FEDERAL COURT OF AUSTRALIA

BOX16 v Minister for Immigration and Border Protection [2020] FCA 801

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The appellant is a citizen of Bangladesh. He arrived in Australia on a tourist visa on 25 December 2013. On 24 March 2014, he lodged an application for a Protection (Class XA) (Subclass 866) visa. That application was refused by a delegate of the Minister for Immigration and Border Protection on 13 November 2014, on the basis that the appellant did not satisfy the criteria for the grant of such a visa under s 36 of the Migration Act 1958 (Cth) and cl 866.221 of Sch 2 to the Migration Regulations 1994 (Cth). The appellant then applied to the Administrative Appeals Tribunal for a review of the Minister’s decision. That review application was unsuccessful. The appellant then applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. That application was dismissed. The appellant subsequently appealed to this Court from the judgment of the Circuit Court.

2    While the appellant initially adopted the same “scatter-gun” approach to the appeal as he had adopted in his application in the Circuit Court, he ultimately pressed only two grounds of appeal.

3    The first ground was, in essence, that the Tribunal acted unreasonably in the exercise of its discretion in s 426(3) of the Act as to whether to call oral evidence from witnesses notified by the appellant. The appellant contended that he had notified the Tribunal, in accordance with s 426(2) of the Act, that he wanted the Tribunal to take oral evidence from seven witnesses, but that the Tribunal unreasonably declined to take oral evidence from any of those witnesses. The primary judge found, in effect, that the Tribunal did not err in any jurisdictional sense in declining to take oral evidence from the seven witnesses. As will be seen, the issue concerning the exercise of the Tribunal’s discretion under s 426(3) of the Act is complicated by the complex procedural history of the appellant’s review application in the Tribunal, the absence of evidence, in the form of a transcript, of what transpired at the hearing in relation to the calling of witnesses and the absence of any detailed or particularly illuminating reasoning by either the Tribunal or the primary judge in relation to this issue.

4    The second ground was, in essence, that the Tribunal’s finding that the appellant was not a witness of truth, and that his protection claims were false, was legally unreasonable. The appellant contended that the Tribunal’s findings in that regard were illogical, irrational and unsupported by “probative evidence”. While this ground was initially expressed in broad terms, the appellant made it clear that the contention that the Tribunal’s adverse credibility finding was legally unreasonable was essentially tied to his contention that it was unreasonable for the Tribunal not to call oral evidence from the seven supposed witnesses. In the appellant’s submission, that evidence corroborated his evidence and, because the corroborative evidence was effectively unchallenged, it was not open to the Tribunal to reject his evidence as unreliable. Consideration of this ground will require close attention to be given to the Tribunal’s reasons for finding the appellant not to be a credible witness and the way the Tribunal dealt with the supposedly corroborating material.

the APPELLANT’s protection CLAIMS

5    The claims and evidence that provided the basis for the appellant’s visa application are dealt with at length in the Tribunal’s Statement of Decision and Reasons (at [8]-[37]) and the judgment of the primary judge: BOX16 v Minister for Immigration & Anor [2018] FCCA 2910 at [4] (Judgment). It is unnecessary to rehearse them in detail here.

6    In summary, the appellant claimed that he feared harm from the Awami League, a Bangladeshi political party, because of his association with and position in the rival political party, the Bangladesh Nationalist Party (BNP). The appellant claimed that his fear was the result of “attacks” on him by people associated with the Awami League because of his position within the BNP. Those attacks were said to have occurred in 1997 and 2013. After the initial attack in 1997, the appellant claimed that he left Bangladesh to protect his life. He lived in Saudi Arabia until he returned to Bangladesh in 2011. The second attack, in July 2013, occurred at a party rally when the appellant campaigned for the local BNP candidate and was attacked by Awami League members. The appellant claimed that he was attacked again in October 2013 while travelling to his home.

7    The appellant also claimed to have been the subject of a “false case” lodged with the police by people from the Awami League. That false case alleged that the appellant and others had set fire to a bus. The appellant claimed that he hid from the police as a result of the filing of this case. He said that he went to Singapore, but returned to Bangladesh after a few days when he realised that he could not secure a visa in Singapore.

8    The appellant applied for a visitor visa to Australia in October 2013. He claimed that he bribed an official in order to travel on his own passport. He applied for a protection visa on 24 March 2014.

INITIAL REFUSAL OF THE APPELLANT’S VISA APPLICATION

9    A delegate of the Minister refused the appellant’s visa application on 13 November 2014. Having considered the appellant’s claims and evidence, the delegate was not satisfied that the appellant satisfied the criteria for the grant of a Protection visa under s 36(2) of the Act and was not satisfied that the appellant was a non-citizen to whom Australia had protection obligations.

10    It is unnecessary, for the purposes of this appeal, to give any detailed consideration to the delegate’s decision or the reasons for the initial refusal of the appellant’s application. It suffices to note that the delegate found, in effect, that the appellant’s factual claims were not true and that his claimed fears about returning to Bangladesh were neither genuine nor well-founded.

IN THE TRIBUNAL

11    The appellant lodged his application for review of the delegate’s decision with the Tribunal on 7 December 2014.

Hearing invitations and responses

12    On 18 February 2016, the Tribunal invited the appellant, through his lawyer at the time, to appear before it to give evidence and to provide submissions or witness statements relating to the issues arising in his case at a hearing scheduled to take place on 15 April 2016. The appellant’s lawyer responded to that hearing invitation by letter dated 23 February 2016. That letter requested a postponement of the hearing for various reasons, but nevertheless enclosed a completed “Response to hearing invitation – MR [Migration & Refugee] Division” form (response form). That form indicated that the appellant and his representative would attend the hearing, but that the appellant did not request the Tribunal to take evidence from any other person. It was noted, however, that the appellant’s position in that regard may change depending on what information was produced in answer to a request that had been made under the Freedom of Information Act 1982 (Cth).

13    The Tribunal refused the request for a postponement of the hearing and advised the appellant accordingly, through his lawyer, by letter dated 23 February 2016. That letter included a further invitation to the appellant to attend the hearing scheduled for 15 April 2016. The appellant’s lawyer renewed the request for an adjournment of the hearing by email sent on 1 March 2016. That email “resubmitted” a response form. The main difference was that the resubmitted form indicated that the appellant now requested the Tribunal to take oral evidence from a specific named witness who was said to be a “long term friend” and who was also a member of the BNP. For more abundant caution, that witness will be referred to in these reasons as witness MAM.

14    On 2 March 2016, the Tribunal again wrote to the appellant, via his lawyer, and advised that the further adjournment request was refused. The Tribunal’s letter again included an invitation to the appellant to attend the hearing on the scheduled date of 15 April 2016. The appellant’s lawyer responded to that invitation again by email dated 23 March 2016. That email advised the Tribunal that the appellant still intended to call witness MAM. It did not indicate that the appellant wanted the Tribunal to call evidence from any other witness.

15    On 7 April 2016, the appellant, though his lawyer, again requested that the hearing be postponed. This time the application was supported by medical evidence. It would appear that the medical evidence swayed the Tribunal. On 8 April 2016, the Tribunal advised the appellant, though his lawyer, that the hearing had been rescheduled to 13 May 2016. The Tribunal’s letter included a formal invitation to the appellant to attend the hearing on 13 May 2016 and enclosed a further response form, together with a request that the completed form be returned within 7 days.

16    On 13 April 2016, the appellant’s lawyer sent the Tribunal an email which attached the completed response form. The completed form again advised that the appellant requested the Tribunal to take oral evidence from witness MAM. No other witness was identified in the form. It should perhaps also be noted that the form included the following advice from the Tribunal in relation to witnesses:

You may request that we take oral evidence from a person or persons. If you make such a request, we will consider your request carefully but may decide that it is not necessary to take oral evidence from a person you nominate.

Unless you advise us otherwise we will assume that you will make arrangements for any witness to be available to give evidence.

17    On 22 April 2016, the Tribunal sent an email to the appellant’s lawyer which stated as follows:

In response to your email of 13 April 2016, in the circumstances of this particular case, the Tribunal requests that written submissions and witness statements be provided to the Tribunal by 5 PM Tuesday 10 May in advance of the hearing to take place on Friday 13 May 2016.

18    On 10 May 2016, the appellant’s lawyer sent a letter to the Tribunal. That letter enclosed what could fairly be described as voluminous documentary material, including a supplementary statement from the appellant, supplementary submissions prepared by the appellant’s lawyer, who was also a registered migration agent, and a large number of other documents referred to in a “schedule of attachments”. That schedule included a document headed “Witness Name and Mobile Number” (witness list) which included the names of seven people and their mobile telephone numbers. The telephone numbers of all but one of those persons suggested that they were people who resided overseas.

19    It should be emphasised that, despite the suggestion in the title of the witness list that each of the named seven persons was a “witness”, and despite the provision of the telephone numbers of those persons, neither the covering letter by the appellant’s lawyer, nor the lawyer’s supplementary submissions, included any express request that the Tribunal take oral evidence from any of the seven listed people. Nor did the appellant’s supplementary statement.

20    The schedule of attachments also listed a large number of other documents, including a large number of documents which were described as being annexures to the appellant’s supplementary statement. Among the documents so described were copies of, or copies of translations of, statements signed, or purportedly signed, by each of the seven people referred to in the witness list. As perhaps might be expected, given that the statements were described as annexures to the appellant’s supplementary statement, the appellant’s statement in fact refers, at various points, to the statements signed by each of the seven people. The apparent suggestion was that the statements corroborated the appellant’s evidence about certain matters.

21    The statements of the seven people reveal that, without naming them, they were: the appellant’s wife; a person who described himself as having been a security guard and caretaker at the appellant’s “residence” in Bangladesh; a person who was said to be a witness to an incident between supporters of the BNP and the Awami League on 8 July 2013; a friend of the appellant’s who lived in Singapore and with whom the appellant stayed for a few days in October 2013; the owner of a “flat” which was rented by the appellant “since” December 2011; a person who was said to be the General Secretary of a particular branch of the BNP in Bangladesh; and a person who described himself as “Ex Convener BNP Australia”. The statements mostly bore dates suggesting that they were prepared or signed in mid to late March 2016. None of them were particularly lengthy or detailed.

22    On 12 May 2016, the day before the hearing, the appellant’s lawyer sent an email to the Tribunal advising that witness MAM would no longer be giving evidence. It was proposed that a witness, who will be referred to as witness ZHM, would give evidence instead. The email noted as follows:

We note that we are required to give notice 7 days after being invited to a hearing that written notice is required if we want AAT to take oral or written evidence.

We have not been able to comply with this request as [witness MAM] changed his mind and gave late notice that he will no longer give evidence.

[The appellant] was able to substitute [witness ZHM] as a witness and the writer spoke with [a Tribunal officer] and foreshadowed that [witness ZHM] will give evidence instead.

23    Confirmation was sought from the Tribunal that witness ZHM could provide oral evidence at the hearing.

The hearing in the Tribunal

24    The appellant appeared at the hearing before the Tribunal on 13 May 2016. He was represented or assisted by his lawyer who, as noted earlier, was also a registered migration agent. The hearing was conducted with the assistance of a Bengali interpreter.

25    The appellant did not tender a transcript of the Tribunal hearing in support of his application in the Circuit Court. Nor did he attempt to tender the transcript in support of this appeal. He also did not adduce any other evidence concerning the conduct of the hearing in the Tribunal. It follows that the only indication of what transpired at the hearing is what the Tribunal said about that in its reasons.

26    Given the fairly narrow scope of the grounds of appeal, it is necessary to refer in detail to only one aspect of the conduct of appeal; the manner in which the Tribunal responded to a suggestion or submission made by the appellant’s lawyer that the Tribunal telephone some of the authors of the documents that the appellant had submitted in support of his review application. At paragraph 55 of its reasons, the Tribunal referred to the documents that the appellant and his representative had submitted in support of his case. The footnotes to paragraph 55 clearly indicate that the Tribunal had given careful and detailed consideration to the many documents that had been provided to it under cover of the appellant’s lawyer’s letter dated 10 May 2016. Paragraphs 56 to 60 of the Tribunal’s reasons then recorded as follows:

56.     The Tribunal has carefully considered these submissions, claims and the contents of these documents. However, they really just repeat what is, in effect, the account of events on which the [appellant’s] protection claims are based. That is that the [appellant] supported a particular party in Bangladesh and that he has suffered harm from the opposing party as a result. The Tribunal has set out above significant concerns about the credibility of this account as related by the [appellant] in his evidence to the department and the Tribunal.

57.     Those concerns span his account of his conduct after going into hiding in late 2011; aspects of his evidence that were vague and also mobile; concerns around his evidence about his travel to Singapore in late 2013; concerns, including inconsistency, around his evidence about the Awami League going to his home in September 2014; the omission of significant claims from his evidence to the department and, finally, his evidence about coming to Australia with the intention of going back to Bangladesh should his party come to power in fresh elections (held before his visa expired).

58.     These concerns significantly discredit the [appellant] as a witness and the contents of these documents submitted by the [appellant] and his representative do not overcome the Tribunal’s concerns about his credibility. At the conclusion of the Tribunal hearing, the [appellant] offered to produce a certified copy of a letter about the false case against him but the Tribunal saw no purpose in him doing that. The Tribunal could not see that such a document would overcome its significant concerns about his credibility and when he had already produced a document on that issue.

59.     The representative submitted that the Tribunal could telephone some of the authors of these documents. The Tribunal also saw no purpose in doing this. The Tribunal was willing to accept these people would repeat their evidence in the documents they have written. That would not overcome the significant concerns the Tribunal holds about the [appellant’s] credibility predominantly based on his own evidence. One of these people, the ‘Ex Convenor’ of the BNP in Australia made assertions about the [appellant] suffering harm in Bangladesh but made no claim that he was witness to those events and the Tribunal understands that he is repeating what the [appellant] has told him.

60.    For the reasons given, the Tribunal does not give evidentiary weight to these documents produced by the [appellant] and the representative….

(Footnote omitted.)

27    A footnote to the first sentence of paragraph 59 referred to the witness list and the provision of the telephone numbers of the persons referred to in it. While the Tribunal does not say so expressly, it is implicit in what was said that the Tribunal must have advised the appellant and his lawyer at the hearing that the Tribunal would not telephone those persons.

28    The only other point to note about the Tribunal hearing is that it would appear that the Tribunal did take oral evidence from witness ZHM. It will be recalled that the appellant’s lawyer had requested the Tribunal to permit witness ZHM to give oral evidence at the hearing instead of witness MAM, who the appellant had previously identified as the only person from whom he requested the Tribunal to take oral evidence. It is readily apparent that the evidence of witness ZHM was of little assistance to the appellant, particularly as he apparently conceded that his knowledge of the appellant’s relevant “circumstances” in Bangladesh was based solely on what the appellant had told him: see Reasons at [53].

The Tribunal’s decision and reasons

29    The Tribunal decided to affirm the decision of the Minister’s delegate to refuse the grant of the Protection visa. It found that it was not satisfied that the appellant was a person in respect of whom Australia had protection obligations and that the appellant therefore did not satisfy the criterion in s 36(2)(a) or s 36(2)(aa) of the Act.

30    The essential reason why the Tribunal was not satisfied that Australia owed protection obligations to the appellant was that it did not believe or accept most of his evidence or claims. Indeed, the Tribunal bluntly found that the appellant was “not a witness of truth and the account of events on which his protection claims are based is false”: Reasons at [50], [77].

31    The Tribunal gave lengthy, detailed and thorough reasons for its findings that the appellant was not a credible witness and that his evidence was untrue or lacked credibility: Reasons at [8]-[77]. It is unnecessary, for present purposes, to refer at length to those reasons. It suffices to say that the Tribunal found that much of the appellant’s evidence in relation to his claims was vague, inconsistent, unsatisfactory, implausible and unconvincing: see in particular Reasons at [8]-[37].

32    The Tribunal also took into account the fact that the appellant had made a significant claim before the Tribunal which he had not previously made, either in the material provided in support of his visa application or before the delegate. The Tribunal did not accept the appellant’s explanation for previously omitting that claim from the material provided in support of his application. That explanation was, in short, that his former representative had advised him not to include details about the claim because the appellant did not have documents to substantiate it: Reasons at [38]-[45]; [60]-[61].

33    The Tribunal also found that the appellant’s explanation for why he had not applied for a Protection visa until almost three months after he had arrived in Australia was improbable, unconvincing and not credible: Reasons at [46]-[49].

34    The Tribunal concluded that the account of events on which the appellant’s protection claims were based were false and that there was no credible evidence before it that the appellant and his family suffered harm in Bangladesh. The Tribunal was therefore not satisfied that the appellant was a person in respect of whom Australia had protection obligations.

in the circuit court

35    The appellant ultimately relied on two grounds of review in the Circuit Court.

36    The first ground was that the Tribunal denied the appellant procedural fairness “in violation of sections 424, 424A, 424AA(1)(ii); (iii) or (iv), 425 and 426 of [the Act]”. The particulars provided in respect of that ground were that the Tribunal denied the appellant procedural fairness by: refusing to accept a certified copy of a letter regarding the false claim against the appellant “by way of a post hearing submission”; refusing to telephone witnesses; and refusing to accept the name and telephone number of the appellant’s former representative to make enquiries regarding the alleged omissions of significant claims.

37    As has already been noted, and as will be discussed in more detail later, the appellant’s appeal grounds were essentially limited to the contention that the Tribunal “violated” s 426 of the Act by “refusing to telephone witnesses”.

38    The second ground was that “[a]s a consequence [presumably of the denial of procedural fairness the subject of the first ground], the adverse credibility finding by the Tribunal at [50] of the decision record was affected by jurisdictional error as there was a sufficient lack of probative evidence or logical connection between the Tribunal’s assessment of the [appellant’s] credit and the material upon which it relied to make that assessment”. Detailed, but unfortunately prolix and rather unhelpful, particulars of this ground were provided.

39    Despite the somewhat confusing wording of this ground and the particulars relied on in support of it, it may be taken to have amounted to a claim that the Tribunal’s decision was legally unreasonable because its adverse credibility finding was illogical, irrational or not based on probative evidence. That appears to have been the way that the primary judge interpreted it.

40    It seems that the primary judge was urged by the appellant to treat his two review grounds as “connected as a single ground”, or as a single “composite [g]round”. That would appear to confirm that the words “[a]s a consequence” at the beginning of the second ground were intended to convey that the alleged unreasonableness of the Tribunal’s adverse credibility finding somehow flowed from the alleged denial of procedural fairness the subject of the first ground.

41    Whether considered as separate grounds or a single composite ground, the primary judge found that the appellant had not demonstrated that he was denied procedural fairness, or that there had been any breach of, or non-compliance with, ss 424, 424A, 424AA, 425 or 426 of the Act, or that the Tribunal’s adverse credibility finding was unreasonable or without a logical, rational or probative basis: Judgment at [30], [40], [47], [51] and [56].

42    It is, given the narrow scope of the appellant’s appeal grounds, unnecessary to consider the primary judge’s findings and reasoning concerning the alleged breach or breaches of ss 424, 424A, 424AA or 425 of the Act. At the hearing of the appeal, the appellant, through his counsel, clearly and expressly confirmed that he did not press any contention that the Tribunal breached any of those sections and his notice of appeal was amended accordingly. Nor is it necessary to refer to the primary judge’s findings concerning the particulars of the first ground of review, other than the particular relating to the Tribunal’s alleged refusal to “telephone witnesses”. The appellant did not challenge the primary judge’s findings concerning the other particulars.

43    As for the appellant’s contentions concerning the Tribunal’s refusal to telephone witnesses, the primary judge found as follows (Judgment at [42]):

It has never been suggested that these witnesses would give different and further and better evidence in favour of the [appellant] over the telephone than they had given in their written statements. I do not consider that the Tribunal acted legally unreasonably in declining to telephone the seven witnesses. It had comprehensively rejected the [appellant’s] credibility and claims and it was entitled to consider that its views in that regard would not be changed or altered by speaking to these witnesses over the phone.

44    As for the alleged breach of s 426 of the Act, the primary judge noted that the Tribunal’s only duty under s 426(3) was to “have regard” to the appellant’s wishes for it to obtain oral evidence from the nominated person or persons: Judgment at [48]. His Honour also noted, and appeared to accept, the submission advanced on behalf of the Minister that the only “relevant notification” under s 426(2) of the Act that the appellant had given in relation to the Tribunal taking oral evidence from a witness was in respect of witness MAM: Judgment at [48].

45    More significantly, the primary judge found that “the Tribunal nevertheless did have regard to the [appellant’s] wish for it to take telephone evidence from the seven witnesses, but decided not to” and that in “deciding not to, after having given genuine consideration to the request, the Tribunal did not commit jurisdictional error”: Judgment at [49].

46    As for the appellant’s contention that the Tribunal’s adverse credibility finding was unreasonable, the primary judge found that the “simple fact of the matter is that the Tribunal rejected the [appellant’s] claims substantially because of its findings based on his oral evidence at the Tribunal hearing and the omission of significant claims made at the oral hearing, which had not found a place” in the material initially submitted by the appellant in support of his visa application: Judgment at [53]. His Honour noted, in that context, that the Tribunal had described the appellant’s evidence, in various parts of its reasons, as “vague”, “unconvincing”, “unsatisfactory”, “improbable” and “inconsistent” and that it was “entitled to act on these credibility concerns and findings”: Reasons at [53]-[54]. The primary judge accepted that credibility findings are not “beyond judicial scrutiny”, but found that the Tribunal’s findings concerning the appellant’s credit could not “be said to be unreasonable, without a logical, rational or probative basis or founded on objectively minor matters”: Judgment at [55]. Rather, they were findings which were legally open to the Tribunal on the material before it.

47    The primary judge addressed other matters which arose in the proceeding that do not need to be addressed.

the Appeal

48    The appellant’s grounds of appeal went through numerous iterations. Ultimately, he pressed only two grounds.

49    The first ground of appeal was that the primary judge erred in finding (Judgment at [49]) that the Tribunal “did have regard to the [appellant’s] wish for it to take telephone evidence from the seven witnesses, but decided not to” do so and therefore “did not commit jurisdictional error”. The appellant contended that “[t]o the contrary”, the Tribunal denied him procedural fairness in “violation” of s 426 of the Act by refusing to “telephone witnesses”. The appellant expressly withdrew any previous contention that the Tribunal breached, or failed to comply with, any other provision in the Act, by refusing to telephone witnesses or otherwise.

50    The main thrust of the appellant’s submissions in support of this ground was that it was legally unreasonable for the Tribunal to refuse to call evidence from any of the seven witnesses whose statements and contact details had been provided to the Tribunal. It was submitted, in that context, that the statements from those witnesses which had been provided to the Tribunal contained evidence that corroborated the appellant’s claims and that there was accordingly “an obligation” on the part of the Tribunal to “make contact” or “follow up” the witnesses, “particularly when the appellant’s credibility was at stake”. It was also suggested that because the statements were fairly short, it was appropriate for the Tribunal to “flesh out further aspects of those statements”.

51    The second ground of appeal was, in effect, that the primary erred in finding (Judgment at [53]-[55]) that the Tribunal’s adverse credibility findings were open to it on the material before it and were not unreasonable, without a logical, rational or probative basis or founded on objectively minor matters. In his submissions, the appellant linked this ground with the ground concerning s 426 of the Act and the Tribunal’s refusal to take oral evidence from the seven witnesses. The nub of the appellant’s argument in that regard was that, having accepted that those witnesses were likely to simply repeat what was in their statements, it was illogical or irrational for the Tribunal to make the adverse credibility finding. That was because the evidence in the witness statements corroborated the appellant’s claims.

Ground one – Unreasonable exercise of the discretion in s 426(3) of the Act

52    The first question that arises in addressing the appellant’s contentions based on s 426 of the Act is whether the discretion in s 426(3) of the Act was enlivened or engaged at all in relation to the seven supposed witnesses. If not, no question as to the reasonableness of the exercise of that discretion even arises on the facts of the appellant’s case. As noted earlier, the appellant expressly abandoned any contention that the Tribunal breached or unreasonably exercised any other discretionary power in any other provision of the Act.

Was s 426(3) engaged in the circumstances?

53    Section 426 of the Act provides as follows:

426 Applicant may request Tribunal to call witnesses

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

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

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

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

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

54    The nature and scope of the power in s 426 of the Act must relevantly be considered in the context of other provisions which deal with the Tribunal’s “evidence power”. Section 427(1)(a) of the Act relevantly provides that, for the purposes of the review of a decision, the Tribunal may take evidence on oath or affirmation. Section 428(2) of the Act provides that the “evidence power” may be exercised inside or outside Australia and subject to any limitations or requirements specified by the Tribunal. It should also be noted that s 429A of the Act provides, inter alia, that the Tribunal may allow the giving of evidence to be by telephone. There could, therefore, be no doubt that the Tribunal had the power to take evidence orally over the telephone from the seven persons named in the witness list, even if they were overseas, if it considered it necessary or appropriate to do so.

55    Returning to s 426 of the Act, it can be seen that, if engaged, s 426(3) imposes a mandatory requirement or consideration on the Tribunal — it must “have regard to the applicant’s wishes”. By the same token, however, the plain wording of s 426(3) reveals that, once the Tribunal has had regard to the applicant’s wishes, it has a discretion whether or not to accede to the applicant’s wishes and call oral evidence from the person or persons the subject of the applicant’s notification. Indeed, it is made abundantly clear that the Tribunal is not required to call oral evidence in accordance with the applicant’s notification. The discretion is aptly described as a wide discretion: AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317; [2018] FCAFC 103 at [49]. It is relevantly unconfined or unconstrained, at least by express considerations.

56    It can also readily be seen that s 426(3) is only engaged if the Tribunal is notified by an applicant in accordance with s 426(2). Notification under s 426(2) is only valid or effectively given if it is given in writing within seven days of the applicant being notified in accordance with s 426(1). Section 426(1) of the Act in turn directs attention to the notice of invitation to appear in s 425A of the Act.

57    As the discussion earlier in these reasons reveals, the appellant received a number of notices of invitation to appear as a result of his repeated requests for a postponement of the Tribunal hearing as initially scheduled. He responded, through his lawyer, to each of those notices. None of those responses included written notice that the appellant wanted the Tribunal to obtain oral evidence from any of the seven persons referred to in the witness list. That list was only provided to the Tribunal under cover of the appellant’s lawyer’s letter of 10 May 2016. Neither that letter, nor any of the enclosed documents, included a clear or express request or notification that the appellant wanted the Tribunal to take oral evidence from any of the seven people named in the witness list. Considered in context, the mere fact that the list included the telephone numbers did not constitute a notification in accordance with s 426(2) of the Act.

58    The appellant’s response to the first hearing invitation, dated 18 February 2016, indicated that the appellant did not request the Tribunal to take oral evidence from any witness, though it was noted that the position in that regard “may change depending on information produced under F.O.I.” The appellant’s response to the second hearing invitation, dated 23 February 2016, indicated that the appellant wanted the Tribunal to take oral evidence from witness MAM. That request was repeated in the email response to the third hearing invitation, dated 2 March 2016. The appellant’s response to the fourth and final hearing invitation, dated 8 April 2016, was also that the appellant wanted the Tribunal to take oral evidence only from witness MAM. The appellant did not provide any further written notification, in accordance with s 426(2) of the Act, within seven days of the fourth hearing invitation.

59    The Tribunal subsequently, in an email sent on 22 April 2016, requested the appellant to provide any written submissions and witness statements to the Tribunal by 10 May 2016. That email did not, however, constitute a further notice under s 425A or s 426(2) of the Act as the appellant contended. Nor did it constitute or amount to an extension of time by the Tribunal for the appellant to provide a notification in accordance with s 426A(2) of the Act.

60    In any event, the appellant’s response to the Tribunal’s email, in his lawyer’s letter dated 10 May 2016, did not contain any written request that the Tribunal take oral evidence from the seven persons named in the enclosed witness list. Considered in the context of all the prior communications, the inclusion of the telephone numbers of those seven persons in the witness list could not reasonably be said to constitute written notice that the appellant requested the Tribunal to take oral evidence from those witnesses. Nor could the inclusion of copies or translations of statements from those seven persons within the voluminous material provided under cover of the letter. Those witness statements were simply referred to as annexures to the appellant’s statement. Nothing in the lawyer’s letter, or supplementary submissions, or the appellant’s supplementary statement, clearly suggested in any way that the appellant wanted the Tribunal to take oral evidence from the seven persons. Indeed, the suggestion appeared to be that the appellant was content to rely on the written statements, notwithstanding the provision of the telephone numbers of the authors of the statements. Nor was there any indication that the appellant had, or would, make arrangements for those seven persons, all but one of whom resided overseas, to be available to give evidence at the hearing by telephone or otherwise.

61    The position was made even clearer on the day prior to the hearing when the appellant’s lawyer sent an email requesting that the Tribunal take oral evidence from witness ZHM instead of witness MAM. The appellant’s lawyer acknowledged, in that email, that the appellant had not complied with the seven day notice period in s 426(2) of the Act in terms of requesting oral evidence to be taken from witness ZHM. The Tribunal was nonetheless asked, in effect, to grant the appellant an indulgence in that regard. Perhaps more significantly, there was no suggestion whatsoever in the lawyer’s email that the appellant wanted the Tribunal to take oral evidence from any other witness. No reference whatsoever was made to the seven persons named in the witness list.

62    It would appear that the first time there was any suggestion that the Tribunal might take oral evidence from the seven persons referred to in the witness list was at the hearing. That notification was obviously not in writing and equally was not made within seven days of the hearing invitation. It therefore was not a notification pursuant to s 426(2) of the Act.

63    In all the circumstances, s 426(3) of the Act was not engaged or enlivened in respect of the seven persons referred to in the witness list. It follows that there could be no basis for any contention that the Tribunal “violated” s 426(3) of the Act by refusing to telephone those persons. Nor could any question arise in relation to the reasonableness of the Tribunal’s exercise of its discretion under s 426(3) of the Act. That discretion was simply not engaged. This finding alone would be sufficient to dispose of ground one of the appellant’s notice of appeal.

Was the Tribunal’s refusal to call any of the seven persons unreasonable?

64    It is, however, clear that the Tribunal nevertheless had regard to the request that the appellant made, through his lawyer, at the hearing, that the Tribunal telephone some of those witnesses. It is unclear whether, in doing so, the Tribunal considered that request in terms of the exercise of its discretion under s 426(3) of the Act. Whether it did so or not, the question arises whether the Tribunal’s refusal to accede to that request was legally unreasonable in the circumstances.

65    It is abundantly clear from the statutory scheme and the inquisitorial nature of the Tribunal’s review jurisdiction that a review applicant has no right to call, or require the Tribunal to call, a witness to give evidence. Moreover, as adverted to earlier, it is plain from the terms of s 426(3) of the Act that, if an applicant does notify the Tribunal — in accordance with s 426(2) of the Act — that it wants the Tribunal to obtain oral evidence from a witness, the Tribunal must have regard to the applicant’s “wishes”, but is not required to act on those wishes: VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [23].

66    The Tribunal’s consideration of the applicant’s wishes must be real and genuine, not just an empty gesture: Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118 at [38]; AYX17 at [48]. The Tribunal must also not, in determining whether or not to obtain oral evidence from a witness in accordance with the applicant’s wishes, act arbitrarily or capriciously and must take into account matters such as the potential relevance or importance of the proposed evidence and the sufficiency of any written evidence that may have been provided by the prospective witness: Maltsin at [38]. Like other statutory discretions, the discretion in s 426(3) must be exercised reasonably: VJAF at [22]-[23]; CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 at [73]-[80]; SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [53]; AYX17 at [75].

67    There could be no doubt that the Tribunal had regard to the appellant’s wishes, as expressed by his lawyer at the Tribunal hearing, that the Tribunal take oral evidence over the telephone from at least some of the seven persons referred to in the witness list. That is clear from the Tribunal’s reasons. The appellant did not suggest otherwise. There could also be no doubt that the Tribunal’s consideration of the appellant’s wishes was real and genuine, and that its response to the appellant’s request could not be said to be arbitrary or capricious.

68    It is clear from the Tribunal’s reasons that the Tribunal had read and considered the statements of the seven persons and gave consideration to the evidence that they had given, or were able to give: see Reasons at [55] (including the detailed footnotes referring to the statements) and [59]. It also gave considered reasons for refusing to telephone the witnesses so they could give the evidence in their statements orally. The Tribunal accepted that if oral evidence was taken from the seven persons, they would repeat the evidence in their statements: Reasons at [59]. The Tribunal concluded, however, that there was “no purpose” in having the witnesses give that evidence orally because it would not “overcome” the adverse conclusion that the Tribunal had, by that point of the hearing, reached concerning the credibility of the appellant’s claims based on his own evidence.

69    There was nothing irrational, illogical or unreasonable about the Tribunal’s reasons for refusing to telephone the witnesses for the purpose of having them give their evidence orally. It may be accepted that at least some of the evidence contained in some of the statements given by the seven potential witnesses was corroborative of some aspects of the appellant’s claims. It does not follow, however, that the Tribunal was obliged to call oral evidence from them. Nor does it follow that it was not open to the Tribunal to reason, in effect, that the corroborating evidence of the witnesses was not deserving of any weight, or even should be rejected, in light of the fact that the appellant’s own evidence about his claims had by that point been found to be inconsistent, improbable and unsatisfactory.

70    In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30, it was argued that the Tribunal had erred in giving no weight to corroborating evidence because it had found that the applicant’s evidence lacked credibility. Gleeson CJ (in the majority) rejected that argument, reasoning as follows (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.

71    While the Tribunal could perhaps have expressed itself more clearly, that was the effect of its reasons for refusing to telephone any of the seven proposed witnesses so they could give oral evidence along the lines of the evidence in their statements. It is readily apparent that the Tribunal, having already heard and considered the appellant’s own evidence concerning his claims, determined that there was no point in telephoning any of the seven prospective witnesses to have them repeat the evidence contained in their statements. That was because, to the extent that the evidence corroborated the appellant’s evidence, it would nevertheless not overcome the Tribunal’s “concerns” that the appellant was not a credible witness who had fabricated his claims. In those circumstances, it was not irrational, illogical or unreasonable for the Tribunal to, in effect, determine that the corroborating evidence, even if repeated orally on oath or affirmation by the witnesses over the telephone, was deserving of no weight, or should be rejected as being unreliable or not credible.

72    It may be accepted that, in some cases, a refusal by the Tribunal to call potentially corroborating oral evidence from a witness at the request of the applicant may suggest that the Tribunal had impermissibly prejudged the review application, or had otherwise misunderstood its review task or jurisdiction: SZVBB v Minister for Immigration and Border Protection [2015] FCA 1414 at [40]-[41]. Some caution is no doubt needed before determining that it was open to the Tribunal to conclude that the proffered corroborative evidence could not alter the view that the Tribunal had formed concerning the applicant’s credibility or the reliability of his or her evidence: AYX17 at [85]-[86] citing with approval W360/01A v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 449; [2002] FCAFC 211 at [3].

73    In this case, however, by the time the appellant’s lawyer had raised, for the first time, the possibility of the Tribunal calling some of the seven persons referred to in the witness list, the Tribunal had already heard extensive evidence from the appellant and had questioned the appellant at considerable length. It is readily apparent from the Tribunal’s reasons that, in the course of that questioning, the Tribunal had highlighted many inconsistencies, improbabilities and other unsatisfactory elements in the appellant’s evidence. When consideration is given to the Tribunal’s detailed and comprehensive reasons concerning its “credibility concerns”, it is readily apparent that there was a proper and reasonable basis for the Tribunal to conclude, at that point, that the views it had formed concerning the appellant’s credibility and reliability as a witness were not going to be altered if any of the seven persons in the witness list gave oral evidence in accordance with their statements; that the appellant’s “credibility could not be repaired by corroborative oral evidence” from any of the seven persons: SZVBB at [44].

74    The reasonableness of the Tribunal’s decision to refuse to telephone the proposed witnesses must also be considered in light of the fact that the appellant had given the Tribunal no prior notice that it wanted the Tribunal to take oral evidence from the witnesses and had apparently made no arrangements for them to give evidence by telephone at the hearing. There was no evidence that any of the proposed witnesses, all but one of whom resided overseas, was available to take a telephone call at the time of the hearing.

75    The appellant contended that the witness statements of the seven persons were brief and that, if the Tribunal had taken oral evidence from them over the telephone, their evidence may have been elaborated on or expanded in some relevant and material way. That submission has no merit. The appellant’s lawyer did not suggest to the Tribunal that the oral evidence of the proposed witnesses would or even might add anything to what they had included in their statements. Nor is there any basis for suggesting that that might be the case. That is a matter of pure speculation.

76    There is, in any event, no proper basis for concluding that the Tribunal was obliged to call oral evidence from the witnesses so they could expand or elaborate on what they had included in their witness statements: see BTF15 v Minister for Immigration and Border Protection (2016) 69 AAR 376; [2016] FCA 647 at [55]. Nor was the Tribunal obliged to call oral evidence from the witnesses so that their accounts could be challenged or tested. Proceedings in the Tribunal are inquisitorial, not adversarial, and the rule in Browne v Dunn does not apply: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437; [2003] HCA 60 at [57].

77    It follows that there is no merit in the appellant’s contention that the Tribunal’s exercise of its discretion to not call oral evidence from the seven persons listed in the witness list was in any way legally unreasonable. The decision was within the area of decisional freedom conferred on the Tribunal in the exercise of its discretion under s 426(3) and s 427(1)(a) of the Act. There was also a rational, reasonable and intelligible justification for the decision. It was not arbitrary, capricious or unjust in all the circumstances.

78    The primary judge’s reasons for rejecting the contention that the Tribunal had acted unreasonably in the exercise of its discretion not to call oral evidence from the seven persons were brief: Judgment at [42]. His Honour was nonetheless correct, and did not err, in reaching that conclusion.

79    It should finally be reiterated that the appellant expressly withdrew and abandoned any contention that the Tribunal’s refusal to telephone the seven persons on the witness list breached any provision of the Act other than s 426(3), or otherwise amounted to a denial of procedural fairness. It is accordingly unnecessary to address that issue in any detail. It suffices to note that, given the finding that has been made that the Tribunal did not act unreasonably in in the exercise of its discretion under s 426(3) of the Act, it is difficult to see any possible basis upon which it could be contended that the Tribunal somehow breached any of the other sections of the Act previously relied on by the appellant.

80    It follows that the appellant’s first appeal ground is unmeritorious and must be rejected.

Ground two – Illogical or irrational adverse credibility finding

81    The appellant’s contention that the Tribunal’s adverse credibility finding was illogical, irrational or unreasonable may be disposed of briefly.

82    There can be no doubt that a decision by the Tribunal can be challenged in judicial review proceedings on the basis that an adverse credibility finding, or at least one which was material to the Tribunal’s decision, was illogical, irrational or not based on probative material: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [75].

83    It is critical to emphasise, however, that illogicality or irrationality in this context must mean something more than emphatic disagreement with the reasoning or findings: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] FCA 16 at [124]; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [61]. If “probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion”: SZMDS at [131].

84    It is also clear that for an administrative decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must generally be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [148]. The “critical question” whether an administrative decision is irrational, illogical and not based on findings or inferences of facts supported by logical grounds, “should not receive an affirmative answer that is lightly given”: SZMDS at [40]. A high degree of caution must be exercised before concluding that a finding is irrational or illogical in order to ensure that the Court does not embark impermissibly on “merits review”: SZMDS at [96]; SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089 at [14]-[15].

85    In considering whether an administrative decision maker’s decision or exercise of discretion was the product of, or was materially affected by, illogical or irrational reasoning or factual findings, the decision maker’s reasons should also not be the subject of over-zealous scrutiny: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [31].

86    As was noted earlier in these reasons, the Tribunal gave lengthy, detailed and comprehensive reasons for finding that the appellant was not a credible witness and that his evidence concerning his claimed fear of persecution was, for the most part, untruthful and fabricated. The Tribunal referred to many instances where the appellant’s evidence concerning particular events was found to be inconsistent, improbable or otherwise unsatisfactory. This was not a case where the adverse credibility finding was based on a single, or even a few, instances where the relevant applicant’s evidence was found to be flawed in a certain respect. The appellant’s evidence was found to be fundamentally deficient and lacking in numerous respects.

87    The appellant’s contention that the Tribunal’s adverse credibility finding was illogical or irrational was ultimately almost entirely based on the proposition that the Tribunal effectively ignored, or failed to have regard to, the corroborating evidence of the seven persons referred to in the witness list. That was why the appellant said that his two grounds should be considered to be related or as constituting a composite ground. In the appellant’s submission, in the course of explaining why it was refusing to telephone those witnesses, the Tribunal accepted that those witnesses were likely to simply repeat what was in their statements. That was, according to the appellant, tantamount to an acceptance of their evidence. The appellant argued that, because the evidence of the seven witnesses corroborated the appellant’s claims, it was therefore illogical or irrational for the Tribunal to find that the appellant’s claims were not true.

88    There is no merit in that argument. As has already been observed, it is clear that the Tribunal had read and considered the statements that had been signed by the seven people named in the witness list: Reasons at [55] (including footnotes) and [59]. The fact that the Tribunal accepted that the seven people would repeat their evidence orally if telephoned, but nevertheless declined to call them, does not mean that the Tribunal accepted the truth and reliability of the evidence in their statements. Indeed, to the contrary, it is clear that, to the extent that the evidence of those persons corroborated the appellant’s claims, the Tribunal either gave it no weight, or rejected it, essentially because it had found the appellant’s evidence concerning those claims to be false and to lack credibility. It was for that very reason that the Tribunal considered that there was “no purpose” in taking oral evidence from the witnesses over the telephone.

89    The Tribunal’s reasons for giving no weight to, or rejecting, the corroborating evidence of the seven persons on that basis was not irrational or illogical for the reasons given by Gleeson CJ in Applicant S20/2002, as referred to earlier in these reasons. The Tribunal was not, in the circumstances, obliged to call the seven people to test their evidence, or to put to them that their evidence was not truthful or credible.

90    It follows that, contrary to the appellant’s contention, the appellant’s evidence was not relevantly corroborated. The appellant did not suggest any other reason why it might be concluded that the Tribunal’s adverse credibility finding was in any way illogical, irrational or unsupported by probative material. The appellant did not identify any particular finding or passage in the Tribunal’s reasons which bespoke illogicality or irrationality.

91    A fair reading of the Tribunal’s reasons supports the finding of the primary judge that the Tribunal’s findings concerning the appellant’s credit were not “without a logical, rational or probative basis or founded on objectively minor matters”, but were findings which “were legally open to the Tribunal on the material before it”: Judgment at [55]. The appellant did not demonstrate any error on the part of the primary judge in arriving at that conclusion. His Honour was right to so conclude.

92    It follows that the appellant’s second appeal ground is unmeritorious and must be rejected.

CONCLUSION AND DISPOSITION

93    The appellant failed to demonstrate any error on the part of the primary judge in rejecting his contentions that the Tribunal breached s 426(3) of the Act, or exercised its discretion under that provision unreasonably. Nor did he demonstrate that the primary judge erred in rejecting the appellant’s contention that the Tribunal’s adverse credibility finding was legally unreasonable. The primary judge was correct to reject those contentions.

94    As for the appellant’s contentions concerning s 426(3) of the Act, the Tribunal’s discretion under that provision was not relevantly enlivened or engaged in the circumstances of the appellant’s case because the appellant did not give any notification pursuant to s 426(2) of the Act that he wanted the Tribunal to obtain oral evidence from any of the seven people referred to in the witness list. In any event, the Tribunal clearly had regard to the appellant’s wishes, notified at the hearing, concerning the calling of evidence from those witnesses, but decided that it would not call oral evidence from them. The Tribunal’s reasons for not calling oral evidence from those witnesses was not unreasonable, irrational or illogical. It follows that, even if the discretion under s 426(3) of the Act was enlivened, it was not exercised unreasonably by the Tribunal.

95    The appellant’s contention that the Tribunal’s adverse credibility finding was unreasonable, irrational or illogical was based on the narrow proposition that the appellant’s claims were corroborated by the evidence of the seven people referred to in the witness list. The appellant contended that it was unreasonable, irrational or illogical to reject the appellant’s claims given that they were corroborated, or for the Tribunal not to have regard to that corroborating evidence in considering whether the appellant was a credible witness and his claims were true. It was, however, plainly open to the Tribunal, for the reasons it gave, to find that the appellant was not a credible witness and that his claims were false. It was, in those circumstances, open to the Tribunal to give no weight to, or reject, the supposed corroborating evidence from the relevant seven persons. There was nothing unreasonable, illogical or irrational in the Tribunal’s findings and reasoning in that regard.

96    It follows that the appellant’s appeal must be dismissed with costs.

Associate:

Dated:    11 June 2020