Case: NAOA v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 241
Outcome: distinguished
This raises the question whether, in these circumstances, the appellant was required to prove conclusively, by tendering the transcript, that he did not provide information orally to the Tribunal from which it could have gleaned his approximate departure date. The respondent says that, in the absence of a transcript, the Court cannot conclude that such information was not provided by the appellant to the Tribunal at the hearing. The respondent says that the onus lies upon the appellant to provide the transcript as proof that the information was not provided to the Tribunal orally, and in the absence of the transcript, it is not open to the Court to infer that the information was not provided: see NAOA v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 241 at [21] per Beaumont, Merkel and Hely JJ. 26 The Full Court in NAOA was dealing with a claim of procedural unfairness, based upon the fact that certain matters had not been put to the appellant at the Tribunal hearing. The Full Court observed at [21]: 'For one thing, as the respondent submitted, the appellant's case is premised upon an assumption (that was also made by the learned Magistrate, albeit on a tentative basis), namely, that the Tribunal had not raised the issue of the authenticity of certain documents with the appellant at the hearing. However, his Honour did not make a finding in relation to this matter. Driver FM observed that this "appeared" to be the case "from the record of the [Tribunal] decision". On the evidence before his Honour, it was not open to him to have made a finding that this issue had not been canvassed. His Honour had no transcript. (As mentioned, the tape is before us and we refer to it below.) The appellant had not given any evidence (in affidavit form or orally) to the effect that this issue had not been raised. There was simply no basis upon which his Honour could properly have made this finding. His reasons should not be read as if he did so. In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice.' 27 The situation in the present case is different from the position in NAOA . In NAOA , the Court found that there was no evidence which indicated whether the matter had been raised with the appellant by the Tribunal. In the present case, however, the Tribunal's reasons for decision clearly record that the appellant was questioned with respect to his departure date but was unable to provide that information to the Tribunal orally. The reasons specifically refer to information contained in the application form. The Tribunal's reasons themselves are evidence which suggests that the Tribunal did not receive the evidence orally from the appellant, but instead relied upon a document to which obligations under s 424A(1) and (2) applied. 28 I consider that the appellant was entitled to rely upon the reasons as evidence that the information had not been provided under s 424A(3)(b). The reasons directly touched upon the subject under dispute. If the transcript indicated a different position, then it was open to the respondent to tender it. However, in the absence of the transcript, the reasons of the Tribunal themselves provide, in my opinion, sufficient evidence for me to arrive at a conclusion that the information had not been provided to the Tribunal by the appellant as contemplated by s 424A(3)(b). 29 This is not to say that in all, or even most cases, it will be sufficient for the appellant to rely upon the reasons for the Tribunal alone. It is not the obligation of the Tribunal to refer in its reasons to the source of each part of the information upon which it relies. The present appeal is a rare case in which the Tribunal has specifically referred in its reasons to the very source of the information under consideration. Where the Court is unable directly to draw a conclusion from a Tribunal's reasons as to the source of the Tribunal's information, it is ultimately the responsibility of an appellant to ensure the transcript is provided if he or she wishes to argue that the information could only have been sourced from documents to which obligations under s 424A(1) and (2) applied. 30 Nonetheless, the Tribunal's reasons for decision themselves should not be ignored as evidence of the source of the Tribunal's information. The Full Court in NAOA , in noting that the appellant had not provided oral or affidavit evidence on the issue, explicitly recognised that there were forms of evidence other than the transcript which might enable a conclusion to be drawn about the oral evidence given at the Tribunal hearing. Since it may not always be clear when a conclusion can be reached upon the reasons alone, I consider it would be prudent to tender the transcript in all cases where a breach of s 424A is relied upon, or to incorporate the transcript into the appeal book where such a ground is raised.