FEDERAL COURT OF AUSTRALIA

BTF15 v Minister for Immigration and Border Protection [2016] FCA 647

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

1    The question at the heart of this appeal is whether it was legally unreasonable for the Administrative Appeals Tribunal to decline to take oral evidence from two allegedly corroborative witnesses who had provided written statements, before deciding that either they or the appellant should be disbelieved. For the reasons set out below, I have concluded that it was not.

Background

2    The appellant is a Rwandan national. He applied to the Minister for a protection visa claiming to fear persecution on the grounds of his political activities and opinion, as well as his Hutu ethnicity. The application was rejected by the Minister’s delegate. On review by the Tribunal the delegate’s decision was affirmed, essentially because the Tribunal was convinced that the appellant’s claims were false. In reaching that opinion, the Tribunal put the written statements of the two witnesses to one side, concluding that the statements were fabrications.

The appellant’s claims

3    In his application for a protection visa, the appellant gave a long history of adversity suffered by him and his family. He said that he had been arrested and imprisoned several times in Rwanda and that he and his family members lived in exile in the Democratic Republic of Congo for some time, though they later returned to Rwanda. He said that his parents had spent 10 years in prison on false allegations and that, after his family returned to Rwanda, his brother was kidnapped by soldiers of the Rwandan Patriotic Army, never to be seen again. He also said that he had personally “experienced threats” in recent times, following his opposition to government policies aimed at ordering citizens to contribute to funds for the Tutsi “RPF” ruling party and other government projects. He said he feared that if he were to return to Rwanda he would be arrested, imprisoned, tortured and murdered by the Rwandan government. He claimed that this would happen to him because he was a well-educated Hutu from the Northern Province, who was involved in anti-government activities.

4    The decision record of the Tribunal sets out the more detailed evidence the appellant gave about his mistreatment in recent times. According to the Tribunal, the appellant said that he moved to Uganda in 2008, where he undertook a Master of Science degree. He then returned to Rwanda in 2010 to undertake a research component of his course at a local educational institution (the Institute). While undertaking his research he became involved in a new opposition political party and was arrested and detained by police for four nights after criticising the RPF in a bar. Later, he returned to Uganda, where he completed his degree, before coming back to Rwanda in May 2011 and taking up a position as an assistant lecturer at the Institute. He obtained that position with the assistance of the Dean of the Institute’s Faculty of Engineering. The appellant said that the Dean knew his father and his father’s friend, and was a fellow Hutu from northern Rwanda.

5    From mid-2012, however, the appellant said that he encountered difficulties at the Institute. He claimed that his troubles began when a director of the Institute’s administration demanded to see his birth certificate, which revealed that he was a Hutu from the north of Rwanda, rather than a Ugandan as his colleagues had surmised. After that, he claimed that he was ostracised and his students began to walk out of his classes.

6    Additionally, the appellant said that he was asked, but refused, to sign a document giving permission for deductions to be made from his salary to support the RPF party and other government projects. Subsequently, he claimed that a meeting was convened at the Institute, attended by the General Secretary (referred to elsewhere in the Tribunal’s reasons as the “Secretary General”) of the RPF, high-ranking officers of the military and police, and certain members of the Institute’s management. He said that at the meeting a list of people who had refused to consent to the deductions being made was read out and that these people were declared to be enemies of Rwanda and the Rwandan government. He claimed that his name was on the list.

7    The appellant said that after this meeting he was investigated for ties to opposition groups. He claimed that he was told that if such ties were found he would be dismissed. In late December 2012 he said that he was apprehended by security services officers at the Institute, who maltreated him and forced him to sign a document saying that he agreed to stop all activities in opposition to the government. He claimed that on 22 February 2013 he found a summons placed beneath his door, requiring him to report to the authorities for questioning on 27 February 2013. According to a statutory declaration signed by the appellant, 27 February 2013 was the day he left Rwanda for Australia.

The statements in question

8    The authors of the two allegedly corroborative statements were not named in the Tribunal’s reasons. They were merely described as residents of India and Canada. I will call them respectively Mr B and Dr T. Both provided their full names, dates and places of birth, their current addresses in full and their telephone numbers. Mr B also provided his email address.

9    Mr B said that he was a Rwandan national who had met the appellant when he was working at the Institute’s Faculty of Engineering under the appellant’s supervision.

10    He said that in mid-2012 the appellant’s name, among others, appeared on a list posted on the Institute’s notice board of “anti-government elements” for refusing to contribute to three funds, including one for genocide survivors. Mr B stated that the notice linked those listed to various opposition parties and declared that there were ongoing investigations to establish “those who were involved in anti-government political activities”. He also said that the notice warned that, if these people were found to have been involved, they “would face direct consequences including but not limited to termination of contract and imprisonment”. He said that the notice concluded with a summons to all those mentioned to report to the academic board within three days. Mr B claimed that “[t]hat was the beginning of political persecution for [the appellant]” and his colleagues by the RPF and the Institute’s administration.

11    Mr B proceeded to give an account of an annual general meeting of the Institute. First, he noted certain items on the agenda, including “[i]dentifying Anti-government elements at [the Institute]”. Secondly, he listed the attendees. Thirdly, he reported concerns expressed by the Rector of the Institute, who was present at the meeting, that the appellant and his colleagues were to face “serious consequences including exclusion from work and imprisonment” and that this accounted for the presence of security personnel at the meeting. Fourthly, he noted that the Secretary General of the RPF, who was present at the meeting, read a list of names of people involved in anti-government activities, the first of which was the appellant’s. He said that the Secretary General “wondered how such elements could be at [the Institute] and immediately warned the [Institute’s] administration to wipe them out”, adding: “We can’t allow these cowards to use their mouths to disturb the system in government”.

12    Mr B then stated: “Life has never been the same since that day as he was subjected to intimidation, discrimination and persecution. Accusations were endless as he was further accused of organizing and mobilizing students to oppose government policies aimed at cutting off students’ bursaries and welfare”.

13    Mr B did not purport to have been present at the meeting. He did not include his name in the list of attendees. Nor did he did attach the minutes, if any, of the meeting or indicate how he became aware of what was said there.

14    Mr B went on to report that, after Christmas, the appellant and later on five students were arrested and detained by Rwandan police for their role and involvement in anti-government activities including “organizing demonstrations inciting students on the genocide ideology and criticising government policies”. He said that one of the students said that the appellant was mobilising them to protest against government policies of cutting bursaries and welfare payments. Once again, he did not say how he became aware of these matters.

15    Mr B said that, with his friends, he visited the appellant after he was released from prison, prayed and comforted him “as he was desperate, hopeless and distressed resulting from the torture he underwent”. He said that at the end of January 2013, at a faculty meeting the Rector “pinned” the appellant with others as having links to certain organisations and threatened to terminate their contracts once police had finalised their investigations. He did not say that he was present at the meeting.

16    Mr B also said that in mid-March 2013 there were rumours that one of the lecturers had been kidnapped and others imprisoned and that on 4 April 2013, during the General Assembly for the preparation of the 19th Genocide Commemoration and mourning week, the Rector announced, amongst other things, that the appellant and others had abandoned work after disappearing for a month, that the national security and administration were conducting investigations to establish their whereabouts and that their contracts had been terminated. Mr B did not say, however, that he was present at the General Assembly or had heard the Rector’s announcement himself.

17    Dr T, who said that she was resident in Canada, stated that she had met the appellant in Sydney in mid-May 2013 when she was a student at the University of NSW and that he recounted to her “his sad story of life of total sufferance”. She said that she directed him to a counselling service. She said that before she returned to Rwanda she approached the appellant to see whether he had any message to deliver to his mother or any other relatives. She said that he told her that he wanted her to check on his bank accounts and that he gave her his Visa cards and instructed her to withdraw all the money in the accounts and hand it over to his mother. She said that he also executed a power of attorney to enable her to remove the furniture and other items from his house. She said that when she tried to withdraw the money from the bank, the ATM rejected the cards and that when she inquired of the bank she was told that the accounts had been blocked for security reasons. What those reasons were she did not say. Finally, she said that she attended the appellant’s former residence to collect his property only to be told by his former landlord that it had been picked up by police and taken to police headquarters because the appellant had failed or refused to respond to a police summons and had fled the country to escape justice. She said she was told by the landlord that the appellant was working with FDRL (an opposition group) “with a purpose of destabilizing the country” and that police had come to the house to arrest the appellant “only to be welcomed by an empty house”. As a result they broke in, searched the premises, and loaded everything in the house onto a police truck. She said that the landlord also informed her that the police directed him to sign a search statement to the effect that he had agreed to hand over the property. She concluded with the following words:

In summary, finally I’d like to testify that [the appellant] experienced harm, discrimination, intimidation and torture owing to his political ideology, ethnicity and origin.

18    I should add that shortly before the hearing on 26 May 2015 the appellant submitted documents to the Tribunal dated 22 March 2013 stating that his employment at the Institute had been terminated because of his opposition to the government.

The relevant statutory provisions

19    The starting point is s 414(1) of the Migration Act 1958 (Cth), which relevantly requires that the Tribunal review the delegate’s decision. For the purposes of the review, the Tribunal may exercise all the powers and discretions conferred by the Act on the person who made the decision (s 415(1)). In conducting the review, the Tribunal is required to act “according to substantial justice and the merits of the case” (s 420) and “in a way that is fair and just” (s 422B(3)). In conducting the review, the Tribunal may get any information that it considers relevant and may invite a person to give information in writing or orally (including by telephone) (s 424).

20    Unless the Tribunal considers that it should decide the review in the applicant’s favour on the papers, the applicant consents, or the applicant fails to give information or comment on or respond to information as contemplated by s 424C, the Tribunal must invite the applicant to appear before it “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (s 425).

21    If an applicant is invited to appear before the Tribunal, the Tribunal must give written notice to the applicant (s 425A). Section 426 deals with the content of the notice and other matters. In particular, it provides for circumstances in which an applicant may request the Tribunal to take oral evidence from witnesses. It states:

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.

22    Section 427 lists the Tribunal’s powers for the purposes of the review. They include the power to take evidence on oath or affirmation (subs (1)(a)). These powers are supplemented by s 429A, which permits the Tribunal to allow evidence to be given by any means of communication, including by telephone.

The Tribunal’s reasons

23    The Tribunal decided that the appellant was not a witness of truth because:

(a)    the impression conveyed from documents purportedly issued by the Institute and submitted by the appellant was inconsistent with the appellant’s evidence about the Institute’s hostile attitude to him ([26]–[32]);

(b)    it was implausible that the appellant would have been able to obtain documents to enable him to obtain leave and to travel overseas if he were under serious investigation for his opposition to the government ([31]–[46]);

(c)    the appellant gave inconsistent accounts about how he was able to leave Rwanda by air (“through the airport”) ([47]–[53]);

(d)    the appellant’s claim to have suffered harm at the Institute after his ethnicity was discovered was improbable in circumstances where it was not mentioned in his written statement of 30 April 2013 and where the Dean of the Institute’s Faculty of Engineering was of the same ethnicity and there was no allegation that he had suffered on that account ([56]);

(e)    it was difficult to accept that the appellant would risk his life by resuming political activities in 2010 ([65]);

(f)    there were inconsistencies between the evidence contained in his protection visa application and his earlier student visa application ([68]–[69]); and

(g)    none of the Tribunal’s concerns about these matters, which were put to the appellant both at the hearing and in correspondence after the hearing, were alleviated by the appellant’s explanations ([33]–[46], [54]–[56], [58]–[63], [65]–[67], [70]–[72]).

24    The appellant provided a number of documents to support his claims to have been of interest to Rwandan authorities, but the Tribunal said that the contents of those documents did not overcome its concerns about the appellant’s credibility and gave them no weight.

25    The critical part of the Tribunal’s reasons for present purposes appears in [76]–[82] of its decision record. The Tribunal introduced the issue at [76]:

76    The applicant advised the Tribunal of the contact details of two people in other countries (Canada and India) who were prepared to give evidence over the telephone. The Tribunal has discussed above the evidence of one of these people, referred to in this decision as the witness. The Tribunal has discussed how the evidence of that person has posed difficulties for the applicant because it is in contrast to letters before the Tribunal from the institute which span that same period and which convey a contrary view as to how the applicant was regarded by the institute at that time. …

26    The first mentioned person was Mr B. The Tribunal summarised his evidence at [22]–[24] of its reasons. The discussion of the “difficulties” appears in the ensuing paragraphs. In [77] the Tribunal summarised the evidence of Dr T. The reasons for the Tribunal’s decision not to take oral evidence from either of them essentially appear in [78]–[79]:

78    … As for the other two people who provided written statements, the Tribunal refrained from taking evidence from them over the telephone because of the risk that those communications could be intercepted and the privacy of the proceedings before the Tribunal would be breached. At any rate, the assertions these people make in their statements do not overcome the concerns the Tribunal holds about the applicants credibility and which have led the Tribunal to find that he is not a witness of truth.

79    Claims about bank accounts being blocked and the landlord claiming that the police came to the applicant’s former residents looking for him do not explain the various issues discussed above which impugn the applicant’s credibility and relate to events before he left Rwanda to come to Australia. The Tribunal finds that the evidence of the two people in Canada and India is a fabrication to support the applicant’s protection claims and the Tribunal gives no weight to that evidence.

27    The Tribunal noted (at [80]) “the broad statement” made by Dr T that the appellant is traumatised. It then went on to refer to other evidence to similar effect. But at [82] the Tribunal observed, in a passage of its reasons which the appellant did not seek to impugn:

These various health professionals assess the applicant as having certain symptoms of post traumatic stress disorder based on what the applicant has self reported to them about his claimed experiences in Rwanda. Those health professionals are not in a position to assess the credibility of the applicant’s claims about his past experiences and, although they have made their assessments of his mental state, the Tribunal is not persuaded that his claimed past experiences actually occurred.

The application to the Federal Circuit Court

28    The appellant applied to the Federal Circuit Court for an order that the Tribunal’s decision be quashed, for a writ of mandamus directed to the Tribunal requiring it to determine his application according to law, and/or a writ of prohibition directed to the Minister to restrain him from acting upon, or giving effect to, the Tribunal’s decision.

29    The appellant alleged that the Tribunal’s decision was affected by jurisdictional error in three respects, only two of which (grounds 2 and 3) were pressed.

30    In ground 2 the appellant pleaded that the Tribunal constructively failed to exercise its jurisdiction to conduct a review of the delegate’s decision because it declined to hear oral evidence from the two witnesses although their evidence was “highly relevant”, “thereby denying [the appellant] a reasonable opportunity to present his case”.

31    Ground 3 alleged that the Tribunal’s decision to decline to hear that evidence was unreasonable in that it was “arbitrary and lacked an evident and intelligible justification”.

32    The primary judge rejected both grounds.

33    His Honour accepted the Minister’s submission that, having concluded that the appellant was not a witness of truth, the Tribunal’s failure to contact the makers of the two written statements to obtain oral evidence which could allegedly corroborate the appellant’s claims could not be said to be unreasonable because it could not be said to lack an evident and intelligible justification. In coming to his conclusion his Honour emphasised that he had taken into account the Tribunal’s conclusion that the evidence in the written statements had been fabricated and accordingly would be given no weight. His Honour said that there was no obligation on the Tribunal to comply with the rule in Browne v Dunn (1893) 6 R 67 (HL) and the question of weight was a matter for the Tribunal. His Honour noted that there was no separate attack on the finding that the evidence had been fabricated but, “for completeness”, his Honour observed that the finding was open on the material before the Tribunal. His Honour also observed that the case was distinguishable from the decision in CZBH v Minister for Immigration and Border Protection [2014] FCA 1023, in which Rangiah J held that the decision of the Refugee Review Tribunal to decline to take oral evidence from two people who had provided written statements was unreasonable because, in contrast to that case, here the Tribunal provided an explanation for its decision.

34    The primary judge accepted that the risk of interception and concerns about privacy were “not matters that would readily be perceived as a reasonable ground for not obtaining oral evidence where it is alleged that oral evidence is potentially corroborative of the applicant’s claims”. Nevertheless, he noted that the Tribunal had provided an additional reason not to receive the evidence “which was the finding of the Tribunal in relation to the applicant’s credibility, and, significantly, the finding by the Tribunal that the applicant was not a witness of truth”. In these circumstances his Honour held that the Tribunal’s decision not to contact the witnesses by phone could not be said to lack an evident and intelligible justification.

The grounds of appeal

35    Four grounds were pleaded. Ground 4 was abandoned in written submissions. Those which remain complain of error in the following respects:

(1)    in holding that the Tribunal’s finding that the appellant was not a witness of truth provided an intelligible justification for its decision not to take oral evidence from Mr B and Dr T;

(2)    in failing to hold that the Tribunal’s finding of fabrication of evidence by the two witnesses was undermined by the Tribunal’s unreasonable failure to take oral evidence from them; and

(3)    in finding that the last sentence of paragraph 78 of the Tribunal’s reasons was an independent reason for the Tribunal’s failure to take evidence from the Tribunal’s two nominated witnesses.

36    Grounds 1 and 2 were dealt with together in submissions as variations of the same proposition: that the decision not to take oral evidence from the authors of the two statements was legally unreasonable. The proposition advanced by ground 2 of the show cause application in the court below (that the appellant had been denied a reasonable opportunity to present his case) was not advanced on appeal.

Was the decision not to take oral evidence from the two witnesses legally unreasonable?

37    The appellant gave the Tribunal written notice that he wanted the Tribunal to obtain oral evidence from Mr B and Dr T. But (in contrast to the position in CZBH) he did not do so within the prescribed time. If he had, then, as s 426(3) makes clear, the Tribunal would have been required to consider his wishes, but it would not have been required to fulfil them.

38    The Minister submitted that the appellant’s case depends on the Tribunal being obliged in the circumstances of the case to receive oral evidence from the authors of the statements, despite the fact that his request was made outside the time allowed by s 426(2) and when, even if it had been made within that time, the Tribunal’s only obligation would have been to consider the request. The Minister argued that the appellant could be in no more privileged position because his request failed to trigger the obligation under the subsection than he would have been had his request fallen within its terms.

39    This submission is misconceived. The appellant’s case is not that the Tribunal was obliged to call them; it is that the Tribunal had a discretion to do so and that it was obliged to exercise that discretion reasonably, both of which propositions the Minister rightly accepted. That discretion is conferred by s 429A of the Migration Act and it is independent of the regime in s 426. Every statutory discretion must be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and the cases referred to there. The legislature is taken to have so intended: Kruger v The Commonwealth (1997) 190 CLR 1 at 36 (Brennan CJ); Li at [28]–[29] (French CJ), [63] (Hayne, Kiefel and Bell JJ), and [88]–[89] (Gageler J). The “indicia” of legal unreasonableness are to be found in the subject-matter, scope and purpose of the particular statutory provisions “in issue” in a given case: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [48].

40    As the plurality explained in Li, at [76], a court may infer unreasonableness in the exercise of a statutory discretion where, even if reasons are given, it is not possible to understand how the decision was reached (see, too, French CJ at [27]). Their Honours said (also at [76]) that “[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”. In the court below and on appeal, the appellant contended that the decision not to take oral evidence from the two witnesses was one lacking in intelligible justification.

41    The Full Court said in Singh at [47]:

The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the Court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that Court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.

42    The first task, then, is to identify the Tribunal’s reasons.

43    The appellant’s primary position is that there was only one reason (the Tribunal’s concern about the risk that the calls could be intercepted and the privacy of the hearing “breached”), that the primary judge considered it unreasonable, and that the Minister does not seek to uphold it. To sustain that position, however, ground 3 of the notice of appeal must be upheld.

44    For this reason, it is convenient to deal with ground 3 first.

45    The appellant submitted that the phrase “at any rate” in [78] suggests an afterthought or an additional reason added to tie up a loose end and, as such is tied to the previous reasoning and cannot be separated from it. I reject this submission. The phrase is defined in the Macquarie Dictionary as:

a.    under any circumstances; in any case; at all events.

b.    at least.

46    In the present context it was used as a synonym for “in any case” or “at all events” to provide, as the primary judge held, a separate and independent reason for the Tribunal’s decision not to take oral evidence from the witnesses. Although it may appear as a subsidiary reason, I accept the Minister’s submission that the finding in relation to the allegedly corroborative evidence was no mere afterthought. The Tribunal gave two separate reasons for the decision.

47    Ground 3 is not made out.

48    The remaining question is whether the second reason provided an intelligible justification for the decision. The determination of this question necessarily involves scrutinising the factual circumstances in which the Tribunal’s power was exercised: Singh at [48].

49    The appellant contended that “the fact that the proposed witnesses’ evidence is perceived to be inconsistent with documents relied on by the Tribunal” was a reason to take the evidence, rather than a reason not to. His counsel claimed that these people “had evidence that if tested may have resolved the issue of credit”. He described them as “alleged eye witnesses to relevant events”. He submitted that the decision not to take evidence from them, as alleged eye witnesses to relevant events, because of a prior finding that the appellant could not be believed, lacks an evident and intelligible justification (citing Li at [76]) and to disbelieve their statements without taking oral evidence from them was “unsupportable”.

50    There are a number of difficulties with these submissions.

51    First, the Tribunal did not decline to take the evidence because it was perceived to be inconsistent with documents relied on by the Tribunal. It 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.

52    Secondly, the underlying premise of the submissions is not correct. When close attention is paid to the two statements, the proposition that their authors are “alleged eye witnesses” to “relevant events” is not made out. The “relevant events” are the matters upon which the Tribunal’s credibility concerns were based. I have listed those matters at [23] above. Neither of the two individuals purported to be an eye witness to these events. While Mr B said he was a student at the Institute he did not say that he was present at any of the meetings to which he referred or that he personally saw the appellant’s name on the list on the noticeboard.

53    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. This is another reason why CZBH is distinguishable: see CZBH at [58].

54    Fourthly, the appellant did not point to any one of the Tribunal’s concerns which oral evidence from those witnesses would have been capable of alleviating. Nor did he indicate either to the Tribunal or to the Court what additional evidence they might have been able to give, beyond the vague suggestion that they could have corroborated the appellant’s account. The proposition that these people had “evidence that if tested may have resolved the issue of credit” was not made out.

55    As the Minister submitted, a decision as to whether to receive oral evidence will depend, to a significant extent, on the relevance and importance of the evidence. Where on the face of the material before the Tribunal there was no reason to suppose that the authors of the statements could allay its particular concerns about the appellant’s credibility, it was not unreasonable to decide not to question them. The Tribunal was not obliged to test their accounts or to give them an opportunity to elaborate upon them before it came to an adverse conclusion about their evidence. Proceedings in the Tribunal are inquisitorial, not adversarial. As the primary judge recognised, the rule in Browne v Dunn does not apply: Re Minister for Immigration; Ex parte Applicant S154/2002 (2003) 201 ALR 437; [2003] HCA 60 at [57].

56    Nevertheless, I am troubled by the Tribunal’s conclusion that the statements of the two witnesses were fabricated. It is one thing to find that evidence should not be given any weight. It is quite another to conclude that evidence is a fabrication. The High Court has said in a different context that “as a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence”: Smith v New South Wales Bar Association (1992) 176 CLR 256 at 268 (Brennan, Dawson, Toohey and Gaudron JJ). The Tribunal was entitled to find that the evidence of the two witnesses could not overcome the inconsistencies in the appellant’s account. It was unnecessary and inappropriate, however, for the Tribunal to go further and find that their evidence was a fabrication: Smith at 271–2 (Deane J). In the circumstances, that finding was unreasonable. It should not have been made.

57    Having said that, for the reasons I have already given, it was open to the Tribunal to find that what the witnesses had said could not rehabilitate the appellant’s evidence. That is what the Tribunal plainly did, in [78] and the first half of [79] of its reasons (extracted above at [26]). Having reached that view, it was not unreasonable for the Tribunal not to call oral evidence from them.

58    Thus, while it might well have been preferable for the Tribunal to have interrogated the two individuals before coming to a concluded view about the appellant’s credibility, I am not persuaded that its decision not to do so lacked an evident and intelligible justification. It follows that ground 1 is not made out. As the foundation for the challenge to the primary judge’s reasons in ground 2 is that the decision did lack that justification, ground 2 also fails.

Conclusion

59    I am not persuaded that the primary judge erred as alleged. The appeal should therefore be dismissed. Costs should follow the event. There will be orders accordingly.

Associate:

Dated:    3 June 2016