Case: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 , 75 ALD 630
Outcome: cited
requirement that there be " a reference to the evidence or other material on which those findings were based " has received arguably less consideration than other aspects of s 43. It is, however, clear that the requirement that there be " a reference to the evidence " does not impose a requirement that the Tribunal refer to every piece of evidence relevant to a particular finding: cf Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46] , [2003] FCAFC 184 ; 75 ALD 630 at 641 per French, Sackville and Hely JJ. And the requirement to make " a reference to the evidence " is confined to a requirement that there be a reference to the evidence of " those findings ", namely the Tribunal's findings " on material questions of fact ". In Applicant WAEE , their Honours made reference to whether an " issue has at least been identified at some point ". A mere passing reference to evidence, however, may not be sufficient compliance with the requirements imposed by s 43(2B). The mere fact that an administrative tribunal refers to information or evidence does not of itself mean that the tribunal has given that evidence proper consideration: SZGYT v Minister for Immigration and Citizenship [2009] FCA 705 at [24] per Edmonds J. But s 43(2B) does not impose any constraint as to the manner in which the Tribunal is to make " reference " to either evidence or other material upon which it proceeds to " base " its findings. The greater the conflict in the evidence, the greater may be the need for the Tribunal to make " reference " to the conflicting evidence and to set forth that evidence upon which it proceeds to " base " its findings, and to set forth its reasons for rejecting some evidence and accepting other evidence: Copperart Pty Ltd v Commissioner of Taxation [1993] FCA 462 ; (1993) 30 ALD 377 per Hill J. Although there is no necessity for the Tribunal to refer to every piece of evidence adduced before the Tribunal, a failure to advert to relevant evidence may lead to a conclusion that it has been ignored: Waldron v Comcare Australia [1995] FCA 1154 ; (1995) 37 ALD 471 at 477 per Burchett J; Centrelink v Dykstra [2002] FCA 1442 at [20] . As observed by French, Sackville and Hely JJ in Applicant WAEE , supra : [46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact ... and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. ... It is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. A failure to refer to material which is " fundamental " may lead to a conclusion that there has been jurisdictional error: WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319 at [21] per Lee, Carr and Tamberlin JJ.