CCW19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The appeal 7 The appellants' notice of appeal sets out the following ground: The Court erred in finding that the Tribunal did not unreasonably fail to consider the exercise of its discretionary power in s 427(1)(a) of the [Migration] Act. Particulars a. in their 'response to hearing invitation' dated 18 March 2019 (CB 384), the applicants requested the Tribunal exercise its power under s 427(1)(a) to take oral evidence from a witness identified by the applicants in that response; b. the Tribunal unreasonably failed to consider the exercise of its discretionary power in s 427(1)(a) to call oral evidence from the applicants' nominated witness, in circumstances where the credibility of the Appellants' account was in issue. 8 In their written submissions, the appellants sought leave to raise a new ground on appeal: that the Tribunal failed to give real and genuine consideration to the appellants' request. They rely on the same contentions advanced in relation to the ground set out in the notice of appeal to support the proposed new ground, which they say is simply a different legal characterisation of the same substantive error. 9 The appellants accept that the proposed ground could have been raised below but was not, however, they say that the "clear merit" of the ground is a sufficient reason to allow it to be raised on appeal. They accept that an application should only be granted if it is expedient in the interests of justice to do so. If there is no adequate explanation for the failure to take the point in the court below, and it has doubtful merit, leave should generally be refused: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46] and [48] (Kiefel, Weinberg, Stone JJ). They say that balancing these factors would support the grant of leave: see CYF16 v Minister for Immigration and Border Protection [2018] FCA 2034 at [54]-[58]. 10 The Minister opposed the grant of leave to raise the new ground. He submitted that, while the Minister asserts no particular prejudice by the ground being raised for the first time on appeal, the appellants were represented in the FCCA proceedings, and no explanation has been proffered for why the ground was not raised there. (In fact, the same counsel represented the appellants in the FCCA proceedings and on appeal). More significantly, the Minister submitted that the proposed new ground lacks merit and accordingly it is not in the interests of justice to permit the appellants to advance it as a new ground. 11 I raised with the parties the issue that evidence in CDA19's appeal was not evidence in this appeal (nor had it been in the FCCA proceeding), notwithstanding that: (a) The court books from both the appellants' FCCA proceedings and CDA19's FCCA proceedings were before the FCCA Judge and are before me on appeal; and (b) Therefore, I know that the same Tribunal member conducted hearings of the appellants' application and CDA19's application for review of the respective delegates' decisions, the appellants' Tribunal hearing preceded CDA19's Tribunal hearing, and both decisions were delivered on the same day. There would be artificiality in not being able to take that into account. 12 Counsel for the appellants opposed the appeal book in CDA19's appeal (including the court book from the FCCA proceeding) being received as evidence in this appeal. Counsel submitted that the appellants made forensic decisions about the conduct of their case in the FCCA proceedings on the basis that CDA19's court book was not in evidence. That included decisions about whether to call CDA19 to give evidence. Those decisions may have been different if the Minister had sought to tender evidence from CDA19's court book in the appellants' FCCA proceeding. Counsel submitted that it is not uncommon for judges to have to put to one side information that they may have obtained in the course of the proceeding or other proceedings, for instance where they may have had access to a privileged document which was not admitted to evidence. 13 It is undoubtedly true that judges are regularly called upon to consider material that is not admitted to evidence (for instance, when making rulings on evidence). Judges are capable of putting to one side such information. Nonetheless, I consider that the broader interests of justice are served by the appeal book before the Court in CDA19's appeal being before the Court on this appeal. I have taken the following into account: (a) The Minister's submissions, which I accept, that: (i) There is no evidence of any forensic prejudice that the appellants might suffer by evidence in CDA19's appeal being before the Court on this appeal nor, beyond the appellants' counsel's submission, is there any evidence of a forensic decision having been made with respect to whether CDA19 should be called to give evidence in the appellants' proceedings in the FCCA; and (ii) If a forensic decision was in fact made not to adduce evidence from CDA19, that may have a bearing on whether or not the appellants have discharged their onus of demonstrating the materiality of any error on the part of the Tribunal if error is demonstrated: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [46]; (b) Without the CDA19 appeal book, there is no evidence concerning the nature of the evidence that CDA19 might have given to the Tribunal, save that it is clear that the appellants' representative referred to the statement of claims attached to CDA19's application in her 9 April 2019 submissions (see DR[23] and [27] below). The appeal book in CDA19's appeal contains formal written statements made to the Tribunal by CDA19, representations made by CDA19's representative (who was also the representative for the appellants), the delegate's decision record which references evidence given by CDA19 at the delegate's interview, movement records relating to CDA19, a transcript of the Tribunal hearing at which CDA19 gave sworn evidence and the Tribunal's decision record; (c) The same Tribunal member heard evidence in both review proceedings (including evidence from CDA19 at a hearing) before she made her decision in both proceedings which she issued virtually simultaneously (within minutes) on 29 April 2019; and (d) The Court has power to accept new evidence on the appeal pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth).

Background 14 CCW19, CCX19 and CDA19 are citizens of Fiji and first arrived in Australia as the holders of Visitor (Class FA) Subclass 600 visas. CCY19 was born in Australia; she is the daughter of CCW19 and CCX19 who married in 2018. 15 CCW19 and CCX19 applied for protection visas on 28 January 2016. CDA19 applied for a protection visa on 30 March 2016. CCY19 was born in the first half of 2016. On 26 July 2016, an application for a protection visa was made on her behalf. CCY19 did not raise any claims of her own. 16 In statements attached to their application for a protection visa, CCW19 and CCX19 claimed that they worshipped weekly in a group at the house shared by CDA19 and her husband, who were church elders, CCW19's sister and CCW19 and CCX19. CCW19 and CCX19 claimed that the meetings started to attract attention from the military in June 2013 because of their perceived association with the Social Democratic Liberal Party (SODELPA). They claimed that the military observed the meetings from outside the house on a monthly basis and then on three separate occasions, twice in April 2014 and once on 15 May 2014, the military attended the house and attacked and threatened them. 17 In her statement of claims attached to her protection visa application, CDA19 said that the military entered her home forcefully, twice in July 2014 and the "big one" was the third time, on 14 August 2014. 18 On 20 April 2016, CCW19 and CCX19 provided the Department with corrections to their statements attached to their visa applications. In the corrections, they said that the claimed incidents of harm from the Fijian military occurred twice in July 2014 and once on 14 August 2014 rather than in April and May 2014. 19 On 17 June 2016, CDA19 attended an interview before a delegate. By letter dated 20 June 2016, the delegate notified CDA19 that she had been refused a protection visa and published reasons. On 26 June 2016, CDA19 applied to the Tribunal for review of the delegate's decision. 20 On 6 October 2016, the appellants attended an interview before a different delegate to the one who processed CDA19's application. On 25 October 2016, the delegate refused the appellants' applications and published two sets of reasons. On 3 November 2016, the appellants applied to the Tribunal for review of the delegate's decisions. 21 By email dated 8 February 2019, the Tribunal provided a number of documents to the appellants' representative including: (a) A covering letter dated 18 February 2019 addressed to the appellants' representatives which included a paragraph as follows: If you are proposing that a witness give evidence at the hearing, a witness statement setting out the witness's evidence should be provided to us by 18 March 2019. Where a witness is unable to adopt or sign a witness statement, particulars of the evidence the witness is expected to address and how it is relevant to the case should be provided by this date. (b) A letter dated 8 February 2019 addressed to the appellants inviting them to attend a hearing before the Tribunal on 25 March 2019. That letter included paragraphs which stated as follows: Please read and complete the enclosed 'Response to hearing invitation - MR Division' form to confirm your attendance at the hearing. Please use this form or attach additional information if you have any requests or any new information which you wish us to consider… Please return the completed form to us within 7 days after receiving this invitation. (c) Documents titled "Response to hearing invitation - MR Division" and "Information sheet MR18: Information about hearings - MR Division". The Information sheet MR18 stated: Can I ask the AAT to obtain evidence? You may, within 7 days after being notified that you are invited to attend a hearing, give us written notice that you want us to take oral or written evidence from a person or persons named in the notice or to obtain other written material. If you make such a request within that time limit, we will consider your notice may decide not to obtain such evidence or written material. For example, we may be satisfied on a particular point, or may not consider the evidence to be relevant to your case. You may use the 'Response to hearing invitation - MR Division' form to nominate persons you want us to take oral evidence from… You will need to arrange for any persons you nominate, who are not in immigration or criminal detention, to be available to give evidence. 22 On 14 February 2016, the Tribunal sent an email to CDA19's representative attaching documents in the same format as that sent to the appellants. Attached was a letter dated 14 February 2016 inviting CDA19 to attend a hearing on 2 April 2019. 23 On 15 February 2019, the appellants' representatives signed a "Response to hearing invitation - MR Division" which indicated under "Part 3 - Witnesses" that no request was made for evidence to be taken from any witnesses. 24 On 19 March 2019, the appellants' representatives wrote to the Tribunal enclosing (among other things) another "Response to hearing invitation - MR Division", dated 18 March 2019 (18 March 2019 response), which requested that oral evidence be taken from CDA19 as "[CDA19] was present when police came to the home during religious meetings". 25 The hearing record for 25 March 2019 and the transcript of the hearing indicates that CDA19 did not attend that hearing at which CCW19 and CCX19 gave evidence. The transcript indicates that none of the appellants or the appellants' representative who attended the hearing requested the Tribunal member to obtain evidence from CDA19. At the hearing, CCW19 and CCX19 gave evidence to the effect of their initial statement of claims (see [16] above). The fact that they had corrected those dates to refer to incidents in July and August (see [18] above) was raised with them under s 424AA of the Migration Act and they were given an opportunity to respond at the hearing and in writing. 26 CDA19 attended a Tribunal hearing on 2 April 2019. At that hearing, she asserted that the military incidents at her home had all occurred during April 2014. The Tribunal member put to CDA19 under s 424AA of the Migration Act the nature of the evidence given by CCW19 and CCX19 at their hearing on that topic, the fact that it was inconsistent with her statement of claims which had been attached to her visa application and that her movement records indicated that she was in Australia in April 2014. The Tribunal member gave CDA19 an opportunity to respond at the hearing and in writing. 27 On 9 April 2019, the appellants' representative provided a further submission to the Tribunal. No request was made in it for the Tribunal to take evidence from CDA19. Among other things, CCW19 and CCX19 said: The applicants apologise for their confusion about the dates of occurrences of visits from the Fijian military. They reaffirm that the written correction made to their original statements were the correct dates and state that they were confused by discussions they had with the secondary applicant's mother [CDA19]. [CDA19] had originally included the correct dates in her own statutory declaration. The applicants cannot state why they were confused about the dates but maintain they were confused, not dishonest. The applicants apologise for confusion about other events such as differences regarding their actions when giving leave at their workplace, and any other apparent discrepancies in their evidence. They again state that these things relate to confusion, not to dishonesty. 28 Also on 9 April 2019, CDA19's representative provided a further submission to the Tribunal. Among other things, it said: The applicant reaffirms that she maintains their truthfulness in regards to all of her protection visa claims including oral evidence before the Tribunal. The applicant apologises for her confusion about the dates of occurrences of visits from the Fijian military. She reaffirms that her original statement was correct regarding these dates and state that she became confused by discussions she had with her daughter and son in law who were also present when the visits occurred in Fiji. The applicant cannot state why she was confused about the dates beyond her tendency to defer to her son in law's forcefulness of conviction but maintains she was confused, not dishonest. The applicant apologises for confusion about any other events alluded to in her claims. She again states that these things relate to confusion, not to dishonesty. 29 In its decision record dated 29 April 2019 in relation to the appellants' review application, the Tribunal accepted that CCW19 and CCX19 were practising Christians, who attended church in Fiji and held weekly meetings at CDA19's home because CDA19 and her husband were church elders. The Tribunal also accepted that CCW19 and CCX19 had never been involved in politics in either Fiji or Australia. The Tribunal did not, however, accept the credibility of the appellants' remaining claims or that they were witnesses of truth. The Tribunal did not accept that they held a genuine fear of persecution if returned to Fiji. The Tribunal noted that CCW19 and CCX19 had given inconsistent evidence as to when they claimed the military attended their house in 2014 and found that their actions were not commensurate with a fear of being harmed because of: (a) Their behaviour after the claimed attendance by the military of continuing to hold religious meetings and delaying their departure from Fiji; (b) CCX19's voluntary return to Fiji for 6 weeks after her father's death in Australia; and (c) Delay by CCW19 and CCX19 in applying for protection in Australia. 30 The Tribunal relied on independent country information which indicated that any previous restrictions on religious practices had been removed and only high-profile public figures (in the church or in politics) were at risk and there was no persuasive country information to suggest that the Fijian authorities would target any nationals for having sought asylum abroad. 31 The Tribunal made no reference to the request made in the 18 March 2019 response that CDA19 be a witness at the hearing of their application for review. 32 In the FCCA proceedings, the appellants relied on a single ground of review which stated: The Tribunal breached s. 426(3) of the Migration Act 1958 (Cth) (the Act) and/or unreasonably failed to consider the exercise of its discretionary power in s 427(1)(a) of the Act. Particulars a. in their 'response to hearing invitation' dated 18 March 2019 (CB 384), the applicants requested the Tribunal exercise its power under s 427(1)(a) to take oral evidence from a witness identified by the applicants in that response; b. the Tribunal failed to consider the applicants' request in breach of s 426(3) and/or at all; and/or c. the Tribunal unreasonably failed to consider the exercise of its discretionary power in s 427(1)(a) to call oral evidence from the applicants' nominated witness. 33 Section 426(1) of the Migration Act provides that a notice under s 425A must notify the applicant that (a) he or she is invited to appear before the Tribunal to give evidence, and (b) the effect of subsection (2). The letter to the appellants' representative dated 8 February 2019 and the Information sheet MR18 referred to at [21] above appear to meet this requirement. 34 Section 426(2) provides that the applicant may, within 7 days of receiving notification under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice. 35 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. 36 Section 427 of the Migration Act provides that, for the purpose of the review of a decision, the Tribunal may take evidence on oath or affirmation. 37 The FCCA Judge rejected the contention that s 426(3) had been breached given that the 18 March 2019 response was given after the period set out in s 426(2) and it was the second notice given: J[25]. The appellants do not appeal that finding, although (as noted by the Minister), the requirements of s 426 of the Migration Act are relevant to the general unreasonableness complaint which is maintained by the appellants. 38 The FCCA Judge also rejected the contention that the Tribunal unreasonably failed to consider the 18 March 2019 request to receive evidence from CDA19 on the topic of religious meetings. The FCCA Judge said the following at J[28]-[30]: 28. In the present case, there was no identified mobile telephone number for the witness and no statement provided by the witness. 29. The topic upon which the witness proposed to give evidence has been the subject of adverse credibility findings by the Delegate. The applicants were also represented at the hearing before the Tribunal, the transcript of which has been tendered into evidence. There was no request for the Tribunal to contact the witness in the course of that hearing. 30. In these circumstances, the absence of an express consideration of the exercise of the power under s 427 of the Act cannot be said to lack an evident and intelligible justification. The assertion of legal unreasonableness is not made out.

Appellant's submissions 39 The appellants contend that there was error in the FCCA Judge's findings for the following reasons. 40 First, the FCCA Judge relied on the lack of a mobile phone number for CDA19 in the notice. If this was in fact part of the Tribunal's concern, then the Tribunal ought to have expressed that concern to the appellants. CDA19 is CCX19's mother and there is no basis to infer that her contact details were unavailable to the appellants. In any event, it would have been a clear breach of procedural fairness obligations to refuse to call a witness on the basis of a clearly curable issue without giving the appellants' the opportunity to address the problem. 41 Second, the FCCA Judge's observations about credibility directly inverted the reasoning of applicable authorities - adverse credibility findings are reasons in favour of the need to call a witness. 42 A well-recognised function of oral evidence is to assist the decision-maker in determining issues of credibility and reliability of a principal witness or party. That oral evidence can achieve this objective in a way that written evidence cannot: see AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; (2018) 262 FCR 317 (AYX17) at [80] (Tracey, Mortimer JJ). 43 The Tribunal made adverse credibility findings against the appellants based primarily on: (a) Inconsistencies in the dates when the appellants said that military interventions happened; and (b) Rejection of the appellants' explanation that they were confused about those dates because of discussions with CDA19: DR[27]. The nature of the Tribunal's credit concerns made it unreasonable not to call a potentially corroborative witness who could give evidence on both of those topics. 44 Further, the proposed witness's evidence could not only corroborate the appellants on credit, but also on the substantive facts. The rejection of the appellants' evidence about the military raids and the findings about their lack of credibility was a central part of the reason why their application was rejected by the Tribunal: see DR[27]-[41]. Both appellants gave evidence that CDA19 was present at the meeting when the military were said to have forcibly intervened. The Tribunal's disbelief of the military intervention in the religious meeting was central to the rejection of the claim: DR[28]. 45 In circumstances where credit was a crucial issue, and the witness's evidence could explain or corroborate the applicants' account, not calling the witness suggests "a level of prejudgment" about the appellants' case: see AYX17 at [85]. 46 Third, it was not necessary for a further oral request to be made at the hearing; the Tribunal was obliged to give the notice consideration once the written request was made. The Tribunal's discretion under s 427(1) is enlivened by a request by an applicant that a witness be called: AYX17 at [47]-[49] and [75]. The Tribunal controlled the conduct of the hearing. It was for the Tribunal to decide which witnesses should be called. The inquisitorial nature of the Tribunal process means that considerations of party conduct are not relevant in the same way that they would be in inter partes litigation. 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: AYX17 at [75] relying on Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [23]-[26] (French CJ); [63] (Hayne, Kiefel, Bell JJ); [88]-[92] (Gageler J). 47 Fourth, the lack of a witness statement was a reason in favour of calling the witness rather than dismissing the potential evidence because without the statement it was not possible for the Tribunal to know if her evidence could be put to one side. Had there been a written statement, the Tribunal may have been able to determine whether the evidence was sufficiently irrelevant to negate the need for further oral evidence. In the absence of such a statement, the Tribunal could not be so satisfied. To the contrary, the Tribunal was on notice that the witness's evidence was relevant to narrow, and critical, issues for the determination of the appellants' protection claims. 48 The appellants submitted that this analysis: (a) Demonstrates that the FCCA Judge erred in finding (at J[29]-[30]) that the Tribunal did not unreasonably fail to consider the exercise of its discretionary power in s 427(1)(a) to call oral evidence from the appellants' nominated witness; and (b) Grounds an inference that the Tribunal did not give real and genuine consideration to the 18 March 2019 response. They note that in Minister for Immigration v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [34] the Full Court held that when a matter is not referred to it "may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted can be sensibly understood as a matter considered, but not mentioned because it was not material." The appellants say that, in circumstances where CDA19's evidence went to central matters and was likely to be material, the reasonable inference to draw from the lack of any reference to the request in the Tribunal's written reasons is that the Tribunal did not give reasonable and genuine consideration to calling the witness.

Consideration 49 I have considered the Minister's written submissions and the appellants' written reply and I have taken them into account in the consideration that follows. 50 In the absence of the evidence in CDA19's appeal, the appellants' submissions raise an arguable case of a failure by the Tribunal to act to consider adequately the appellants' request to call a witness in the 18 March 2019 response. That is because: (a) The 18 March 2019 response identified that CDA19 was in a position to provide evidence in relation to the appellants' claims concerning the Fijian military's intervention in three meetings held at CDA19's home; and (b) The statement of CDA19's claims attached to her protection visa application was referred to in the appellants' post-hearing submissions dated 9 April 2019. 51 Because evidence in CDA19's appeal was not taken into account in any of the written submissions on this matter, important factual matters were not addressed. Those matters included that: (a) The same Tribunal member received all of the evidence in both the appellants' review and CDA19's review; (b) That evidence included evidence given by CDA19 in her written statements, before the delegate and at a hearing with the Tribunal as well as in submissions filed on 9 April 2019; (c) All of that information was before the Tribunal member when she made her decisions to refuse the appellants and CDA19 protection visas on 29 April 2019; (d) By an invitation dated 14 February 2019, CDA19 was invited to a hearing to be held on 2 April 2019 so that the Tribunal member knew that she would hear evidence from CDA19 before the 18 March 2019 response was given to the Tribunal; (e) The same representative acted for CDA19 and the appellants on the reviews. That representative therefore received the invitations to hearings in both reviews, attended the hearings in both reviews and provided written submissions dated 9 April 2019 to the Tribunal in both reviews; (f) At the hearing conducted with CDA19 on 2 April 2019, inconsistencies between the evidence given by CCW19 and CCX19 were put to CDA19; (g) In the 9 April 2019 submissions filed on behalf of the appellants, the representative referred to the evidence given by CDA19 attached to her protection visa application; and (h) Inconsistencies in the evidence of CCW19, CCX19 and CDA19 (both compared to their written statements and given at hearings) as to the dates on which the military intervened in three meetings held at the home of CDA19 and her husband in 2014 was a basis for adverse creditability findings in both reviews. 52 Having regard to the facts set out in the preceding paragraph, the Tribunal's failure to mention the request to call CDA19 in the appellants' decision record is not a basis for concluding that it failed to give adequate consideration to the 18 March 2019 response: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593. 53 The facts that the 18 March 2019 response was made after the seven-day period provided for responses under s 426 had expired and after the Tribunal had in fact invited CDA19 to a hearing on 2 April 2019 is a logical reason for why: (a) The Tribunal member did not accede to the request in the 18 March 2019 response; and (b) The appellants' representative did not pursue that request at the appellants' Tribunal hearing or in the submissions made on their behalf on 9 April 2019. 54 In light of CDA19's evidence given at the hearing on 2 April 2019, and its inconsistencies with her statements given to the Tribunal and evidence given by CCW19 and CCX19, there is no basis for believing that there would have been a different outcome in the appellants' review had the Tribunal called her to give evidence on the appellants' review. 55 Accordingly, the ground of the appeal should be dismissed. For those reasons, I am also not satisfied that the proposed new ground has sufficient weight to warrant its consideration on appeal. I have also taken into account that the same counsel appeared in the FCCA proceedings as on the appeal and no explanation has been proffered for why it was not raised in those proceedings. I am not satisfied that the interests of justice require the grant of leave to the appellants to rely on the proposed ground on the appeal.

Disposition 56 The appellants are refused leave to rely on the proposed new ground. The appeal is dismissed with costs. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Farrell.