Federal Court of Australia

DWK22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1403

ORDERS

THE COURT ORDERS THAT:

1.    The appellant is granted leave to rely upon the transcript of proceedings before the Administrative Appeals Tribunal, as annexed to the appellant’s affidavit affirmed on 29 June 2023.

2.    Leave to rely on the proposed amended notice of appeal dated 3 October 2023 is refused.

3.    The appeal is dismissed with costs.

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

REASONS FOR JUDGMENT

BUTTON J:

Background

1    The appellant is an adult male citizen of Sudan. He arrived in Australia on 19 May 2009, holding a global humanitarian visa. In August 2020, a delegate of the first respondent (the Minister) commenced a cancellation of his global humanitarian visa on character grounds arising from his history of criminal offending. The appellant’s visa was cancelled on 3 September 2020, at which time he became an unlawful non-citizen and was taken into immigration detention.

2    On 11 June 2021, the appellant applied for a protection visa. Among the grounds cited in support of that application was a contention that, if deported to Sudan, he would face persecution for his membership of a particular social group, being a Muslim person with three interracial children born out of wedlock to Christian partners, all of whom were Australian citizens. I will refer to the mother of two of the appellant’s children as “AW”. The appellant and AW were in a de facto relationship, having met towards the end of 2011.

3    In response to a request from the delegate, the appellant provided materials in support of his application. Those materials included a statement of his partner, AW. That statement was dated 20 September 2021. AW’s statement detailed her relationship with the appellant — including previous domestic violence — the appellant’s drug and alcohol addiction and mental health difficulties, her receipt of government parenting payments and resultant financial difficulties, and the lack of meaningful family support available to her in relation to the children while the appellant is in detention. AW emphasised that she needed the appellant to be with her to support her with raising their children. AW made extensive reference in her statement to a number of serious medical conditions from which she suffered, the medications she took to assist in relation to those conditions, as well as the availability of medical assistance and support free of charge in Australia. AW’s statement also addressed the difficulties and harm she considered she and her family would face if the appellant were deported to Sudan and they went with him. I will return, later in these reasons, to the contents of AW’s statement regarding her intentions vis-à-vis going to Sudan. AW’s statement pleaded for the appellant to be allowed to remain in Australia.

4    On 19 November 2021, the appellant was notified that the delegate had refused his application. On 23 November 2021, the appellant applied to the second respondent (the Tribunal) for review of the delegate’s decision to refuse to grant him a protection visa. The appellant was invited to attend a hearing before the Tribunal on 28 January 2022. The Tribunal informed the appellant that if he was proposing that a witness give evidence at the hearing, a witness statement setting out the witness’s evidence should be provided by 21 January 2022 and that the appellant should otherwise provide all documents on which he intended to rely by 25 January 2022. The documents submitted by the appellant included the statement of AW dated 20 September 2021.

5    On 27 January 2022, the appellant’s representative lodged a completed “response to hearing invitation” form which confirmed, inter alia, that he relied on his partner’s statement and also made a request for the Tribunal to take oral evidence from his partner.

6    The Tribunal heard the application for review over a period of approximately 3.5 hours, over two days: 28 January 2022 and 18 February 2022.

7    The Tribunal recorded in its reasons (TR [114]) that it did not accede to the appellant’s request that it take oral evidence from his partner and stated that the refusal was because the Tribunal “was satisfied that [AW] would give evidence consistent with her written statement”.

8    On 31 October 2022, the Tribunal affirmed the delegate’s decision not to grant a protection visa. The Tribunal’s reasons included the following paragraph in relation to AW’s potential relocation to Sudan (at TR [118]):

Concerning future conduct, the Tribunal accepts that if the applicant’s Australian de facto partner was to relocate to Sudan with her two children, they would likely continue in their relationship, including sexual relations without being married. However, despite what the applicant’s de facto partner asserts in her written statement that her genuine intention is to considering[sic] return to Sudan with the applicant, the Tribunal does not accept that this will occur. As made clear from [AW’s] written statement, she has a host of medical conditions, including diabetes, sciatica nerve pain, ovarian cysts, endometriosis, adenomyosis, Achilles’ tendinitis and bursitis. She wrote about that she was really concerned that services or quality of services to address her medical conditions in Sudan will not either be affordable or available. She also wrote that ‘unlike Australia, she would have no support network or anyone that she knew in Sudan. The Tribunal is satisfied that [AW] and the two children she shares with the applicant will not travel to Sudan with the applicant, and therefore, there is no risk that the applicant would be prosecuted in Sudan for having sexual intercourse with his de facto to whom he is unmarried, because she will not be in Sudan.

9    The appellant then filed an originating application in the Federal Circuit and Family Court of Australia. The originating application was subsequently amended. The amended originating application advanced a single ground of application with particulars as follows:

The Second Respondent (“Tribunal”) fell into jurisdictional error by breaching s 425 of the Migration Act 1958 (Cth) or, alternatively, failing to accord the Applicant procedural fairness at general law before making its decision.

Particulars

(a)     The Applicant put forward a case to the delegate of the Second Respondent, and later to the Tribunal on review, that if he was deported to Sudan, he would face persecution for his membership of a particular social group, being a Muslim person who has three interracial children born out of wedlock to Christian partner(s).

(b)     In support of his claim, the Applicant adduced evidence from his current Christian partner, the mother of his two children, in the form of written statement in which she said inter alia that:

(i)     If the Applicant was to be deported by Australian government, it was her “genuine intention that [she] will consider returning to Sudan with him”;

(ii)     She and her partner had “spoken about this for some time now and it may not be possible due to financial and practical difficulties for [her] and [her] kids to regularly visit” the Applicant “on [a] temporary basis in Sudan”, and so “the only solution is to just move [to Sudan]”;

(iii)     She was “struggling with caring alone for [her] children and [they were] as a family facing insurmountable financial, emotional and practical hardships at [the time]”; and

(iv)     She and her children would “continue to face insurmountable hardships and given [her] medical issues, [she did not] how long [she could] function and look after [her] kids alone”.

(c)     The delegate rejected the Applicant’s application, but did not reject the partner’s evidence concerning her prospective return to Sudan with the children. The Applicant was therefore entitled to assume, unless otherwise notified, that would not be an issue arising on review before the Tribunal.

(d)     Prior to making its decision, the Tribunal did not alert the Applicant to any concerns it had about the partner’s evidence.

(e)     Prior to the hearing before the Tribunal, the Applicant requested that the Tribunal take oral evidence from the Applicant’s current partner. The Tribunal refused to accede to the Applicant’s request because the Tribunal was satisfied that the Applicant’s partner would give evidence consistent with her statement: [114].

(f)     Despite those circumstances, the Tribunal nevertheless found that the Applicant’s partner and the two children would “not travel to Sudan with the applicant, and therefore, there is no risk that the applicant would be prosecuted in Sudan for having sexual intercourse with his de facto to whom he is unmarried, because she will not be in Sudan”: [118].

(g)     The error was material.

10    That application was heard on 24 April 2023 and dismissed, with reasons, on 18 May 2023: DWK22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 393 (PJ). The appellant was represented by solicitors and counsel, acting pro bono.

11    The principal point agitated on the application before the primary judge was that the Tribunal rejected the evidence of AW as to relocating to Sudan, but had failed to alert the appellant to the prospect that it may reject AW’s evidence as to relocation. The primary judge rejected the application, concluding that:

(a)    Contrary to the appellant’s submission, the delegate had not implicitly made a finding accepting AW’s evidence or a finding that she would relocate to Sudan.

(b)    The relevant “issue” — of which the appellant was entitled to be put on notice, and about which he was to be afforded the opportunity to present evidence and make submissions — was the factual issue of whether AW and their children would relocate to Sudan. The relevant issue was not whether the Tribunal might reject AW’s evidence.

(c)    The appellant had not discharged his onus of showing error. In relation to this point, the primary judge observed that no transcript of the proceedings before the Tribunal was before the court. The primary judge also observed (PJ [102]) that:

Contrary to the applicant’s submission, the Tribunal’s finding was not a complete rejection of the partner’s evidence — rather it was a finding that her expression of intent would not materialise in fact. It is an unremarkable finding and one clearly open to the Tribunal on the evidence.

the appeal

12    The appellant appealed to this court. His original notice of appeal advanced two grounds of appeal. The first ground of appeal substantially replicated the grounds of review brought before the primary judge. The second ground of review contended that “the Tribunal fell into jurisdictional error in unreasonably deciding not to obtain evidence from the Appellant’s nominated witness”. The original notice of appeal acknowledged that the second ground was not advanced below.

13    Some months later, and having retained different counsel (but having the same solicitors), the appellant filed a proposed amended notice of appeal. The proposed amended notice of appeal contains a single ground, as follows:

The Tribunal made a jurisdictional error in making its decision not to exercise the power to take oral evidence from [AW].

(a)     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 [AW].

(b)     The Tribunal refused to permit [AW] to give oral evidence, as it was satisfied that the witness would give evidence consistent with her written statement: CB1298 [114]. Such reasons as were given lack an intelligible justification:

i.     The Tribunal gave one sparse reason for not permitting [AW] to give oral evidence.

ii.     The Tribunal made an adverse credibility finding against [AW] in a material respect, rejecting her written evidence that she would go to Sudan to be with the appellant: CB1299[118]. The Tribunal’s reasons disclose no consideration of issues of credibility and the potential benefits of hearing from [AW] live.

iii.     The Tribunal did not consider that oral evidence given under oath or affirmation could be more persuasive than evidence given by written statement.

iv.     At the hearing, the Tribunal did not understand the relevance of the evidence of [AW]: T2 [10]–[15] (28.01.22).

v.     The Tribunal failed to consider a myriad of other relevant considerations in exercising the impugned power (i.e. importance of the proposed evidence, whether taking the evidence would cause undue delay and the ease of contacting the proposed witness).

(c)     The Tribunal’s error may also be identified as giving insufficient weight to the appellant’s wish (need) to present oral evidence from [AW].

(d)     The Tribunal’s error may also be described as a failure to take into account a relevant consideration (that [AW’s] oral evidence may assist the Tribunal to determine the appellant’s claim to be a refugee). It does not appear that the Tribunal had regard to the purposes for which the discretion in s 427(1)(a) of the Migration Act 1958 (Cth) (the Act) (when read with s 426) is provided in arriving at its decision.

(e)     Even if it is concluded that it is not possible to say which of these errors was made, the result is still demonstrative of error: DBD16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 362 [72]; CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 [62]–[63].

14    The appellant acknowledged that, as the single ground of appeal was not raised below, leave was required in order to advance it.

15    The appellant also applied for leave to adduce further evidence on the appeal, being the transcript of proceedings before the Tribunal on 28 January 2022 and 18 February 2022. That application was supported by an affidavit of the appellant which explained that he had no earning capacity while in detention, had been receiving assistance by solicitors and counsel pro bono and did not have the financial resources to obtain transcripts of proceedings before the Tribunal. The appellant further explained that his solicitor said in May 2023 that his firm would meet the expenses of obtaining the transcripts.

16    In support of his application to advance the new ground of appeal, the appellant contended that:

(a)    there was no apparent prejudice in the proposed ground being run;

(b)    the Minister has had an opportunity to deal with the arguments;

(c)    the proposed ground has merit;

(d)    there are important human consequences for the appellant, being permanent exclusion from Australia and the potential risk of serious harm in Sudan; and

(e)    the court now has the benefit of transcript.

17    The Minister opposed leave being granted to rely on the new ground of appeal, and to rely on evidence not before the primary judge.

18    Leave to rely on the new ground of appeal was opposed on the grounds that:

(a)    The grant of leave to rely on a new ground of appeal would convert this appeal into a de facto second trial on a new basis in circumstances where the Minister’s only source of appeal would then be by way of special leave being granted by the High Court: Han v Minister for Home Affairs [2019] FCA 331 at [20(5)] (Bromwich J). As such, the Minister would suffer prejudice of a general kind if leave were granted.

(b)    There is no satisfactory explanation offered for the appellant’s failure to raise the new ground of appeal previously in circumstances where he was represented in the court below by competent (but different) counsel and competent (and the same) solicitors. The Minister submitted that there is no evidence to suggest that there was anything other than a forensic decision not to pursue the argument below and noted, in particular, that ground 1(e) of the amended application below specifically referred to the Tribunal’s refusal to call evidence from AW. The Minister relied on the following observations of Charlesworth J in Uolilo v Minister for Home Affairs [2021] FCAFC 138 at [84] regarding the introduction of new arguments on appeal (emphasis added):

… as has been identified, the appellant was legally represented in the proceedings at first instance. No explanation has been given for the failure to advance the arguments before the primary judge, other than to say that there has been a change of counsel. It is plainly not in the interests of justice to entertain arguments in circumstances where the arguments have previously been considered by a party’s legal representative and where a decision has been made not to advance them. Whether or not that has or has not occurred is a question of fact. In the absence of any evidence bearing on the topic I am not prepared to draw an inference that the arguments were not previously considered. There are no obvious indications of incompetency or other concerns affecting the quality of the appellant’s legal representation in the proceedings before the primary judge. It is not otherwise in the interests of justice to permit an argument to be raised merely because different counsel may adopt a different approach to the same materials, even if the matter be one involving a claimed fear of harm. To the contrary, the practice of incoming counsel abandoning all that has gone before and introducing a wholly new case at the appellate level is to be discouraged.

(c)    The ground lacks sufficient merit to warrant the grant of leave.

Consideration

Receipt of further evidence

19    This court has a discretion to receive further evidence on appeal under s 27 of the Federal Court of Australia Act 1976 (Cth). The exercise of that discretion is further regulated by r 36.57 of the Federal Court Rules 2011 (Cth), which relevantly provides that:

(1)     A party may apply for the Court to receive further evidence on appeal.

(2)     The application must be filed at least 21 days before the hearing of the appeal and be accompanied by an affidavit stating the following:

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

(b)     the grounds of appeal to which the application relates;

(c)     the evidence that the applicant wants the Court to receive;

(d)     why the evidence was not adduced in the court appealed from.

…

20    I am satisfied that the appellant has provided a reasonable explanation for why the transcripts were not adduced before the primary judge, but were sought to be adduced on appeal. It is not to the point that his solicitor (who was acting pro bono) could have, but did not, offer to pay for the transcripts earlier. While I accept that the absence of the transcripts was a live issue before the primary judge, and fed into his Honour’s reasoning on some points, in circumstances where the appellant seeks to advance a different ground of appeal before this court (for which he requires leave), the fact that the trial was conducted on a different evidentiary footing is of less significance than it would be in other cases where there is no attempt to run a different case on appeal.

21    I will admit evidence of the transcripts.

Legislative provisions

22    The proposed ground of appeal concerns the Tribunal’s decision not to exercise its power to take oral evidence from AW. The appellant noted that the power to take oral evidence under s 427(1)(a) of the Migration Act 1958 (Cth) (the Act) involves the exercise of a discretion. The appellant pointed to s 420, which obliges the Tribunal, in reviewing a “Part 7-reviewable decision”, to “act according to substantial justice and the merits of the case”, without being bound by technicalities, legal forms or rules of evidence.

23    Section 425(1) requires that the Tribunal invite the applicant to appear before it to give evidence and present arguments relating to issues arising in relation to the decision under review. Section 425A requires that an applicant be given notice of the day and time at which the applicant is to appear. That notice must also advise an applicant that the applicant may give the Tribunal written notice that the applicant wants the Tribunal to obtain evidence from a person named in the applicant’s notice: s 426(1)(b), (2). An applicant may, then, within seven days after being so notified, give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the applicant’s notice: s 426(2). Section 426(3) provides that: “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”.

The parties’ submissions on the proposed new ground

24    The appellant’s central contentions were as follows:

(a)    The power to take oral evidence is a statutory discretion that is to be exercised reasonably: citing DBD16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 362 (DBD16) at [48] (Feutrill J).

(b)    The Tribunal stated its reason for not taking oral evidence from AW at TR [114], which was that it was satisfied that AW would give evidence consistent with her written statement.

(c)    The effect of the Tribunal’s finding (TR [118]) “was not to believe an important segment of written evidence adduced by [AW]”, and that the Tribunal “rejected” AW’s evidence “that she would move to Sudan to be with the appellant”, thus “impugning the credibility of [AW] in a material respect”.

(d)    In that context, and while accepting that the Tribunal was not obliged to give reasons for not taking oral evidence, the reasons given by the Tribunal for not taking evidence from AW demonstrate a legally unreasonable failure to exercise the Tribunal’s power to take oral evidence from AW. The Tribunal only gave one reason for not obtaining oral evidence from AW and so did not consider issues of credibility and the potential benefits of hearing from AW, when a witness who gives evidence orally demonstrates more about their credibility than a witness whose evidence is wholly written. The appellant here cited CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 at [55]–[56] (Rangiah J), Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180 at 189 (Mason CJ, Brennan and Deane JJ) and DBD16 at [50] (Feutrill J). The appellant also referred to the Full Court’s decision in Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 (Chen) at 599 and 602 (Black CJ, Lee and Heerey JJ), to the effect that an oral hearing before the Minister’s delegate may be required where issues of credibility arise.

(e)    Based on the transcripts, the Tribunal did not understand the relevance of the evidence of AW when it made the decision not to call her to give evidence.

(f)    The Tribunal failed to consider facts such as the importance of the proposed evidence (as to which the appellant referred to transcript showing that the appellant’s representatives raised the point about taking oral evidence giving the Tribunal the opportunity to assess AW’s credibility), whether taking oral evidence would cause undue delay, and the ease of contacting a witness.

(g)    The Tribunal’s reasons in refusing to take oral evidence from AW “lacked an evident and intelligible justification and [were] otherwise arbitrary in nature”. Given that the credibility of AW was “plainly in issue”, as the ultimate reasons of the Tribunal were said to show, “the Tribunal unreasonably rejected the appellant’s request for [AW’s] credibility to be tested orally”. The decision to refuse to take oral evidence from AW was “neither fair nor just” and the appellant was denied substantial justice (citing here Chen).

(h)    The Tribunal’s error may also be characterised as giving insufficient weight to the appellant’s desire to present oral evidence and may be described as a failure to take into account a relevant consideration. The Tribunal could not have decided not to take oral evidence if all relevant, and no irrelevant, considerations were taken into account.

25    The Minister’s central contentions were as follows:

(a)    Where a discretion is unconfined in its statutory terms, a decision-maker will only be bound to take a particular matter into account where an implication that the decision-maker is bound to do so may be found in the subject matter, scope and purpose of the Act: citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend) at 39–40 (Mason J). Section 427(1)(a) has no express relevant or irrelevant considerations. The identification of relevant and irrelevant considerations must be drawn from the statute (not from idiosyncratic facts): citing Abebe v Commonwealth (1999) 197 CLR 510 (Abebe) at [195] (Gummow and Hayne JJ); QSuper Board v Australian Financial Complaints Authority Ltd (2020) 276 FCR 97 (QSuper) at [196] (Moshinsky, Bromwich and Derrington JJ).

(b)    The proposition that s 427(1)(a) is conditioned by a series of relevant and irrelevant considerations is inconsistent with AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317 (AYX17) at [48], where Tracey J and Mortimer J (as her Honour then was) said that “[t]he only express control or condition on [the s 427(1)(a)] discretion is that the Tribunal ‘must have regard to’ an applicant’s wishes”.

(c)    The obligation to have regard to an applicant’s wishes is not enlivened in this case, as the appellant did not respond in writing to the Tribunal’s notice within the seven day time frame provided for by s 426(2).

(d)    The Tribunal was not obliged to give reasons for its refusal to call AW, and jurisdictional error ought not be inferred on the basis that that which the Tribunal did specify demonstrates a failure to consider other matters. Accordingly, the appellant cannot show that the Tribunal failed to consider whether an oral hearing would provide an opportunity to test AW’s credibility, the importance of the evidence, whether oral evidence would cause delay or the ease of contacting the witness.

(e)    In any event, it was not unreasonable for the Tribunal to refuse to call AW if satisfied the witness would repeat the contents of their statement, as to which the Minister relied on Wigney J’s observations in BOX16 v Minister for Immigration and Border Protection [2020] FCA 801 (BOX16) at [76] (citations omitted):

There is, in any event, no proper basis for concluding that the Tribunal was obliged to call oral evidence from the witnesses so they could expand or elaborate on what they had included in their witness statements. Nor was the Tribunal obliged to call evidence from the witnesses so that their accounts could be challenged or tested. Proceedings in the Tribunal are inquisitorial, not adversarial, and the rule in Browne v Dunn does not apply.

(f)    Whatever uncertainty the Tribunal may have expressed at the hearing regarding the relevance of AW’s evidence, it clearly understood the relevance of that evidence by reference to its ultimate reasons and decision.

(g)    It was reasonable for the Tribunal to reject AW’s evidence as to her claimed intention to consider taking herself and the two children to Sudan given her evidence about her medical conditions and lack of support network in Sudan.

The merit of the proposed new ground of appeal

26    The Tribunal is charged with acting according to the “substantial justice and merits of the case”: s 420(b). In so doing, its processes are inquisitorial, and not curial: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437; [2003] HCA 60 at [57] (Gummow and Heydon JJ, with whom Gleeson CJ agreed); see also BOX16 at [76] (Wigney J). The Tribunal enjoys a very wide discretion in how it discharges its function.

27    That area of discretion extends to the mode in which it receives evidence. The Tribunal’s power to take evidence on oath or affirmation is conferred by s 427(1)(a) of the Act. Where the Tribunal is notified by an applicant (under s 426(2)), that the applicant wants the Tribunal to obtain oral evidence from an identified person, 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”: s 426(3)). In AYX17, Tracey and Mortimer JJ emphasised the breadth of the Tribunal’s discretion in how it receives information. Their Honours observed (at [52]) that:

This provision confirms the breadth of the power, but also that the occasion and manner for its exercise is a matter for the Tribunal. The purpose of conferring powers of this kind on the Tribunal (including the power to take evidence outside Australia) is to ensure that the Tribunal is able to have access to all relevant and probative material that needs to be considered in order for it to perform its task on review of making the correct or preferable decision.

28    Other than being required to “have regard” to an applicant’s wishes in these circumstances, the discretion is not confined. Nor is it subject to any expressly stated mandatory considerations, or prohibited irrelevant considerations. As such, where error is said to lie in failing to have regard to a relevant consideration, or in having regard to an irrelevant consideration, that which is said to be relevant or irrelevant must be gleaned from the subject matter, scope and purpose of the legislation in question: Peko-Wallsend at 39–40 (Mason J); see also Abebe at [195] (Gummow and Hayne JJ). As the Full Court stated in QSuper at [196]:

The requirement to take into account a “relevant consideration” is concerned with “legality”, being whether the power has been exercised in accordance with the statutory prescriptions which are expressed or implied in the legislation granting it.

29    As the appellant’s case was developed orally, he did not seek to establish that the Tribunal failed to have regard to specific mandatory relevant considerations by reference to the nature of the discretionary power as conferred by the Act. Rather, the appellant’s argument emphasised that statutory discretions are to be exercised reasonably, and, in the absence of an “intelligible justification” for refusing to call AW, the power was exercised unreasonably. In advancing that argument, the appellant drew heavily on the decision of Feutrill J in DBD16.

30    In DBD16, Feutrill J concluded (at [70]) that the Tribunal had not given any “intelligible justification” for not calling a Reverend whose evidence his Honour considered should have been called as it could have supported the applicant’s evidence that his conversion to Christianity was genuine. It should be noted that, in DBD16, there was no written statement from the Reverend. In DBD16, Feutrill J also inferred, from the absence of express consideration of “other relevant considerations” (such as the potential for oral evidence to affect the credibility of the applicant’s other claims, the absence of delay or practical difficulty in taking the evidence, or the potential significance of the oral evidence), that the Tribunal had no regard to those matters.

31    The question of whether the Tribunal would be calling AW arose on two occasions before the Tribunal. On the first occasion, near the start of the recorded part of the hearing, the Tribunal referred to the request that the Tribunal take evidence from AW and queried the relevance of the evidence, noting that the request did not explain that matter. The appellant’s solicitor then explained that, in the applicant’s statement, he said his partner would be returning to Sudan with him, and his partner said likewise, and then identified the risk to the appellant of being targeted due to being in a relationship with a Christian woman. In response to the appellant’s lawyer saying that there would potentially be no need to call her if the Tribunal accepted on the face of the statement that she would be returning to Sudan, the Tribunal said as follows:

MEMBER: If her evidence is just going to be a repetition of her written statement I certainly won’t be assisted by asking her questions and I do not accept your premise that, if I fail to speak to her that means that I accept the truth of any of the claims that she makes, because if the applicant writes something and says, “This is what I am going to do”, her telling me or repeating that at the hearing will not affect my assessment about whether she would actually follow through with it.

32    The appellant’s solicitor responded by saying that if the Tribunal had concerns about AW’s evidence, the opportunity to call her had been provided to the Tribunal. The Tribunal then moved on to explain that there was a great deal of material before the Tribunal, which had not been organised well. The Tribunal said it would not embark on the substantive hearing that day, but required a Tribunal Book to be prepared, with an “Outline of Claims” tying the material to the claims advanced. It is apparent that the protection claims were put on a number of bases (and not just the basis that underlies the present appeal).

33    When the hearing was reconvened on 18 February 2022, the Tribunal interviewed the appellant. The appellant’s solicitor attending (from the same firm) queried, “Member, are we going to be calling his partner, [AW], to give evidence today?” to which the Tribunal replied:

No. I won’t be doing that. I will — I’ve read — she’s provided a written statement. I accept that she would give oral evidence consistent with that written statement.

34    That reason was then repeated by the Tribunal in its written decision. It stated (TR [114]) that it refused to accede to the appellant’s request to take oral evidence from AW “because the Tribunal was satisfied that [AW] would give evidence consistent with her written statement”.

35    The decision whose legal reasonableness the appellant impugns is the Tribunal’s decision not to take oral evidence from AW. I do not accept the Minister’s submission that, because the appellant responded to the Tribunal’s notice outside of the seven days permitted by s 426(2), cases concerning s 426(2) and (3) are irrelevant, and unreasonableness must be considered at the level of the whole decision, in contradistinction to the decision not to take oral evidence from AW. While the Minister relied on the decision of Colvin J in AOO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 424 at [39], on the facts before his Honour, there had been no request at all for oral evidence to be taken. By contrast, here, the Tribunal was plainly mindful of, and had regard to, the appellant’s notification of a wish that oral evidence be taken from AW. The Tribunal did not proceed on the basis that no compliant notice — and thus no notice attracting the obligation imposed by s 426(3) — had been received.

36    As noted above, the Tribunal only referred to one reason why it did not accede to the appellant’s request that oral evidence be taken from AW. While the appellant urged that I should infer the Tribunal did not consider any other relevant matters — in particular the impact on the credibility of AW’s evidence of oral, cf merely written, evidence — the Minister submitted that I could not make any such inference, citing the observations of Derrington J and Steward J (as his Honour then was) in CAQ17 v Minister for Immigration and Border Protection (2019) 274 FCR 477 at [119]. Their Honours cautioned that, where there is no obligation to give reasons, it does not follow from one matter being mentioned that other matters were not considered, as the matter mentioned may just constitute the main concern of the decision-maker. Their Honours drew attention to what was said in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [25], where the majority of the High Court (French CJ, Bell, Keane and Gordon JJ) said that, where a Delegate was under no duty to give reasons, “it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate” (emphasis in original). For reasons which I will come to, the prospects of the proposed ground of appeal do not turn on whether or not any inference is drawn that the Tribunal did not consider other matters in addition to the one reason it did record for not taking oral evidence from AW.

37    In my view, even if leave were granted to the appellant to rely on the new ground, he would not succeed in establishing that the Tribunal made a jurisdictional error in deciding not to exercise the power to take oral evidence from AW. As set out, the Tribunal’s discretion to determine the manner in which it informs itself is very broad: AYX17 at [48]–[49], [52]. It has the power to decide whether or not it wishes to take evidence orally. Here (and unlike DBD16), it had the benefit of a fulsome written statement of AW. That statement warrants close attention.

38    In her statement, AW expressed a commitment to the relationship, despite prior domestic violence, and made observations about the appellant being more willing in recent times to address his addictions, and mental and behavioural problems. She said as follows:

19.     If, hopefully that never happens, that a decision was made by Australian government to deport [the appellant] to Sudan, it is my genuine intention that I will consider returning to Sudan with him. Ever since I heard about this possibility, I have been keeping myself informed of the situation in Sudan and have read and watched documentaries on the country.

20.     I and [the appellant] have also spoken about this for some time now and it may not be possible due to financial and practical difficulties for me and the kids to regularly visit [the appellant] on temporary basis in Sudan. So the only solution is to just move their and jeopardise our lives because we have no other option.

39    As noted above, AW addressed her need for support and assistance in caring for the children and the hardships she and the family faced. She detailed her extensive medical conditions, and her concerns about the availability of suitable and affordable health care in Sudan (as compared with Australia) as follows:

24.     Things are twice as hard for me because I suffer from serious medical and mental health issues and for which I have been undergoing treatment for significant period of time. Given my medical issues are lifelong, I will need medical and mental health care for the rest of my life.

25.     I am diagnosed with:

a.     Diabetes and for that I am required to regularly take Metformin, Ryzodeg and Glyxambia.

b.     Sciatica a nerve pain in my lower back and cause me severe pain which travels through my hips, buttock and legs. I am currently taking Amitriptyline Alphapharm twice a day to help me with temporarily relieving the severe nerve pain.

c.     Ovarian Cysts, which is a hormonal disorder causing enlarged ovaries with small cysts on the outer edges involving infrequent, irregular or prolonged menstrual periods. I am in constant pain as a result of these and take Dolased Forte or Maxydol to relieve the pain.

d.     Endometriosis and Adenomyosis and for that I take either Dolased Forte or Maxydol to relieve the pain.

e.     Achilles tendinitis and bursitis, a very painful condition that makes moving around even 100 meters for me unbearable. So when I move I have to be extra careful not to take a wrong step or put my foot the wrong way so I do not pull on that muscle to not suffer from excruciating pain.

26.     Further I faced some pregnancy difficulties with my son [K] who was born early at 26 weeks. Due to his life being at risk, I was forced to get an emergency T-section[sic]. I was advised by the doctor that any future pregnancies will also be complicated and will need to be delivered through a T-section[sic].

27.     I am really concerned that this service or the quality of service may not be available in Sudan and even if it is available privately it will not be affordable for us if I was to fall pregnant in future again. It is no doubt our intention and family planning that we will have at least two more children in future.

28.     I am very grateful that in Australia I can get the treatment that I need regularly and on need basis. I can see a doctor when I want at no cost, can be admitted to public hospital and receive world class treatment at no cost, access 10 sessions with psychologist at no cost, can access specialist treatment subsidised by the government and importantly buy my medication at discounted price some of which is provided to me for free by NDIS.

40    AW explained that she could not relocate to be nearer to her parents for support, given she had a subsidised house made available to her by Aboriginal housing, before returning to the topic of potentially moving to Sudan as follows:

We will also face permanent financial, practical and emotional hardships if we decide to move to Sudan with my partner. I believe without access to psychologist doctors or financial assistance with medication, my health conditions will significantly deteriorate. I will not be able to afford medication out of my own pocket in Sudan and my quality of life will significantly get worse.

41    AW said as follows in her “concluding remarks”:

62.     I and my boys need [the appellant] in our lives, I honestly do not know what will happen in the future, but I do know that if [the appellant] is taken away it would break all our hearts. Despite me wanting to for my children to have close bond with [the appellant] I am afraid it will not be possible due to my fear of being killed.

63.     There has been a war in Sudan for decades. Different groups have been continuously fighting to have power over another. The system is messed up for so long and the change in government isn’t likely to bring peace in country that has been through war for decades. It will take longer for the country to re-establish itself.

64.     I believe that if [the appellant] is not given a chance to live here he and with him our family will have the same faith[sic] as his father and mother who were detained by the rebels because they believed he had links with other rebel groups.

65.     It is very likely that he will be arrested and investigated upon return for his involvement with the rebel groups, which ultimately will lead to his death and potentially our deaths.

66.     Even if I decide to remain in Australia where I face insurmountable financial, practical and emotional hardships, I will not be in a position to help him financially as we are already struggling as a family at present.

67.     I hope for the best and continue to pray that we will be all together I really want my boys to continue to grow and be amazing with the help of their father in Australian community.

68.     [The appellant] is not perfect, he has committed many crimes in the past for which he is genuinely remorseful. However, for the first time in a very long time I seen [the appellant] reach out for help voluntarily to address the causal factors of his criminal offending. He is currently seeing a psychologist and a counsellor as he wants to deal with his mental health issues and that will reduce his risk of future re-offending.

69.     Our children need their father, I need [the appellant], and I am certain his family will suffer further if he is forced to return to the country that killed a large part of his close family members, a country that scarred their lives and continues to bring death daily into their safe place here in Australia with news of loved ones passing continuously not from old age, accidents or natural deaths but from war, a continued war that seems to have no ending.

70.     I, as a partner, mother of his children and victims of his crime and for which I have genuinely forgiven him, ask for your leniency and beg for [the appellant] to be allowed to continue his life journey with us in Australia.

42    In my view, AW’s statement did not convey that she definitely would move to Sudan with the appellant if he were deported. Rather, her statement exposes the predicament she faced given her desire to keep her family together (including the appellant) on the one hand, and her fears about risks to her life and safety, as well as the significant hardships she would face if she moved to Sudan. In particular, AW’s concluding remarks make it clear that not going with the appellant to Sudan was a possibility. The predicament that AW’s statement presented was in support of her plea that the appellant be granted a visa so that she, and the family, could avoid suffering either of the two fates she outlined.

43    It might then be said that, in concluding that AW would not ultimately move to Sudan with the appellant, the Tribunal did not “reject” AW’s evidence or make adverse credibility findings. As the primary judge found (PJ [102]), the Tribunal did not completely reject AW’s evidence. Rather, it may be said that the Tribunal had regard to AW’s statement that she had a genuine intention to consider returning to Sudan with the appellant, but concluded that she would not in fact go to Sudan with him, and thus he would not risk being prosecuted for having sexual intercourse with AW, to whom he was not married. An intention to consider going to Sudan is not inconsistent with a final decision not to go to Sudan.

44    Were it not for two matters, the fact that AW did not claim to have made a final and firm decision that she would go to Sudan would be dispositive, in my view, as the appellant’s proposed ground of appeal was premised on the contention that the Tribunal “rejected” AW’s evidence, when its conclusion that AW would not move to Sudan did not (or did not necessarily) involve rejecting her evidence, as her evidence expressly raised the possibility that she would not go to Sudan.

45    The first matter relates to how the Tribunal characterised AW’s statement. In the foregoing analysis, I have focused on the way in which the Tribunal characterised AW’s evidence at TR [118]. There, the Tribunal pointed to her evidence being that she would consider going to Sudan, before concluding that she would not go. While that passage of the Tribunal’s reasons allows for the view I have set out above, at TR [114], the Tribunal characterised AW’s statement as AW suggesting “that she would move to Sudan to be with the applicant”. Accordingly, whether or not AW’s statement was in truth much more hedged in relation to whether or not she would go to Sudan, the Tribunal (at least at TR [114]) characterised her evidence in more emphatic terms. That may be because, as the appellant pointed out during the hearing before this court, there was a further, more recent statement of the appellant himself which stated firmly that his partner would be joining him if he had to go back to Sudan.

46    The second matter is that the Minister’s submissions accepted that the Tribunal had rejected AW’s evidence, while submitting that it was reasonable for the Tribunal to do so on the basis of its intrinsic implausibility.

47    Proceeding, then, on the basis that AW’s evidence was understood by the Tribunal as evidence that she “would” go to Sudan and that the Tribunal did “reject” that evidence, I do not consider that that decision can be characterised as involving jurisdictional error.

48    As I have set out, the appellant’s contention that there was jurisdictional error rested on the contention that there was no evident intelligible justification and the decision was otherwise arbitrary. On the contrary, the Tribunal gave a clear and intelligible reason for not taking oral evidence from AW: namely, that she would repeat the evidence she had given in writing. It was open to the Tribunal to form the view that it would not be assisted by hearing orally from AW to the same effect as her statement. As I have noted, that written statement was detailed.

49    As the Minister submitted, it was open to the Tribunal to form the view that the hardships and impediments AW would face in Sudan — particularly in relation to her health and access to medical care — were such that she would not in fact move to Sudan even if she said she would. The Tribunal was entitled to reach a conclusion on a fact in issue — namely whether AW and the children would go with the appellant to Sudan — and, in so doing, to evaluate AW’s evidence about her intention to go to Sudan in light of her evidence about the dire circumstances she would face if she did go to Sudan.

50    Nor was the Tribunal obliged to have oral evidence taken from AW so that that view could be put to AW for response before rejecting that evidence. As Wigney J observed in BOX16 (at [76]), the Tribunal was not obliged to call evidence from witnesses so that their accounts could be challenged or tested. Rather, as Wigney J stated, proceedings in the Tribunal are inquisitorial and the rule in Browne v Dunn does not apply.

51    There are a few remaining points I should address, for completeness. First, I do not consider that, in DBD16, Feutrill J suggested that there is a list of relevant and irrelevant considerations that govern the exercise of the power to call, or decline to call, oral evidence from a witness. Accordingly, it is not necessary to say anything more about whether (as the Minister suggested) the approach adopted by his Honour in that case was unorthodox. In any event, on the facts of this case, even if the Tribunal failed to consider matters such as the ease with which AW might be called to give oral evidence, or that calling oral evidence from her would not delay the proceedings, that would not, in my view, render its decision not to call oral evidence from her one that lacked an intelligible justification, or one that may be impugned as arbitrary or capricious. That is because the reason that the Tribunal did give is not one that stood to be undermined by any such matters. The Tribunal made it clear that it was not willing to call AW to give oral evidence only to have her give the same evidence that was set out in writing in her statement. It is also apparent from the exchange that the Tribunal had with the appellant’s solicitor on the first hearing day that the Tribunal was mindful of credit issues. The Tribunal expressly stated that it considered itself at liberty to evaluate and reject AW’s evidence even if it did not call her to give oral evidence.

52    Secondly, while the Tribunal appears not to have been aware of the relevance of AW’s evidence when the first exchange about her being called occurred, it is apparent from the transcript that the Tribunal had been presented with a volume of materials that were, in the Tribunal’s view, disorganised and that the Tribunal was not yet in the position of having a clear picture of the claims advanced and how the evidence was said to bear on each claim advanced. There is nothing to indicate that any such uncertainty remained by the time the topic arose again when the matter was reconvened some weeks later. Certainly, by the time the Tribunal prepared its reasons, it was clearly aware of the issue that AW’s evidence related to. Accordingly, and contrary to the appellant’s submission, I do not consider that the exchange occurring during the first hearing assists his case that the decision not to call oral evidence from AW involved jurisdictional error.

Disposition

53    Leave to rely on the proposed new ground of appeal is refused. While I accept that a failure to succeed in this appeal has real and significant consequences for the appellant, for the reasons set out above, the proposed ground lacks sufficient prospects of success to warrant the grant of leave.

54    Further, there has not been any sufficient explanation for the failure to raise the proposed new ground below. While the appellant’s proposed notice of appeal referred to the timing of the decision in DBD16 (handed down on 21 April 2023) as explaining the failure to advance the ground below, I do not accept that as an explanation. As the Minister noted, the potential to advance a claim that there has been jurisdictional error arising from a failure to call oral evidence from a particular witness is not at all novel; it was not an avenue exposed, for the first time, by DBD16. Further, and while the appellant deployed the newly available transcript in support of his application on this appeal, the contents of the transcript were complementary to the core of the appellant’s arguments. The availability of the transcript did not reveal a basis for review that was not otherwise evident on the face of the Tribunal’s reasons. In addition, the appellant was represented by the same firm of solicitors before the Tribunal as he was before the court below, and in this court. Accordingly, to the extent that what transpired during the hearings before the Tribunal was important, at all times the appellant had knowledge of what had occurred.

55    Although the appellant has retained different pro bono counsel on appeal, incoming counsel does not have the luxury of recasting the case afresh in an appeal, still less so where there has been no sufficient explanation for the failure to advance the ground below.

56    In refusing leave, I also have regard to the prejudice that would be suffered by the respondent if leave were granted. As the Minister submitted, granting leave would, in effect, render this appeal a second trial and would (absent the grant of special leave) effectively deprive the Minister of his right to appeal an adverse outcome.

Associate:

Dated:    15 November 2023