FEDERAL COURT OF AUSTRALIA

AWA15 v Minister for Immigration and Border Protection [2018] FCA 604

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia: AWA15 v Minister for Immigration & Anor [2017] FCCA 391. The primary judge dismissed an application for judicial review of a decision of the then-named Refugee Review Tribunal affirming an earlier decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth).

2    To succeed before the primary judge it was necessary for the appellant to show that the Tribunal committed jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); s 474 of the Act.

3    The appellant appeared self-represented before the primary judge and before this Court. His three grounds of appeal are poorly cast. Argument proceeded on the basis that the grounds of appeal should be interpreted to mean that the primary judge erred by failing to find that the Tribunal committed jurisdictional error by:

(1)    rejecting the appellant’s corroborative documentary evidence “without giving a solid reason” (the documents issue);

(2)    failing to afford the appellant procedural fairness by insisting that he speak through an interpreter (the interpreter issue); and

(3)    refusing the appellant’s request that his brother give evidence before the Tribunal by telephone from Karachi in Pakistan (the oral evidence issue).

4    For the reasons that follow there is no error affecting the Tribunal’s decision in respect of the documents issue or the interpreter issue. Whilst the Tribunal erred in the exercise of its discretion as to whether to obtain oral evidence from the appellant’s brother, I am not satisfied that the error ultimately affected the Tribunal’s core obligation to conduct a hearing of the application for review before it. The error is not jurisdictional and, accordingly, the appeal should be dismissed.

CRITERIA AND CLAIMS

5    The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

6    The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

7    Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

… the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ….

8    The appellant is a citizen of Pakistan. He arrived in Australia on a Business visa subclass FA-600 on 3 October 2013. That visa expired on 3 January 2014. He applied for a Protection (Class XA) visa on 28 November 2013.

9    In support of his visa application (and before the Tribunal), the appellant claimed to have a well-founded fear of persecution because he was imputed with the political opinions of the Pakistan People’s Party (PPP). Among other things, he claimed that he had worked as a trainee journalist under the supervision of one Mr R, a known PPP supporter and the editor of a daily newspaper. He claimed that Mr R was a relative who had asked him to infiltrate, and obtain information about, an opposing political party, the Muttahida Quami Movement (MQM). He further claimed that he was associated with another journalist, Mr A, who was, in turn, an associate of Mr R and in hiding for some time from the MQM. He said that Mr A had given him information in an envelope to pass on to Mr R and that he had exposed information resulting in the arrest of MQM activists. The appellant further claimed that Mr R had been killed in 2007, that he had organised a rally after Mr R’s death and that he had pressed for an investigation into the death to be reopened. He further claimed that Mr A had been killed by the MQM, that he had located Mr A’s body and that he had not reported the death to the police because it was too “risky”. He said that he had lived in hiding from the MQM in Karachi for six years before fleeing to Australia in 2013. He claimed that whilst in Karachi he and his family had been subject to extortion, violence and harassment at the hands of the MQM.

10    These claims were rejected by the Tribunal.

11    In its written reasons, the Tribunal stated that, having reviewed all of the oral and documentary evidence before it, it did not consider the appellant to be a witness of truth. It concluded that the appellant had “attempted to fabricate a set of claims around the shooting of [Mr R] … and around the deaths and targeting of some other journalists”. It described the appellant’s evidence about his work as a trainee journalist to be “confused, inconsistent and not credible”. Whilst the Tribunal accepted that some of the events narrated by the appellant had occurred (including the political deaths of Mr R and Mr A), it did not accept that the appellant himself was ever employed, whether secretly or otherwise as a journalist, nor that the conflict between the PPP and MQM had any connection with the appellant. It did not accept that the appellant was a relative of Mr R.

12    The Tribunal considered it significant that the appellant had not provided any evidence of articles he had authored as a journalist, notwithstanding that he had provided significant amounts of documentation going to other issues. The Tribunal also considered it significant that the appellant was unable to recall the years in which he had worked as a journalist for a particular news organisation in Karachi, even though the date had been specified in his written application for the visa. The Tribunal found that the appellant had continued to live a normal life in Pakistan for six years following the death of Mr R: marrying, working for two employers and registering his own business. His lifestyle, the Tribunal held, was not that of a person in fear of persecution from MQM activists. It rejected the appellant’s claim that he had been “lucky” he had not been killed in that time. The Tribunal further found that the appellant had sought to “link everyday life events with his claims for protection”, including the cessation of his studies for a Masters Degree, changes in his employment, the establishment of his business, his plans to divorce his wife, and the circumstance that his sister was suffering from cancer. Whilst the Tribunal accepted that these things had occurred, it did not accept that they were in any way related to the appellant having a fear of persecution by the MQM. These findings were relied upon in rejecting the appellant’s claims under both the Refugee Criterion and the Complementary Protection Criterion.

THE documents issue

13    This ground of appeal is expressed as follows:

Presiding member has continuously rejected my evidence without giving a solid reason.

14    Read literally, the ground of appeal takes issue with the manner in which the Tribunal dealt with the whole of the appellant’s evidence and with the sufficiency of the reasons given. In the course of argument however, the challenge was narrowed to one concerning the Tribunal’s rejection of the appellant’s corroborative documentary evidence, particularly those documents found by the Tribunal to be “fake” or “fabricated”.

Principles

15    The Tribunal’s core statutory function is to form for itself the state of satisfaction required under s 65 of the Act: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [3l] ⸺ [36]. In the context of a protection visa, this necessarily requires it to properly consider all the claims put before it and the essential elements of those claims: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [7] (Merkel J) [42] (Allsop J, Spender J agreeing). However, as the Full Court said in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] – [47]:

46    It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

47    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

16    In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1, Gleeson CJ said (at [12]):

… It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.

17    Similarly, North and Lander JJ in Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 said that, consistent with Applicant S20/2002, it was open to the Tribunal to assess the applicant’s credit, before then turning to consider what weight should be given to corroborative material (at [33]). Their Honours continued at [37] ⸺ [39]:

37    Several further observations should be made concerning the type of situation addressed in Applicant S20/2002 77 ALJR 1165; 198 ALR 59. The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.

38    The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002 77 ALJR 1165; 198 ALR 59 does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence. Consequently, the observation concerning the dicta of McHugh and Gummow JJ at [49] in Applicant S20/2002 77 ALJR 1165; 198 ALR 59 made in SZDGC 105 ALD 25 at [23] is probably misdirected. Those observations addressed the situation where the corroborative evidence was disregarded.

39    On the other hand, it should be remembered that McHugh and Gummow JJ questioned whether the separate consideration of corroborative evidence was a preferable practice. The RRT should normally assess all the evidence together. Otherwise, it might be thought that the corroborative evidence is treated as a lesser category of evidence and that the RRT has not paid sufficient regard to it.

Consideration

18    The primary judge held that the Tribunal had given consideration to all of the documents relied upon by the appellant and that it was open to the Tribunal to reject certain documents as having been fabricated by the appellant in an elaborate attempt to support his application for a protection visa. I have concluded that there is no appealable error affecting this aspect of the judgment.

19    In its written reasons, the Tribunal stated that the appellant had provided a substantial amount of documentation in support of his application for a protection visa. The reasons contain express references to the particular documents provided at the time of the application and to those additional documents that had been provided in the course of and following the hearing. The Tribunal did not proceed in ignorance of the existence of any particular document. On the contrary, the documents are given express attention in the Tribunal’s reasons, whether individually or in categories. The issue is not so much whether the Tribunal failed to have regard to the material evidence, but rather whether it was open to the Tribunal to reject the evidence for the reasons that it did.

20    Some of the documents relied upon by the appellant related to events in his life that the Tribunal accepted to have occurred. It also accepted, for example, that the appellant had married, ceased his studies and established a business in Karachi, and that his sister suffered from cancer. The Tribunal rejected the appellant’s claim that these events were explained by, or related in any way to, his claimed fear of persecution by the MQM. To the extent that these documents were capable of demonstrating that the events had in fact occurred, the evidence was not rejected by the Tribunal. Rather, the Tribunal held that proof of the events themselves did not advance the appellant’s claims for protection.

21    Similarly, at [51] of its reasons the Tribunal accepted, on the basis of the documentation provided, that Mr R was killed in February 2007. The Tribunal also accepted the articles and newspaper reports showing a rise in extortion and concerns by the business community in relation to such issues, however, it was not satisfied that the articles demonstrated that the appellant was personally exposed to any specific risk of harm so as to satisfy the Refugee Criterion.

22    The Tribunal went on to find certain documents or categories of documents had been falsified to support the appellant’s claims for protection. These documents include those related to the appellant’s claims that he was a journalist, that he and members of his family were victims of violence and extortion, that he had complained to the police, and that he had been politically active in relation to the death of Mr R. In respect of those issues, the Tribunal said (at [48] – [49]):

48.    Having considered all of the evidence, the Tribunal does not accept that the applicant was ever employed as a journalist in his home area in [place name redacted] or in Karachi or that he was attacked by the MQM or any other persons associated with political parties due to his involvement in exposing the corrupt activities of the MQM in 2007 or as a result of any subsequent involvement with the PPP. The Tribunal does not, therefore, accept the references provided purportedly from newspapers [sic] editors in Karachi and [place name redacted], the first of which is inconsistent with the applicant’s own evidence regarding the dates of his employment. The Tribunal does not accept that the letters from persons associated with other newspapers who have stated that they knew of the applicant’s employment are genuine or contain truthful information. The Tribunal does not accept that the ‘press pass’ is a genuine document and does not accept that the applicant was ever involved in investigative or secretive activities for any newspapers or that he was ever sought due to such involvement by MQM activists. The Tribunal considers that these documents have all been fabricated in an elaborate attempt by the applicant to establish claims for protection in Australia.

49.    The Tribunal also does not accept that the applicant was ever attacked, threatened or harassed, he and his wife fired on by unknown persons, or that a gun was held to his head, was ever issued with ransom demands, or had any money extorted from him by the MQM. The Tribunal does not accept that the applicant’s mother was injured or hospitalised for any of the reasons claimed by the applicant or that any persons have come to his home in his absence asking for him. The Tribunal does not accept any of the letters demanding a ransom, including the one which has a bullet attached to it are genuine documents. Nor does the Tribunal accept the First Information Reports or other documents reporting various incidents to the police, including the ransom demands and threats, which were purportedly written by the applicant, his wife or other family members to the police. As discussed with the applicant during the hearing, fraudulent documents are readily available in Pakistan. The Tribunal does not accept that the FIRS or documents provided to and from the police and other agencies are genuine and considers that the applicant has fabricated these documents in an elaborate attempt to create claims for protection in Australia. …

23    The primary judge held (at [27] ⸺ [29]) that it was open to the Tribunal to find that certain documents were not genuine. In my view, there is no appealable error affecting that conclusion.

24    Four observations may be made.

25    First, the Tribunal concluded that the appellant’s oral evidence was vague, confusing and internally inconsistent. In other respects, it found the appellant’s claims to be incredulous or implausible. It did not accept, for instance, that the MQM would yield its secrets to the appellant, assuming that he was a relative of Mr R and shared the same surname. It placed considerable weight on the appellant’s apparent freedom to make ordinary life decisions for six years in Karachi and so rejected the appellant’s claim that he had fled Pakistan in 2013 in fear of persecution. It noted the absence of evidence in the form of articles the appellant had written as a journalist, and the absence of records to demonstrate that he had agitated politically for an investigation into the death of Mr R (although there was evidence that Mr R’s sons had done so). The appellant has not demonstrated any jurisdictional error affecting these adverse credibility findings.

26    Second, the Tribunal reasoned that the appellant had referred to actual events in Pakistan and then fabricated his claims by attaching personal significance to them. The documents rejected by the Tribunal are those that evidenced a link between the events and the appellant’s claim to have been involved in them.

27    Third, as emphasised in Applicant S20/2002 and SZNSP it is neither illogical nor irrational for the Tribunal to consider the corroborative evidence relied upon by a review applicant after first making adverse credibility findings based on the applicant’s oral testimony. Whilst it was not open to the Tribunal to simply ignore the corroborative evidence, the Tribunal in the present case did no such thing. It referred to each document or class of document upon which the appellant relied and explained its reasons for determining the documents to be either irrelevant or fabricated. The Tribunal’s reasons disclose an active intellectual engagement with the material.

28    Fourth, the Tribunal relied upon country information from which it was open to conclude that fraudulent documents (particularly of an apparently official character) may be readily obtained in Pakistan.

29    It is not sufficient for the appellant to demonstrate that the Tribunal should have found the documents to be genuine. Rather, the appellant must show that it was not open to the Tribunal to find otherwise. That has not been done. The appellant’s complaint is more properly one characterised as attacking the merits of the decision. Accordingly, this ground of appeal must fail.

THE INTERPRETER ISSUE

30    The appellant received an invitation to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his application. In his response, he indicated that he did not require an interpreter. Notwithstanding that response, an Urdu interpreter was present on the day that the appellant appeared before the Tribunal. The following exchange took place between the appellant and the Tribunal member at the commencement of the hearing:

TRIBUNAL MEMBER: Okay. So, [Mr Appellant], you said that you actually didn’t need to have an interpreter today when you responded to the hearing invitation. You ticked no. You said you didn’t need an interpreter. So we have an interpreter here today. Do you need to use the interpreter?

APPELLANT: Yes.

TRIBUNAL MEMBER: Okay. Because you ticked no in response to the hearing invitation. Was that a mistake?

APPELLANT: I think so. Because there’s an interpreter issue with this. I will put in the file, send the interpreter and ..... putting on the - like, Urdu. It’s the same language, and the same Urdu as well, but my mother tongue is Sindhi.

TRIBUNAL MEMBER: Okay. But you speak - you speak Urdu.

APPELLANT: Yes. Yes.

31    The primary judge found that the appellant had ultimately requested the use of an interpreter for the hearing, and therefore the Tribunal had not committed any jurisdictional error in receiving evidence from the appellant through the agency of the interpreter.

32    At the hearing of this appeal, the appellant made a submission to the effect that his complaint was not so much that the Tribunal had used an interpreter, but that the interpreter had incorrectly interpreted his evidence and that the Tribunal had otherwise refused to permit him to give evidence directly and in English. As a consequence, he submitted, the Tribunal had either misunderstood his evidence or precluded him from explaining or elaborating upon the evidence he gave.

33    The appellant further complained that the learned primary judge had misunderstood the grounds of review and that, accordingly, the essence of his complaint had not been considered and decided in the proceedings below.

34    I am satisfied that the grounds of review before the primary judge are cast in terms that capture the issues now sought to be raised on this appeal. I am also satisfied that if the essence of the appellant’s complaint is made out, then it would follow that the Tribunal would not have discharged its obligation to conduct a hearing and receive evidence, and so would have committed jurisdictional error.

35    In the circumstances, the hearing of the appeal was adjourned and both parties were given the opportunity to file supplementary submissions, confined to the points raised by the appellant in the course of argument. To the extent that the appellant has filed supplementary submissions going to topics outside the grant of leave, the submissions have not been read.

36    In his supplementary submissions, the appellant reiterated that he preferred to speak for himself in English before the Tribunal but was prevented from doing so, and moreover, that the interpreter did not interpret accurately. The former submission is difficult to reconcile with this exchange between the appellant and the Tribunal shortly after the commencement of the hearing of his application for review:

TRIBUNAL MEMBER: Okay. So, [Mr Appellant], we have an interpreter here today who is speaking Urdu.

APPELLANT: Yes.

TRIBUNAL MEMBER: Okay. Now, the interpreter is here today to help us to understand each other. Okay. Do you understand everything the interpreter is saying so far, [Mr Appellant]?

APPELLANT: Yes.

TRIBUNAL MEMBER: Do you ⸺ do you want to use the interpreter all of the time or just if you have difficulties?

APPELLANT: Yes. All of the time.

TRIBUNAL MEMBER: Okay. Well, if you could please just wait for the interpreter to interpret then, and then respond.

APPELLANT: Okay.

TRIBUNAL MEMBER: Okay. Okay. Otherwise it just becomes a bit too confusing.

APPELLANT: Yes.

37    The appellant drew the Court’s attention to 15 extracts of the transcript of the proceedings before the Tribunal. Some of the extracts, it is argued, demonstrate irregular or inaccurate interpretation. The difficulty with that submission is that this Court is not equipped with the expertise to determine whether the interpretation of the appellant’s evidence was linguistically flawed and, if so, to what effect. The appellant has not adduced any admissible evidence from a qualified interpreter to substantiate this aspect of his complaint.

38    The remaining extracts from the transcript are said to illustrate the Tribunal wrongly precluding the appellant from giving evidence directly and in English.

39    In my view the extracts do not make out the appellant’s proposition. Although some of the extracts are suggestive of the Tribunal cutting the appellant off, it does not appear, on the face of the transcript itself, that the Tribunal, in doing so, was forcing the appellant to address it through the Urdu interpreter. Rather, on the occasions where the appellant was interrupted, it appears that the Tribunal sought to test the appellant’s factual accounts, as the Tribunal was entitled to do.

40    No breach of the rules of procedural fairness of the kind complained of is established by the transcript. Accordingly, this ground of appeal must fail.

THE ORAL EVIDENCE ISSUE

41    As already mentioned, the appellant received a notice inviting him to appear before the Tribunal: see s 425A of the Act. The requirements for such an invitation are set out in s 426. It provides:

426    Applicant may request Refugee Review Tribunal to call witnesses

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

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

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

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

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

42    The Tribunal has the power to take evidence on oath or affirmation: s 427. Oral evidence may be taken by telephone, closed-circuit television or any other means of communication: s 429A.

43    Within the time frame specified in s 426(2), the appellant gave the Tribunal written notice that he wanted the Tribunal to obtain oral evidence from his brother, Mr S. His response was given on a form provided by the Tribunal for that purpose. A telephone number for Mr S was provided. Where prompted by the form to describe the evidence his brother would give, the appellant wrote “He knows my situation”.

44    A review applicant is not obliged to state the means by which a witness should be permitted to give oral evidence. The mere provision of a telephone number for Mr S where indicated on the form ought not to be regarded by the Tribunal as a request that evidence be taken by that particular means. However, argument on this appeal proceeded on the basis that the appellant wanted Mr S to give oral evidence by telephone and his grounds of appeal are so confined.

45    The Tribunal was obliged to have regard to the appellant’s wishes but was not otherwise obliged to obtain evidence (whether orally or otherwise) from Mr S: s 426(3) of the Act.

46    Whilst the Tribunal has an obligation to give written reasons for its substantive decision on its review of the delegate’s decision, there is no obligation to give written reasons for refusing to grant a request made pursuant to s 426(2) of the Act.

47    The written reasons for the Tribunal’s affirmation of the delegate’s decision do not illuminate its reasons for declining the request. However, toward the end of the hearing, the Tribunal gave oral reasons for declining the request, expressed as follows:

TRIBUNAL MEMBER: Okay. Now, you asked me to telephone someone ⸺ you asked me to telephone someone during the hearing.

THE INTERPRETER: My brother in Pakistan.

TRIBUNAL MEMBER: Okay. Well, I probably don’t think ⸺ I don’t think I’m going to do that. I don’t normally ⸺ I don’t know who I’m speaking to. I don’t think it’s going to be much use for me to speak to that person. He can provide a ⸺ would you like to provide a statement from him ⸺ your brother?

APPELLANT: Okay.

TRIBUNAL MEMBER: You can do that if you like. It’s up to you.

48    As anticipated, the appellant provided the Tribunal with a written statement from Mr S after the oral hearing had concluded. The statement had annexed to it a number of additional documents. The Tribunal said this of the written statement (at [49]):

…  The Tribunal also does not accept that the statement from the applicant’s brother provided after the hearing contains truthful evidence and considers that it has been provided in an attempt to substantiate the applicant’s claims for protection.

49    The grounds of appeal contain a broad assertion to the effect that the Tribunal erred in declining to obtain oral evidence from Mr S by telephone. In light of the appellant’s unrepresented status, it is appropriate to deal with this ground by determining whether the Tribunal had given genuine consideration to the appellant’s request, and whether the discretion was affected by legal unreasonableness in the sense explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Principles

50    A discretionary power conferred by a statute is subject to an implied condition that it be exercised reasonably: Li at [63] (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1.

51    In Stretton, Allsop CJ said (at [11]) that upon considering whether a decision is legally unreasonable:

… the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power.  …

52    The “intelligible foundation” must be discerned from the reasons the decision-maker gives for the exercise of the power. As the Full Court said in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [47]:

…  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.

53    In Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304 the Full Court discussed the implied limitations upon the discretion conferred by s 361(2) of the Act (applicable upon a review conducted under Pt 5 of the Act), the analogue to s 426(3) (applicable upon a review conducted under Pt 7). Kenny and Lander JJ said (at [37] ⸺ [38]):

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

38    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’. 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, 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.

(citations omitted, emphasis added)

54    See also VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [23]; CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 and BTF15 v Minister for Immigration and Border Protection [2016] FCA 647; (2016) 69 AAR 376.

Consideration

55    The Tribunal’s reasons for declining to take telephone evidence from Mr S are brief and loosely expressed. The reasons are to be understood in the context in which they were given, namely, in the course of a hearing and in circumstances where the Tribunal was under no obligation to provide reasons in writing for exercising its discretion in the manner it did. The caution that the reasons of an administrative decision-maker not be scrutinised with an eye keenly attuned to the perception of error is to be observed even more so in the present context.

56    The oral reasons disclose that the Tribunal did in fact engage with the appellant’s request, albeit at the conclusion of the hearing and after it had heard the appellant’s own evidence. The Tribunal raised the subject of the request and gave an explanation as to why the request would not be granted. It cannot be said that the Tribunal ignored or failed to comply with its obligation to give the request consideration.

57    From the brief oral reasons given by the Tribunal, the primary judge discerned two bases for refusing to take the oral evidence. The first was that the Tribunal member would not be able to verify the identity of the proposed witness over the telephone. The primary judge held that reason to be “self-evidently justifiable”. I do not agree. It is to be borne in mind that upon refusing the request, the Tribunal provided the appellant an opportunity to provide a written statement from his brother. There would appear to be no logical foundation for concluding that the identity of Mr S could not be verified in the course of giving oral evidence by telephone, and yet invite the provision of a written statement from Mr S, which would necessarily require the Tribunal to determine whether the author is who he claims to be. The forensic problem of verifying a person’s identity arises in respect of evidence given in writing at least as much as it does in respect of evidence given orally. It was illogical for the Tribunal to state otherwise.

58    The second reason discerned by the primary judge was that the Tribunal member would not find the evidence “useful”. That reason was, the primary judge held (at [38]):

… justifiable given that the applicant had not identified in the Response to Hearing Invitation, or at the hearing, what issue his brother’s evidence was relevant to. In my opinion these reasons would satisfy the test in CZBH. They would constitute an ‘evident and intelligible justification’ for the decision.  …

59    I respectfully agree with the conclusion that the appellant had not indicated, in response to the hearing invitation, the issues his brother’s evidence might be relevant to. At the hearing, the Tribunal confirmed that the appellant had made the request, then proceeded to deny the request without making any enquiry of the appellant about the expected content of the evidence and the use to which he sought to make of it on the review. Whilst it might be open to a Tribunal to reject such a request on the basis that no particulars have been given of the proposed evidence, that is not the reasoning adopted by the Tribunal in the appellant’s case. Rather, the Tribunal concluded that the evidence would not be “useful”. The word “useful” may be fairly understood to mean that the evidence would be of no assistance to the Tribunal in determining the issues arising on the review. In my view, that was a conclusion that was not open to the Tribunal to make in the absence of knowledge as to the proposed content or purpose of the evidence. The proposed use of the evidence was not a matter in respect of which the Tribunal was entitled to speculate.

60    Notwithstanding the identification of these errors, I am not satisfied that they ultimately affected the outcome of the Tribunal’s statutory function of conducting a fair hearing of the application for review.

61    As to the first reason for refusing the request, the Tribunal ultimately received and considered a written statement after the hearing and it is clear from the Tribunal’s written reasons that it accepted that statement had indeed been made by the appellant’s brother, Mr S. The identity of Mr S as the appellant’s brother was not decided adversely to the appellant, and, accordingly, no unfairness resulted from the refusal of his request under s 426(2) insofar as verification of identity is concerned.

62    As to the second reason for refusing the request, the Tribunal later became apprised of the content of the evidence Mr S would have given by telephone, had the appellant’s request been granted. The evidence was received in writing, and it has not been demonstrated that Mr S could or would have given any different evidence had he given oral evidence by telephone in the course of the hearing.

63    On a fair reading of its reasons, the Tribunal’s rejection of the evidence given by Mr S was based upon, and depended upon, its adverse credibility findings about the appellant himself. Having found that the appellant had fabricated his claims for protection by constructing a narrative around real life events, the Tribunal was entitled to (and did) draw on that conclusion when assessing the truthfulness of any corroborative witness account. Accordingly, while it was not open to the Tribunal to postulate at the hearing that obtaining oral evidence from Mr S would not be “useful”, I do not consider the outcome of the review could or would have been any different had Mr S given his evidence by telephone, rather than in written form. It is to be acknowledged that a witness who gives evidence orally “demonstrates, for good or ill, more about his or her credibility than a witness whose evidence is given in documentary form”: Butera v Director of Public Prosecutions (Vict) (1987) 164 CLR 180 at 189 (Mason CJ and Brennan and Deane JJ) (cited in CZBH at [56]). However, in the present case the Tribunal rejected the statement of Mr S (as it did other corroborative evidence) because it did not consider the appellant to be a witness of truth. I do not consider there to be any realistic possibility that a different outcome would have ensued had Mr S given the same evidence by telephone. The assessment of the veracity of the witness turned upon matters other than demeanour.

64    Whilst there is error affecting the exercise of the Tribunal’s discretion as to the taking of oral evidence, in my view the error did not have the consequence that the hearing was unfair and so did not affect the Tribunal’s core statutory obligation to conduct a review as required by s 414 of the Act. Although there is error, it is not jurisdictional.

APPLICATION TO ADDUCE FURTHER EVIDENCE

65    Judgment on this appeal was reserved on 21 December 2017. On 1 February 2018, the appellant filed further submissions in which he urged the Court to consider further evidence, namely documents appearing to be certified complaints he had made to the police in Karachi.

66    In light of the appellant’s unrepresented status, the additional submissions have been received as an application to reopen argument on the appeal, and for leave to adduce before this Court evidence that was not before the Tribunal and not before the primary judge.

67    Leave to reopen argument and adduce the new evidence will not be granted. The role of the Court on this appeal is to determine whether the primary judge committed appealable error. In turn, the role of the primary judge was to determine whether the Tribunal committed jurisdictional error. The Tribunal could not commit jurisdictional error by failing to have regard to evidence that was not before it. Nor is it for this Court to rehear the appellant’s application for review of the delegate’s decision as though it stood in the shoes of the Tribunal.

68    The appeal should be dismissed with costs.

Associate:

Dated:    4 May 2018