GBS18 v Minister for Home Affairs

Federal Court of Australia|2020-09-24|Before: Wigney J

The appeal be dismissed.
The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WIGNEY J: 1 The appellant is a citizen of Iraq whose application for a Protection (Class XA) (Subclass 866) visa was refused by a delegate of the first respondent, the Minister for Immigration and Border Protection (now the Minister for Home Affairs). That decision was affirmed on review by the second respondent, the Administrative Appeals Tribunal. The appellant unsuccessfully sought relief in respect of the Tribunal's decision in proceedings commenced in the Federal Circuit Court of Australia pursuant to s 476 of the Migration Act 1958 (Cth). He filed an appeal in this Court from the judgment and orders of the Circuit Court dismissing his application. 2 The appellant raised essentially two grounds of appeal. The first ground was that the primary judge erred in rejecting his contention that the Tribunal's dismissal of one of the factual claims that he had made in his visa application was not based on or supported by any logical or probative grounds or reasoning. The second ground was that the primary judge erred in rejecting his contention that the Tribunal failed to give real and genuine consideration to his request that the Tribunal obtain oral evidence from three nominated witnesses and that the Tribunal's refusal to obtain evidence from all those witnesses was unreasonable.

Background 3 It is unnecessary to give any detailed consideration to the procedural background to this matter given the narrowness of the grounds of appeal. 4 The appellant arrived in Australia on 30 January 2016 on a visitor visa. He applied for a Protection visa on 13 March 2016. 5 His Protection visa application was accompanied by a statutory declaration which addressed the factual basis of his claim that he was a person in respect of whom Australia has, or had, protection obligations for the purposes of s 36(2) of the Act. In summary, the appellant said that he was a business owner in Iraq in an area which was dominated by militias. He claimed that the militias demanded that he and other businesses in the area pay them protection money. The demands were said to amount to "masked bribery and legalised ransoms", which he and the other businesses could not oppose because that would deprive them of the protections supposedly afforded by the militias. 6 The appellant's claimed fear of returning to Iraq, however, appeared to be based primarily on certain events that were said to have occurred in mid-2015 and early 2016, immediately before he travelled to Australia. He claimed that, in 2015, three soldiers, one of whom was a Sunni Muslim, were killed during an attempted robbery at a checkpoint. Following that incident, the appellant and a number of other business owners donated money to the families of the dead soldiers each month. That included payments to the family of the dead Sunni soldier. 7 According to the appellant, sometime later, on 25 January 2016, three Shi'a militiamen came to his shop and criticised him for paying money to the family of the Sunni soldier. The appellant, and apparently the militiamen, were all Shi'a Muslims. The militiamen told the appellant that he had betrayed his people and had converted to become a Sunni and "hinted" that they would kill the appellant and turn his "family life into hell". 8 The appellant claimed that two days later, when he was driving home, a car chased him and fired "gunshots" at him. Fortunately, however, he managed to escape. At that point, the appellant apparently decided to sell everything and close his business. He travelled to Australia within days. 9 Having described that incident, the appellant concluded his statutory declaration in the following terms: I am afraid from the armed militias and the governmental forces because they were blackmailing us all those years and we have lived under continuous threats. I cannot resort to the government for protection because it is weak and cannot provide any kind of protection. I also cannot move to any part of Iraq because it is impossible at the current situation and the deteriorating security situation in Iraq.

The Tribunal's Decision 10 The Tribunal held a hearing at which it heard evidence from and questioned the appellant concerning his claims as set out in his statutory declaration. The Tribunal also obtained oral evidence via telephone from the appellant's brother in Iraq. The appellant had initially requested the Tribunal to take evidence from two other witnesses, but that ultimately did not occur. The reasons for that are described later in the context of the appellant's challenge to the Tribunal's conduct of its review. 11 The Tribunal did not accept critical elements of the appellant's claims and evidence, including: that he had been robbed at a checkpoint; that he had paid money to the family of a Sunni soldier who had been killed during that robbery; that three militiamen had thereafter visited his shop and threatened him; and that shots were fired at him as he drove home on 27 January 2016. 12 The Tribunal's rejection of those critical elements of the appellant's claims flowed in part from its assessment that the appellant was not an honest or reliable witness. The Tribunal stated as follows in that regard (Reasons at [52]): I found the [appellant's] evidence regarding his claim to be inconsistent, at times implausible and to lack credibility. For reasons set out below I did not find him to be a reliable, credible or truthful witness, and that he fabricated much of his claim in order to be granted a protection visa. 13 The Tribunal also gave specific reasons for rejecting the appellant's evidence concerning the alleged robbery and the subsequent shooting incident. Those reasons, in short summary, included that: there was no independent evidence of the attack or robbery at the checkpoint (Reasons at [53]); the timing of the alleged attack on the appellant was just days before he left for Australia and was "coincidental in the extreme" given that the appellant had been paying money to the family of the Sunni soldier since mid-2015 (Reasons at [56]-[57]); and the appellant's description of the incident was "implausible" (Reasons at [57]-[59]). 14 The Tribunal also found that the appellant was not a credible witness because he gave inconsistent and untruthful evidence about his financial position (Reasons at [63]-[71]). 15 Importantly, insofar as the appellant's case hinged on his claim that he paid protection money, the Tribunal concluded that: "[b]ecause of the [appellant's] lack of credibility I am also not satisfied that he paid protection money to the police, army and Shi'a militias, or that he was accused of converting to the Sunni branch of Islam by Shi'a militias" (Reasons at [72]).

The Judgment Of The Primary Judge 16 The appellant's challenge to the Tribunal's decision in his Circuit Court application was based on three grounds. The primary judge rejected all three grounds: GBS18 v Minister for Home Affairs & Anor [2019] FCCA 850 (Judgment). It is, however, only necessary to consider the primary judge's findings in relation to the two grounds which are the subject of this appeal. 17 The first ground (which was ground 3 in the amended application filed in the Circuit Court) concerned the Tribunal's rejection of the appellant's claim that the militias demanded money from him for protection. The Tribunal's rejection of that claim was said to expose jurisdictional error because it was said to be "based on adverse findings of fact founded upon credibility, where the adverse findings as to credibility were founded simply upon an assessment as to whether the [a]ppellant is to be believed or disbelieved." 18 The primary judge rejected that contention. His Honour interpreted the ground as amounting to a claim of legal unreasonableness and found, in that context, that the Tribunal "provided logical and rational reasons in support of the adverse credibility findings" and that the adverse credibility findings were not "based on a generic lack of credibility by the [appellant], but rather reflected a reasoned analysis which was logical and rational in respect of the [appellant's] claims concerning extortion …": Judgment at [31]. 19 The second ground (which was ground 4 in the amended application) was that the Tribunal had failed to take into account the appellant's request that the Tribunal call evidence from the appellant's nominated witnesses, or declined to comply with the appellant's "wishes" in that regard. That was said to have been unreasonable and to have led to a decision which was "plainly unjust and lacking an evident and intelligent justification." 20 The primary judge rejected those contentions. His Honour found that it was apparent from the Tribunal's reasons that the appellant "did not press the Tribunal to call the three witnesses the subject of the response to hearing invitation, and that the Tribunal gave real and genuine consideration to the request and explored with the [appellant] the nature of the evidence that they may adduce and in fact, revisited the matter with the [appellant], and that the [appellant] identified he wished one brother to be called": Judgment at [33]. 21 The primary judge also noted that the appellant did not suggest, in his post-hearing submissions, that further evidence should have been called from the other two witnesses: Judgment at [34].

Grounds Of Appeal And Submissions 22 There were two grounds of appeal. The first related to the primary judge's rejection of the challenge to the Tribunal's finding concerning the so-called "[e]xtortion [c]laim". The second related to the primary judge's rejection of the appellant's contention that the Tribunal failed to have regard to his request to call his nominated witnesses, or that the Tribunal's rejection of that request was unreasonable. 23 As is so often the case in appeals from the Circuit Court in migration matters, the appellant's submissions in relation to both grounds of appeal focussed almost entirely on the Tribunal's decision and reasons. Little was said about the primary judge's reasons for rejecting the appellant's relevant contentions in respect of jurisdictional error on the part of the Tribunal. That is perhaps understandable, however, because, as is also so often the case, his Honour's reasons for rejecting the appellant's contentions were very brief and expressed in fairly bald and generic terms. There was little real analysis of the relevant legal principles or their application to the issues raised by the appellant's grounds of review. 24 In any event, the appellant submitted, in relation to the first of the two grounds, that the Tribunal did not engage in any "personal, logical and rational analysis" of the appellant's extortion claim. In the appellant's submission, while the Tribunal gave reasons in respect of its credibility findings concerning other claims made by the appellant, it "failed to set out reasons or [a] logical basis for the credibility finding … in relation to the Extortion Claim". Rather, contrary to the findings of the primary judge, the Tribunal dismissed that claim on the basis of "generic credibility findings". 25 While the appellant appeared to take issue with the primary judge's characterisation of his complaint concerning the Tribunal's rejection of his extortion claim as being one of legal unreasonableness, it is not difficult to see why the his Honour characterised the complaint in that way. In his oral submissions, the appellant characterised the essence of his complaint as being that there was a "lack of logical analysis" of this claim and an "absence of reasons that led the [T]ribunal to make those adverse credibility findings". The appellant submitted that the adverse credibility finding was, in effect, simply a finding that he was not to be believed and that such findings are "no more immune from judicial scrutiny than is any other finding of fact": SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089 at [20]. 26 The appellant also submitted that the Tribunal had failed to properly consider his extortion claim because it failed to grapple with why he was a target for extortion. The appellant relied, in support of that submission, on the decision of the Full Court in SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404; [2015] FCAFC 175 at [15]-[16]. It would appear that the appellant had put submissions based on SZTAP to the primary judge, though the primary judge appears not to have dealt with those submissions. 27 As for the second ground, the appellant contended that, contrary to the primary judge's finding, the Tribunal failed to give real and genuine consideration to the appellant's request to call the his nominated witnesses. Reliance was placed on the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118 at [38]. In the appellant's submission, because the appellant had given written notice to the Tribunal in accordance with s 426(2) of the Act, it was then up to the Tribunal to decide whether to call oral evidence from those witnesses. It was not for the Tribunal to effectively foist that decision back onto the appellant. It was said that that is what the Tribunal effectively did and that, as a result, it did not comply with s 426(3) of the Act. 28 It was also submitted that the Tribunal effectively misled the appellant into believing that he was only allowed to call one witness and he had to choose which one to call. It was on that basis that it was said that the primary judge erred in concluding that the appellant did not press the Tribunal to call all three of the witnesses. According to the appellant, the Tribunal failed to give any cogent reasons for not agreeing with the appellant's request and its response was arbitrary and unreasonable. It followed that the Tribunal's exercise of its discretionary power under s 426(3) of the Act was legally unreasonable.

Ground 1 - REJECTION OF THE EXTORTION CLAIM 29 The substance of this ground was that the Tribunal's rejection of the so-called "extortion claim" was illogical or unreasonable, or otherwise exposed jurisdictional error, because it was simply based on "generic credibility findings". 30 It may readily be accepted that adverse credibility findings are not immune from judicial scrutiny: SZVAP at [20]. It may equally be accepted that a decision by the Tribunal can be challenged in judicial review proceedings on the basis that an adverse credibility finding, or at least one which was material to the Tribunal's decision, was illogical, irrational or not based on probative material: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [75]. 31 It is critical to emphasise, however, that illogicality or irrationality in this context must mean something more than emphatic disagreement with the reasoning or findings: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [124] and [129]; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [61]. If "probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion": SZMDS at [131]. 32 It is also clear that for an administrative decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, "extreme" illogicality or irrationality must generally be shown, "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions": Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [148]. The "critical question" whether an administrative decision is irrational, illogical and not based on findings or inferences of facts supported by logical grounds, "should not receive an affirmative answer that is lightly given": SZMDS at [40]. A high degree of caution must be exercised before concluding that a finding is irrational or illogical in order to ensure that the Court does not embark impermissibly on "merits review": SZMDS at [96]; SZVAP at [14]-[15]. 33 There is, however, no merit in the appellant's contention that the Tribunal's rejection of his claim that he paid protection money was in any relevant sense irrational or illogical, or was not based on or supported by rational or logical analysis or reasoning. 34 The first point to note is that the appellant's arguments were to a large extent based on the premise that the appellant's claims concerning the payment of protection money to the militias was somehow separate or distinct from the other claims which founded his protection claims. It is, however, by no means entirely apparent that that was in fact the case. 35 While the appellant certainly claimed that he paid protection money to the militias, that claim appeared to simply form part of the background to the appellant's central claim: that he feared that he would be harmed by the Shi'a militias because he had paid money to the family of a soldier who had been killed at an incident at a checkpoint. That was why the three militiamen supposedly threatened him when they visited his shop on 25 January 2016. On the appellant's account, it also appeared to be the reason why shots were fired at him two days later. 36 It is true, as the Tribunal noted at [55] of its reasons, that the appellant had claimed that "he was 'afraid from the armed militias and the governmental forces because they were blackmailing us all those years and we have lived under continuous threats'." That was a reference to the last paragraph of the appellant's statutory declaration. Read in context, however, it is reasonably clear that the fears that the appellant was referring in that part of his statutory declaration were fears arising from the events that the appellant claimed had occurred in January 2016: the militiamen visiting his shop and the firing of shots shortly thereafter. 37 Whether or not the appellant's claims concerning the payment of protection money were a separate or distinct claim, or simply part of the background to his main claims, it is important to note that the appellant's evidence concerning this aspect of his case was very narrow in compass and was essentially limited to one very general assertion in his statutory declaration lodged in support of his visa application. It was never further developed, either in writing or orally, before the Tribunal. 38 In any event, however the appellant's claims concerning the payment of protection money can be characterised, it cannot, in all the circumstances, be concluded that the Tribunal erred in a jurisdictional sense in rejecting it. 39 The Tribunal gave detailed reasons for why it did not accept the appellant's evidence concerning the death of three soldiers during an incident at a checkpoint in mid-2015, his claim that he paid money to the family of one of those dead soldiers who was a Sunni and his claims concerning being threatened and fired upon, possibly by the members of the militias, soon account of his having paid that money. While not everyone may agree with the Tribunal's reasons for rejecting the appellant's claims concerning those matters, its reasons could not be characterised as being irrational, illogical or otherwise not open on the basis of the evidence. The appellant did not contend otherwise. 40 The Tribunal also gave detailed reasons for disbelieving the truthfulness and reliability of the appellant's evidence about other matters, in particular, evidence he had given about his financial position. The appellant does not contend that the Tribunal's findings concerning that evidence was illogical or irrational in any way. 41 In light of the Tribunal's findings concerning the appellant's evidence concerning the events of mid-2015 and January 2016, and his evidence concerning his financial position, it was open to the Tribunal to find that the appellant was not an honest or truthful witness generally. It was, in that context, equally open to the Tribunal to find that it did not accept the appellant's evidence, such as it was, that he had paid protection money to the police, army and Shi'a militias. There was nothing illogical, irrational or unreasonable about that reasoning. 42 Contrary to the appellant's submission, it was not necessary, in all the circumstances, for the Tribunal to give further reasons relating to its credibility finding specifically in the context of the appellant's claim about the protection payments. Nor, in the circumstances, was it necessary for the Tribunal to consider or discuss the appellant's claim in that regard in any greater detail. That is particularly so given that the appellant's evidence in relation to that claim was expressed in only the most general of terms in the statutory declaration lodged in support of his visa application, was not developed or expanded on, either orally or in writing, before the Tribunal and was plainly not the main focus of his case in support of a protection visa. This aspect of the appellant's claim was essentially just the backdrop to his overall claim that he feared harm from the militias as a result of the events of January 2016. In those circumstances, the suggestion that the Tribunal was required to give more detailed or expansive reasons for its rejection of this claim has no merit. 43 It should also be noted that, for the reasons essentially already given, the Tribunal's finding that it was not satisfied that the appellant paid protection money to the police, army and Shi'a militias was by no means a critical finding, or a finding which was an important, let alone, essential link in the Tribunal's reasoning for not accepting the appellant's claim that Australia owed him protection obligations. It follows that, even if, contrary to the findings that have been made, there was some flaw in the Tribunal's reasoning in arriving at this finding, that would not necessarily be fatal to the Tribunal's decision and would not necessarily establish jurisdictional error: Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210; [2016] FCA 516 at [52]-[56]; CQG15 at [60]. 44 As for the appellant's submission, based on SZTAP, that the Tribunal was required to "grapple with" why the appellant was a target for extortion, the problem for the appellant is that it was unnecessary for the Tribunal, in the particular circumstances of his case, to grapple with that issue. That is because the Tribunal found, in effect, that it was not satisfied that the appellant was a target for extortion at all. It did not accept the appellant's evidence that he was required to make protection payments. For the reasons already given, that finding was open to the Tribunal and not illogical or irrational. It could scarcely be said that the Tribunal was required to explore the issue further in those circumstance. 45 It follows that there is, in all the circumstances, no merit in the appellant's contention that the Tribunal's finding that it was not satisfied that he paid protection money was based merely on "generic credibility findings". Nor is there any merit in the contention that the finding was not supported by logical or rational reasoning. The primary judge was ultimately correct to find that there was no jurisdictional error exposed by the Tribunal's reasons for rejecting this minor aspect of the appellant's claims in support of his protection visa application. 46 The appellant's first ground of appeal is accordingly rejected.

Ground 2 - Failure or a refusal to call evidence from witnesses 47 There was no dispute that, in his response to the Tribunal's hearing invitation, the appellant advised the Tribunal that it requested it to take oral evidence from three witnesses: two of the appellant's brothers and his ex-brother in law. By reason of s 426(3) of the Act, the Tribunal was required to have regard to the appellant's wishes in that regard, but was not required to obtain evidence, orally or otherwise, from the nominated witnesses. 48 It is well settled that to satisfy the requirement in s 426(3) of the Act, the Tribunal must genuinely apply its mind to the contents of the notice and not merely "go through the motions": Maltsin at [38]; CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 at [44]. It must equally be accepted that, like other discretionary powers under the Act, the discretion to call or not call evidence from witnesses pursuant to s 426(3) of the Act must be exercised reasonably and according to the rules of reason and justice: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [24], [26], [63] and [65]. 49 The relevant questions, in this case, therefore, are whether the Tribunal gave genuine consideration to the appellant's wishes in relation to the calling of evidence from his three nominated witnesses and whether it ultimately exercised its discretion in relation to the calling of evidence reasonably. 50 The only indication of what transpired in relation to the calling of evidence from the appellant's nominated witnesses is the statements made in that regard by the Tribunal in its reasons. The appellant did not tender the transcript of the Tribunal hearing in the court below. Nor did he adduce any evidence himself about, for example, why it appears that he eventually decided not to ask the Tribunal to call evidence from two of the three witnesses he had initially nominated, or what the evidence of those witnesses would have been. 51 It should also be noted, in this context, that the appellant was represented by a migration agent at the hearing. The appellant did not adduce any evidence from the migration agent in the court below concerning the appellant's apparent decision only to have the Tribunal call evidence from one of the witnesses. 52 It would appear from the Tribunal's reasons that there were two relevant exchanges between the Tribunal and the appellant concerning his request for the Tribunal to call evidence from his three nominated witnesses. The first exchange appeared to occur towards the beginning of the hearing. The Tribunal's reasons recount that exchange as follows (Reasons at [14]): The [appellant] was advised that he had presented three telephone-contactable witnesses outlined and was asked what evidence he wanted them to give. He claimed that two were brothers and one an ex-brother in law. They knew everything about him and his story. It was put to him that it was his right to call witnesses but if they were all just going to say the one thing there wasn't much point in calling all three. He claimed that it was up to the Tribunal and it was put to him that a decision on who to call would be made later. 53 The second exchange occurred at the end, or towards the end, of the Tribunal's questioning of the appellant. The Tribunal's reasons recorded that exchange as follows (Reasons at [42]): He was asked if he wished to call the witnesses and he said it was up to the Tribunal. I said that it was up to the [appellant] as if it was only up to the Tribunal it would not be seeking to speak to the witnesses. He was again advised that it was up to him to request a witness be called. He was asked who he wished to call and he nominated the brother Khalid or Sabah (both in Iraq). Khalid was called and then stated that a car came to his mother's funeral with four men (one was armed) who asked about Salah, his brother. Since then he had told his relatives to be careful. 54 It would appear from that passage that the appellant's brother's evidence was essentially limited to an incident which occurred at the appellant's mother's funeral. It did not touch on the January 2016 incidents which were central to the appellant's claims. The Tribunal also questioned the appellant's brother concerning the appellant's finances. 55 The appellant had also given evidence concerning the incident of his mother's funeral. That evidence appears to have been given in response to the Tribunal's questioning about why his family had not moved away. That evidence was that there was a "confrontation" between the militias and the appellant's brother at his mother's funeral. The militias wanted to know where the appellant was but did not do anything to his brother. His brother had nevertheless reported the militias to the police after the funeral. It would also appear that the appellant provided the Tribunal with a police report of the funeral incident. 56 The Tribunal ultimately did not accept the evidence concerning the funeral incident. It gave little weight to the police report, apparently on the basis that document fraud is prevalent in Iraq and "the document could have been prepared on any home computer" (Reasons at [61]). The Tribunal took into account the "corroborative evidence" given by the appellant's brother but gave it "little weight" given the "clo[s]e family relationship between the two" (Reasons at [61]). 57 There are some aspects concerning the Tribunal's approach to the calling of evidence from the appellant's nominated witnesses which, at first blush at least, appear to be somewhat troubling. 58 The first troubling matter is the Tribunal's statement to the appellant (recorded in Reasons at [14]) that if the three witnesses "were all just going to say the one thing there wasn't much point in calling all three". There are a number of difficulties with that statement. First, there is no indication that the three witnesses were all "just going to say the one thing." All that the appellant had said was that the witnesses "knew everything about him and his story". It is unclear why the Tribunal drew what appeared to be a rather negative inference. Second, this statement could perhaps be seen as capable of persuading the appellant not to call evidence from the witnesses. 59 Third, the statement was, in any event, misconceived and somewhat ill-advised. It suggested that, if the witnesses all gave the same or similar evidence, it would not advance the appellant's case or assist the Tribunal. That, however, may not have been the case. It would depend very much on what their evidence was. If all three witnesses gave broadly similar evidence concerning an incident which they all witnessed, and that evidence corroborated the appellant's account, it could not necessarily be said that there was no point in calling all three. That is all the more so if the Tribunal had any doubts about the appellant's evidence concerning that incident. The evidence of three separate corroborative witnesses in that regard could be compelling unless there was some reason to doubt the reliability and credibility of all three. 60 The second troubling matter is the Tribunal's statement (again recorded in Reasons at [14]) that it was the appellant's "right to call witnesses". That would tend to suggest, contrary to s 426, that it was ultimately up to the appellant, not the Tribunal, to decide whether the Tribunal would take oral evidence from the witnesses. 61 The third troubling aspect concerns the Tribunal's statement (recorded in Reasons at [42]) that "if it was only up to the Tribunal it would not be seeking to speak to the witnesses". That statement, considered in isolation at least, would again tend to suggest that it was up to the appellant, not the Tribunal, to decide whether oral evidence should be obtained from the witnesses. Perhaps more significantly, it may also suggest, again if considered in isolation, a degree of prejudgment on the part of the Tribunal in respect of the evidence that those witnesses might give; that the Tribunal saw no point in taking evidence from them. That might have influenced the appellant not to press the Tribunal to take evidence from them. 62 Considered fairly and in context, however, those statements apparently made by the Tribunal are not demonstrative of error by the Tribunal in its approach to s 426 of the Act. Nor is it possible to conclude, in the absence of any further evidence, that any error by the Tribunal in its approach to or application of s 426 of the Act was material and was therefore jurisdictional in nature. 63 There could be little doubt that the Tribunal was aware that the appellant had given it written notice, in accordance with s 426(2), that he wanted the Tribunal to obtain oral evidence from the three witnesses. That is the only sensible way to read the Tribunal's statement (Reasons at [14]) that the appellant was advised that "he had presented three telephone-contactable witnesses". The Tribunal's approach to the question as to whether oral evidence should be taken from those witnesses was twofold. 64 First, the Tribunal asked the appellant what evidence the he expected that those witnesses would give. That was an entirely reasonable question to ask and was indicative of the fact that the Tribunal knew that ultimately was a matter for it to decide whether to call oral evidence from those witnesses. It could not reasonably make that decision unless it had some idea what evidence it was expected that those witnesses would give. 65 Unfortunately, the appellant's response was not helpful. He simply said that the three witnesses "knew everything about him and his story". It was in that context that the Tribunal apparently said something along the lines that "if they [the three witnesses] were all just going to say the one thing there wasn't much point in calling all three". Considered in context, the Tribunal's statement to that effect, while not strictly accurate and somewhat unhelpful, was nevertheless understandable and fairly benign. It was in effect simply a response to the appellant's unhelpfully vague and generalised indication of what he expected the evidence of the witnesses to be. 66 Second, the Tribunal asked the appellant whether he still wanted to call the three witnesses who he had nominated in his response to the hearing invitation. While by virtue of s 426(3) of the Act it was ultimately up to the Tribunal to determine whether oral evidence should be taken from the appellant, it was by no means unreasonable or erroneous for the Tribunal to seek to ascertain whether the appellant still wanted it to call evidence from the witnesses he had nominated some time previously. Obviously if the appellant indicated that he no longer wanted the Tribunal to take oral evidence from some or all of the witnesses, that would have been a relevant consideration for the Tribunal to consider in making its decision as to whether oral evidence should be taken from the witnesses. 67 Unfortunately, the appellant's response was again unhelpful. It would appear that he simply said that it was "up to the Tribunal" (Reasons at [14] and [42]). The Tribunal's statement that "if it was only up to the Tribunal it would not be seeking to speak to the witnesses" must be considered in that context, as well as in the context of what the Tribunal apparently said next, which was that it was "up to him [the appellant] to request a witness be called". When read in context, it is tolerably clear that all the Tribunal was seeking to do was to ascertain whether the appellant still wanted the Tribunal to take oral evidence from the three witnesses who he had earlier nominated. Given the vague and generalised indication that the appellant had given about what evidence he expected those witnesses to give, and the rather ambivalent and equivocal response the appellant had given to the Tribunal's question as to whether the appellant still wanted evidence to be taken from those witnesses, it was not unreasonable or erroneous for the Tribunal to press the appellant to be clear about whether he still wanted those witnesses to be called. 68 The appellant ultimately indicated that he wanted the Tribunal to call only one of his brothers (Reasons at [42]). It appears, therefore, that he did not press the Tribunal to call all three witnesses he had earlier nominated. Contrary to the appellant's submissions, the primary judge did not err in so concluding (Judgment at [34]). It was open to the primary judge to infer that from what is recorded in the transcript. Nor is there any basis for inferring or concluding that the appellant chose not to press the Tribunal to call all three witnesses because he was somehow pressured by the Tribunal not to do so, or was otherwise misled by something that the Tribunal had said to him. It should be emphasised, in that context, that not only did the appellant not tender the transcript of the Tribunal hearing, he also did not give evidence before the primary judge about his apparent decision not to press the Tribunal to call all three witnesses. If the appellant wanted to establish that he in fact did wish the Tribunal to call all three of the witnesses he had earlier nominated, in the circumstances it was incumbent on him to adduce evidence to that effect. 69 There is, in all the circumstances, no basis or reason to conclude, as the appellant contended, that there was some "confusion" on the part of the Tribunal as to who was to make the decision as to whether oral evidence was to be taken from the three witnesses nominated by the appellant in his response to the hearing invitation. Nor is there any basis upon which to conclude that the Tribunal failed to give real and genuine consideration to the appellant's "wishes" in relation to the calling of evidence from the three witnesses. The Tribunal asked the appellant what evidence those witnesses were expected to give, and received a vague, general and unhelpful response. The Tribunal also asked the appellant whether he still wished it to take evidence from all three witnesses and received an ambivalent and equivocal response. A fair reading of the Tribunal's reasons indicates that the appellant ultimately indicated that he only wanted the Tribunal to take oral evidence from one of the witnesses he had previously nominated. Oral evidence was taken from that witness. The Tribunal plainly had regard to the appellant's "wishes" in that regard. 70 It follows that the appellant's contention that the Tribunal misconstrued or misapplied or failed to comply with s 426 of the Act must be rejected. 71 It should finally be noted that, even if the appellant had been able to demonstrate that the Tribunal had somehow misconstrued or misapplied or failed to comply with s 426 of the Act, it was nevertheless incumbent on him to demonstrate that the Tribunal's error in that regard was material, in the sense that compliance could realistically have resulted in a different outcome. It is, in all the circumstances, difficult to see how any non-compliance with s 426 of the Act in the appellant's case was material in that sense. There was no real indication of what evidence the two witnesses who were not called could or would have given, other than that it was essentially to the same effect as the evidence given by the witness who was called. That evidence concerned an extremely peripheral incident or event. It did not directly relate to the incidents and events that occurred in January 2016 which were central to the appellant's case that he should have been granted a protection visa. It follows that even if the appellant had demonstrated some error by the Tribunal in relation to the calling of the other witnesses, he would not in any event have demonstrated that the error was a jurisdictional error. 72 The primary judge was ultimately correct to reject the appellant's review grounds based on s 426 of the Act. The appellant's second ground of appeal has no merit and is rejected.

CONCLUSION AND DISPOSITION 73 The appellant failed to demonstrate any appellable error by the primary judge. The primary judge was ultimately correct to reject the two grounds of review that were the subject of the appellant's appeal. The appellant failed to demonstrate any jurisdictional error on the part of the Tribunal. His appeal must accordingly be dismissed with costs. I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.

Migration Act 1953(Cth)

Migration Act 1958(Cth)ss 36(2), 426, 426(2), 426(3), 476

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