Second ground of appeal: legal unreasonableness
70 The second challenge to the Tribunal's exercise of the s 427(1)(a) discretion was on the ground of legal unreasonableness. The appellant submitted the Federal Circuit Court erred in rejecting this challenge.
71 We have noted at [55]-[56] above that the Tribunal gave three, not two, explanations for why it decided not to call the witnesses. To recall, they were:
(a) that the proposed evidence would add little to the appellant's claim he attended Gezi Park, which the Tribunal had already accepted;
(b) that the Tribunal could not verify the identity of the two proposed witnesses and was thus unlikely to place weight on their evidence; and
(c) that the Tribunal preferred to obtain country information about the situation in Turkey (and, we infer, what occurred at the Gezi Park protests) from independent sources such as those it referred to in its reasons.
72 The appellant contends there is no intelligible justification apparent in the first two reasons.
73 As we have also noted, the Tribunal described (at [7]) what the appellant told the Tribunal the two witnesses could give evidence about. That description went well beyond the mere fact of his attendance at Gezi Park. It included what "he encountered at Gezi Park, how long he had been in hiding, and where he was hiding, and that Christians and the Alevis are not wanted in Turkey". The appellant's counsel accepted this was a fair summary of the appellant's explanation given at the review hearing.
74 We begin our consideration of this ground by addressing a statement made by the Federal Circuit Court in its reasons (at [42]) that:
I reject the proposition. It flies in the face of the express statutory provision in s 426(3) of the Act that provides that the Tribunal is not required to obtain evidence from a person of the applicant's nomination. It would be a peculiar result indeed if on the one hand the Tribunal was not required to obtain evidence from a nominated person and on the other hand the Tribunal could be seen to have acted legally unreasonably by so doing.
75 Although this passage is something of a sideline to the grounds of appeal, there is an important point to be made. We respectfully disagree with the learned Federal Circuit Court judge. The discretion in s 427(1)(a) is like any other statutory discretion: unless there is a clear contrary intention, it is to be understood as conditioned by a requirement that it be exercised in a legally reasonable way: see Li at [23]-[26] (French CJ); [63] (Hayne, Kiefel and Bell JJ); [88]-[92] (Gageler J).
76 In Li at [30], French CJ explained why it is inappropriate to conflate grounds of review, and also to give too much work to do to the irrationality/unreasonableness grounds. His Honour said:
The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, "may have no particular legal consequence." As Professor Galligan wrote:
"The general point is that the canons of rational action constitute constraints on discretionary decisions, but they are in the nature of threshold constraints above which there remains room for official judgment and choice both as to substantive and procedural matters. In other words, within the bounds of such constraints, different modes of decision-making may be employed."
A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves. That approach is an application of the principles discussed above and within the limitations they would impose on curial review of administrative discretions.
(Footnotes omitted.)
77 The last part of this extract is particularly relevant. Although it might be found (as we have on this appeal) that a decision-maker did give "real and genuine" consideration to the exercise of a power, it is still possible for a Court on judicial review to conclude that power was exercised in a way that was legally unreasonable. Indeed, so much consideration might have been given that a sledgehammer was used to crack a nut, to adopt French CJ's metaphor. Alternatively, the reasoning adopted (in the course of giving consideration) might be so irrational, or unreasonable, as to indicate the exercise of power has miscarried.
78 As we understand the appellant's submissions, at least in the alternative to ground 1, this is the kind of analysis that is relied upon. The appellant submits that the Tribunal's reasons disclose a fundamental misconception or misunderstanding concerning the scope of the evidence of the two witnesses, as well as reliance on a matter (that they could not be identified over the phone) that was, in the circumstances, irrational or unreasonable or both. Contrary to the observations of the Federal Circuit Court at [42] of its reasons, there is no inherent conflict between the existence of a discretionary power of this kind and a challenge based on legal unreasonableness.
79 A number of relatively recent decisions of this Court have considered arguments of legal unreasonableness in the context of the Tribunal's power to take evidence from proposed witnesses.
80 In CZBH at [53]-[59], by reference to a number of authorities, Rangiah J set out an explanation of the principles informing the exercise of a discretion such as that contained in s 427(1)(a), in the context of a ground of appeal that the Tribunal had acted capriciously (which his Honour took to mean legally unreasonably) in deciding not to call the requested witnesses. We respectfully agree with his Honour's observations in those paragraphs, in particular that a well-recognised function of a decision-maker hearing oral evidence is to assist the decision-maker in determining issues of credibility and reliability of a principal witness or party, and that oral evidence can achieve this objective in a way that written evidence cannot. In CZBH, Rangiah J was dealing with an exercise of discretion that was not explained in a Tribunal's reasons, and his Honour found (at [61]) the Tribunal's refusal to call the witnesses lacked any evident or intelligible justification.
81 Rangiah J took a similar approach in SZVBB v Minister for Immigration and Border Protection [2015] FCA 1414, and stated at [40]-[41]:
It is open to the Tribunal, in an appropriate case, to decide that the evidence of an applicant is so compromised that hearing the oral evidence of a corroborating witness could not affect the outcome: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [49], CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 at [58], Huynh v Minister for Immigration and Border Protection (2015) 232 FCR 497 at [96], [102].
However, if evidence by a witness corroborating a part of the appellant's evidence is given and is believed, that might suggest that the appellant is also telling the truth about other parts of his evidence: see W360/01A v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 449 at [2], [30]. For this reason, in many cases it will not be open to the Tribunal to refuse to obtain oral corroborating evidence on the sole basis of an assertion that the evidence could not affect the Tribunal's assessment of the appellant's credibility. It is one thing to hear evidence and reject it or to find that it is of no assistance. It is another thing to refuse to hear what is said to be corroborating evidence on the basis of an assumption that it could not possibly be credible or could not possibly assist in assessing the credibility of the appellant.
82 In SZVBB at [44], however, Rangiah J concluded - not without some apparent hesitation on the evidence - that it was open to the Tribunal to have reached the decision it did to refuse to take evidence from the proffered witnesses. His Honour found:
The nature and extent of the discrepancies and the improbability of the explanations was so great that I think it was open to the Tribunal to conclude that the appellant's credibility could not be repaired by corroborative oral evidence concerning the alleged incidents in India.
83 The approach of Katzmann J in BTF15 was relied on by the Minister, and was said to be consistent with the approach that should be adopted to the Tribunal's exercise of power in this appeal. In that case, there were detailed written statements provided to the Tribunal from the proposed witnesses, including identifying details. However, as her Honour set out at [25], the Tribunal found contents of the written statements "posed difficulties" for aspects of the narrative given by the appellant himself, although that was not, in her Honour's view, the reason the Tribunal declined to hear the evidence. That makes the circumstances in BTF15 quite different from the present appeal. Her Honour found (at [51]):
It [the Tribunal] declined to take the evidence because it would not overcome its concerns about the appellant's credit. Those concerns went well beyond the inconsistency between the appellant's account and the documents in question.
84 Katzmann J added (at [53]) that:
Thirdly, it is an over-simplification of the Tribunal's reasons to say that it decided not to take oral evidence from the two witnesses because it disbelieved the appellant. It decided not to take the evidence because it did not consider that their evidence could affect its view of the appellant's credibility. No doubt this was because, on the matters which, in the Tribunal's opinion, undermined the appellant's credibility, their written statements were silent.
85 There is some caution, in our respectful view, needed before determining that it is open to a decision-maker to conclude that proffered corroborative evidence cannot "affect" the decision-maker's view of the reliability or credibility of an applicant. If that conclusion is reached too readily it discounts the purpose of corroborative evidence, and it also tends to suggest a level of prejudgment which does not sit easily with the decision-maker's task to make the correct or preferable decision on all the material before it. Although a lengthy extract, it is worthwhile recalling the explanation given by Lee and Finkelstein JJ in W360/01A at [3]:
3 Here the Tribunal did not accede to the appellant's request to call a witness who would testify that the appellant had left Iran illegally. The Tribunal said that even if the appellant were to establish this asserted fact, it would not assist his claim because of other "problems" with his evidence. We think that in taking this view the Tribunal misunderstood its responsibilities. The appellant asserted a number of facts which he asked the Tribunal to accept. They concerned his claim that while in Iran he had suffered persecution for a Convention reason. If the appellant could persuade the Tribunal that those asserted facts were true, or even that they might be true, it is likely that the Tribunal would be satisfied (within the meaning of s 65 of the Act) that there is a real chance that the appellant would suffer similar treatment in future if he were returned to Iran. In the process of deciding whether asserted past facts were true, or might possibly be true, the Tribunal was entitled to rely upon any opinion about the creditworthiness of the appellant. If it formed the view that the appellant was not a witness of truth, in all probability it would not accept the asserted facts. In order to decide whether it was satisfied of the truth, or possible truth, of the asserted facts, one would ordinarily expect the Tribunal to look at each claim made by the appellant because, in arriving at a conclusion as to the truthfulness of certain asserted facts, the Tribunal might be assisted by knowing that other facts were true. That is to say, if the appellant was telling the truth about asserted fact A that might suggest that he was also telling the truth about asserted facts B and C. On the other hand, if it were shown that the appellant was dishonestly asserting the existence of asserted fact D, that would be taken into account when the Tribunal decided whether it should be satisfied that other asserted facts were true, or might be true. So, for example, if the Tribunal accepted the appellant's assertion that he had left Iran illegally, the Tribunal would be obliged to take that into account when considering whether it should accept as true, or as possibly true, the balance of the appellant's claims. Moreover, a finding that the appellant had left Iran illegally would also require the Tribunal to consider why the appellant had done so. There may be a variety of explanations. One explanation might be that the appellant feared for his safety. If the Tribunal formed the view that this was the reason why the appellant left Iran illegally, it would necessarily take that into account in deciding how to deal with the appellant's account of past events. Accordingly, for the Tribunal to say that it would be unassisted by the evidence of the witness whom the appellant wished to call, shows that the Tribunal had a false appreciation of its task. (See generally Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.)
86 In our respectful view, this passage sets out the appropriate approach for an administrative decision-maker, including the Tribunal, to take to the subject of proposed witnesses who could support a visa applicant's claims. As we have noted above, reaching a decision too quickly or readily, that proffered corroborative evidence cannot "affect" the decision-maker's view of the reliability or credibility of an applicant, may tend to discount or nullify entirely the legitimate purpose of corroborative evidence, and the presence of the discretionary power to call additional witnesses in the legislative scheme.
87 Nevertheless, the different conclusions reached by Rangiah J on appeal in CZBH and SZVBB, and also the decision of Katzmann J in BTF15, illustrate how an assessment on judicial review (including on appeal) must be undertaken with close consideration of the particular context of the exercise of power in a given case, and that different facts may give rise to different legal conclusions on judicial review.
88 If one takes the approach of teasing out each of the reasons given by the Tribunal in this case for not calling the two witnesses, and separating those reasons out from each other, then there is some force in the appellant's criticisms of the Tribunal's reasoning.
89 The Tribunal's first reason does tend to suggest a misconception or misunderstanding. It is clear from the passage at [7] in the Tribunal's reasons that the appellant was putting these two witnesses forward as people who could testify to what happened to him at the rally. His central claim was that he was arrested at the rally for attempting to film it: see [11]-[13] of the Tribunal's reasons. His claim then involved a narrative about what happened to him after he was arrested. These matters were key to the assessment of whether his fear of persecution if returned to Turkey was well-founded, based on what he claimed had happened to him at the rally and thereafter. The Tribunal's disbelief of the appellant's claim to have been filming at the rally and to have been arrested was central to its rejection of his entire claim. If the Tribunal misunderstood that the appellant was telling the Tribunal these two witnesses could corroborate his narrative about filming, and about his arrest (which is what it is clear he was saying), then this misunderstanding could make its first reason for rejection an irrational one. The reason would not be based on the material before the Tribunal: it would be based on a misunderstanding. It would also make the first reason "devoid of any plausible justification" - see Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273, cited in Li at [91].
90 As to the second reason, and as we have noted earlier, the fact that the witnesses were to give evidence by telephone (and therefore could not be identified) could not, of itself, provide a basis for an unfavourable exercise of discretion. It does appear the Tribunal was most concerned about the mode by which the witnesses would give evidence and the obvious fact it would be able to hear but not see each person, and could not through that method of communication verify who the person was. That difficulty is inherent in taking evidence by telephone. It would not have mattered how much prior information had been supplied to the tribunal about the witnesses: the fact that they could only be heard and not seen was simply a consequence of the method of communication. In these circumstances, reliability, identity and other features of a proposed witness will generally need to be established through questioning.
91 As to the third reason, it is apparent that the Tribunal did not postpone any further consideration of whether to call the two witnesses to give evidence about the general social, political and security situation in Turkey. This is clear from its reasons at [7]:
He [the appellant] said they could also give other information such as broadcast channels being censored in Turkey. The Tribunal advised the applicant that it would rely on its own independent country information rather than take evidence from a person or persons it would not be able to identify.
92 In other words, this proposed purpose for an exercise of the discretion in s 427(1)(a) was rejected by the Tribunal at the hearing, not later.
93 If these passages were read in isolation, the appellant's arguments may have some force. That would not, however, be the appropriate approach. In determining whether an exercise of power is properly characterised as being so outside the bounds of decisional freedom as to be beyond the authority given by statute to a decision-maker, the Court must be careful not to substitute its own opinion for that of the repository of the power. These can be fine lines in the actual application of principle.
94 In Stretton, referring at [6] to the reasons of the Court in Singh at [44], which in turn relied on the decision of French CJ in Li at [27]-[28], Allsop CJ said at [7]:
It is in relation to the second context, the "outcome focused" application of the concept, that precise definition, beyond explanation of the operative notion and of the legal technique by which to make the assessment, becomes productive of complexity and confusion. There is "an area decisional freedom" of the decision-maker, within which minds might differ. The width and boundaries of that freedom are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular, of reasonableness. The boundaries can be expressed by the descriptions and explanatory phrases of the kind set out in [5] above.
95 Further, in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [54], the Full Court said:
We also accept that a line must be maintained between a court's emphatic disagreement with the merits of a tribunal's reasoning process, and the identification of a level of irrationality, unreasonableness or lack of proportionality which reveals a constructive failure to exercise jurisdiction by a tribunal. That is the distinction identified in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 (SZJSS) at [34].
96 While it is possible, by segmenting the Tribunal's reasons, to strip the reasons of what might be seen to be any intelligible justification, and to highlight what might appear to be a misconception by the Tribunal of the scope of the evidence which each of the proffered witnesses could give, in our opinion (and not without some hesitation) the exercise of power by the Tribunal in this case is not susceptible to the characterisation of a legally unreasonable exercise of power.
97 The Tribunal plainly had substantial concerns about the reliability and credibility of the appellant's accounts of what had happened to him in the past, and why he had fled Turkey. Its concerns had accumulated through the Tribunal hearing, and on consideration of the material before the Tribunal. It was not given details about what the proposed witnesses would be able to say (cf BTF15). It was not given any real detail at all about the witnesses themselves. They were not close relatives of the visa applicant, who were said to be closely involved in the narrative which formed the basis for his account to have a well-founded fear of persecution (cf CZBH). The Tribunal did not rush to make a decision to refuse to hear from the two witnesses and its reasons should be read as indicating that it continued to consider this issue after the hearing. The appellant did not submit the Tribunal's statements at the hearing were false on this account.
98 As we have explained above, the method by which evidence will be taken will generally not provide a sufficient justification for a decision-maker to refuse to hear such evidence. Further, decision-makers need to be careful to understand with some precision how a visa applicant explains the relevance and role of any proffered evidence. There will come a point where repeated statements by reviewing courts about these matters, if not taken to heart and applied by decision-makers, may result in reviewing courts concluding that decision-makers are taking an arbitrary or capricious approach to the exercise of this power.
99 However, that is not this case. Looking at the whole of the circumstances, we consider the exercise of discretion was within the area of decisional freedom available to the Tribunal, particularly given the matters to which we have referred at [97] above.
100 Finally, it will be apparent our approach differs to that taken by the Federal Circuit Court. At [39] of its reasons, the Federal Circuit Court sought to justify the Tribunal's exercise of discretion in a way which was outside of, and quite different to, the Tribunal's own explanation. That is not the correct approach to the resolution of a claim of legal unreasonableness: see Singh at [45]-[47]. The Tribunal gave an explanation of why it exercised its discretion as it did, at [45] of its reasons. The task of the Court on judicial review is to evaluate whether that was, relevantly, an intelligible justification, without any attributes such as capriciousness, arbitrariness, irrationality or illogicality.