FEDERAL COURT OF AUSTRALIA

AOO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 424

ORDERS

THE COURT ORDERS THAT:

1.    Appeal dismissed.

2.    Appellant pay the first respondent costs of the appeal to be assessed if not agreed.

3.    If it is necessary to fix costs then:

(a)    the first respondent may file and serve an affidavit constituting a Costs Summary in accordance with the Court's Cost Practice Note (GPN-COSTS);

(b)    within 14 days of service of the Costs Summary the appellant do file and serve any costs proposal in accordance with GPN-COSTS; and

(c)    if either party thereafter requests a determination of an appropriate lump sum figure then the matter shall be referred to a Registrar for determination of the lump sum on the papers.

4.    There be liberty to the appellant to apply within 14 days to vary the costs order.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The appellant's application for a protection visa was refused by a delegate of the Minister. She sought review in the Administrative Appeals Tribunal in accordance with the procedure set out in Part 7 of the Migration Act 1958 (Cth) (Act). Her application was unsuccessful. The appellant says that when the Tribunal considered her application for review it constructively failed to exercise its jurisdiction in two respects. First, by concluding that her brother's evidence would be of no probative value and therefore no useful purpose would be served by calling him to give evidence. Second, by unreasonably failing to consider exercising its discretion to call her parents to give evidence.

2    The appellant says that for those two reasons, the Federal Circuit Court should have set aside the Tribunal's decision on the basis of jurisdictional error. For the following reasons, the primary judge was not in error as to the result and the appeal should be dismissed with costs.

The appellant's application for a protection visa

3    The appellant made her application for a protection visa in 2013. She claimed that by reason of her homosexuality she feared she was at risk of harm in her home country of Zimbabwe. In 2014, a delegate of the Minister did not accept her claim that she was a lesbian and refused her application. She then sought review in the Tribunal.

Evidence before the Tribunal

4    In accordance with the usual procedures of the Tribunal, the appellant (then applicant) was asked to complete a form concerning arrangements for the Tribunal hearing. Under the heading 'Witnesses', the form referred to the ability of an applicant to request the Tribunal to 'take oral evidence from a person or persons'. It then provided for a yes or no response as to whether the applicant made such a request. It also stated that unless advised otherwise, the Tribunal would assume that the applicant would make arrangements for any witness to be available to give evidence. The appellant selected the 'no' box on the part of the form which provided for the making of a request that the Tribunal take evidence from another person. The form went on to request details of any witness the subject of a request. In that part of the form the appellant twice wrote 'N/A'. The form was signed by the appellant and submitted to the Tribunal.

5    The appellant appeared at the hearing. She gave evidence with the assistance of an interpreter. She was asked questions by the Tribunal concerning her claim that she feared harm if returned to Zimbabwe because of her sexuality. She claimed that in Zimbabwe she had been harmed on two occasions in 2012 because of her sexuality. She also claimed that in July 2013 the authorities or people in her community had come looking for her after she left the country and came to Australia. These three events were alleged to have occurred at the home of her family in Zimbabwe.

6    The Tribunal questioned the appellant about her family. She said that her parents lived in Zimbabwe. She said she also had a younger sister and two brothers in Zimbabwe, but they did not live with her parents. She also had a brother who was living in her former home in Zimbabwe and looking after her daughter. She gave evidence that when she called home to talk to her brother and her daughter they told her about people coming to the house actively looking for her. The appellant also told the Tribunal that her parents had to move in 2014 because of the backlash against her by reason of her sexuality. The appellant gave evidence that her daughter now lives with her parents in Zimbabwe.

7    The appellant also gave evidence that she lives with another brother in Australia. The appellant was then asked about her sexual orientation and whether she had considered whether it would be possible to live in Botswana or South Africa where she had often travelled.

8    After the above evidence, there followed the following exchange between the appellant and the Tribunal member:

MEMBER: Does your brother know why you're seeking protection? Your brother with whom you're living in Australia, does he know why you're seeking protection?

THE INTERPETER: Yes, he does.

MEMBER: Why didn't you bring him as a witness, give supporting evidence for you today?

THE INTERPETER: Okay. I think the … okay. I … actually that you would only be, interested in … people who are in Zimbabwe about this, whether … I didn't realise that he would be someone I could actually … and in fact he - he would have been quite willing to help out with it.

MEMBER: Well, you haven't got any witnesses down for me to contact in Zimbabwe. I would have - -

THE INTERPETER: I just - I just left that area … from Zimbabwe, but also someone - at the same time someone who … clear on how I would be able to … to bring someone to be a witness.

MEMBER: Well, could I ring your parents now and speak to them?

THE INTERPETER: Yes, that would be an option. I would not mind it.

MEMBER: They would know about the circumstances in August and November 2012?

THE INTERPETER: Okay. Okay. I think … Member, yes.

[THE APPELLANT]: Sorry, sorry.

THE INTERPRETER: No, no, it's okay. In fact, member, if I -if I just may, I'm not sure if she coveted the extent of her comprehension, you know, to a point of arriving at a conscious decision … every word …I would translate if she struggled. I don't think we actually covered that before the hearing. Not - not that it's worth changing now, but I just thought I'd … point out …

MEMBER: It was covered by the hearing officer prior to starting the hearing.

THE INTERPETER: … okay. Got it. Got it.

MEMBER: Sorry. I am aware that you have some understanding of English, but I understand also that it may - you also need the requirement of the interpreter. So I do understand that, but it was a preference for the interpreter to be used full-time.

THE INTERPETER: Sure, sure.

MEMBER: So I can ring your parents [and] they will also know about your sexuality?

THE INTERPETER: Yes, they're aware.

MEMBER: They are aware. Why didn't you provide some evidence from them? Why didn't you provide some evidence from them?

THE INTERPETER: I was … unsure of where I - I - who would have - you know, where … invite people to help me give evidence. I just haven't really … that option.

MEMBER: You've told your parents you're seeking protection on the basis of your sexuality?

THE INTERPETER: Yes, they are aware.

MEMBER: Is there anybody else in Zimbabwe that's not related to you that is aware of your sexuality?

THE INTERPRETER: Yeah, actually yeah, okay. Member, I just want to be clear I just translated - what I translated I'll play back for you in English … in Zimbabwe are you aware - do you have anyone that you know that does not know of your sexuality - your sexual orientation. Is that … the correct question?

MEMBER: Does she have anybody else - does she know anybody else in Zimbabwe, not related to her by family, who knows of - - -

THE INTERPRETER: Okay. Yes, understood. Okay. In general there are people around the community where I lived and who are aware of my orientation.

The Tribunal's reasoning as to credibility of the appellant

9    In its reasons, the Tribunal recounted the evidence given by the appellant and then said (para 35):

The Tribunal asked why she didn't bring any witnesses to the hearing like her brother with whom she is living or her parents as she claims they are all aware of her sexuality. She told the Tribunal that she gets on with her brother. The applicant initially responded that she thought the Tribunal would only be interested in people from Zimbabwe and later said she was unaware that she could bring witnesses.

10    The Tribunal then recounted evidence given by the appellant about travelling regularly to South Africa where she had family and why she did not relocate to South Africa where homosexuality was decriminalised (paras 36 and 37).

11    The Tribunal found that her claims to be a lesbian and as to her lesbian relationships 'were of a general and unconvincing nature' (para 40). Further reasons were given to support this finding. The Tribunal then observed that the appellant had provided 'no substantiating evidence of her lesbian relationship through the whole process of her application' (para 41). The Tribunal then said (para 42):

… When it was put to her that she had the opportunity to have her brother or parents, who she claimed knew about her situation, attend the Tribunal hearing, she indicated that she was not aware she could have witnesses. This is despite the hearing response clearly indicating that she was able to call witnesses and in the applicant's case marked as n/a.

12    The Tribunal then referred to the appellant's evidence about her family and said as to the appellant (para 43):

She stated that her family are aware she has applied for protection and are aware of the basis on which she is seeking protection. She stated her parents were aware that she was a lesbian, were disappointed and tried to talk her out of her sexual orientation.

13    The Tribunal then found on the basis of her evidence as to what was known by her parents and her brother that it did not accept 'that she would have failed to take the opportunity to substantiate her claims by seeking her brother's support if they were genuine' (para 44).

14    At this point, it is to be noted that the reference to the appellant's brother was to the brother with whom she lived in Australia. There was no indication in the appellant's account to the Tribunal that her brother in Australia was said to have been present in Zimbabwe when the alleged events occurred. However, she did say that her brother in Australia knew why she was seeking protection. As has been noted, when she was asked why her brother in Australia was not giving evidence, the appellant's response was that she thought the Tribunal would only be interested in people who are in Zimbabwe, but her brother in Australia would have been quite willing to help out. By the time of the Tribunal hearing the appellant had been living with her brother in Australia for a number of years. Therefore, he might be expected to give evidence concerning the way she lived her life.

15    When the appellant was asked about not having listed any witnesses to contact in Zimbabwe the translated answer is recorded in the transcript as 'I just left that area … from Zimbabwe, but also someone - at the same time someone who … clear on how I would be able to … to bring someone to be a witness'. Plainly, there was some difficulty with the translation (a matter borne out by an exchange that happened between the Tribunal member and the interpreter shortly thereafter). However, the evidence showed (perhaps understandably) that the appellant was not clear on how she would be able to bring someone to be a witness if they were in Zimbabwe. In that regard, I note that the form completed by the appellant before the hearing had indicated that unless advised otherwise it was assumed that the appellant would arrange any witnesses to be made available to give evidence.

16    In that context, the Tribunal then found (para 45):

The Tribunal considered whether or not anything would be gained by having her brother attend at another date and decided that this would not serve any useful purpose since any evidence would be of no probative value.

17    I note that at this point the Tribunal was referring to 'the brother, with whom [the appellant] is residing'. There was no reference to the appellant's parents or to her brother in Zimbabwe who, on her account, were the people who could corroborate her evidence as to what had occurred in Zimbabwe.

18    The Tribunal dealt with aspects of the appellant's account and identified a number of concerns as to its inherent credibility and then reached a conclusion that it did not accept the appellant's claim that she is a lesbian (para 54).

The Federal Circuit Court

19    An application was brought in the Federal Circuit Court in 2016 to review the Tribunal's decision for alleged jurisdictional error. The application came on for hearing in 2019. The appellant was legally represented in those proceedings and advanced extensive grounds of review. Of the six grounds raised, each with lengthy particulars, only ground 6 is of any present relevance. It alleged that the Tribunal's decision 'was so unreasonable that no reasonable decision maker could have arrived at it'. A number of reasons were given to support that ground. One of those reasons was expressed as follows:

Nevertheless, the Tribunal Member decided not to afford the Applicant the opportunity to provide substantiating evidence of her lesbian relationship:

i.    the Tribunal Member criticised Applicant for failing to bring her parents and brother to the Tribunal to give evidence to substantiate her claim [42] and [44]; and, at the same time,

ii.    the Tribunal Member decided that the Applicant's brother's evidence 'would not serve any useful purpose since any evidence would be of no probative value'.

(original emphasis)

20    As to the above aspect of the grounds, the following written submission was made (para 180):

The Second Respondent did not afford the Applicant the opportunity to have her brother attend at the Tribunal and give evidence because 'having her brother attend at another date ... would not serve any useful purpose since any evidence would be of no probative value' [45]. This was manifestly unreasonable because:

a.    the Second Respondent criticised the Applicant for 'failing to provide substantiating evidence of her lesbian relationship' at [41], but such evidence may have been provided by the Applicant's brother;

b.    the Second Respondent found that 'if … [the Applicant] could face a real chance of serious harm and her brother ... is aware of her situation, the Tribunal does not accept that she would have failed to take the opportunity to substantiate her claims by seeking her brother's report';

c.    the Second Respondent had the opportunity to call the Applicant's parents so they could give evidence, however, even with the consent of the Applicant, refused to call the Applicant's parents to take their evidence; and

d.    by making this negative inference, the Second Respondent refused to accept the Applicant's explanation regarding witnesses.

(original emphasis)

21    Allowing for some infelicity in expression, it can be seen that ground 6 complained that the Tribunal's decision was legally unreasonable because (a) on the one hand it criticised the then applicant for not providing substantiating evidence whilst on the other hand the Tribunal did not call the applicant's parents; and (b) it also reasoned that the applicant would not have failed to call her brother if he could provide substantiating evidence.

22    In rejecting a separate ground (not pressed on appeal) to the effect that the applicant was not given notice of the prospect that there might be adverse credibility findings as to her evidence and therefore did not have an opportunity to produce corroborating evidence to the Tribunal, the primary judge dealt with the failure by the applicant to call witnesses. In that context, reference was made to the invitation in the form provided to the applicant prior to the hearing: at [56]. However, when it came to considering ground 6, the primary judge did not engage in any way with the submission that the Tribunal's decision was legally unreasonable because the Tribunal did not call the parents and by reasoning that the brother would have been called if he could assist. Instead, the primary judge characterised ground 6 as an overall claim that the conclusion that the applicant is not a lesbian was a conclusion that was simply not open to the Tribunal: at [112]. The primary judge simply concluded that the decision made by the Tribunal was open to it and for that reason it could not be said to be unreasonable: at [115]. All grounds of review were rejected by the primary judge.

Appeal ground

23    An appeal to this Court was commenced in September 2019. Two appeal grounds were raised that specified grounds of review that the primary judge should have upheld. The first concerned the findings by the Tribunal about evidence that the appellant's brother who lived with her in Australia might have given if called to give evidence. The second concerned a claim of apprehended bias. The second ground was abandoned.

24    The Minister submitted that leave was required to raise the first ground because it identified an error of a kind that had not been raised before the primary judge.

25    In the course of the hearing of the appeal, leave was sought to amend the first (and by then only) ground of appeal by adding a particular to the effect that the Tribunal unreasonably failed to consider whether or not to exercise its statutory discretion to hear from the appellant's parents. Although expressed as a particular of the existing ground, in substance it raised a separate ground about the way in which the Tribunal approached the possibility of evidence being given by the appellant's parents. The Minister maintained that this further aspect was also a matter not raised before the primary judge, but did not otherwise oppose leave.

26    Therefore, there are two aspects to the appeal. First, a complaint about how the Tribunal dealt with the possibility of evidence from the appellant's brother in Australia. Second, how the Tribunal dealt with the possibility of evidence from the appellant's parents who were living in Zimbabwe.

27    Without meaning to be unduly critical, the original written submissions for the appellant were somewhat discursive. For example, they alleged that evidence from the appellant's brother in Zimbabwe was more probative than the appellant's brother in Australia (being the only witness that the Tribunal expressly referred to as having been considered as a witness who might have been called) (para 29). However, there was no ground of appeal that concerned the evidence that might have been given by the appellant's brother in Zimbabwe. There was also reference to matters raised before the primary judge as to apprehended bias, but that ground was expressly abandoned on the appeal (para 31). There was a reference to the Tribunal having made a finding of implicit waiver by the manner in which the appellant filled in the form as to whether witnesses were requested to be called (para 32). It formed a basis for a criticism of the Tribunal's reasoning, but there was no ground of appeal to that effect. However, the oral submissions and supplementary submissions focussed upon the two aspects I have identified and the other matters were not pressed in any formal way (and could not have been without seeking further amendment to the grounds of appeal). For those reasons, I do not address them.

Leave not required

28    I am satisfied that the two matters sought to be raised by the appellant were within the scope of the grounds raised before the primary judge. Ground 6 before the primary judge complained about the approach that the Tribunal had adopted in its reasoning as to why the appellant's brother could not give probative evidence. It also complained that the Tribunal did not give the appellant the opportunity to provide substantiating evidence by criticising the appellant for failing to bring her parents and brother to the Tribunal to give evidence. When considered in the context of the written submissions before the primary judge, ground 6 complained of the way the Tribunal approached the absence of evidence from the brother and the parents. The submissions made a direct complaint to the effect that, even with the consent of the appellant, the Tribunal refused to call the appellant’s parents. Those matters were relied upon to support a claim that there was jurisdictional error by reason of legal unreasonableness.

29    Put in that way, inherent in the grounds raised before the primary judge was a complaint that the Tribunal should have exercised its discretion to call evidence from the brother and the parents. They also complained that the overall reasoning by the Tribunal as to the failure by the appellant to call evidence from her parents and her brother was unreasonable. Those two aspects cover the matters the appellant now raises on appeal.

30    To the extent that I am wrong in that view and the grounds go further than what was argued before the primary judge, I would give leave to raise the ground of appeal. I summarised the principles to be applied in considering whether to grant leave in CHZ19 v Minister for Home Affairs [2019] FCA 914 at [31]-[39]. By reason of the subject matter of the appeal (and its consequences for the appellant) and the fact that the ground raises only legal argument as to a matter that was the focus of submissions before the primary judge, I consider it to be expedient and in the interests of justice for the subject matter of the ground to be fully considered. This is especially so in circumstances where the way the matter was raised below was not actually addressed by the primary judge and, as a result, the substance of the ground is being addressed for the first time on appeal.

The extent of Tribunal's responsibility to call witnesses

31    The Tribunal's statutory duty is to undertake a review of the kind provided for in Part 7. In rare or exceptional circumstances the reasonable performance of that duty may mean that a failure to make an obvious inquiry about a critical fact will mean there has been jurisdictional error: Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [60] and the cases there cited. However, that does not mean there is a duty to inquire. The duty remains a duty to undertake the required review. A failure to make an obvious inquiry about a critical fact the existence of which is easily ascertained could give rise to jurisdictional error by constructive failure to exercise jurisdiction to undertake the required review: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [1], [25]: The scope for any such claim of jurisdictional error has, from the outset, been recognised as being within a 'strictly limited' compass: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 46; (1985) 6 FCR 155 at 169-170. Importantly, the mere fact that it may have been reasonable to make an inquiry does not mean the failure to make the inquiry amounts to jurisdictional error: Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; (2017) 256 FCR 235 at [33] (Dowsett, Pagone and Burley JJ).

32    A review under Part 7 begins with an invitation to the applicant to give evidence and present arguments: s 425. Notice must be given of the invitation: s 425A. The notice must state that within seven days the applicant can give notice to the Tribunal that the applicant wants the Tribunal to obtain evidence from named people: s 426. The Tribunal must have regard to the applicant's wishes expressed in response to the notice as to people from whom oral evidence should be taken, but the Tribunal is not required to take evidence from them: s 426(3). The Tribunal must give real and genuine consideration to any such request and the discretion must be exercised reasonably: Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118 at [38] (Kenny and Lander JJ); AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; (2018) 262 FCR 317 at [75]; and CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 at [44] (Rangiah J). Nevertheless, it is for the Tribunal to decide whether to call witnesses in order to undertake the required review.

33    When conducting the review, the Tribunal has a discretion whether to take evidence from a particular person: s 427. So, even where there is a request from the applicant within the required seven days that evidence be taken from a particular person, it is a matter for the Tribunal in the exercise of its discretion as to whether that evidence will be taken. The discretion resides in s 427 and is wide, consistent with the inquisitorial function of the Tribunal: AYX17 at [49] (Tracey and Mortimer JJ, Charlesworth J agreeing). It may be appropriate for the Tribunal to defer the exercise of its discretion and convene, if necessary, a further hearing at which evidence is taken from other witnesses: AYX17 at [66]-[68].

34    It was submitted for the appellant that even where no request had been made by the applicant for evidence to be taken from a particular person, the Tribunal had a duty to consider the exercise of the statutory discretion to take evidence from persons other than the applicant. However, as I have noted, the relevant duty is the duty to conduct the review. When it comes to making inquiries as to matters not before the Tribunal, the reasonable performance of the statutory task to undertake a review does not extend beyond making obvious inquiries about critical facts.

35    Separately, the statutory duty to have regard to a request by an applicant in response to a hearing notice that evidence be taken from a particular person is confined to instances where the request is made within the specified seven day period of receiving the notice. Therefore, there is no failure to comply with the statute if a later request is not considered by the Tribunal. In such instances, the issue is whether the failure to exercise the statutory discretion to take evidence from a particular person means that the review as a whole lacks the requisite statutory character such that there could be said to be a constructive failure to exercise the jurisdiction to undertake the review.

36    If it is obvious that the person who was not asked to give evidence was a person who could give evidence about a critical fact and the person could be easily contacted then the failure to take evidence from that person may be a constructive failure to exercise jurisdiction. However, whether it has that character is to be evaluated having regard to the nature of the review as a whole. It is not to be evaluated by considering whether the failure to take evidence from the witness was reasonable assessed in a manner that is removed from a consideration of its significance in the conduct of the review as a whole.

37    As to instances where the complaint is of the failure to take evidence from a person who may corroborate the account given by the applicant for review, the following reasoning by Rangiah J in SZVBB v Minister for Immigration and Border Protection [2015] FCA 1414 at [40]-[41] was approved in AYX17 at [81], [103]:

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 ...

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 ... 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.

(citations omitted).

38    To similar effect is the reasoning by Lee and Finkelstein JJ in W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211; (2002) 124 FCR 449 at [3] where their Honours emphasised how corroboration of one part of an account might have consequences for the way the whole account is viewed. In the proper exercise of the discretion whether to take evidence from a particular person, the Tribunal should not reach a decision too quickly or readily that the proffered corroborative evidence could not affect the Tribunal's view of the credibility of the applicant for review. To do so 'may tend to discount or nullify entirely the legitimate purpose of corroborative evidence': AYX17 at [86], [103].

39    However, care must be taken with the above authorities. They are concerned with instances where there was a request by the applicant made within seven days of a hearing notice for evidence to be taken from a particular person. In such instances, as I have noted, the statutory duty to have regard to the request itself is qualified by a requirement of reasonableness. In the present case there was no such request. Therefore, it is only where the failure to take evidence from the particular person means that the whole review lacks the requisite reasonable character that jurisdictional error is demonstrated. That is because review for legal unreasonableness concerns the overall character of an administrative decision. Unreasonableness as to part is not sufficient to demonstrate jurisdictional error unless it founds a conclusion that the decision is unreasonable as to the overall outcome or the whole of the reasoning process used to support the decision: Tsvetnenko v United States of America [2019] FCAFC 74 at [82]-[85].

No jurisdictional error in the failure to take evidence from the appellant's brother

40    When asked why she did not bring her brother in Australia as a witness, the appellant's answer was to the effect that she assumed that the Tribunal would only be interested in the people in Zimbabwe. The answer made plain that her brother in Australia did not know about what had happened in Zimbabwe. The rest of the appellant's evidence was to the effect that it was her parents, her daughter and her brother in Zimbabwe who had been looking after her daughter that were the ones who knew about what had happened. To the extent that her brother in Australia was a corroborating witness it was in respect of the appellant's lifestyle in Australia and conversations and dealings between them as members of the same household.

41    The Tribunal gave reasons to the effect that if her brother in Australia could help ('is aware of her situation'), it did not accept that she would have failed to substantiate her claims by seeking her brother's support if those claims were genuine. Therefore, the Tribunal expressly considered whether to call the brother and decided that to do so would serve no useful purpose since his evidence would be of no probative value. The Tribunal was entitled to form a view as to whether a prospective witness would be of probative value in considering whether to exercise its statutory power to call a witness. It could bring to bear the appellant's conduct in not requesting the Tribunal to take evidence from her brother in reaching that conclusion. To do so was not to form a view as to the credibility of the brother's account without hearing his evidence. Nor was it to reach a conclusion as to an important part of the appellant's account where it had been shown that the brother might be able to corroborate the account. Rather, it was to reason from what the Tribunal regarded as an inadequate explanation as to why the appellant's brother in Australia had not been included as a witness.

42    I do not accept that the Tribunal applied some form of Jones v Dunkel reasoning as to the drawing of inferences. It simply reasoned from the fact that the appellant did not ask the Tribunal to take evidence from her brother that his evidence would be of no probative value. That mode of reasoning has not been shown to be unreasonable or a constructive failure to exercise jurisdiction.

No jurisdictional error as to the failure to call the appellant's parents

43    The Tribunal's reasoning concerning the taking of evidence from the appellant's parents was as follows.

44    First it said (para 35):

The Tribunal asked why [the appellant] didn't bring any witnesses to the hearing like her brother with whom she is living or her parents as she claims they are all aware of her sexuality. She told the Tribunal that she gets on with her brother. The applicant initially responded that she thought the Tribunal would only be interested in people from Zimbabwe and later she said she was unaware that she could bring witness.

45    Then it said (para 42):

When it was put to [the appellant] that she had the opportunity to have her brother or parents, who she claimed knew about her situation, attend the Tribunal hearing, she indicated that she was not aware she could have witnesses. This is despite the hearing response clearly indicating that she was able to call witnesses and in the applicant's case marked as n/a.

46    There are some difficulties with the Tribunal's reasoning having regard to the way in which the appellant gave her evidence.

47    When first asked why she didn't bring her brother in Australia as a witness, the appellant's response was interpreted as being to the effect that she thought the Tribunal would only be interested in people who are in Zimbabwe. And then she said that she didn't realise her brother in Australia 'would be someone I could actually … and in fact he - he would have been quite willing to help out with it'. It is unclear whether this further response meant that she did not realise that her brother was someone who could actually assist even though he was not personally aware of events in Zimbabwe or that she did not realise he was someone who she could request to be a witness.

48    The Tribunal member then followed up and observed that the appellant did not have any witnesses from Zimbabwe. The translated answer was to the effect that she was not clear on how she would be able to bring someone as a witness from Zimbabwe.

49    When the Tribunal returned to the same issue and asked why the appellant did not provide some evidence from her parents, the translated response is quite garbled in the transcript record. It is as follows:

It was … unsure of where I - I - who would have - you know, where … invite people to help me give evidence. I just haven't really … that option.

50    It was perhaps open to the Tribunal to conclude that the appellant was saying she was unaware that she could have witnesses. However, the answer is given in response to a question concerning her parents and not her brother. In the context of her earlier evidence, it may be evidence that she did not have the option of being able to arrange for her parents to come to give evidence. It appears to be evidence about problems with how to go about arranging the evidence, not a suggestion that she did not know she could request that there be witnesses.

51    When due allowance is made for difficulties of translation it appears that there are difficulties with the evidentiary foundation for the finding that the appellant indicated that she was unaware that she could have witnesses. However, putting the matter at its highest from the perspective of the appellant, that is no more than a factual error in the course of a finding that placed emphasis on the manner in which the form had been completed by the appellant marking N/A in the section for requesting the Tribunal to take evidence from another person. If it was the case that the appellant's evidence is properly characterised as giving a consistent response to the effect that she did not know how to arrange a witness from Zimbabwe to be made available then the manner in which the form had been completed might assume less significance. However, those are matters concerned with factual findings that, of themselves, do not demonstrate unreasonableness in the review as a whole. Each imperfection does not mean that the review lacks the overall character of unreasonableness. It does not aid the task of considering whether there is jurisdictional error to label a particular aspect of the reasoning as 'unreasonable' because the relevant question is whether the overall decision (or the overall reasoning) lacks the required character of reasonableness.

52    During the hearing, the Tribunal member raised the possibility that the appellant's parents might be telephoned then and there. The translated answer from the appellant was 'Yes, that would be an option. I would not mind it'. Irrespective of whether this should have been treated as a request from the appellant to do so or not, it was evidence that indicated that it was relatively easy to contact the parents. The appellant told the Tribunal expressly that her parents could corroborate her account of the circumstances in August and November 2012.

53    Despite the references to possible evidence from the appellant's parents, when the Tribunal in its reasons came to consider the possibility of exercising its discretion to take evidence from anyone other than the appellant, that consideration was confined to the appellant's brother in Australia.

54    However, I do not accept that I can infer from the Tribunal's reasoning that the Tribunal failed to consider taking evidence from the appellant's parents.

55    It was submitted for the appellant that the fact that the Tribunal gave reasons for not taking evidence from the brother and gave no such reasons as to the parents, leads to the inference that the Tribunal failed to consider whether to take evidence from them. I do not accept that submission. The nature of the evidence that the brother might have given was different to that which could be given by the appellant's parents. The brother could give evidence based on his experience of living with the appellant for a number of years in Australia. He was present in Australia and there were no difficulties involved in securing his attendance.

56    The parents on the other hand could only corroborate the account of the appellant as to what occurred in Zimbabwe. If the content of that account was considered by the Tribunal to be inherently lacking in credibility then its corroboration by other family members would not be a matter of any real weight. It would only be where the Tribunal was concerned about the way in which the appellant gave her evidence, about alleged inconsistencies in her account, about gaps in the account or that, for other reasons, the appellant was not to be believed that corroborating evidence from the parents might be significant.

57    Significantly, the Tribunal's reasons rest on more than a rejection of the appellant's account. The following aspects deal with problems in her account even if it was corroborated by her parents:

(1)    the Tribunal did not accept the account in part because it found that the appellant on her own evidence had been able to remain employed in Zimbabwe 'without experiencing any discrimination and persecution in a culture that is so strongly homophobic and openly adverse to any gay/lesbian relationships' (para 50);

(2)    on the appellant's account she returned to Zimbabwe from South Africa despite being fearful for her life, being steps that, in the view of the Tribunal, were inconsistent with her claim that she feared harm (para 52);

(3)    the Tribunal found that delay in taking steps to secure protection was a further matter inconsistent with the appellant's claim (para 52); and

(4)    as I have already noted, the Tribunal found that the appellant's account of her lesbian relationships were of a general and unconvincing nature (para 40).

58    Therefore, on the reasoning adopted by the Tribunal, even if her version of events was corroborated by her parents, there were a number of aspects of that account that were not credible. In the view of the Tribunal, each of those aspects would still stand against her claim. In that context, I do not accept that it has been shown that there was a failure by the Tribunal to consider taking evidence from the appellant's parents.

59    It follows that this was a case where the Tribunal's main concern was not with the way the account was given or with the appellant not being a reliable witness by reason of her lack of credibility in general. Rather, it had concerns with the credibility of the content of the account and the fact that there was no substantiation by the appellant of her lesbian relationship. Those concerns would not be addressed by corroborating evidence from the parents. There was no suggestion that they could substantiate the appellant's claim as to her past lesbian relationship and their corroboration of an account that was considered by the Tribunal to be lacking in inherent credibility would not be evidence that could be said to be critical.

60    Indeed, given the references to both the brother and the parents when dealing with the evidence of the appellant as to why she did not bring any witnesses (paras 35 and 42) it seems most unlikely that the Tribunal overlooked the possibility that the parents might be called to give evidence. Rather, the difference between the nature of the evidence that might be given by the brother on the one hand and the parents on the other and the view of the Tribunal as to the significance of evidence from someone who had been living with the appellant for a number of years explained the Tribunal's approach.

61    In that context, it is understandable that the Tribunal may have formed the view that the evidence of the parents was not of significance. Therefore, it may be inferred that the Tribunal considered the position of the parents and the possibility of calling them but did not mention them in its reasons because it was not material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611.

62    If I am wrong in that view and there was a failure to consider whether to exercise the statutory discretion to take evidence from the parents then for the following reasons, even on that premise, there has been no jurisdictional error.

63    I accept that, in substance, the appellant made a request for the Tribunal to take evidence from her parents. However, it was not a request made before the hearing and it was not a request to which the Tribunal must have regard by reason of s 426(3). For reasons I have already given, those distinctions are important. The Act confines the statutory duty to have regard to a request by an applicant that a person be invited to give evidence to those instances where the request is made in accordance with the terms of s 426(2) (and no such notice was given by the appellant in this case). Conformance with that statutory duty as to the procedure to be followed conditions a valid exercise of the power to undertake a review. On the other hand, a failure by the Tribunal to consider whether to take evidence from the parents after a later request was made would not be a failure to conform to any statutory requirement that conditions the proper exercise of the procedural discretion conferred by s 427(1) to take evidence from a particular witness. It would simply be a step in the forensic approach by the Tribunal in conducting its review.

64    The contentions advanced for the appellant seemed to presume that an unreasonable failure to consider whether to exercise the discretion to hear from the appellant's parents would be sufficient to establish jurisdictional error. But to approach the matter in that way is not apt. The question is whether there was a constructive failure to undertake the review as a whole as a consequence of any failure to consider whether to hear from the appellant's parents. It does not aid the resolution of that question to ask whether the failure to consider taking evidence from the appellant's parents was reasonable or not. An 'unreasonable' failure to consider taking that evidence may or may not have resulted in a review that failed to conform to the statutory requirement to undertake a reasonable review.

65    Therefore, irrespective of whether there was a failure to consider taking evidence from the parents or a view by the Tribunal that their evidence was not material, the question is whether the Tribunal acted unreasonably in the conduct of the review by not considering whether to call the appellant's parents. The test for unreasonableness is stringent and extremely confined: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11], [52], [135]. There must be an error that is so grave both as to its nature and the significance of its subject matter that it results in a decision that has been reasoned in a manner that is not authorised: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [25], [30]-[31]. '[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': Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [54]. The required quality or character of unreasonableness that must be demonstrated in order for a decision to fail to conform to the implied statutory requirement that a decision must be reasonable was explained by Allsop CJ in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [11]-[12] in the following way:

The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: 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. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.

66    In this instance, it cannot be said that the failure to consider taking evidence from the appellant's parents meant that the review was unreasonable in the relevant sense. For reasons I have given, the reasoning pathway adopted by the Tribunal meant that corroboration of the appellant's account by her parents was a matter of limited significance. It was certainly not critical.

67    In consequence, the present case is in the category of cases where the Court might strongly disagree with the reasoning that has been adopted by the Tribunal and in it proceeding without considering and acceding to the request to take evidence from the appellant's parents. However, it could not be said that the consequence was that the review lacked the required character of reasonableness because it was reached without considering whether to take evidence from the appellant's parents. The concerns raised in relation to the failure of the Tribunal to consider calling the appellant's parents when considered in the context of the Tribunal's overall approach fall short of demonstrating unreasonableness.

68    Given the conclusion I have reached it is not necessary to consider the Minister's further submission that in any event any error was not material.

Conclusion and orders

69    It follows that the appeal must be dismissed. I am not aware of any reason why costs should not follow that event. Therefore, I will order that the appeal be dismissed with costs but reserve liberty to the appellant to apply to vary the costs order if there is material of which the Court is not aware that might bear upon the question of costs.

Associate:

Dated:    1 April 2020