Federal Court of Australia

DBD16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 362

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time to file a notice of appeal is granted.

2.    The appellant’s amended draft notice of appeal, except for proposed ground 1, is to stand as the appellant’s notice of appeal in the appeal.

3.    The appeal is allowed.

4.    The orders of the Federal Circuit and Family Court of Australia (Division 2) of 18 March 2022 be set aside and in lieu thereof it be ordered that:

(a)    A writ of certiorari be issued to the Administrative Appeals Tribunal quashing its decision made on 1 July 2021 affirming the decision not to grant the appellant a Safe Haven Enterprise visa.

(b)    A writ of mandamus be issued to the Administrative Appeals Tribunal commanding it to determine the appellant’s application for review of the decision not to grant the appellant a Safe Haven Enterprise visa according to law.

(c)    The matter be remitted to the Administrative Appeals Tribunal for determination according to law.

5.    The question of costs before the Federal Circuit and Family Court of Australia (Division 2) and in the appeal are reserved.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    These reasons concern an application for an extension of time to appeal and, if granted, an appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2) dismissing the applicant’s application for judicial review of a decision of the second respondent (Tribunal) by which it affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Safe Haven Enterprise visa (protection visa) under the provisions of the Migration Act 1958 (Cth). For the reasons set out below, orders will be made granting the applicant the requested extension of time and allowing ground 2 of his amended draft notice of appeal. As a consequence there will be an order quashing the decision of the Tribunal and remitting the matter to the Tribunal for determination according to law. I will hear the parties on the question of costs.

Background

2    The applicant’s attempt to obtain a protection visa has a rather long history. That attempt has been punctuated with a series of errors by decision-makers. Those errors have resulted in repeated failures to afford the applicant the statutory review to which he is entitled under the Act. In the meantime, he has remained in immigration detention for more than ten years. The applicant’s story does not make for easy reading.

3    The applicant is a citizen of Bangladesh. On 25 September 2012, he left Bangladesh by fishing trawler. The fishing trawler sailed to Indonesia. From there, the applicant boarded a boat headed for Australia which was intercepted by Australian authorities in October 2012. The applicant made landfall in Australia on 17 October 2012 at the Territory of Ashmore and Cartier Islands.

4    On 26 November 2015, the applicant applied for a protection visa. The applicant raised various protection claims, including a claim based on conversion from Islam to Christianity after his arrival in Australia and while in immigration detention.

5    On 11 July 2016, a delegate of the Minister made a decision not to grant the protection visa to the applicant. That decision was referred to the Immigration Assessment Authority for review under Part 7AA of the Act on the incorrect assumption that the applicant was an 'unlawful maritime arrival' to whom Part 7AA of the Act applied. On 19 September 2016, the IAA affirmed the delegate’s decision. The applicant sought judicial review of that IAA’s decision in the Federal Circuit Court of Australia as the Federal Circuit and Family Court of Australia (Division 2) was then known.

6    On 11 July 2018, Smith J found that the applicant did not enter Australia by sea at an ‘excised offshore place’: DBD16 v Minister for Immigration & Anor [2018] FCCA 1801; (2018) 334 FLR 431. That meant that the applicant was not an ‘unauthorised maritime arrival' within the meaning of s 5A of the Act and therefore the delegate’s refusal decision was not reviewable by the IAA under Part 7AA.

7    On 5 April 2019, a delegate of the Minister gave the applicant formal notice that his application for the protection visa had been refused. On 10 April 2019, the applicant applied to the Tribunal for review of the delegate's refusal decision under Part 7 of the Act. In that review the Tribunal received evidence relating to the applicant’s claim of conversion to Christianity. That evidence included a letter dated 15 September 2017 from Reverend Katrina Holgate, an Anglican Priest that had been attending Yongah Hill Detention Centre where the applicant had been detained, in support of the applicant’s conversion and a certificate of the applicant’s baptism, by the Reverend, on 14 July 2017. The Tribunal also took oral evidence from the Reverend. Nonetheless, the Tribunal did not accept that the applicant’s conversion to Christianity was genuine. On 14 November 2019, the Tribunal affirmed the decision not to grant the applicant the visa because, amongst other reasons, it rejected his claim of conversion to Christianity.

8    On 4 December 2019, the applicant applied for judicial review of the Tribunal’s decision in the Circuit Court. On 20 April 2020, a judge of the Circuit Court dismissed the application in an ex tempore judgment, which was converted into writing and published on 27 May 2020: DBD16 v Minister for Immigration & Anor [2020] FCCA 1249. The applicant appealed from that judgment to the Federal Court.

9    On 29 January 2021, McKerracher J allowed the applicant's appeal and made orders quashing the Tribunal’s decision and remitting the matter to the Tribunal for determination according to law. The appeal was allowed because the Tribunal had only considered if the applicant’s conversion to Christianity was genuine and not the extent to which his claimed renunciation of Islam was in and of itself a basis of his fear of persecution on return to Bangladesh.

10    Upon remittal, on 8 April 2021, the Tribunal invited the applicant to attend a hearing on 16 April 2021. On 13 April 2021, the applicant’s migration agent advised the Tribunal that Reverend Holgate had expressed interest in appearing as a witness at the hearing in support of the applicant and giving oral evidence in relation to the applicant's conversion to Christianity. On 14 April 2021, the Tribunal wrote to the migration agent, attaching a copy of a practice direction and advising that the Tribunal would require the 'witness' (Reverend Holgate) to provide a written statement before it considered whether it would hear any oral evidence. However, a written statement was not provided before the oral hearing that took place two days later on 16 April 2021.

11    The applicant observed the hearing on 16 April 2021 by video link from Yongah Hill with the assistance of a Bengali interpreter. The hearing record indicates that Reverend Holgate was available to give evidence by telephone. Nonetheless, the Tribunal’s reasons record that it decided not to take evidence from Reverend Holgate at the hearing. On 1 July 2021, the Tribunal (again) affirmed the delegate’s refusal decision. In its statement of reasons, the Tribunal gave reasons for its decision not to take evidence from Reverend Holgate. These are addressed later.

12    On 3 August 2021, the applicant applied for judicial review of the Tribunal’s decision in the Circuit Court. On 18 March 2022, the primary judge dismissed that application: DBD16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 137.

13    On 30 June 2022, the applicant applied for an extension of time to appeal from the primary judge's judgment. That application included an unsigned affidavit providing some explanation for the failure to appeal within the 28 day period required in r 36.03 of the Federal Court Rules 2011 (Cth) and a draft notice of appeal.

14    On 24 October 2022, I made orders for the applicant to file and serve, amongst other things, any amended draft notice of appeal setting out particularised grounds of appeal and an outline of written submissions. In response, the applicant filed written submissions dated 15 November 2022 and an amended draft notice of appeal on the same day.

15    There are two proposed grounds of appeal. Both grounds derive from the contention that the primary judge erred in failing to find that the Tribunal fell into jurisdictional error in refusing the applicant’s request that it take evidence from Reverend Holgate.

Legislative framework

16    Section 29 provides that, subject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of travelling to and entering Australia, or remaining in Australia. The Act prescribes a number of different classes of visa, including, in s 35A, a class of visa known as a protection visa. Section 35A provides for a number of different categories of protection visa, including in s 35A(3B), a class known as Safe Haven Enterprise visas.

17    A person may apply for a protection visa under s 36 of the Act. Section 36 and Sch 2 to the Migration Regulations 1994 (Cth) set out the criteria that an applicant for a protection visa must meet. An applicant for a protection visa must meet one of the criteria set out in ss 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the refugee criterion, or on other complementary protection grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. If satisfied of all the relevant criteria for the grant of a visa, the Minister is to grant the visa under s 65 of the Act. The Minister's power to grant a visa under ss 29, 36 and 65 the Act may be (and usually is) exercised by a delegate of the Minister under s 496 of the Act.

18    The decision of the delegate in this case, to refuse the applicant a protection visa, was a Part 7-reviewable decision within the meaning of that expression in s 411(1) of the Act. A Part 7-reviewable decision is reviewable by the Tribunal in its Migration and Refugee Division and an application is to be made within 28 days after notification of the decision: ss 409(2), 412 of the Act. Subject to the Minister issuing a conclusive certificate relating to national interest that is not presently relevant, if a valid application is made under s 412 for review of a Part 7-reviewable decision, the Tribunal must review the decision: s 414. Here, the applicant made a valid application under s 412 of the Act, and therefore, the Tribunal was obliged to review the decision of the delegate to refuse to grant the applicant a protection visa.

19    Section 417 of the Act provides that the Tribunal may, for the purpose of review of a Part 7-reviewable decision, exercise all the powers and discretions that are conferred by the Act on the person who made the decision and the Tribunal may affirm the decision, or vary the decision, or, in certain circumstances, remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the Regulations, or set the decision aside and substitute a new decision, or if the applicant fails to appear - exercise a power under s 426A in relation to the dismissal or reinstatement of an application.

20    Section 422B(1) of the Act provides that Div 4 of the Pt 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters dealt with in that Division. Section 422B(3) provides that in applying Div 4, the Tribunal must act in a way that is fair and just.

21    Division 4 and ss 423 - 429A address and deal with the Tribunal's conduct of the review of a Part 7-reviewable decision. Section 23 provides a mechanism for an applicant to provide statutory declarations that the applicant wishes the Tribunal to consider and written arguments relating to the issues arising in a decision under review. Section 423A addresses the circumstance in which the applicant raises a claim that was not raised in the application before the primary decision was made or presents evidence in the application that was not presented before the primary decision was made. In such cases, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied the applicant does not have a reasonable explanation for why the claim was not raised or the evidence was not presented before the primary decision was made.

22    Section 424 permits the Tribunal to get information that it considers relevant. Section 424AA provides for the Tribunal to give an applicant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review, orally where the applicant is appearing before the Tribunal because of an invitation under s 425. Section 424A provides that the Tribunal must give an applicant particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review. That information is to be provided, subject to certain exceptions, by one of the methods specified in s 441A. Section 424B provides certain requirements for an invitation to give comment or respond to information under s 424 or s 424A. Section 424C provides for the consequences of failing to give information in response to an invitation under s 424 or s 424A.

23    Section 425 provides that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in relation to the decision under review, subject to certain exceptions, including if the Tribunal considers it should decide the review in the applicant's favour on the basis of the material before it. Section 425A provides for the manner in which notice is to be given to an applicant of an invitation to appear.

24    Section 426 provides a mechanism for an applicant to request the Tribunal to call a witness to give evidence. Section 427 and s 428 confer powers on the Tribunal to take evidence on oath or affirmation. Further, s 429A provides that the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person to be by, amongst other things, telephone. Section 429 provides that the hearing of an application for review by the Tribunal must be in private.

25    Section 430 provides that where the Tribunal makes its decision on a review (other than an oral decision) the Tribunal must make a written statement that:

(a)    sets out the decision of the Tribunal on the review;

(b)    sets out the reasons for the decision; and

(c)    sets out the findings on any material questions of fact; and

(d)    refers to the evidence or any other material on which the findings of fact were based; and

(e)    in the case of certain decisions made where the applicant has failed to appear, to confirm the dismissal of an application indicates that the decision under review is taken to have been affirmed; and

(f)    records the day and time the statement is made.

Section 430A provides that a Tribunal must notify the applicant of a decision on review other than an oral decision, by giving the applicant a copy of the written statement prepared under s 430(1).

26    Section 432 and s 433 provide for criminal offences in the case of persons who fail to comply with a summons, or to take an oath or affirmation. That is, the Tribunal's power to take evidence is supported by provisions that make provision for penal consequences of criminal consequences of failure to cooperate with the Tribunal.

27    Section 24Z of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that, except for ss 25 and 42, Part IV of the AAT Act (the provisions relating to the review by the Tribunal of decisions in its General Division) do not apply to proceedings in the Migration and Refugee Division of the Tribunal. That is, they do not apply to the review of a Part 7-reviewable decision. Section 25 of the AAT Act makes provision for the Tribunal to review decisions where power to undertake that review is conferred by other legislation. Section 25 otherwise facilitates the exercise of the review function in the Tribunal, including the Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers: s 25(4A). Section 42 deals with the circumstance where the Tribunal is constituted for the purpose of proceeding by three members and how, in those circumstances, to resolve disagreements between the members (by majority) or, in the case of two members, according to the opinion of the presiding member. Therefore, except that to the extent ss 25 and 42 of the AAT Act may apply, Part 7 of the Act provides a self-contained procedure for the Tribunal’s review of a Part 7-reviewable decision.

28    Section 474 of the Act provides that a privative clause decision: is final and conclusive; must not be challenged, appealed against, reviewed, quashed or called into question in any court; and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. The effect of s 474 is to exclude a court from reviewing and granting relief for any error a decision-maker has made in respect of a privative clause decision. A decision of the Minister or a delegate refusing to grant a protection visa is a privative clause decision. However, as noted above, where a decision has been made to refuse to grant a protection visa, the unsuccessful applicant has a right to have that decision reviewed as a Part 7-reviewable decision by the Tribunal.

29    A decision of the Tribunal to affirm a decision to refuse an applicant a protection visa is also a privative clause decision to which s 474 of the Act applies. Notwithstanding the terms of s 474 of the Act, the section does not have the effect of excluding the original jurisdiction of the High Court to review decisions of administrative decision-makers for jurisdictional error under s 75(v) of the Constitution: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [76]. Where the Tribunal has made or purported to make a privative clause decision, the High Court's jurisdiction to review such a decision for jurisdictional error is conferred on the Circuit Court, except for certain decisions not presently relevant: s 476 of the Act. Otherwise, in respect of a decision to refuse to grant an applicant a protection visa, ss 474, 476 and 476A of the Act and s 43C of the AAT Act exclude any right to apply for judicial review or to appeal to the Federal Court from a decision of the Tribunal that is a privative clause decision.

30    The Circuit Court's original jurisdiction to review a decision of the Tribunal is derived from ss 75(v) and 77(i) of the Constitution and s 476(1) of the Act. The effect of ss 474 and 476 of the Act is to limit the jurisdiction of the Circuit Court to the same jurisdiction as that which the High Court is able to exercise under s 75(v) of the Constitution with respect to a 'migration decision' that is a 'privative clause decision' or a purported privative clause decision, of the Tribunal on a review under Pt 7 of the Act. The Circuit Court's power on such a review is limited to considering the extent to which the Tribunal exercised its powers within the limits of its statutory authority or failed to exercise powers it was bound to exercise. In other words, 'the inquiry is not about whether a decision which was made in the exercise of the authority was right or wrong on its merits. It is an inquiry about the boundaries of the power conferred: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [160].

31    The constitutional writs referred to in s 75(v) of the Constitution extend the Court's jurisdiction to grant relief in the form of: an order restraining the Tribunal from exceeding its jurisdiction (writ of prohibition); an order commanding the Tribunal to fulfil a statutory duty that remains unperformed, actually or constructively (writ of mandamus); or injunction. The Court also has jurisdiction to grant relief ancillary to the constitutional writs in the form of an order quashing or setting aside a decision that was made in excess of statutory authority (writ of certiorari) or a declaration of right pertaining to the exercise or failing to exercise power: e.g. Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 at [176].

32    The Federal Court has jurisdiction to hear and determine appeals from judgments of the Circuit Court exercising original jurisdiction under a law of the Commonwealth: s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). The appellant jurisdiction of the Federal Court, in these circumstances, is usually exercised by a single judge of the Federal Court: s 25(1AA)(a).

Extension of time

33    A prospective appellant who has not filed a notice of appeal within the time specified in r 36.03 of the Rules may apply to the Court for an extension of the time within which that person had to file a notice of appeal. Such an application must be made in accordance with r 36.05 of the Rules. An application may be made after the period of time for filing a notice of appeal has expired. Pursuant to r 35.05, the application must be accompanied by the following:

(a)    the judgment or orders from which the appeal is to be brought;

(b)    the reasons for the judgment or orders, if published;

(c)    an affidavit stating:

(i)    briefly but specifically, the facts on which the application relies; and

(ii)    why the notice of appeal was not filed within time;

(d)    a draft notice of appeal that complies with rules 36.01(1) and (2): r 36.05(3).

34    On 30 June 2022, the applicant made an application for an extension of time, in effect, to 30 June 2022 and filed a draft notice of appeal together with an affidavit of the applicant dated 29 June 2022, evidently signed by the applicant but not sworn or affirmed before a person authorised to witness the taking of evidence on affidavit.

35    The Minister has not objected to the form of the applicant's affidavit in support of the application for extension of time. Rather, the Minister submitted that the application should be dismissed on the grounds that the proposed grounds of appeal have no prospects of success. Nor was any objection taken to the affidavit in that it does not, strictly speaking, comply with the requirements of r 36.05(3).

36    Nonetheless, it appears that the applicant's explanation for the failure to lodge the notice of appeal within time was that he was in immigration detention, that he did not have access to a fax machine, he provided paperwork to the detaining officers on his behalf and he was then, ‘shocked’ to learn, on 29 June 2022 that he was liable to be involuntarily removed from Australia. The reason for the affidavit not being witnessed correctly given is that there were active cases of COVID-19 at Yongah Hill at the applicable time and the applicant was not able to obtain or have the signature witnessed by a justice of the peace.

37    The principles applicable to applications to extend the time within which to file a notice of appeal are well-established and may be shortly stated as follows.

(a)    Applications for extension of time are not granted unless it is proper to do so; the legislative time limits are not to be ignored.

(b)    There must be some acceptable explanation for delay.

(c)    Any prejudice to the respondent in defending the proceedings, caused by the delay, is a material fact militating against the grant of an extension.

(d)    The mare absence of prejudice to the respondent is not enough to justify the grant of an extension.

(e)    The merits of the substantial application are to be taken into account in considering whether an extension it to be granted.

See, e.g.: Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 186; (1984) 3 FCR 344 at 348 - 349; Parker v R [2002] FCAFC 133 at [6].

38    The overarching consideration for the Court is whether it is in the interests of the administration of justice to grant the extension of time in the circumstances of the case. For example, where the delay is short and no injustice will be occasioned to the respondent, the interests of justice would ordinarily require the extension of time to be granted provided there was sufficient merit in the grounds of appeal to justify the hearing of the appeal: e.g. WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [7]; Hasan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 788 at [13]-[14].

39    In this case, while the applicant's explanation for the period of delay is not particularly detailed and is not on oath or affirmation, I am prepared to accept that in the circumstances of an applicant applying for a protection visa who is in immigration detention, and during a period in which COVID-19 was causing disruption within the relevant detention centre and the community more broadly, there is a sufficient explanation for the applicant's delay in taking a step to institute an appeal from the primary judge's judgment. I also take into account that there is no evident prejudice to the Minister if an extension of a relatively short period of time were granted in this case.

40    The real question is whether the merits of the proposed ground of appeal are sufficiently strong, assessed at a level impression, to be satisfied that if an extension of time were granted the grounds of appeal have a reasonable prospect of success. Having regard to the parties' written and oral submissions and the manner in which the asserted jurisdictional error of the Tribunal was formulated in the proposed appeal, which is addressed in more detail later in these reasons, I am satisfied that the ground of review and the asserted error of the primary judge to find jurisdictional error on that ground, has sufficient prospects of success to warrant a full consideration of the grounds of appeal. In so doing, I take into account the consequences of the refusal to grant the applicant a protection visa and the prospect of his involuntary removal from Australia. In short, I am satisfied that, in the circumstances of this case, it is in the interests of the administration of justice that an extension of time be granted. It follows that I grant the applicant the requested extension of time to appeal from the primary judge's judgment.

Grounds of appeal

41    As noted earlier in these reasons, on 15 November 2022 the applicant (now appellant) filed an amended draft notice of appeal. The amended draft notice of appeal contains two proposed grounds of appeal in the following terms:

1.    The primary judge erred in not finding that the Administrative Appeals Tribunal committed jurisdictional error in failing to give real and genuine consideration to the Appellant’s request that the Tribunal obtain oral evidence from the Appellant’s nominated witness.

Particulars

(a)    On 13 April 2021, the Appellant gave the Tribunal written notice under s 426(2) of the Migration Act 1958 (Cth) that the Appellant wanted the Tribunal to obtain oral evidence from Reverend Katrina Holgate.

(b)    In breach of s 426(3) of the Migration Act 1958 (Cth), the Tribunal did not give real and genuine consideration to the Appellant’s request in that it did not make inquiries to understand why the Appellant wanted the Tribunal to take evidence from Reverend Holgate and how Reverend Holgate’s evidence was said by the Appellant to relate to the Tribunal’s review.

2.    The primary judge erred in not finding that the Administrative Appeals Tribunal committed jurisdictional error in unreasonably deciding not to obtain oral evidence from the Appellant’s nominated witness.

42    The Minister objects to ground 1 of the notice of appeal on the basis that it raises a new point that was not raised before the primary judge and is a point that could have been met by evidence. Due to that objection, it is convenient to commence with a consideration of ground 2 to which no objection is taken.

Applicable legal principles

43    In conducting a review under s 414 of the Act the Tribunal must ‘arrive at the correct or preferable decision in the case before it according to the material before it': Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [93]; Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 424-425; Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 at [59]; Benjamin v Repatriation Commission [2001] FCA 1879 at [47]; Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63. Also, that decision is to be based on the information before the Tribunal at the time that the decision is made, not on the information before the Minister or delegate at the time the decision under review was made: Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) CLR 286 at [32], [50], [129].

44    The function of the Tribunal is inquisitorial: NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 at [22]. While the Tribunal has no obligation to make general inquiries, ‘a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review': Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [20], [23]; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 111 ALD 15 at [25]

45    Subject to certain exceptions that are not presently relevant, s 425 provides that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 425A provides that the applicant must be given a notice and s 426(1) and s 426(2) provide that the s 425A notice must notify the applicant that the applicant may give the Tribunal written notice that the applicant wants the Tribunal to obtain evidence (orally or otherwise) from a person named in the applicant’s notice. Section 426(3) provides that the Tribunal must have regard to an applicant’s wishes where such a notice is given, but is not required to obtain evidence (orally or otherwise) form a person named in an applicant’s notice. Section 427(1)(a) provides that ‘for the purposes of the review of a decision, the Tribunal may … take evidence on oath or affirmation’. Section 429A provides for such evidence to be given via telephone.

46    Section 426 does not confer power on the Tribunal to take evidence. The relevant power is in s 427(1)(a). Section 426 is a facultative provision through which an applicant makes it known to the Tribunal that the applicant wishes the Tribunal to exercise power under s 427(1)(a). In that event, s 426(3) imposes a mandatory requirement on the Tribunal to ‘have regard to’ the applicant’s wishes, but is not required to obtain the evidence. That is, s 426(3) confirms that a notice given under s 426(2) does not fetter the Tribunal’s discretion to exercise the power in s 427(1)(a) ‘for the purposes of the review of a decision’: AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; (2018) 262 FCR 317 at [44]-[49].

47    In Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118 at [38], Kenny and Lander JJ (Spender J agreeing) said of the analogous provision in Pt 5 of the Act (s 361(3)):

It does not follow from this, however, that the appeal in this case should be upheld. By virtue of s 361(3), the Tribunal is obliged to have regard to any notice given by an applicant under sub-ss 361(2) or (2A) of the Act. This means that the Tribunal must genuinely apply its mind to the contents of the notice and, in particular, to the question whether it should take the oral evidence of the nominated individuals in accordance with the applicant’s wishes. The Tribunal must not merely go through the motions of considering the applicant’s wishes as expressed in the notice. As the respondents’ counsel said, the authorities establish that the invitation to appear before the Tribunal must be “real and meaningful and not just an empty gesture”: NALQ at [30]; SCAR at [37]; and Mazhar at 188 [31]. It follows that the consideration that the Tribunal gives to the wishes of the applicant concerning the evidence to be taken at the hearing must also be genuine. The Tribunal must not decline to comply with the applicant’s wishes capriciously, but must take account of such relevant matters as the relevance and potential importance to the outcome of the review of the evidence that could be given by a nominated witness (compare W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211 (“W360/01A”) at [2] per Lee and Finkelstein JJ and [30]-[32] per Carr J)), the sufficiency of any written evidence that has already been given by a witness, and the length of time that would afford the applicant a fair opportunity to put his or her case before the Tribunal. These considerations flow from the nature of the Tribunal’s overarching objective, which is to provide a review that is “fair, just, economical, informal and quick”: see s 353(1). The Tribunal must bear in mind this statutory objective when considering the weight to be given these matters.

These principles apply equally to s 426(3): AYX17 at [34], [48].

48    Absent contrary intention, of which here there is none, a statutory discretion, like that in s 427(1)(a), is to be exercised reasonably. Further, a statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred: Li at [23]-[26] (French CJ), [58]-[76] (Hayne, Kiefel and Bell JJ), [88]-[100], [109]-[110] (Gageler J); CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 at [41]-[44]; AYX17 at [75]. Moreover, as Gageler J said in Li (at [99]) of the analogous provision to s 422B(1) (s 357A(1)):

The legislative declaration that Div 5 of Pt 5 “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with” (s 357A(1)) gives added significance to the implied requirement for the MRT to act reasonably in the performance of its procedural duties and in the exercise or non-exercise of its procedural powers. The significance is that the implied statutory requirement for the performance of those duties and the exercise of those powers always to be reasonable results in the division providing a measure of procedural fairness sufficient to meet the statutory description of it as a statement of the requirements of the natural justice hearing rule.

49    The legal standard of ‘unreasonableness’ is not limited to what is in effect irrational, that is, so unreasonable that no reasonable person could have arrived at it, but an inference of unreasonableness may be objectively drawn even where a particular error in reasoning cannot be identified: Li at [68]. Further, while an irrational decision may be unreasonable, it does not follow that a rational decision is necessarily reasonable. Not every rational decision is reasonable: Li at [30]. As to an objective inference of unreasonableness, the plurality (Hayne, Kiefel and Bell JJ) in Li said (at [68], [74]-[76], [82] (footnotes omitted):

68    Lord Greene MR’s oft-quoted formulation of unreasonableness in Wednesbury has been criticised for “circularity and vagueness”, as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided. And the same principles evidently informed what was said by Dixon J about review of an administrative decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation, which was decided less than two years after Wednesbury, at a time when it was the practice of the High Court to follow decisions of the Court of Appeal in England which appeared to have settled the law in a particular area.

…

74    In the present case, regard might be had to the scope and purpose of the power to adjourn in s 363(1)(b), as connected to the purpose of s 360(1). With that in mind, consideration could be given to whether the Tribunal gave excessive weight – more than was reasonably necessary – to the fact that Ms Li had had an opportunity to present her case. So understood, an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached. However, the submissions in this case do not draw upon such an analysis.

75    In Peko-Wallsend, Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that “guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion”. House v The King holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent.

76    As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

…

82    It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that “enough is enough”, but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed.

See, also, French CJ at [23]-[31] and Gageler J at [88]-[92], [105]-[113].

50    In the context of an assertion that a Tribunal had acted legally unreasonably in deciding not to take oral evidence from a witness, in CZBH Rangiah J made the following observations of relevance to the circumstance of this case with which I agree:

53    What is apparent is that the Tribunal provided no reasons, whether orally at the hearing or later in writing, for its decision to decline to obtain the fathers’ oral evidence. While the Tribunal was not obliged to provide such reasons, the fact that it did not leaves the exercise of the power unexplained: cf Kaur v Minister for Immigration and Border Protection [2014] FCA 915 at [110] per Mortimer J. It is necessary to examine whether any evident and intelligible justification for its decision can be discerned.

54    In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [192], Hayne J observed that the review process undertaken by the Tribunal “is a predominantly documentary process”. However, as his Honour noted at [194], s 426 contemplates that the Tribunal may obtain oral evidence (or another form of evidence) from witnesses. The Tribunal has also been given appropriate powers to facilitate the taking of oral evidence from witnesses, including the power to administer an oath or affirmation, the discretion to take oral evidence in person, by telephone or other means, and the power to delegate someone to take oral evidence overseas.

55    The Tribunal’s core function pursuant to s 414(1) is to review decisions of the first respondent or his delegates that fall within s 411(1). Its process is inquisitorial. Its task is to make the correct or preferable decision on the materials before it: Li at [10] per French CJ. Section 426 and the ancillary provisions dealing with the taking of oral evidence recognise that in some cases the opportunity given to an applicant to present the evidence of witnesses in written form may not be enough. The purpose of those provisions must include assisting the Tribunal to arrive at the correct or preferable decision through the advantages that may be conferred by obtaining the oral evidence of witnesses.

56    One of the circumstances evidently contemplated by s 426 is where an applicant has been unable for some reason to obtain a written statement from a witness. Importantly, s 426 must also contemplate that obtaining oral evidence may assist the Tribunal to decide upon the credibility of a witness who has provided a written statement. In Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180, Mason CJ and Brennan and Deane JJ held at 189:

A witness who gives evidence orally demonstrates, for good or ill, more about his or her credibility than a witness whose evidence is given in documentary form.

Although that statement was made in the context of considering a criminal trial conducted by a court, it is also true of oral evidence given before a Tribunal which is engaged in an inquisitorial process. In Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 at 599 and 602, the Full Court indicated that an oral hearing before the Minister’s delegate may be required where issues of credibility arise. The Tribunal may find oral evidence given under oath or affirmation more persuasive than evidence given by written statement. If oral evidence is obtained by the Tribunal, it will also have the opportunity to test the credibility of the evidence given in any written statement by questioning a witness in the same way that it has the opportunity to test the evidence of an applicant.

57    The appellants had submitted corroborative statements from their fathers. The appellants then asked the Tribunal to obtain their fathers’ oral evidence in the obvious expectation that it would be consistent with the statements. The appellants’ legal advisor had evidently anticipated that the appellants’ credibility would be crucial to the outcome of the case. That was later borne out by the Tribunal’s reasons. The reason why the appellants wished for the Tribunal to obtain the oral evidence, which would be given under oath or affirmation, was to allow the Tribunal to test the evidence of the corroborating witnesses by asking them questions. If the fathers had been believed then it is at least likely that important parts of appellants’ evidence would also be believed.

58    A myriad of factors may influence a Tribunal’s decision to obtain oral evidence or its decision not to do so. These factors include the relevance and importance of the proposed evidence, whether written evidence is sufficient for the Tribunal’s purposes, whether taking the evidence would cause undue delay, the ease or difficulty of contacting the proposed witness and the availability of a suitable interpreter. In an appropriate case, the Tribunal might decide that the evidence of an applicant is so compromised that hearing the oral evidence of a corroborating witness could not affect the outcome: cf Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [49] per McHugh and Gummow JJ.

59    In the present case, there was no obvious practical difficulty for the Tribunal in obtaining oral evidence from the appellants’ fathers. The appellants’ solicitor had provided telephone numbers at which the fathers could be contacted and they were both immediately contactable. An interpreter was available. The oral evidence of the fathers was relevant and potentially important because acceptance of their evidence would have bolstered the appellants’ credibility: cf W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211 at [2] per Lee and Finkelstein JJ, at [31] per Carr J. The Tribunal did not make any finding that obtaining the oral evidence of the fathers could not have affected its view of the credibility of the appellants (instead reasoning that if the appellants’ evidence was contrived, so too must have been the written statements from the fathers).

60    The factors outlined above suggest that there were cogent reasons for the Tribunal to obtain the oral evidence of the fathers. As the Tribunal did not explain why it refused to take the oral evidence, it has not identified any countervailing factors. The first respondent did not identify any, but hinted that the Tribunal may have been suspicious that the persons at the other end of the telephone may not have been the appellants’ fathers and that there was no way of verifying who they were. That seems to me to be mere speculation and does not find support in anything said by the Tribunal or in any material before the Tribunal.

61    In these circumstances, no evident and intelligible justification for the Tribunal’s decision not to obtain the oral evidence of the fathers is discernible [sic].

51    Even where, as here, some reasons are given, and accepting that statutory discretions confer an ‘area of decisional freedom’ a decision may be legally unreasonable if it shown ‘to be arbitrary or capricious or to abandon common sense': Li at [28], or if it ‘lacks an evident and intelligible justification': Li at [76]. Such expressions are not to be regarded as rigid formulae, but rather, as assisting in the evaluative task of determining whether a decision may be properly characterised as sitting outside the boundaries of legal reasonableness: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [2]-[13] (Allsop CJ).

The Tribunal’s decision

52    The Tribunal decided not to exercise the power under s 427(1)(a) to take oral evidence from Reverend Holgate. The Tribunal’s reasons record that ‘in light of the documentation she had provided, and her oral evidence given to the previous Tribunal, the Tribunal determined that this was unnecessary’ (RFD [68]).

53    The Tribunal’s reason do not record the basis for considering that the oral evidence that Reverend Holgate would give to the Tribunal would be the same as that which had been given to the previous Tribunal or that it would be the same as recorded in the previous Tribunal’s reasons. As noted earlier in these reasons, no written statement of the evidence Reverend Holgate intended to give at the hearing on 16 April 2021 was provided to the Tribunal. Further, the Tribunal’s reasons do not record that any enquiries were made of the applicant’s representatives at the hearing to ascertain the nature or extent of the evidence of Reverend Holgate upon which the applicant intended to rely.

54    The Tribunal’s reasons record the Tribunal’s understanding of what would be the effect of Reverend Holgate’s evidence irrespective of whether or not oral evidence was taken from her. The Tribunal said (at [68]): ‘[t]here could be no dispute that the applicant had been baptised, participated in religious services in Australia, and that the Reverend Holgate would give evidence that she believed that the applicant was a genuine Christian convert’. The Tribunal concluded (at [68]) that ‘Reverend Holgate telling the Tribunal about her belief about the applicant being a genuine Christian convert would not assist the Tribunal to determine this issue for itself’.

55    The Tribunal went on to reach conclusions on the genuineness of the applicant’s claim to have converted to Christianity in the absence of taking oral evidence from Reverend Holgate as follows:

71    However, the Tribunal struggles to accept that -the applicant is a genuine Christian convert when it takes into account its concerns about the applicant's credibility. Given the timing of the applicant's conversion occurring after his arrival in Australia, the Tribunal is of the view that the applicant saw an opportunity to try and bolster his protection claims by engaging in Christian services and becoming baptised. That does not make the applicant a genuine Christian convert, nor does a knowledge of Christian teaching or support from a Reverend attesting to the Reverend's belief that the applicant is a genuine Christian convert demonstrate that the applicant is a genuine convert from Islam to Christianity.

72    The Tribunal does not accept that the applicant is a genuine convert to Christianity. The Tribunal does not accept therefore that the applicant has in fact renounced his previous religious practice as a Muslim. While the Tribunal accepts that there is no evidence that the applicant has continued to practice as a Muslim in Australia (such as attending Mosque etc.), the Tribunal is satisfied that the absence of this evidence would be due to the fact that the applicant commenced participating in Christian services and observances in order to achieve a favourable migration outcome. The Tribunal is satisfied that when the applicant returns to Bangladesh, he will resume whatever his religious practice was in Bangladesh before he left to come to Australia.

56    The reference to ‘concerns about the applicant’s credibility’ are a reference to the reasons the Tribunal gave for rejecting the applicant’s claims about a ‘false’ claim made against him, a claim that he was a member of a political organisation, a claim of a relationship with a woman who committed suicide and a claim about his treatment by his stepmother. All of these claims were rejected on the grounds that there were inconsistencies in the applicant’s accounts of the events upon which the claims were based from which the Tribunal concluded that the claims had been fabricated.

57    These passages from the Tribunal’s reasons also suggest that the Tribunal was of the view that any oral evidence taken from Reverend Holgate could not have influenced the adverse view the Tribunal had formed of the applicant’s credibility founded on the information provided in respect of his other claims. Therefore, the Tribunal’s reasons do not record that consideration was given of the extent to which oral evidence of Reverend Holgate corroborated the applicant’s claim to conversion to Christianity that may have had a positive effect on his overall credibility and, in turn, on the findings that could be made on the applicant’s other claims. That possibility was a relevant factor to be considered in the exercise of the Tribunal’s power to take evidence from Reverend Holgate. The Tribunal’s reasons also do not record the extent to which other factors relevant to the exercise of the discretion to take oral evidence from Reverend Holgate were considered.

58    The Tribunal’s reasons indicate that it was of the view that a statement by Reverend Holgate to the effect that she believed the applicant to be a genuine convert to Christianity was not relevant to determination of the applicant’s claim. The Tribunal said it was not relevant because such a statement ‘would not assist the Tribunal to determine this issue for itself’. Likewise, the Tribunal said that ‘a Reverend attesting to the Reverend’s belief that the applicant is a genuine Christian convert [does not] demonstrate that the applicant is a genuine convert’.

59    It may be accepted that a bald statement of belief would not assist the Tribunal for the reasons given by the Tribunal. However, a statement of the facts, matters and circumstances supporting Reverend Holgate’s belief may be of considerable relevance and importance to determining if the Reverend’s belief has a proper foundation and, therefore, should be accepted.

60    The previous Tribunal exercised the power and took oral evidence from Reverend Holgate. It is clear that her evidence had an impression on that Tribunal. In that Tribunal’s reasons the member said: ‘the Tribunal was … impressed by the balance in the evidence presented by the applicant’s witness, Reverend Holgate’. At the time Reverend Holgate gave evidence to the previous Tribunal she could only have known the applicant for about 18 months (the period from April 2016, when the applicant was transferred to the Yongah Hill, and September 2017, when Reverend Holgate provided a letter in support of his conversion to Christianity). While the previous Tribunal (on the evidence before that member at that time) was not persuaded about the applicant’s conversion to Christianity, the member was not satisfied that the applicant’s conduct was to be disregarded under s 5J(6) of the Act. The previous Tribunal (having heard oral evidence from Reverend Holgate) was satisfied that there were reasons for his engagement with Christianity other than for the purpose of strengthening his claim to be a refugee. The Tribunal in this case (without taking oral evidence from Reverend Holgate) was of the view ‘that the applicant saw an opportunity to try and bolster his protection claims by engaging in Christian services and becoming baptised’.

61    The Tribunal’s reasons do not record if and the extent to which consideration was given to the potential for the oral evidence of the factual foundation for Reverend Holgate’s belief that the applicant had converted to Christianity or the extent to which such fact could provide evidence of a credible basis for believing that the applicant’s asserted conversion to Christianity was genuine. In my view, the Tribunal’s reasons do not reveal a proper basis or intelligible justification for considering that the oral evidence of Reverend Holgate was not relevant or could not assist the Tribunal.

62    The Tribunal’s reasons do not make any reference to the Tribunal’s duty to reach the correct and preferable decision. Nor is there reference to consideration of the exercise of the power in s 427(1)(a) having regard to the matters referred to in s 420. For example, the Tribunal provides no reason for refusing the applicant’s request on the grounds that it would result in unnecessary delay or the relevance of the evidence was disproportionate to the time and delay in taking it.

63    The oral hearing commenced at 11.42 am and concluded at 12.20 pm. The Tribunal hearing record indicates that Reverend Holgate was, in effect, available to give evidence by telephone on the day of the hearing. Her name and mobile telephone number are contained on the hearing record. Therefore, there is no evident justification for the failure to take evidence from Reverend Holgate on the ground that it would result in undue delay of the proceedings or there was a practical difficulty taking that evidence. That is, the absence of delay or practical difficulty in taking Reverend Holgate’s evidence were relevant considerations for a decision concerning the exercise of power under s 427 of the Act.

64    Further, in the absence of a written statement of her evidence and any record of an inquiry into the nature and extent of the evidence that Reverend Holgate intended to give, the Tribunal failed to exercise its power under s 427 to obtain oral evidence from an independent witness about a claim that was central to the applicant’s claim for a protection visa. On any view, it deprived the applicant, at least, of the opportunity to present evidence about his conversion to Christianity from an independent person in the period between September 2017 and April 2019. Therefore, the Tribunal’s decision prevent the applicant from presenting part of the evidence upon which his claim is evidently founded.

65    The Tribunal’s reasons make no mention of the potential for Reverend Holgate’s evidence to provide further evidence in support of the applicant’s claims from an independent source covering the period between the previous Tribunal hearing and the hearing of the later Tribunal. That was also a relevant consideration for a decision concerning the exercise of the power in s 427 of the Act. It was relevant to the question of whether the Tribunal could, in the absence of that evidence, reach the correct and preferable decision at the time that the Tribunal made its decision.

Primary judge’s decision

66    The primary judge took ground 1 of the application for judicial review to be a complaint, amongst another not relevant to the appeal, that the Tribunal had made a jurisdictional error when it refused to take oral evidence from Reverend Holgate. The primary judge, by reference to the passages from the Tribunal’s reasons referred to earlier, said that:

20.    The Tribunal refused a request by DBD16 to receive evidence from a Reverend. The Tribunal did so because it had already received and considered material from the Reverend, and the Tribunal was in no doubt that the Reverend would give evidence that DBD16 was a genuine Christian convert: CB 536 at [68]. The basis for the Tribunal refusing to take the evidence of the Reverend was that it was prepared to accept the oral evidence she would give, and that the evidence would not assist the Tribunal in determining the genuineness of DBD16’s claimed conversion in light of the Tribunal’s credibility concerns about DBD16’s evidence: CB 536 at [67]-[68].

21.    In BOX16 v Minister for Immigration & Border Protection [2020] FCA 801 (“BOX16”), the Federal Court said that it was open for the Tribunal not to call a witness where, to the extent that the witness corroborated claims made by an applicant that were not accepted by the Tribunal, it would not overcome the Tribunal’s concerns that the appellant was not a credible witness and had fabricated his claims: BOX16 at [76] per Wigney J. Special leave to appeal in BOX16 was refused: BOX16 v Minister for Immigration and Border Protection [2021] HCASL 26. The Federal Court expressed similar views in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [79] per Wigney J, as follows:

The appellant’s submissions also tended to suggest that there was some obligation on the part of the Tribunal to further explore the contents of the witness statements by taking oral evidence from the witnesses. That is not correct. The Tribunal was entitled to approach the appellant’s request for oral evidence to be taken on the basis that their evidence would be what was stated in the s 426(2) notice and what was in their witness statements. The Tribunal was not obliged to speculate that further or different evidence could be obtained from the witnesses if the evidence in the written statements was further explored in the course of oral evidence. The beliefs or opinions of the two witnesses were not matters about which the Tribunal was obliged to conduct further inquiries: cf. Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15.

22.    In this case, the Tribunal gave cogent reasons for not calling the Reverend, finding that from evidence given to the Tribunal on an earlier occasion that it knew what evidence the Reverend would give, and that DBD16 had fabricated his claims entirely, and that the evidence the Reverend would provide could not “save” DBD16’s claimed conversion to Christianity: see [5(s) and [20]] above. In those circumstances, there was no obligation to take the Reverend’s evidence: Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118; (2005) 88 ALD 304 at [37] per Kenny and Lander JJ; Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 at [63] per Bennett J; BOL15 v Minister for Immigration and Border Protection & Anor [2016] FCCA 1994; (2016) 312 FLR 408 at [14]-[16] per Judge Lucev.

23.    It follows from [19]-[22] above that ground 1 is not made out and does not identify jurisdictional error in the Tribunal Decision.

Consideration

67    The resolution of the appeal in this case turns on the question of whether the reasons of the Tribunal, expressed as they are, demonstrate a legally unreasonable failure to exercise the Tribunal’s power to take oral evidence from Reverend Holgate.

68    It is necessary to bear in mind that the power to take oral evidence from a witness in s 427(1)(a) involves the exercise of a discretion, but the power (and discretion) exists to facilitate the Tribunal giving effect to its obligation to conduct a review of a Part 7 reviewable decision under s 414. That is to make the correct and preferable decision, within the prescribed time (s 419), according to the substantial justice and merits of the case and without being bound by technicalities, legal form or rules of evidence (s 420) and, the discretion to take evidence falls within the provisions of an exhaustive statement of the requirements of natural justice (s 424B). Therefore, the Tribunal was required to consider the exercise of the power under s 427(1)(a) and decide whether or not to take oral evidence from Reverend Holgate having regard to considerations relevant to (and disregarding considerations irrelevant to) the advancement of the purpose for which that power exists.

69    The primary judge’s conclusion that the Tribunal was not under an obligation to take Reverend Holgate’s evidence is correct. But, the Tribunal could never be under an obligation to do so, it was only every under an obligation to exercise the power reasonably and by having regard to relevant and disregarding irrelevant considerations to the exercise of that power.

70    Otherwise, I do not agree with the primary judge’s conclusion that the Tribunal gave ‘cogent’ reasons for not calling Reverend Holgate. In my view, such reasons as were given lack an intelligible justification. Further, I infer from the absence of an express consideration of other relevant considerations such as the potential for oral evidence of Reverend Holgate to affect the credibility of the applicant’s other claims, the absence of delay or practical difficulty in taking Reverend Holgate’s evidence or the potential significance of oral evidence of the factual foundation for Reverend Holgate’s belief in the applicant’s conversion to Christianity both for its relevance to the genuineness of the applicant’s claim of conversion and for new evidence of such facts in the period since the previous Tribunal’s hearing, that the Tribunal had no regard to these relevant considerations in reaching its decision to refuse to take evidence from Reverend Holgate.

71    In my view, the Tribunal made a jurisdictional error in making its decision not to exercise the power to take oral evidence from the Reverend. Even though reasons were provided, it is not possible to comprehend how the decision was made in a manner that was consistent with the statutory purpose for which the power in s 427(1)(a) exists and by taking into account all relevant and disregarding all irrelevant considerations. In that sense, it was a decision that was legally unreasonable because it ‘lacks an evident and intelligible justification’: Li at [76].

72    Reasoning in like manner to the plurality in Li (at [85]), the Tribunal’s error may also be identified as giving insufficient weight to the applicant’s wish (need) to present oral evidence from Reverend Holgate. It may be described as a failure to take into account a relevant consideration (that the Reverend's oral evidence may assist the Tribunal to determine the applicant’s claim to be a refugee). Further, it does not appear that the Tribunal had regard to the purposes for which the discretion in s 427(1)(a) (when read with s 426) is provided in arriving at its decision. It is not possible to say which of these errors was made, but the result is demonstrative of error.

73    In short, in the circumstances of this case, the Tribunal could not have decided not to take oral evidence from Reverend Holgate if all relevant and no irrelevant considerations were taken into account and regard was had to the scope and purpose of the statute. The Tribunal did not discharge its function (deciding whether or not to take oral evidence from Reverend Holgate) according to law. The Tribunal did not conduct the review in the manner required by the Act and consequently exceeded its jurisdiction. It matters not whether the concept of legal unreasonableness is considered a conclusion for identification of specific error (e.g., failure to take into account relevant considerations or other errors referred to in the preceding paragraph) or it is considered an ‘outcome focussed’ conclusion without any specific error identified. Here, adopting either or both conceptions, the Tribunal’s decision was legally unreasonable.

74    It follows that the applicant is entitled to succeed in the appeal on ground 2 of the notice of appeal.

Ground 1

75    As I consider that the applicant is entitled to succeed on ground 2 of the amended notice of appeal, it is not necessary to consider ground 1 or the extent to which it raises a new point.

Conclusion

76    The appeal will be granted. The Tribunal’s decision to affirm the delegate’s decision will be quashed and the matter will be remitted to the Tribunal for determination according to law. I will hear the parties on the question of the costs of the proceedings before the primary judge and of the appeal.

Associate:

Dated:    21 April 2023