Citizenship v Li and Anor, Minister for Immigration and Border Protection v Singh, Minister for Immigration and Border Protection v Stretton and Minister for Immigration and Border Protection v Eden (“Eden”). So far as the historical evolution of the doctrine was concerned, I traced the learning back to the 1597 decision in Rooke’s Case in AKD16 v Minister for Immigration & Anor. The decision in Rooke’s Case significantly predated the genesis of the contemporary jurisprudence that commenced with the decision in Associated Provincial Picture Houses Ltd v Wednesbury Corp. At all events, most recently the Full Court of the Federal Court of Australia in Eden put the salient point for consideration in the following terms –
It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes. (Footnotes omitted.)
46. The question in this case was whether the Tribunal’s decision not to take evidence fell within the test stipulated in Eden. In other words I have to determine whether, having regard to the terms, scope and purpose of the relevant statutory power conferred by s.426(3) of the Act, the decision of the Tribunal was such that it fell outside of the range of lawful outcomes. The decision of the Tribunal in this case was entirely within the range of lawful outcomes. In my judgment, the Tribunal did not engage in legal unreasonableness.
39 We have some reservations, with respect, about his Honour’s approach in these paragraphs. The extracted passage from Eden should not be taken out of context. The use of the phrase “within a range of lawful outcomes” is nothing more than an alternative description of the conclusion that a decision is legally unreasonable. It will generally not be helpful on judicial review to ask the question whether the Tribunal’s decision was “in a range of lawful outcomes”, without returning to the more detailed principles which inform particular grounds of review and which were discussed in Eden at [57]-[60], read with the cross-reference to the articulation of those principles in cancellation cases in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [6]-[13], [61]-[62] and [92]. In Stretton at [92], Wigney J placed the reference to a range of outcomes in what we consider, with respect, to be its correct context: namely as another way of explaining the general limits of the judicial function in a supervisory jurisdiction:
In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76], [105]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44]-[45]), or if the decision is within the “area of decisional freedom” of the decision-maker (Li at [28], [66], [105]; Singh at [44]), it would be an error for the Court to overturn the decision simply on the basis that it would have decided the matter differently.
40 Without returning to detailed principle, there is a risk a Court will be distracted from what must be established for the ground of review. Indeed, it would seem here the Federal Circuit Court distracted itself from what must be established for legal unreasonableness. His Honour should have returned to Li, and Singh, for the correct approach. Ultimately, we have concluded that his Honour reached the correct conclusion – namely that the Tribunal’s exercise of discretion was not legally unreasonable, but we approach the grounds of review (and of appeal) somewhat differently.
41 At [50] the Federal Circuit Court decided there was no error in the Tribunal concluding that it could not verify the identity and evidence of the proposed witnesses. His Honour then accepted the Minister’s submissions that it was appropriate to adopt the approach taken by Katzmann J in BTF15 v Minister for Immigration and Border Protection [2016] FCA 647; 69 AAR 376 at [55], and concluded (at [51]) that the Tribunal’s approach did not lack an evident or intelligible justification because “having regard to the view about the applicant’s credibility in the overall, there was no reason to suppose that the two nominated witnesses could allay the Tribunal’s concerns about the applicant’s credibility”.
THE APPEAL TO THIS COURT
42 The appellant’s grounds of appeal are expressed in the following way in his notice of appeal:
1. The Federal Circuit Court of Australia erred by not concluding that the Second Respondent committed jurisdictional error by, in breach of s 426 of the Migration Act 1958, failing to give real and genuine consideration to the Appellant’s written request that it obtain oral evidence from two witnesses that he identified.
2. The Federal Circuit Court of Australia erred by not concluding that the Second Respondent committed jurisdictional error by unreasonably deciding not to obtain oral evidence from the two witnesses identified by the Appellant.
43 The Minister filed a Notice of Contention, however the Minister did not develop any submissions at the hearing of the appeal about his Notice of Contention. Given the conclusions we have reached, it does not need to be considered.
RESOLUTION
44 Section 426 of the Migration Act 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.
45 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. The notice under s 425A to which s 426(1) refers is the hearing invitation. In this case, there were two such invitations, and we have referred to them at [12] to [16] above. Unsurprisingly, the intention of the scheme is that the evidence of any witnesses proposed by an applicant should be part of the s 425 hearing process.
46 A question which arose during oral argument concerned the source of the Tribunal’s power to call a witness. It is important to identify the source of power in order to consider the second ground of appeal. Any analysis by a supervising court involving legal unreasonableness, whether directed at an exercise of discretionary procedural power as part of a larger process, or as an exercise of power to determine a substantive matter, must first focus on the nature of the power conferred.
47 In terms, s 426(3) is directed at imposing a mandatory consideration on the Tribunal: the Tribunal must have regard to “the applicant’s wishes” about proposed witnesses in the s 426(2) notice. As counsel for the Minister submitted, it may be that the actual source of power for the Tribunal to call a witness (including by compulsion) is located in s 427(1)(a) (and as to compulsion see s 427(3)). Section 427(1) provides:
(1) For the purpose of the review of a decision, the Tribunal may:
(a) take evidence on oath or affirmation; or
(b) adjourn the review from time to time; or
(c) subject to sections 438 and 440, give information to the applicant and to the Secretary; or
(d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
48 The work to be done by the second aspect of s 426(3) (namely that the Tribunal is “not required” to obtain evidence from a person named in the notice) is, in our opinion, to make clear that the Tribunal has a discretion whether or not to take evidence from a nominated person. It emphasises the nature of the power in s 427(1)(a). The only express control or condition on that discretion is that the Tribunal must “have regard to” an applicant’s wishes. In our opinion this means the Tribunal must, through inquiries of the applicant, understand why the applicant wants the Tribunal to take evidence from the nominated person, and how that person’s evidence is said by an applicant to relate to the Tribunal’s review. It is to these matters the Tribunal must give real and genuine consideration, in the way explained by Kenny and Lander JJ in Maltsin at [38] (Spender J agreeing).
49 The conclusions of the Full Court in VJAF v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCAFC 178 at [23], and Rangiah J in CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 at [39] also confirm the power is discretionary. In VJAF, the Full Court appears to suggest that the source of the power of the Tribunal to obtain oral evidence in the conduct of its review is located in one or all of the following provisions: ss 424(1), 427(1) and 429A. In our opinion, since s 426(3) in terms imposes a mandatory consideration and then expresses what is best described as a clarification of the nature of the Tribunal’s power, the power itself is not appropriately located in s 426 (or for that matter in s 361). The clearer location of the power is in s 427(1)(a), as the Minister appeared to accept. We accept that some authorities have referred to other provisions (cf VJAF at [23] and BTF15 at [39]), however there does not appear to have been any particular argument raised in those cases about the source of the Tribunal’s power. No different analysis is required if s 427(1)(a) is identified, and if anything, this analysis supports the Minister’s submissions that the Tribunal has a wide discretion, consistent with its inquisitorial function, to determine whether or not to hear from witnesses proposed by an applicant. The breadth of the discretion is also apparent from other parts of s 427.
50 Sections 428 and 429A should also be noted.
51 Section 428 concerns what it describes as the Tribunal’s “evidence power”. It locates that evidence power in s 427(1)(a): see s 428(1). This confirms the approach we have set out in [48]-[49] above. Section 428(2) provides:
(2) The evidence power may be exercised:
(a) inside or outside Australia; and
(b) subject to any limitations or requirements specified by the Tribunal.
52 This provision confirms the breadth of the power, but also that the occasion and manner for its exercise is a matter for the Tribunal. The purpose of conferring powers of this kind on the Tribunal (including the power to take evidence outside Australia) is to ensure that the Tribunal is able to have access to all relevant and probative material that needs to be considered in order for it to perform its task on review of making the correct or preferable decision.
53 Section 429 provides that the hearing of the review must be in private. Section 429A is another facultative provision. It confers a broad power on the Tribunal in respect of the mode of taking evidence:
429A Oral evidence by telephone etc.
For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a) telephone; or
(b) closed-circuit television; or
(c) any other means of communication.
54 The power in s 429A would extend, for example, to taking evidence via a method that allowed the Tribunal to see the person giving evidence (such as Skype or FaceTime or another application). Section 429A(c) is ample to accommodate any modern form of communication, most of which are straightforward to use and accessible throughout the world. Using internet-based forms of communication could relieve some of the identity concerns which can attend telephone evidence, although as we set out below, the mere fact that the mode of communication is a telephone is no reason, in and of itself, for a Tribunal to assume, or presume, that issues of identity will loom so large as to make the person’s evidence lacking in sufficient probative value to justify the Tribunal hearing evidence from the person.
First ground of appeal: real and genuine consideration
55 The appellant contends that at paragraph [45] of its reasons the Tribunal gives only two reasons for exercising its power in the way it did:
(a) First, that the proposed evidence would add little to the appellant’s claim he attended Gezi Park, which the Tribunal had already accepted; and
(b) Second, that the Tribunal could not verify the identity of the two proposed witnesses, and would thus be unlikely to place weight on their evidence.
56 The Minister correctly submitted that paragraph [45] revealed a third reason, at least as a partial explanation for not hearing from the witnesses: namely, that the Tribunal preferred to obtain country information about the situation in Turkey (and, we infer, what occurred at the Gezi Park protests) from independent sources such as those it referred to in its reasons.
57 The question on appeal is whether these reasons, considered in their proper context, reveal that the Tribunal did not give real and genuine consideration to the appellant’s wish that it hear the evidence of these two witnesses. In assessing this contention, the Court can and should examine the relevant documentary evidence before it on the appeal, together with the transcript of the review hearing. The purpose of referring to the documentary evidence, and the transcript of the review hearing, is to ensure the Tribunal’s reasons are read in their proper context.
58 However, we do not consider the transcript of the review hearing can be employed to supplement and expand the Tribunal’s stated reasons for exercising the power in the way it did: see Minister for Immigration and Border Protection v MZAIV [2016] FCA 251 at [33], referring to the decision of Griffiths J in Kelly v Australian Postal Corporation [2015] FCA 1064; 67 AAR 359 at [51]-[53].
59 In the present case, the Tribunal’s reasons are set out in [45] of its decision, read with [7]. They must be read fairly, and in context, but to say as much is not to allow them to be re-written by reference to statements made by the Tribunal during the hearing.
60 Of course, on a procedural matter, it may be the case that a Tribunal gives what can be understood as a “ruling” or “decision” on an exercise of power in the course of a hearing. Likewise, on occasions a Tribunal may give its decision in a written communication to an applicant before or after a hearing. In those circumstances, any reasons given through a separate communication should be examined.
61 However, in this case, the Tribunal chose to explain its exercise of discretion in its reasons given under s 430 of the Migration Act, and the Court is entitled to treat what is said there by the Tribunal as a complete explanation for why it chose to exercise the discretion as it did. We accept that the statement of Gleeson CJ in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [5] (to the effect that if a Tribunal does “not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material”) is not directly applicable because the content of the s 430 obligation attaches to the Tribunal’s reasons for affirming or setting aside the decision under review rather than its reasons for exercising a procedural discretion. Nevertheless, it seems to us the same inference can be drawn: if a decision-maker in the Tribunal’s position incorporates into its s 430 statement a set of reasons for the exercise of a procedural discretion, a Court on judicial review is entitled to take those to be the Tribunal’s explanation for the exercise of power, so that the Court can infer the matters to which the Tribunal does not refer were not matters activating the Tribunal when it exercised the discretion. Otherwise, the rationale for giving reasons evaporates.
62 As we have noted at [10] above, the issue whether the appellant was at the Gezi Park protests at all was not an issue in the review. Therefore, it would have missed the point of the appellant’s request for the Tribunal to have considered it only through the prism of whether the proposed witnesses could assist in establishing the appellant attended the Gezi Park protests. And it is clear from the language used by the appellant, which we have set out at [20] above, that he was informing the Tribunal the two witnesses could give much wider evidence than that.
63 In Maltsin at [38], Kenny and Lander JJ described the Tribunal’s task in the following way (Spender J agreeing):
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.
64 In oral submissions the appellant alleged that the Tribunal acted “capriciously”. The meaning the appellant sought to give that expression was that the Tribunal made the decision “without regard to the actual material” before it about why the witness was to be called, or that it acted for a reason that was “extraneous” or “wanting in logic”. This is not the case: it is clear from the Tribunal’s reasons both before and after paragraph [45] that, after listening to the appellant’s evidence, and questioning him, the Tribunal had not found the appellant to be a reliable witness and did not believe much of the account he had given to the Tribunal.
65 It is true that if a Tribunal refuses to permit proposed witnesses to be called, it may indeed be shutting itself out of hearing evidence that could corroborate what an applicant says, and which could assist the Tribunal in deciding whether an applicant’s evidence is reliable and credible. Therefore, the timing of the Tribunal’s decision about the exercise of its discretion in s 427(1)(a) could be highly material. There are no conditions attached to the timing of such a decision by the Migration Act: it is a matter for the Tribunal, bearing in mind it must act fairly, exercise its powers reasonably and for the purpose of performing its task on the review. If a Tribunal were to rush to exercise the discretion adversely to an applicant prior to a s 425 hearing or very early in that hearing, there may be arguments about whether it had performed the task described by the Full Court in Maltsin. However, that is not what the Tribunal did in the present case.
66 Rather, the Tribunal raised the matter of the witnesses at the start of the hearing. It gave some preliminary views. It did not make a decision. The appellant raised the proposed witnesses during the hearing and, we infer, clearly thought it was still likely the Tribunal would call them. One matter about which there is no evidence is whether it was even practicable to call them at the time of the Tribunal hearing: there is no evidence about what the time in Turkey was, whether they were available, nor whether the Tribunal had been told they were available. A reasonable inference to draw from the circumstances is that, despite what appears in the Tribunal’s hearing form, the Tribunal had decided it would wait and see what its view was by the end of the review hearing. That approach left the s 427(1)(a) discretion yet to be exercised, so it is difficult to see anything unlawful about that course.
67 At the end of the hearing, the Tribunal informed the appellant it would consider whether it needed to hear from the witnesses and, if necessary, would convene a second hearing. No submission was made that the Tribunal was misleading the appellant about its intentions at this point. We infer the Tribunal made the decision it refers to in paragraph [45] of its reasons after the conclusion of the s 425 hearing.
68 In other words, the Tribunal took a cautious approach, by conducting the entire hearing, questioning the appellant, evaluating his evidence and then deciding whether or not to call the proposed witnesses. We infer from its reasons that the Tribunal’s conclusions on the appellant’s reliability and credibility were so adverse that it did not consider the position could be redeemed by his two proposed witnesses knowing, as its reasons reveal it did, that the appellant considered the witnesses could speak relatively broadly about the appellant’s role in the Gezi Park protests and (possibly) about what happened to the appellant thereafter.
69 We do not consider the appellant has established the Tribunal failed to exercise its discretion the way the Full Court in Maltsin described it should be exercised, in order to be lawful. The Federal Circuit Court was correct to reject this ground. The first ground of appeal should fail.
Second ground of appeal: legal unreasonableness
70 The second challenge to the Tribunal’s exercise of the s 427(1)(a) discretion was on the ground of legal unreasonableness. The appellant submitted the Federal Circuit Court erred in rejecting this challenge.
71 We have noted at [55]-[56] above that the Tribunal gave three, not two, explanations for why it decided not to call the witnesses. To recall, they were:
(a) that the proposed evidence would add little to the appellant’s claim he attended Gezi Park, which the Tribunal had already accepted;
(b) that the Tribunal could not verify the identity of the two proposed witnesses and was thus unlikely to place weight on their evidence; and
(c) that the Tribunal preferred to obtain country information about the situation in Turkey (and, we infer, what occurred at the Gezi Park protests) from independent sources such as those it referred to in its reasons.
72 The appellant contends there is no intelligible justification apparent in the first two reasons.
73 As we have also noted, the Tribunal described (at [7]) what the appellant told the Tribunal the two witnesses could give evidence about. That description went well beyond the mere fact of his attendance at Gezi Park. It included what “he encountered at Gezi Park, how long he had been in hiding, and where he was hiding, and that Christians and the Alevis are not wanted in Turkey”. The appellant’s counsel accepted this was a fair summary of the appellant’s explanation given at the review hearing.
74 We begin our consideration of this ground by addressing a statement made by the Federal Circuit Court in its reasons (at [42]) that:
I reject the proposition. It flies in the face of the express statutory provision in s 426(3) of the Act that provides that the Tribunal is not required to obtain evidence from a person of the applicant’s nomination. It would be a peculiar result indeed if on the one hand the Tribunal was not required to obtain evidence from a nominated person and on the other hand the Tribunal could be seen to have acted legally unreasonably by so doing.
75 Although this passage is something of a sideline to the grounds of appeal, there is an important point to be made. We respectfully disagree with the learned Federal Circuit Court judge. The discretion in s 427(1)(a) is like any other statutory discretion: unless there is a clear contrary intention, it is to be understood as conditioned by a requirement that it be exercised in a legally reasonable way: see Li at [23]-[26] (French CJ); [63] (Hayne, Kiefel and Bell JJ); [88]-[92] (Gageler J).
76 In Li at [30], French CJ explained why it is inappropriate to conflate grounds of review, and also to give too much work to do to the irrationality/unreasonableness grounds. His Honour said:
The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody’s reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, “may have no particular legal consequence.” As Professor Galligan wrote:
“The general point is that the canons of rational action constitute constraints on discretionary decisions, but they are in the nature of threshold constraints above which there remains room for official judgment and choice both as to substantive and procedural matters. In other words, within the bounds of such constraints, different modes of decision-making may be employed.”
A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves. That approach is an application of the principles discussed above and within the limitations they would impose on curial review of administrative discretions.
(Footnotes omitted.)
77 The last part of this extract is particularly relevant. Although it might be found (as we have on this appeal) that a decision-maker did give “real and genuine” consideration to the exercise of a power, it is still possible for a Court on judicial review to conclude that power was exercised in a way that was legally unreasonable. Indeed, so much consideration might have been given that a sledgehammer was used to crack a nut, to adopt French CJ’s metaphor. Alternatively, the reasoning adopted (in the course of giving consideration) might be so irrational, or unreasonable, as to indicate the exercise of power has miscarried.
78 As we understand the appellant’s submissions, at least in the alternative to ground 1, this is the kind of analysis that is relied upon. The appellant submits that the Tribunal’s reasons disclose a fundamental misconception or misunderstanding concerning the scope of the evidence of the two witnesses, as well as reliance on a matter (that they could not be identified over the phone) that was, in the circumstances, irrational or unreasonable or both. Contrary to the observations of the Federal Circuit Court at [42] of its reasons, there is no inherent conflict between the existence of a discretionary power of this kind and a challenge based on legal unreasonableness.
79 A number of relatively recent decisions of this Court have considered arguments of legal unreasonableness in the context of the Tribunal’s power to take evidence from proposed witnesses.
80 In CZBH at [53]-[59], by reference to a number of authorities, Rangiah J set out an explanation of the principles informing the exercise of a discretion such as that contained in s 427(1)(a), in the context of a ground of appeal that the Tribunal had acted capriciously (which his Honour took to mean legally unreasonably) in deciding not to call the requested witnesses. We respectfully agree with his Honour’s observations in those paragraphs, in particular that a well-recognised function of a decision-maker hearing oral evidence is to assist the decision-maker in determining issues of credibility and reliability of a principal witness or party, and that oral evidence can achieve this objective in a way that written evidence cannot. In CZBH, Rangiah J was dealing with an exercise of discretion that was not explained in a Tribunal’s reasons, and his Honour found (at [61]) the Tribunal’s refusal to call the witnesses lacked any evident or intelligible justification.
81 Rangiah J took a similar approach in SZVBB v Minister for Immigration and Border Protection [2015] FCA 1414, and stated at [40]-[41]:
It is open to the Tribunal, in an appropriate case, to decide that the evidence of an applicant is so compromised that hearing the oral evidence of a corroborating witness could not affect the outcome: 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].
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.
82 In SZVBB at [44], however, Rangiah J concluded – not without some apparent hesitation on the evidence – that it was open to the Tribunal to have reached the decision it did to refuse to take evidence from the proffered witnesses. His Honour found:
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.
83 The approach of Katzmann J in BTF15 was relied on by the Minister, and was said to be consistent with the approach that should be adopted to the Tribunal’s exercise of power in this appeal. In that case, there were detailed written statements provided to the Tribunal from the proposed witnesses, including identifying details. However, as her Honour set out at [25], the Tribunal found contents of the written statements “posed difficulties” for aspects of the narrative given by the appellant himself, although that was not, in her Honour’s view, the reason the Tribunal declined to hear the evidence. That makes the circumstances in BTF15 quite different from the present appeal. Her Honour found (at [51]):
It [the Tribunal] declined to take the evidence because it would not overcome its concerns about the appellant’s credit. Those concerns went well beyond the inconsistency between the appellant’s account and the documents in question.
84 Katzmann J added (at [53]) that:
Thirdly, it is an over-simplification of the Tribunal’s reasons to say that it decided not to take oral evidence from the two witnesses because it disbelieved the appellant. It decided not to take the evidence because it did not consider that their evidence could affect its view of the appellant’s credibility. No doubt this was because, on the matters which, in the Tribunal’s opinion, undermined the appellant’s credibility, their written statements were silent.
85 There is some caution, in our respectful view, needed before determining that it is open to a decision-maker to conclude that proffered corroborative evidence cannot “affect” the decision-maker’s view of the reliability or credibility of an applicant. If that conclusion is reached too readily it discounts the purpose of corroborative evidence, and it also tends to suggest a level of prejudgment which does not sit easily with the decision-maker’s task to make the correct or preferable decision on all the material before it. Although a lengthy extract, it is worthwhile recalling the explanation given by Lee and Finkelstein JJ in W360/01A at [3]:
3 Here the Tribunal did not accede to the appellant’s request to call a witness who would testify that the appellant had left Iran illegally. The Tribunal said that even if the appellant were to establish this asserted fact, it would not assist his claim because of other “problems” with his evidence. We think that in taking this view the Tribunal misunderstood its responsibilities. The appellant asserted a number of facts which he asked the Tribunal to accept. They concerned his claim that while in Iran he had suffered persecution for a Convention reason. If the appellant could persuade the Tribunal that those asserted facts were true, or even that they might be true, it is likely that the Tribunal would be satisfied (within the meaning of s 65 of the Act) that there is a real chance that the appellant would suffer similar treatment in future if he were returned to Iran. In the process of deciding whether asserted past facts were true, or might possibly be true, the Tribunal was entitled to rely upon any opinion about the creditworthiness of the appellant. If it formed the view that the appellant was not a witness of truth, in all probability it would not accept the asserted facts. In order to decide whether it was satisfied of the truth, or possible truth, of the asserted facts, one would ordinarily expect the Tribunal to look at each claim made by the appellant because, in arriving at a conclusion as to the truthfulness of certain asserted facts, the Tribunal might be assisted by knowing that other facts were true. That is to say, if the appellant was telling the truth about asserted fact A that might suggest that he was also telling the truth about asserted facts B and C. On the other hand, if it were shown that the appellant was dishonestly asserting the existence of asserted fact D, that would be taken into account when the Tribunal decided whether it should be satisfied that other asserted facts were true, or might be true. So, for example, if the Tribunal accepted the appellant’s assertion that he had left Iran illegally, the Tribunal would be obliged to take that into account when considering whether it should accept as true, or as possibly true, the balance of the appellant’s claims. Moreover, a finding that the appellant had left Iran illegally would also require the Tribunal to consider why the appellant had done so. There may be a variety of explanations. One explanation might be that the appellant feared for his safety. If the Tribunal formed the view that this was the reason why the appellant left Iran illegally, it would necessarily take that into account in deciding how to deal with the appellant’s account of past events. Accordingly, for the Tribunal to say that it would be unassisted by the evidence of the witness whom the appellant wished to call, shows that the Tribunal had a false appreciation of its task. (See generally Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.)
86 In our respectful view, this passage sets out the appropriate approach for an administrative decision-maker, including the Tribunal, to take to the subject of proposed witnesses who could support a visa applicant’s claims. As we have noted above, reaching a decision too quickly or readily, that proffered corroborative evidence cannot “affect” the decision-maker’s view of the reliability or credibility of an applicant, may tend to discount or nullify entirely the legitimate purpose of corroborative evidence, and the presence of the discretionary power to call additional witnesses in the legislative scheme.
87 Nevertheless, the different conclusions reached by Rangiah J on appeal in CZBH and SZVBB, and also the decision of Katzmann J in BTF15, illustrate how an assessment on judicial review (including on appeal) must be undertaken with close consideration of the particular context of the exercise of power in a given case, and that different facts may give rise to different legal conclusions on judicial review.
88 If one takes the approach of teasing out each of the reasons given by the Tribunal in this case for not calling the two witnesses, and separating those reasons out from each other, then there is some force in the appellant’s criticisms of the Tribunal’s reasoning.
89 The Tribunal’s first reason does tend to suggest a misconception or misunderstanding. It is clear from the passage at [7] in the Tribunal’s reasons that the appellant was putting these two witnesses forward as people who could testify to what happened to him at the rally. His central claim was that he was arrested at the rally for attempting to film it: see [11]-[13] of the Tribunal’s reasons. His claim then involved a narrative about what happened to him after he was arrested. These matters were key to the assessment of whether his fear of persecution if returned to Turkey was well-founded, based on what he claimed had happened to him at the rally and thereafter. The Tribunal’s disbelief of the appellant’s claim to have been filming at the rally and to have been arrested was central to its rejection of his entire claim. If the Tribunal misunderstood that the appellant was telling the Tribunal these two witnesses could corroborate his narrative about filming, and about his arrest (which is what it is clear he was saying), then this misunderstanding could make its first reason for rejection an irrational one. The reason would not be based on the material before the Tribunal: it would be based on a misunderstanding. It would also make the first reason “devoid of any plausible justification” – see Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273, cited in Li at [91].
90 As to the second reason, and as we have noted earlier, the fact that the witnesses were to give evidence by telephone (and therefore could not be identified) could not, of itself, provide a basis for an unfavourable exercise of discretion. It does appear the Tribunal was most concerned about the mode by which the witnesses would give evidence and the obvious fact it would be able to hear but not see each person, and could not through that method of communication verify who the person was. That difficulty is inherent in taking evidence by telephone. It would not have mattered how much prior information had been supplied to the tribunal about the witnesses: the fact that they could only be heard and not seen was simply a consequence of the method of communication. In these circumstances, reliability, identity and other features of a proposed witness will generally need to be established through questioning.
91 As to the third reason, it is apparent that the Tribunal did not postpone any further consideration of whether to call the two witnesses to give evidence about the general social, political and security situation in Turkey. This is clear from its reasons at [7]:
He [the appellant] said they could also give other information such as broadcast channels being censored in Turkey. The Tribunal advised the applicant that it would rely on its own independent country information rather than take evidence from a person or persons it would not be able to identify.
92 In other words, this proposed purpose for an exercise of the discretion in s 427(1)(a) was rejected by the Tribunal at the hearing, not later.
93 If these passages were read in isolation, the appellant’s arguments may have some force. That would not, however, be the appropriate approach. In determining whether an exercise of power is properly characterised as being so outside the bounds of decisional freedom as to be beyond the authority given by statute to a decision-maker, the Court must be careful not to substitute its own opinion for that of the repository of the power. These can be fine lines in the actual application of principle.
94 In Stretton, referring at [6] to the reasons of the Court in Singh at [44], which in turn relied on the decision of French CJ in Li at [27]-[28], Allsop CJ said at [7]:
It is in relation to the second context, the “outcome focused” application of the concept, that precise definition, beyond explanation of the operative notion and of the legal technique by which to make the assessment, becomes productive of complexity and confusion. There is “an area decisional freedom” of the decision-maker, within which minds might differ. The width and boundaries of that freedom are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular, of reasonableness. The boundaries can be expressed by the descriptions and explanatory phrases of the kind set out in [5] above.
95 Further, in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [54], the Full Court said:
We also accept that a line must be maintained between a court’s emphatic disagreement with the merits of a tribunal’s reasoning process, and the identification of a level of irrationality, unreasonableness or lack of proportionality which reveals a constructive failure to exercise jurisdiction by a tribunal. That is the distinction identified in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 (SZJSS) at [34].
96 While it is possible, by segmenting the Tribunal’s reasons, to strip the reasons of what might be seen to be any intelligible justification, and to highlight what might appear to be a misconception by the Tribunal of the scope of the evidence which each of the proffered witnesses could give, in our opinion (and not without some hesitation) the exercise of power by the Tribunal in this case is not susceptible to the characterisation of a legally unreasonable exercise of power.
97 The Tribunal plainly had substantial concerns about the reliability and credibility of the appellant’s accounts of what had happened to him in the past, and why he had fled Turkey. Its concerns had accumulated through the Tribunal hearing, and on consideration of the material before the Tribunal. It was not given details about what the proposed witnesses would be able to say (cf BTF15). It was not given any real detail at all about the witnesses themselves. They were not close relatives of the visa applicant, who were said to be closely involved in the narrative which formed the basis for his account to have a well-founded fear of persecution (cf CZBH). The Tribunal did not rush to make a decision to refuse to hear from the two witnesses and its reasons should be read as indicating that it continued to consider this issue after the hearing. The appellant did not submit the Tribunal’s statements at the hearing were false on this account.
98 As we have explained above, the method by which evidence will be taken will generally not provide a sufficient justification for a decision-maker to refuse to hear such evidence. Further, decision-makers need to be careful to understand with some precision how a visa applicant explains the relevance and role of any proffered evidence. There will come a point where repeated statements by reviewing courts about these matters, if not taken to heart and applied by decision-makers, may result in reviewing courts concluding that decision-makers are taking an arbitrary or capricious approach to the exercise of this power.
99 However, that is not this case. Looking at the whole of the circumstances, we consider the exercise of discretion was within the area of decisional freedom available to the Tribunal, particularly given the matters to which we have referred at [97] above.
100 Finally, it will be apparent our approach differs to that taken by the Federal Circuit Court. At [39] of its reasons, the Federal Circuit Court sought to justify the Tribunal’s exercise of discretion in a way which was outside of, and quite different to, the Tribunal’s own explanation. That is not the correct approach to the resolution of a claim of legal unreasonableness: see Singh at [45]-[47]. The Tribunal gave an explanation of why it exercised its discretion as it did, at [45] of its reasons. The task of the Court on judicial review is to evaluate whether that was, relevantly, an intelligible justification, without any attributes such as capriciousness, arbitrariness, irrationality or illogicality.
Conclusion
101 The appeal must be dismissed. There is no basis in the material for anything other than the usual order as to costs. The parties should be given time to agree on a lump sum order as to costs, failing that the Minister will be directed to file an affidavit as to the lump sum sought, in accordance with the Court’s Practice Note, and the appellant will be given an opportunity to make submissions on the lump sum sought.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tracey and Mortimer. |
Associate:
CHARLESWORTH J:
102 I have had the benefit of reading the reasons for judgment of Tracey and Mortimer JJ in draft.
103 Subject to what follows, I agree with the statements of principle and conclusions expressed in [1] – [95] of the reasons. For the reasons given by Tracey and Mortimer JJ, there is no jurisdictional error affecting the Tribunal’s refusal of the appellant’s request that witnesses be called to give evidence for the purpose of supporting his uncontentious claim to have attended the protest at Gezi Park. Nor is there jurisdictional error affecting the refusal to hear evidence from the witnesses concerning the general security situation in Turkey.
104 I have reached a different conclusion in respect of the legal consequences of the Tribunal’s refusal to call the two witnesses for the purpose of giving evidence to corroborate the appellant’s claims about what he had done at the Gezi Park protest and what happened to him afterwards. I will refer to that purpose as the broader purpose.
105 The explanation given by the Tribunal at [45] of its reasons ought fairly to be read as addressing all of the purposes of the proposed evidence, including the broader purpose. So read, the justification given by the Tribunal for refusing to call the witnesses in relation to the broader purpose was that it “would be unlikely to place weight on their evidence as it would not be able to verify their identity or their evidence”.
106 If I am wrong in interpreting the Tribunal’s reasons so beneficially, then it would follow that the Tribunal would have misapprehended the broader purpose for which the evidence was to have been called and so failed to genuinely consider and address it. The exercise of its discretion would, for that reason, be affected by jurisdictional error.
107 The Tribunal correctly summarised (at [7] and [45]) the purpose for which the appellant sought to have the witnesses called. In doing so, the Tribunal did not express any criticism that the appellant had given insufficient details of precisely what each witness might be expected to say. Nor did the Tribunal conclude or assume that the witnesses could not have personally witnessed the critical events and so could not corroborate the appellant’s account of them.
108 For the reasons given by Tracey and Mortimer JJ (with which I respectfully agree), concerns over the verification of the identity of a witness giving evidence by telephone are not, of themselves, sufficient to provide a rational justification for refusing to receive their evidence, including evidence as to their identity.
109 As no other reason was in fact given by the Tribunal that could relate to the broader purpose for the evidence, it must follow that there is no evident rational justification for the refusal to call them for that purpose. It is not to the point that there might be any number of alternative rational bases for refusing the appellant’s request. In circumstances where no alternative bases were relied upon by the Tribunal it is neither necessary nor appropriate for a court exercising powers on judicial review to identify them, nor to determine the application for judicial review by reference to their merits.
110 For the disposition of this appeal, it is sufficient to say that it is not inevitable that the appellant’s request would be refused on an alternative basis should his application for review be remitted to the Tribunal. Jurisdictional error is established and there is nothing to suggest that remittal of the application for review to the Tribunal would be futile. Accordingly, in my view, the appeal should be allowed.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth. |
Associate:
Dated: 29 June 2018
