Treatment of corroborative evidence and country information in decisions under the Migration Act

On 22 May 2018, a full court of the Federal Court handed down judgment in BXK15 v Minister for Immigration and Border Protection. The judgment deals with two important issues that commonly arise in applications for judicial review of decisions made under the Migration Act 1958 (Cth): the treatment by the Administrative Appeals Tribunal of corroborative evidence relied on by an applicant and the use by the Tribunal of ‘country information’.

The appellant was an Indian citizen who applied for a protection visa. He claimed that if he were required to return to India, he would suffer persecution in the form of acts of police brutality carried out at the behest of persons associated with a rival family from his home in Punjab. In support of his claim, the appellant relied on witness statements purportedly made by his father and by a man referred to as ‘Mr P’. These statements, if genuine, corroborated the appellant’s claim that he had been falsely arrested for murder and that he had been imprisoned, deprived of food and beaten by the Punjabi authorities. In affirming the decision of the Minister’s delegate not to to grant the appellant a protection visa, the Tribunal made no specific reference to the corroborative statements, stating only that the applicant had ‘provided a number of documents to substantiate his claims for protection’. In addition, in finding that aspects of the appellant’s evidence were not credible, the Tribunal relied on country information concerning the general conduct of police in Punjab. It did not put this information to the appellant in a way that complied with s 424A or 424AA of the Act. Further, the appellant submitted that the country information raised new issues that were not put to him by the Tribunal, and that he had therefore been denied the hearing required by s 425 of the Act.

Justices North and Charlesworth found that the Tribunal had fallen into jurisdictional error by failing to properly consider the corroborating statements relied on by the appellant. In this regard, their Honours held that:

1. While it was open to the Tribunal to make findings with respect to the appellant’s credibility without first considering the corroborative statements, the statements still had to be considered at some stage of the decision-making process.
2. The Tribunal’s reasons ‘simply did not disclose whether or how the Tribunal grappled with and assessed the evidentiary value of’ the corroborating evidence.
3. The statements ‘did not go to a peripheral issue’ and thus ‘could not be ignored on the basis that they were irrelevant to the appellant’s claims’ or raised questions that it was unnecessary for the Tribunal to decide.
4. Because the Tribunal’s findings with respect to the appellant’s credibility were based on an ‘accumulation of factors’, some of which could have been affected by the corroborating evidence, the Tribunal’s failure to deal with the evidence could not be dismissed as immaterial to the outcome of the decision.

The judgment of the majority thus provides some useful guidance as to when a failure by the Tribunal to refer to corroborating evidence may cause a decision based on a rejection of the applicant’s credibility to be tainted by jurisdictional error. Further, it seems to clarify that where the Tribunal falls into jurisdictional error by making a finding as to the applicant’s credibility without considering corroborating evidence, this will be because the Tribunal has failed to conduct a true review of the decision not to grant the applicant a visa. That is, corroborating evidence, like other significant probative evidence, may have to be explicitly engaged with by the Tribunal if it is to conduct the review required by ss 414 and 65 of the Act. Ordinarily, this is a more satisfactory lens through which to consider a claim that a conclusion as to credibility has been reached without properly considering corroborative evidence than the lenses of irrationality, denial of a hearing, prejudgment bias and/or failure to take into account relevant considerations. Of course, this does not mean that the Tribunal may not fall into some other class of jurisdictional error in its consideration of corroborating evidence. For example, where the Tribunal makes a finding with respect to the applicant’s credibility that, as a matter of substance, is not open to it in light of the corroborating evidence marshaled by the applicant, review may be available on irrationality grounds.

The appellant’s submission that the Tribunal had fallen into jurisdictional error by failing to put country information to him in the manner prescribed by ss 424A and 424AA was rejected by all three members of the Court. In this regard, North and Charlesworth JJ considered that the decision in SZMCD v Minister for Immigration and Citizenship – in which a full court held that the effect of s 424A(3)(a) of the Act is that the obligations in ss 424A and 424AA do not apply to country information that does not concern the applicant specifically – should be followed because it was not clearly wrong, while Logan J considered that it should be followed because it was ‘plainly right’.

Finally, Logan J (with whom North and Charlesworth JJ agreed) found that the issues raised in the country information relied on by the Tribunal had either been put to the applicant by the Tribunal or were apparent from the decision under review. His Honour therefore did not consider that the applicant had been denied a meaningful hearing of the kind required by s 425. Because of this, no member of the Court considered it necessary to determine which of the competing views that have been put forward concerning the interaction between ss 424A(3)(a) and 425 of the Act is correct. As such, it remains unclear whether s 425 may in some cases require the Tribunal to put country information to an applicant if the country information raises a new issue that is not apparent from the terms of the decision under review.