In two recent decisions, separate full courts of the Federal Court have considered the procedural obligations of the Administrative Appeals Tribunal when conducting a review under s 414 of the Migration Act 1958 (Cth) of a decision of the Minister’s delegate not to grant a protection visa. AYX17 v Minister for Immigration and Border Protection deals with the circumstances in which the Tribunal may fall into jurisdictional error if it fails to call a witness to give oral evidence, while BQL15 v Minister for Immigration and Border Protection deals with the circumstances in which it may fall into jurisdictional error by failing to put to an applicant information that is adverse to his or her case in the manner prescribed by s 424A of the Act.
In AYX17, the applicant claimed that if he was required to return to Turkey, he would be persecuted as a result of his participation in demonstrations against the government of President Recep Tayyip Erdogan. In particular, he gave evidence that he had participated in the Gezi Park protests of 2013 and that he had been detained by police for filming parts of the protests. Pursuant to s 426(2) of the Act, the applicant gave the Tribunal written notice that he wanted it to call two witnesses to give oral evidence by telephone in support of his application. The Tribunal declined to call the witnesses and gave three reasons for its decision: first, the witnesses’ evidence would add little to the applicant’s evidence that he had been present at the Gezi Park protests; the Tribunal had accepted that evidence. Second, the Tribunal could not verify who the witnesses were. And third, the Tribunal preferred to obtain information concerning general conditions in Turkey from independent sources, such as human rights organisations and Australian and overseas government bodies. The Tribunal proceeded to affirm the decision of the Minister’s delegate not to grant the applicant a protection visa. The applicant then sought judicial review of the Tribunal’s decision on the grounds that the Tribunal had failed to give any genuine consideration to his request to call the two witnesses and/or had unreasonably failed to call them. He was unsuccessful before the Federal Circuit Court.
Justices Tracey and Mortimer (with whose reasoning Charlesworth J generally agreed, although her Honour would have allowed the applicant’s appeal) made a number of general observations about the Tribunal’s power to call witnesses. First, their Honours noted that while the precise statutory source of the power is unclear, it seems most obviously to derive from s 427(1)(a) of the Act, which authorises the Tribunal to ‘take evidence on oath or affirmation’. Second, they observed that where the Tribunal states in its reasons for decision why it chose not to exercise its power to call a witness, that statement ordinarily should be taken at face value, ‘so that the Court can infer the matters to which the Tribunal does not refer were not matters activating the Tribunal when it exercised the discretion.’ Finally, they emphatically stated that the mere fact that a witness will have to give evidence by telephone, and that this may give rise to concerns as to the witness’ identity, will rarely if ever be a reason, in and of itself, for refusing to call the witness. Their Honours then proceeded to address the applicant’s grounds of review. With respect to the first ground, Tracey and Mortimer JJ adopted the view expressed by a differently constituted full court in Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin that when an applicant requests that the Tribunal call a witness, ‘the tribunal must genuinely apply its mind to the … question whether it should take the oral evidence of the nominated individuals in accordance with the applicant’s wishes.’ In the applicant’s case, the Tribunal had complied with this requirement by ‘conducting the entire hearing, questioning the appellant, evaluating his evidence and then deciding whether or not to call the proposed witnesses.’ It therefore had not fallen into jurisdictional error by failing to give proper consideration to the exercise of its power to call the witnesses. On the question of reasonableness, Tracey and Mortimer JJ stated that, contrary to the view expressed by the primary judge, the Tribunal’s power to call witnesses is, like the power to adjourn the conduct of a review considered by the High Court in Minister for Immigration and Citizenship v Li, ‘to be understood as conditioned by a requirement that it be exercised in a legally reasonable way.’ However, their Honours did not consider that the power had been exercised unreasonably in the applicant’s case. In this regard, their Honours found that the applicant had not given the Tribunal any meaningful information as to who the witnesses he wanted it to call were or what they might say. On this basis, the Tribunal’s refusal to call the witnesses was ‘within the area of decisional freedom’ afforded to it by s 427(1)(a).
In BQL15, the applicant claimed that he had departed Sri Lanka in breach of that country’s Immigrants and Emigrants Act and that if he returned to Sri Lanka, he would be detained in circumstances that would amount to significant harm within the meaning of s 36(2A) of the Act. In affirming the decision of the Minister’s delegate not to grant him a protection visa, the Tribunal referred to a newspaper report about nine men who claimed to have been detained, threatened and tortured upon their return to Sri Lanka. Six of the men claimed that they had worked for the Tamil National Alliance, while two of the others were crew members aboard a vessel engaged in people smuggling. In its reasons for decision, the Tribunal stated that ‘[h]aving considered these cases I am not satisfied they have any relevance to the situation of the Applicant, who has never involved himself in political activity of any kind, and has never been involved in people smuggling ventures.’ The applicant submitted that the newspaper report was ‘information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review‘ and that the Tribunal had failed to put it to him in the manner required by s 424A; because it concerned nine specific individuals, and not country conditions in Sri Lanka generally, he submitted that it did not fall within the scope of s 424A(3)(a) of the Act. The Federal Circuit Court rejected this submission, holding that the newspaper report in fact supported the applicant’s general claim that human rights abuses occurred in Sri Lanka, although it was irrelevant to his specific case because he had not claimed to be involved in pro-Tamil politics or to have participated in people smuggling. On appeal, the Full Court considered that this reasoning was ‘plainly correct’. Further, it stated that:
[C]ontrary to the Appellant’s submissions, the Tribunal did not purport to rely on the material as evidence that the Appellant did not face harm because he did not share the characteristics of these individuals. That submission could succeed only if, fairly read, it should be inferred from the Tribunal’s reasons that the information was relied upon as establishing exhaustively the circumstances which putative Sri Lankan asylum seekers must demonstrate in order to attract protection obligations. No such inference can be drawn.
The judgment underlines the fact that not every piece of information about a specific individual that is referred to by the Tribunal in the course of affirming a decision of the Minister’s delegate not to grant a visa is adverse material that must be put to the applicant. In some cases, material about a specific person will be referred to by the Tribunal for the purpose of showing that if the applicant had alleged that he or she fell within a specific class of persons, he or she might be at risk of persecution or significant harm, but that because he or she does not claim to fall within that class, evidence of harm inflicted on members of the class is irrelevant to the applicant’s case. In such a case, the material will only fall within the scope of s 424A if it can be inferred from it that persons who do not have the characteristics of the person or persons to whom the material relates are not at risk of persecution or significant harm. This will rarely be the case.