FEDERAL COURT OF AUSTRALIA

BYN16 v Minister for Immigration and Border Protection [2020] FCA 834

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first and second appellants 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 appellants are citizens of Bangladesh who arrived in Australia on 8 February 2010 as the holders of a subclass 676 (Tourist) visa. The first appellant (BYN16) is the husband of the second appellant (BZC16) and the third appellant (BZD16) is their child. This is the latest instalment in the appellants’ long-standing attempts to secure protection visas under the Migration Act 1958 (Cth) on the basis of the first appellant’s claim that he had a well-founded fear of persecution if he was forced to return to Bangladesh. Those attempts have included two protection visa applications, each of which was refused by a delegate of the Minister for Immigration and Border Protection, two unsuccessful review applications in the Administrative Appeals Tribunal, and an unsuccessful application for judicial review of the later Tribunal decision in the Federal Circuit Court of Australia. This is the appellants’ appeal from the judgment of the Circuit Court.

2    The proceedings, both in the Circuit Court and on appeal, have been hampered and complicated by the fact that the appellants have not been legally represented. The unfortunate result of that circumstance is that the appellants’ many review and appeal grounds have generally been expressed in prolix and, in some instances, hackneyed and uninformative terms. Ultimately, however, the appeal raised four questions for consideration and determination: first, whether the primary judge in the Circuit Court erred in rejecting the appellants’ contention that the Tribunal did not properly consider or assess their claims, or at least the claims of the second appellant; second, whether the primary judge erred in rejecting the appellants’ claim that the Tribunal failed to notify them of certain adverse information as required by ss 424AA or 424A of the Act; third, whether the primary judge erred in rejecting the appellants’ claim that the Tribunal denied them procedural fairness, or failed to comply with s 426 of the Act, by failing or refusing to accede to their request for the Tribunal to take oral evidence from two witnesses; and fourth, whether the primary judge erred in rejecting their claim that the Tribunal fell into jurisdictional error by failing to make inquiries in relation to certain documentary evidence that they had submitted in support of their claims pursuant to s 424 of the Act.

3    To address those grounds of appeal, it is necessary to briefly consider the procedural background to the appellants’ visa applications, the nature of the protection claims advanced by them, the reasons given by the Tribunal, in the second review application, for affirming the decision under review and the primary judge’s reasons for rejecting the appellants’ review grounds which are now the subject of appeal.

BACKGROUND

4    The appellants first applied for protection visas on 1 March 2010. In the submitted applications, only the first appellant claimed to have a well-founded fear of persecution, or to be at risk of suffering serious harm, if returned to Bangladesh. The second and third appellants were listed as members of the family unit who did not make their own specific protection claims. The appellants’ protection visa application was refused by a delegate of the Minister on 25 October 2010. That decision was affirmed by the (then) Refugee Review Tribunal on 18 February 2011.

5    On 4 October 2012, the appellants lodged a second protection visa application following the decision of the Full Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71. That decision confirmed that there was no basis for preventing a person from making a second protection visa application based on a criterion that did not form the basis of the previous unsuccessful application.

6    The appellants’ second protection visa application was refused by a delegate of the Minister on 15 December 2014. That decision was in turn affirmed on review by the Tribunal in a Statement of Decision and Reasons dated 3 July 2016. It is that decision by the Tribunal which was the subject of the unsuccessful judicial review application in the Circuit Court which is the subject of this appeal.

7    The appellants, who were not legally represented in the Circuit Court, raised many and varied grounds challenging the conduct of the review by the Tribunal and its decision. The primary judge rejected all of those grounds and dismissed the application: BYN16 & Ors v Minister for Immigration & Anor [2018] FCCA 2928 (Judgment).

8    Before considering the Tribunal’s Reasons and the primary judge’s Judgment, it is necessary to briefly summarise the nature of the protection claims that were made in support of the appellants’ protection visa application.

The appellants’ claims

9    There were two alternative criterion which applied to protection visas at the time of the appellants’ second visa application. The first criterion was that the applicant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (Refugees Convention), as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (Refugees Protocol): s 36(2)(a) of the Act. In simple terms, Australia had protection obligations under the Refugees Convention as amended in respect of persons who had a well-founded fear of persecution in their country of nationality or habitual residence for reasons of race, religion, nationality, membership of a particular social group or political opinion. The appellants’ first visa application was refused on the basis that they did not satisfy this criterion.

10    The alternative criterion, known generally as the “complementary protection criterion”, was that the applicant was a non-citizen in respect of whom the Minister was satisfied Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm: s 36(2)(aa) of the Act. This criterion was inserted into the Act after the appellants’ first unsuccessful visa application. Its insertion enabled the appellants to make a second protection visa application.

11    In both the first and second protection visa applications which were lodged by the appellants, only the first appellant made substantive claims for protection. The second and third appellants applied for protection visas solely on the basis that they were members of the first appellant’s family unit. They did not make their own separate or independent claims for protection. As will be seen, this is an important consideration in relation to some of the appellants’ appeal grounds.

12    The first appellant’s claims for protection and evidence were set out at some length by the Tribunal (Reasons at [4]-[86]) and summarised by the primary judge (Judgment at [4]-[8]). It is unnecessary to set out the claims in detail again.

13    In summary, the first appellant claimed that he feared he would be harmed if he was returned to Bangladesh for reasons of his political opinion due to his active involvement with a major Bangladeshi political party, the Bangladesh Nationalist Party (BNP), both in Bangladesh and Australia. He claimed that if he was returned to Bangladesh, he would be persecuted or harmed by members or supporters of the BNP’s rival political party, the Awami League.

14    According to the first appellant, he had been involved in the BNP since his student days, having previously held a position in the student committee. He claimed that he continued to be involved in the BNP’s political activities, even after he arrived in Australia.

15    The first appellant claimed that when he was in Bangladesh he had, variously: been attacked by members of the local Chatra League after the Awami League came into power in December 2008; been subjected to “false cases” relating to a brawl at Dhaka University and other false cases involving alleged molestation and assault; and been attacked whilst he had been campaigning for the BNP during certain election campaigns. He also claimed that, soon after his arrival in Australia, he became actively involved with, and ultimately became deputy president of, the BNP’s associated organisation in Australia. It was also said that the second appellant, the first appellant’s wife, was the vice president of the “ladies wing” of that organisation.

IN THE TRIBUNAL

16    Having regard to the appellants’ grounds of appeal, it is necessary to have regard to both the manner in which the Tribunal conducted its review and the Tribunal’s reasons for affirming the decision under review.

The conduct of the review

17    The appellants’ grounds of appeal require consideration to be given to four aspects of the Tribunal’s conduct of the review. It should be noted, in this context, that the appellants did not adduce any evidence concerning what happened during the Tribunal hearing. The appellants did not, for example, tender the transcript of the Tribunal hearing in support of their judicial review application in the Circuit Court. Nor did they adduce any other evidence about what did or did not happen at the hearing. In those circumstances, the only indication of what occurred during the hearing is what the Tribunal recorded in its reasons.

Response to hearing invitation and witness requests

18    The Tribunal wrote to the appellants on 3 May 2016 and invited them to attend a hearing on 1 June 2016. The appellants responded to that invitation, through their then migration agent, and advised that the first and second appellants would take part in the hearing and would attend with their migration agent. They did not, at that point, clearly indicate that they wanted the Tribunal to take oral evidence from any other witness. The only notice given by the appellants, in that regard, was they ticked “yes” on the invitation form in response to the question of “I/we request that the [Tribunal] takes oral evidence from another person”. They did not, however, give the name of any witness. They merely inserted the word “TBA” in place of the relevant witness information.

19    On 24 May 2016, however, the appellants’ migration agent wrote to the Tribunal and advised that a witness, who will be referred to as Mr DH, would “come to the Tribunal in person to provide evidence in support of” the appellants’ application. A copy of two letters from Mr DH were enclosed. Similarly, on 31 May 2016, the appellants’ migration agent wrote to the Tribunal and advised that three witnesses, who will be referred to as Mr NUA, Mr YAS and Mr ZHM, would attend the Tribunal in person to provide evidence. Copies of letters from those three people were enclosed.

At the hearing

20    At the hearing, the Tribunal took oral evidence from three persons: the first appellant, Mr NUA and Mr ZHM. It is readily apparent that, as perhaps might be expected, the bulk of the hearing was taken up by the Tribunal’s questioning of the first appellant.

21    The Tribunal’s reasons included a brief summary of the evidence of Mr NUA (Reasons at [56]) and Mr ZHM: Reasons at [57]. The Tribunal ultimately found, however, that the evidence of those two witnesses was “unimpressive”: Reasons at [107]. The Tribunal’s reasons also included a detailed discussion of the first appellant’s evidence: Reasons at [58]-[80] and [88]-[113]. It is clear from that discussion that, throughout the course of the first appellant’s evidence, the Tribunal raised with him various concerns or problems it had about his evidence. Those concerns or problems primarily related to what the Tribunal considered were inconsistencies in the information and evidence that the first appellant had provided and given at various stages of the visa application and review process. It is unnecessary to address those consistencies at this point. It will, however, be necessary to address some of them in the course of considering the appellants’ ground of appeal relating to the Tribunal’s alleged non-compliance with s 424AA and s 424A of the Act.

22    It would appear that the second appellant also attended the hearing. She did not, however, ultimately give any oral evidence. That was because, according to the Tribunal, the second appellant told the Tribunal that she had a migraine and “would not be able to say anything at the hearing”: Reasons at [55] and [110]. The Tribunal also noted that the second appellant said that “she did not want to come back on another day to give oral evidence and that she would be giving evidence in writing”: Reasons at [110]. Detailed statements from the second appellant were subsequently provided to the Tribunal under cover of a letter from the appellants’ migration agent dated 14 June 2016. Neither that letter, nor the second appellant’s statements, included a request that the second appellant be given the opportunity to give the Tribunal oral evidence in addition to, or in elaboration of, her written evidence.

23    The second statement of the second appellant did state at its conclusion:

In our hearing date I was sick, due to my sickness I was unable to give oral evidence. I still hope that my oral evidence is relevant to make reasonable review decision. If honourable member like to take oral evidence from me, any day I am happy to give my oral evidence for your kind consideration and determination.

24    It may be accepted that the second appellant, through this observation in her statement, indicated that she was available to give oral evidence. She did not, however, request the Tribunal to take oral evidence. Rather, she left it up to the Tribunal to decide whether or not to call oral evidence from her. Moreover, she did not suggest that any oral evidence she might be able to give would add to, elaborate on or differ from the evidence that she had included in written form in her statements. Thus, she gave the Tribunal no real reason why it would be relevant or material, let alone important, for it to take oral evidence from her.

25    It would also appear that the appellants’ migration agent, who also attended the Tribunal hearing, advised the Tribunal at the hearing that there were two other witnesses who were available to give evidence by telephone. Those two witnesses were Mr DH and Mr YAS: Reasons at [81] and [108]. The Tribunal declined to telephone those witnesses to take oral evidence from them. The Tribunal’s reasons gave the following explanation for why that was so (Reasons at [108]):

The [appellants’] representative at the hearing invited me to take evidence by telephone from two other witnesses in Australia who had written letters, [Mr DH and Mr YAS], but, as I put to him, they had said that these two witnesses would come to the Tribunal in person to provide their evidence. I consider that it was for the [appellants] to arrange for the attendance of their witnesses and I consider that if the matter was sufficiently important these witnesses could have been expected to attend. I note that the [appellants’] representative did not suggest that there were any good reasons why the witnesses had not come to the Tribunal in person to give their evidence. The [appellants’] representative noted that [Mr YAS] claim to have known [the first appellant] at university in Bangladesh and as I indicated I have taken his letter into account but he had the opportunity to attend the hearing to give evidence and this was what the [appellants’] representatives said he was going to do. I do not consider that any evidence which [Mr DH and Mr YAS] could have given by telephone would have overcome the problems which I have identified about with [the first appellant’s] own evidence. I give greater weight to these problems than I do to the letters which he has produced from people in Australia and the oral evidence of [Mr NUA and Mr ZHM].

The Tribunal’s decision and reasons

26    The Tribunal was not satisfied that the first appellant met either the Refugees Convention criterion or the complementary protection criterion. That was essentially because the Tribunal did not accept virtually any of the first appellant’s evidence concerning his involvement with the BNP and the events that he said had occurred in Bangladesh as a result of that involvement. In its reasons, the Tribunal identified what it considered to be significant “problems” with the first appellant’s evidence. Those problems were essentially inconsistencies between the information that the first appellant had provided at various different stages of the processes that led to the delegates’ decisions, and information and evidence that the first appellant had provided as part of the two review applications.

27    Having regard to those problems, the Tribunal did not accept that the first appellant had been involved with, or had held positions with, the BNP as he had claimed, or that he had the “problems” that he claimed he had as a result of his political involvement, including that he was threatened or attacked for reasons of his political opinion, or that “false cases” were filed against him, or that warrants had been issued for his arrest, or that the police were looking for him before or after he left Bangladesh: Reasons at [111].

28    The Tribunal did accept that the first appellant and his wife, the second appellant, had been involved with the BNP in Australia. The Tribunal was not, however, satisfied that they engaged in that conduct otherwise than for the sole purpose of strengthening their claims to be refugees: Reasons at [113]. The Tribunal concluded, on that basis, that s 91R(3) of the Act (as in force at the time of the appellants’ second visa application) required it to disregard that conduct in determining whether the first appellant was a person who had a well‑founded fear of being persecuted for one or more of the reasons mentioned in Art 1A(2) of the Refugees Convention. The Tribunal also did not accept that there was any real chance that either the first or second appellants would become involved in any political activities if they returned to Bangladesh: Reasons at [113]. The Tribunal was accordingly not satisfied that any of the appellants had a well-founded fear of persecution in Bangladesh for any of the Refugees Convention reasons.

29    Essentially the same considerations led to the Tribunal to not accept that there were substantial grounds for believing that, as a necessary or foreseeable consequence of the appellants being removed from Australia to Bangladesh, there was a real risk the appellants would suffer significant harm because of their “real or perceived involvement in any political activities”: Reasons at [115].

30    The Tribunal accordingly found that it was not satisfied that the appellants were persons in respect of whom Australia had protection obligations. The Tribunal concluded that none of the appellants satisfied the criterion set out in ss 36(2)(a) or (aa) of the Act. As a result, the Tribunal affirmed the decision under review.

IN THE CIRCUIT COURT

31    The appellants raised numerous grounds of review in the Circuit Court. The primary judge rejected them all. It is, however, necessary to consider only those grounds which coincide with the appellants’ appeal grounds.

Failure to assess the second appellant’s claims

32    The appellants contended that the second appellant wanted to, or was supposed to, give oral evidence to support “the claims” but did not get the opportunity to do so: see Judgment at [55]. It was also contended that the second appellant submitted her own claims, but the Tribunal failed to assess them. Those grounds coincide with the appellants’ first ground of appeal.

33    The primary judge rejected the contention that the appellant wanted to, but was denied the opportunity to, give oral evidence. His Honour referred to what the Tribunal said in its reasons about the second appellant having a migraine and not being able to, or not wanting to, give oral evidence and instead giving her evidence in writing: Reasons at [55] and [110]; Judgment at [55]-[57]. His Honour concluded that the Tribunal was correct in finding that the second appellant did not, in her subsequent statements, request a further hearing and that “it was reasonably open to the Tribunal not to require the [second appellant] to give oral evidence in circumstances where she had provided two documents setting out the matters she wished the Tribunal to consider”: Judgment at [58].

Failure to comply with ss 424AA and 424A of the Act

34    The appellants contended that the Tribunal took into account information that the first appellant had given to the Department orally in support of the first visa application without complying with ss 424AA or 424A of the Act: see Judgment at [63]. It would appear that the appellants submitted that the relevant information was information which the Tribunal considered to be inconsistent with information later supplied by the first appellant. It was said that the information was required to be disclosed by ss 424AA or 424A because the Tribunal relied on the inconsistencies as a reason for not accepting the first appellant’s evidence. This ground coincides with the appellants’ second ground of appeal.

35    The primary judge found that the inconsistencies were not “information” for the purposes of s 424A of the Act: Judgment at [64]. That was because “previous statements the [first appellant] made which the Tribunal considered to be inconsistent with the claims the [first appellant] made before it” could not be characterised as being information which in its “terms” contained a “rejection, denial or undermining” of the appellants’ case. His Honour cited Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507; [2009] HCA 31 at [22] in support of the proposition that information which did not contain a “rejection, denial or undermining” of an applicant’s case was not information for the purposes of s 424A of the Act.

Failure to take oral evidence by telephone from two witnesses

36    This ground related to the Tribunal refusing or declining to telephone Mr DH and Mr YAS for the purpose of taking oral evidence from them. This ground coincides with the appellants’ third appeal ground.

37    The primary judge rejected the appellants’ contention that it was legally unreasonable for it to refuse to take oral evidence over the telephone from Mr DH and Mr YAS. His Honour gave four reasons for why that was not unreasonable: first, the Tribunal already had the evidence that those witnesses proposed to give in the form of letters that they had provided; second, there was no evidence explaining why the two witnesses had failed to, or were not able to, attend the hearing as had been earlier foreshadowed; third, there was nothing to suggest that giving evidence over the telephone would have added weight to the evidence of the two witnesses; and fourth, the Tribunal was under no duty to take oral evidence from the witnesses with a view to “exploring inconsistencies between the matters it had identified between the letters [Mr DH and Mr YAS] had written and between those letters and claims the [first appellant] made”: Judgment at [69].

Failure to make inquiries

38    The appellants contended that the Tribunal failed to make inquiries about the authenticity of documents that were said to be “from BNP leaders from Australia”: see Judgment at [71]. This ground coincides with the appellants’ fourth appeal ground.

39    The primary judge rejected this ground on two bases. The first was that the Tribunal had accepted the authenticity of the documents that the appellants had provided from persons who were said to hold positions with organisations associated with the BNP: Judgment at [71]. The second was that, to the extent that the appellants’ complaint was that the Tribunal should have made inquiries with the authors of the documents to “verify the statements made by the authors”, the primary judge found that “the Tribunal was under no obligation to make inquiries of [Mr DH and Mr YAS] or any other author of any document the [first appellant] applied for the purpose of verifying the matters asserted in the documents”: Judgment at [72].

THE APPEAL

40    The appellants’ four grounds of appeal essentially sought to re-agitate arguments that had been advanced but rejected in the Circuit Court: first, the argument that the Tribunal failed to consider or assess the second appellant’s evidence and claims; second, the argument that the Tribunal failed to comply with s 424AA or s 424A of the Act because it did not give the appellants notice of information given in support of the first visa application which the Tribunal found to be inconsistent with information or evidence later provided; third, the argument that the Tribunal denied the appellants procedural fairness or acted unreasonably in declining to take oral evidence over the telephone from two witnesses; and fourth, that the Tribunal erred in failing to make inquiries.

41    The appellants’ submissions, which were ultimately delivered orally by the first appellant, did not engage at all with the primary judge’s reasons, nor attempted to explain why his Honour erred in rejecting those arguments. They appeared, rather, to simply repeat the contentions or arguments that had been put below.

Ground one – Failure to consider the second appellant’s claims and evidence

42    While this ground was a little difficult to decipher, the appellants’ submissions ultimately focussed almost entirely on the fact that the second appellant was unable or unwilling to give oral evidence at the hearing because she had a migraine and that the Tribunal made no subsequent attempt to take oral evidence from her. It appeared to be contended that the failure of the Tribunal to take oral evidence from the second appellant at some stage after the hearing meant that her evidence or claims were not considered or addressed, or that the appellants were not given a fair hearing. It was also contended, in this context, that the second appellant had her own claims which were not assessed.

43    There are at least four fundamental difficulties with the contentions which were advanced in support of this ground of appeal.

44    The first difficulty is that it was the second appellant who declined to give evidence at the Tribunal hearing and, more significantly, there is no evidence to suggest that she requested that she be given a further opportunity to give oral evidence at some later date. In fact, the Tribunal specifically recorded in its reasons that the second appellant told the Tribunal that she did not want to come back on another day to give oral evidence: Reasons at [55] and [110]. The appellants did not adduce any evidence to the contrary.

45    After the hearing, the appellants’ migration agent wrote to the Tribunal and provided detailed statements from the second appellant. Neither that letter, nor the enclosed statements signed by the second appellant, requested that the second appellant, or the appellants generally, be given an opportunity to give her evidence orally. As noted earlier, the second appellant did note, in one of her statements, she “hope[d]” any oral evidence she could give might be “relevant”, though she gave the Tribunal no reason to take oral evidence from her in addition to her written evidence and essentially left it up to the Tribunal to decide if it would “like to” take oral evidence from her.

46    In all the circumstances, the Tribunal was not obliged to convene a further hearing, or make any other arrangements, so as to take oral evidence from the second appellant. The appellants, including the second appellant, were invited to attend the Tribunal hearing in accordance with s 425 of the Act and were given a meaningful opportunity to be heard, both prior to, at and subsequent to that hearing: cf SZDFZ v Minister for Immigration and Citizenship (2008) 168 FCR 1; [2008] FCA 390 at [22]; AAM15 v Minister for Immigration and Border Protection [2018] FCA 1143 at [34].

47    The second difficulty is that the contention that the second appellant had her own protection claims has no substance and is contradicted by the documentary evidence. The protection visa applications submitted to the Department clearly recorded that it was only the first appellant who made protection claims and that the second and third appellants did not have their own independent claims. Perhaps more significantly, the detailed statements made by the second appellant and submitted to the Tribunal after the hearing were directed almost entirely at supporting the first appellant’s claims based on his political association with the BNP. They referred to the first appellant as being the main applicant and the second and third appellants as secondary applicants.

48    The only separate or independent claim that the second appellant may have had was based on her activities or connections with organisations associated with the BNP in Australia. The Tribunal accepted that the second appellant had been involved with the BNP in Australia, but found that her conduct in that regard was engaged in for the sole purpose of strengthening her claim to be a refugee. It was therefore to be disregarded in assessing the criterion in s 36(2)(a) by virtue of s 91R(3) of the Act: Reasons at [113]. The appellants did not challenge that finding in the Circuit Court or on appeal. The Tribunal also found that this claim did not advance the second appellants’ claims in respect of the complementary protection criterion because it found that the first and second appellant’s activities in Australia were unlikely to have “reached Bangladesh” and because there was no “real risk” that the appellants would become involved in political activities if they returned to Bangladesh: Reasons at [114]-[115]. Those findings were also not challenged in either the Circuit Court or on appeal.

49    The third problem is that the Tribunal considered and assessed the second appellant’s written evidence to the extent that it supported or corroborated the first appellant’s claims. The Tribunal found that the second appellant’s evidence did not overcome the “problems” which the Tribunal had identified with the first appellant’s evidence. Those problems were the extensive inconsistencies in the information and evidence that the first appellant had provided at various stages of the process. There is nothing irrational or illogical about that reasoning.

50    In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1; [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.

51    This also provided a rational and reasonable reason for the Tribunal not to make any further arrangements to take oral evidence from the second appellant. It may be accepted that the Court should exercise some caution before determining that it was open to the Tribunal to conclude that proffered corroborative evidence could not have altered the view that the Tribunal had formed concerning the applicant’s credibility or the reliability of his or her evidence: AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317; [2018] FCAFC 103 at [85]-[86] citing with approval W360/01A v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 449; [2002] FCAFC 211 at [3]. 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].

52    That could not, however, be said to be the case here. That is so particularly given the significant problems with the first appellant’s evidence that had been identified by the Tribunal and the very limited extent to which the second appellant’s evidence in fact provided any corroboration of the first appellant’s evidence and claims.

53    The fourth problem is that the appellants made no attempt to identify any particular claim or claims made by any of them that the Tribunal failed to consider or assess. The broad and sweeping assertion that the Tribunal failed to properly consider the appellants’ claims has no merit. As the primary judge found, the Tribunal’s detailed reasons show that the Tribunal identified the appellants’ claims, questioned the first appellant about those claims and considered each of them: Judgment at [24].

54    There is accordingly no basis for the contentions in the first ground of appeal that the Tribunal failed to consider any of the appellants’ claims, or somehow erred in not taking oral evidence from the second appellant. The primary judge was correct to reject those contentions.

Ground two – Failure to comply with ss 424AA or 424A of the Act

55    Sections 424AA and 424A of the Act provided as follows:

424AA Information and invitation given orally by Tribunal while applicant appearing

(1)     If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a)     the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)     if the Tribunal does so—the Tribunal must:

(i)     ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)     orally invite the applicant to comment on or respond to the information; and

(iii)     advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)     if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

(2)     A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

424A Information and invitation given in writing by Tribunal

(1)     Subject to subsections (2A) and (3), the Tribunal must:

(a)     give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)     ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

  (c)     invite the applicant to comment on or respond to it.

(2)     The information and invitation must be given to the applicant:

(a)     except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)     if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(2A)     The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)     This section does not apply to information:

(a)     that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)     that the applicant gave for the purpose of the application for review; or

(ba)     that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c)     that is non‑disclosable information.

(4)     A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

56    In their notice of grounds of appeal, the appellants identified five particular items of information that they contended the Tribunal was obliged to, but did not, disclose to them pursuant to either ss 424AA or 424A of the Act.

57    The first item of information was that the first appellant had stated in his first visa application that he had been Director of Administration of Poly Exports Limited in Gazipur in Bangladesh from March 2004 until February 2010. The Tribunal referred to that information and noted that it was inconsistent with information that the first appellant had provided in support of his second visa application and in his evidence before the Tribunal, which was that he had been a police sub-inspector in Dhaka from March 2004 until February 2010: see Reasons at [4] and [88].

58    The second item of information was that the first appellant had told the Minister’s delegate when interviewed in relation to his visa application that he had only joined the BNP at university. The Tribunal noted that this information was inconsistent with the first appellant’s evidence at the Tribunal hearing which suggested that he became involved with the BNP in “Class 9” at school: Reasons at [27], [91].

59    The third item of information related to the position that the first appellant claimed he held with the BNP, particularly while he was at university. When interviewed by the delegate in relation to his first visa application, the first appellant had said that he was given the position of “convener” and then “sports secretary”: Reasons at [93]. He gave evidence to the same effect at the first Tribunal hearing: Reasons at [28], [93]. Before the Tribunal at the second hearing, however, the first appellant said that he had been given the position of “joint convener of law” and then “law secretary”. One of the letters that the first appellant provided to the Tribunal said that he had been joint convener of law, but others said that he had been the law secretary: Reasons at [93].

60    The fourth item of information related to the period of time during which the first appellant claimed that he was the “joint convener of the Jubo Dal in Sabujbargh Thana”: Reasons at [95]. When interviewed by the delegate in relation to the first visa application, the first appellant said he held that position from 2006 to 2010, which was consistent with some documentary evidence which he had provided. At the first Tribunal hearing, however, the first appellant said that he had held the position in around 2002 or 2003, at least until confronted with the documentary evidence previously provided, at which point the first appellant said that he could not remember, but that it was in either 2002, 2003 or 2004. At the second Tribunal hearing, the first appellant’s evidence was that he held the position from 2004 for two to three years, until again confronted with the documentary evidence previously relied on by him: see discussion in Reasons at [95].

61    The fifth item of information concerned the first appellant’s claimed involvement in campaigning for the BNP during the parliamentary election in December 2008. At the first Tribunal hearing and when interviewed by the delegate in respect of the second visa application, the first appellant said that he had been involved in campaigning during that election. He also gave some rather confusing evidence concerning the candidate or candidates he campaigned for. At the second Tribunal hearing, however, the first appellant initially said that he had not been involved in campaigning during the 2008 elections, but when confronted with his earlier evidence, he again gave some confusing evidence about his involvement with various persons during those elections: see detailed discussion in Reasons at [64]-[65], [96]-[97].

62    There are at least three fundamental problems with the appellants’ contention that the Tribunal failed to comply with ss 424AA or 424A in respect of those five items of information.

63    The first problem is that it is abundantly clear from the Tribunal’s reasons that the Tribunal gave the appellant clear particulars of all of those items of information orally during the course of the hearing in accordance with s 424AA(1) of the Act: see Reasons at [88] in respect of the first item of information; Reasons at [91] in respect of the second item of information; Reasons at [93] in respect of the third item of information; Reasons at [95] in respect of the fourth item of information; and Reasons at [64]-[65] and [96]-[97] in respect of the fifth item of information. The Tribunal was accordingly not required to give the appellants particulars of any of those items of information pursuant to s 424A of the Act: see s 424A(2A) of the Act.

64    The second problem is that none of the items of information was, in terms, information which the Tribunal considered “would be the reason, or a part of the reason, for affirming the decision that is under review” for the purposes of s 424A of the Act. That is because none of the items of information contained “in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations”: SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1; [2007] HCA 26 at [17]. The information was only adverse to the appellants’ claims in any way because of the inconsistencies that the Tribunal identified in the information and evidence provided by the first appellant at various stages of the visa application and review process.

65    That did not, however, make it adverse information for the purposes of s 424A of the Act. However broadly “information” may be defined for the purposes of s 424A of the Act, its meaning “is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”: SZBYR at [18]. If this was not the case, s 424A would “in effect oblige the [T]ribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process”: SZBYR at [18].

66    The third difficulty is that some of the items of information in any event fall within the exceptions in ss 424A(3)(b) or (ba) of the Act. The items of information that may not fall within those exceptions are those items of information that were provided in the course of the first visa application, or provided orally by the first appellant to delegates who initially considered and determined the visa applications or provided in the course of the first review proceedings in the Tribunal. It is unnecessary to delve into the detail as to which items of information may have fallen into those categories, particularly given that the appellants made no attempt to do so, and, more significantly, given the first and second problems with the appellants’ arguments that have just been discussed.

67    The primary judge was correct to reject the appellants’ contentions concerning non-compliance with ss 424AA or 424A of the Act. The information referred to by the appellants in the context of this ground was not information which fell within the scope of s 424AA or s 424A and, in any event, particulars of that information were provided to the appellants in accordance with s 424AA of the Act.

68    The appellants have not demonstrated that there was any such non-compliance or that the primary judge erred in rejecting their contentions in that regard.

Ground three – Failure to take oral evidence from two witnesses

69    The issue raised by this ground is whether the Tribunal was for some reason obliged to telephone Mr DH and Mr YAS to take oral evidence from them in accordance with the request made by the appellants’ representative at the hearing. The appellants did not identify the basis, statutory or otherwise, upon which it was said that the Tribunal was required to take oral evidence from those witnesses over the telephone in all the circumstances.

70    Section 426 of the Act provided 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.

71    The effect and scope of s 426 was recently summarised in BOX16 v Minister for Immigration and Border Protection [2020] FCA 801 at [54]-[56]:

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. …

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.

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.

72    It is clear that the appellants did not notify the Tribunal in accordance with s 426(2) that they requested the Tribunal to take oral evidence from Mr DH and Mr YAS. As discussed earlier, the appellants’ response to the Tribunal’s invitation to attend the hearing did not include any request that the Tribunal take oral evidence from Mr DH or Mr YAS. The appellants’ representative did subsequently advise that Mr DH and Mr YAS would come to the hearing “in person to provide evidence”, but that advice came in the form of letters that were received by the Tribunal well outside the seven day period prescribed in s 426(2) of the Act. The appellants’ representative also told the Tribunal at the hearing that Mr DH and Mr YAS were available to give evidence by telephone. Even if that amounted to a request that the Tribunal take evidence from those witnesses, it was an oral request made well outside the time period specified in s 426(2) of the Act.

73    In any event, the Tribunal plainly had “regard to” the appellants’ “wishes” in relation to the taking of oral evidence from Mr DH and Mr YAS. It therefore complied with the mandatory requirement in s 426(3) of the Act. Having done so, the Tribunal was not required to act on those wishes: VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [23]. On what basis, then, could it be said that the Tribunal erred in declining to take oral evidence over the telephone from Mr DH and Mr YAS?

74    It may be accepted that the Tribunal’s consideration of an 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 [39]-[44]; SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [53]; AYX17 at [75].

75    The appellants did not contend that the Tribunal did not give real and genuine consideration to their wishes in relation to the evidence of Mr DH and Mr YAS, or that the Tribunal’s exercise of its discretion under s 426(3) was legally unreasonable. Nor is there any basis for either contention.

76    The Tribunal explained why it declined to telephone either Mr DH or Mr YAS to take oral evidence from them: Reasons at [81] and [108]. One reason was that the appellants’ representative had previously indicated that Mr DH and Mr YAS would attend the hearing and yet gave no explanation for why the witnesses did not ultimately attend. It may perhaps be accepted that that was not a particularly compelling or persuasive reason, particularly given that the witnesses were nonetheless said to be available to give evidence over the telephone, which is specifically permitted by s 429A of the Act. If that was the only reason given by the Tribunal, and the oral evidence of those witnesses was particularly important or significant to the appellants’ case, it might perhaps have been arguable that the Tribunal’s refusal to telephone the witnesses was legally unreasonable.

77    There was, however, a far more compelling reason given by the Tribunal for declining to telephone Mr DH and Mr YAS. That reason was that the Tribunal had considered and taken into account the written evidence of both those persons and determined that any evidence that they could have given over the telephone would not have “overcome the problems” which the Tribunal had identified at length in relation to the first appellant’s evidence. That reasoning was not illogical, irrational or unreasonable for essentially the same reasons as those given earlier in the context of ground one of the appellants’ appeal grounds relating to the Tribunal’s decision not to make arrangements to call oral evidence from the second appellant after she had initially declined to do so at the hearing. In short, it was open to the Tribunal to find that any corroborating evidence that Mr DH and Mr YAS could have given orally would not have been able to resurrect or restore the first appellant’s credibility as a witness.

78    It should also perhaps be noted in this context that the written evidence of both Mr DH and Mr YAS was fairly narrow in scope and provided little corroboration of the evidence given by the first appellant. Mr DH’s evidence was limited to the first appellant’s activities with BNP associated organisations in Australia. The Tribunal ultimately accepted that the first appellant had engaged in those activities. Mr YAS’s written evidence did provide some corroboration of the first appellant’s evidence concerning his political activities in Bangladesh and the positions he claimed that he held in the BNP. Mr YAS’s evidence, however, was short and expressed in very general terms. The appellants’ representative did not suggest that Mr YAS would have been able to add anything to that evidence if he was called to give oral evidence. It is not at all surprising, in those circumstances, that the Tribunal ultimately gave little weight to that evidence given the problems it had identified in the first appellant’s evidence.

79    It follows that there is no merit in the appellants’ contentions that the Tribunal erred in some way, or failed to comply with s 426 of the Act, or any other provision in the Act, by declining to telephone Mr DH or Mr YAS to enable them to give oral evidence. The primary judge was correct to reject that contention.

Ground four – Failure to make inquiries

80    This ground of appeal was, at best, only faintly pressed by the appellants. The particulars provided in relation to this ground in the notice of appeal were sparse and general. No submissions were advanced in support of it. In those circumstances, the ground can be dealt with briefly.

81    It may be accepted that, in some cases, a failure “to make an obvious inquiry about a critical fact, the existence of which is easily ascertained” could support a finding of jurisdictional error by constructive failure to exercise jurisdiction, or could affect a Tribunal’s decision in a way that manifests itself in jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39 at [25]. This case, however, was clearly not shown to be such a case.

82    The appellants appeared to contend that the Tribunal should have made inquiries to verify the authenticity of documents “from BNP leaders from Australia”. The specific inquiry that it was suggested should have been made was to contact the authors of “those letters in relation to the commitment of the [first appellant] in his association with the BNP”.

83    The only letters from “BNP leaders from Australia” that the appellants relied on were the letters from Mr DH, Mr NUA, Mr YAS and Mr ZHM. The Tribunal did not doubt the authenticity of those letters as the appellants appeared to contend. Rather, it ultimately gave the evidence in them limited weight.

84    As for the letters provided by Mr NUA and Mr ZHM, the Tribunal took oral evidence from both those men and questioned them about the evidence in their letters: Reasons at [56]-[57]. It found that the evidence of those two witnesses was “unimpressive” and that Mr NUA’s letter appeared to have been copied from Mr DH’s letter: Reasons at [107]. The Tribunal also noted that some of the details in the letters were inconsistent with the first appellant’s own evidence: Reasons at [106]. It could not, in these circumstances, be sensibly suggested that the Tribunal could have made any further inquiries of Mr NUA and Mr ZHM about their letters or the evidence in them.

85    As for Mr DH and Mr YAS, as already noted, the appellants had indicated that those witnesses would attend the hearing to give evidence, but they ultimately did not do so. No reasons were given for their non-appearance. While the appellants’ representative indicated that they could be contacted by telephone, the Tribunal declined to telephone them. For the reasons already given, the Tribunal’s decision in that regard was not unreasonable. In short, the Tribunal took into account the written evidence of these two persons, but gave it little weight in the face of the many problems that the Tribunal had identified in the first appellant’s evidence. There is no basis for the implicit suggestion that, had the Tribunal made further inquiries of these two witnesses, those inquiries would have been fruitful, or would have assisted the appellants’ case in any material respect. Nor is there any basis for finding that the failure of the Tribunal to make any further inquiries of these two witnesses demonstrated a constructive failure to exercise jurisdiction, or affected the Tribunal’s decision in a way which manifested jurisdictional error.

86    As events transpired, the Tribunal accepted that the first appellant had engaged in activities with, and were associated with, organisations associated with the BNP in Australia. It also accepted that the second appellant had some association with those organisations. The Tribunal’s acceptance that the first and second appellants had engaged in those activities, or had those associations, did not, however, materially assist the appellants. That was because the Tribunal found, amongst other things, that the first and second appellants engaged in those activities, or formed those associations, for the sole purpose of furthering their claims as refugees. It also found that these activities or associations did not give rise to any substantial grounds for believing that there was a real risk that the first and second appellants would suffer significant harm if they returned to Bangladesh. There is no basis for concluding that any obvious inquiry that the Tribunal could have made of Mr DH, Mr NUA, Mr YAS and Mr ZHM might have elicited any critical facts that might have led the Tribunal to conclude otherwise.

87    The appellants also appeared to contend that the Tribunal should have made further inquiries concerning documents that it found had been fabricated. The appellants did not, however, identify what those documents were and what further inquiries should have been made by the Tribunal in relation to them. The Tribunal did find that certain photographs and a newspaper article which had been supplied to the Department of Immigration and Border Protection by the appellants were “obvious fabrications”: Reasons at [105]. The Tribunal put its concerns about the provenance and authenticity of those documents to the first appellant during the hearing, gave the first appellant an opportunity to give evidence and make submissions concerning those concerns, and gave detailed reasons for finding that, despite the first appellant’s protestations to the contrary, the documents were fabrications: Reasons at [12]-[15], [37]-[38], [79]-[80], [83] and [105]. There is no basis for concluding that any further obvious inquiries that the Tribunal could have made about the documents might have elicited any critical facts that might have led the Tribunal to conclude otherwise.

88    There is no basis for the contention that the Tribunal failed to make any obvious inquiries about critical facts, or that any such failure resulted in any constructive failure on the part of the Tribunal to exercise its review jurisdiction, or affected the Tribunal’s decision in any way that manifested jurisdictional error. The primary judge was right to reject the appellants’ contentions that the Tribunal failed to make any investigations or inquiries that it was obliged to make in the circumstances. The appellants have not demonstrated any error on the part of the primary judge in rejecting this aspect of their review application.

CONCLUSION AND DISPOSITION

89    The appellants have not demonstrated any appellable error on the part of the primary judge in dismissing their judicial review application in respect of the Tribunal’s decision.

90    None of the four grounds of appeal pursued by the appellants have any merit. There was and is no basis for the contention that the Tribunal failed to properly consider any of the appellants’ claims, or that the Tribunal erred in any way in not taking oral evidence from the second appellant after she declined to give oral evidence at the hearing, or that the Tribunal failed to comply with s 424AA or s 424A of the Act, or that the Tribunal erred in any way in declining to telephone two prospective witnesses, or that the Tribunal failed to make any obvious inquiries about critical facts such as to manifest jurisdictional error. The primary judge was correct to reject all of those contentions.

91    The appeal must be dismissed. The Minister’s costs should be paid by the first and second appellants. It would not be appropriate to order the third appellant to pay the Minister’s costs, given that the first appellant was appointed the third appellant’s litigation guardian for the purposes of the proceedings.

Associate:

Dated:    16 June 2020