Case: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407
Outcome: considered
Counsel for the Minister drew attention to Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 52 at [36] (O'Connor J), Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 at [24] (Spender, O'Connor and Emmett JJ), and Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at [64] - [66] (McHugh J sitting as a single justice of the High Court), in support of the contention that s 430 of the Act does not impose any duty to deal with adverse material. Counsel submitted in that regard that '[t]he significance of these authorities is that it is not open to a court to infer from the fact that evidence adverse to the findings made by a Tribunal has not been mentioned that it has not been properly considered'. 22 In Durairajasingham [2000] HCA 1 ; 168 ALR 407 at [64] - [66] , McHugh J observed as follows: '[64] There is some authority in the Full Court of the Federal Court for the proposition that s 430(1) requires the reasons of the tribunal to refer to evidence contrary to findings of the tribunal. However, the contrary view was taken by differently constituted Full Courts in Ahmed v Minister for Immigration and Multicultural Affairs , Addo v Minister for Immigration and Multicultural Affairs and Sivaram v Minister for Immigration and Multicultural Affairs. In Addo, the court said : Section 430 (1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act. ... It is not necessary, in order to comply with s 430(1) , for the tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made. [65] In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d). However, the obligation to set out "the reasons for the decision" (s 430(1)(b)) will often require the tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons. But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal... . [66] In this case, the tribunal made an express finding that it did not accept the prosecutor's wife's evidence. That was sufficient to comply with the requirements of s 430(1). ' 23 His Honour's qualifications the subject of para [65] above have a material bearing upon the somewhat unusual circumstances of this case, 'unusual' in the sense of the extent of public profile of the putative refugee and of the evidentiary basis for his fear of persecution. His Honour's observations do not provide sufficient support for the Minister's submission. As I would read the thrust of the foregoing dictum of McHugh J in Durairajasingham , his Honour's emphasis appears to be on the need for the Tribunal to make clear the nature and extent of its reasons for rejection of evidence placed before it going to material issues in the proceedings, which, if accepted, would be susceptible to producing an ultimate outcome different to that which was reached. Counsel for the Minister further submitted in any event that the Tribunal did have 'regard to the "material supplied by the appellant" and specifically referred to "various media reports from Sri Lanka" submitted by the appellant', and reliance was placed in that regard by the Minister upon page seven of the Tribunal member's reasons for decision, which included the following observations: '[t]he applicant also submitted other documents to the delegate, including: ... 4. Various media reports from Sri Lanka ... The delegate found that the threats that the Applicant alleged he had received were not politically-motivated and therefore not Convention related.' However, the issue remains as to adequacy or otherwise of the consideration afforded to the specific evidentiary material.