Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407
Outcome: cited
conclusions and findings of the Tribunal arising out of its evaluation of the evidence were plainly open to it having regard to the reasons identified by the Tribunal for reaching those conclusions. The appellant now contends that the real case having regard to the correct or expanded facts concerning his background circumstances and the full scope of the relevant facts giving rise to a well-founded fear of persecution, were not put to the Tribunal. Two things should be noted in this respect. Firstly, the Court's role on appeal is to determine whether the judgment of the Federal Magistrates Court of Australia reflects error on the part of that Court. To the extent that the appellant now wishes to contend for error on the basis of the merits of the factual evaluation by the Tribunal, no such ground of appeal is open to the appellant. An adjournment of the hearing would not be of any utility if the purpose of that adjournment is to enable the appellant to mount a challenge to the merits of the Tribunal's decision on the footing that the Federal Magistrates Court fell into error by failing to find error on the part of the Tribunal in the weight and emphasis it attributed to particular facts put before it. The finding made by the Tribunal as to the credibility of the appellant and the creditworthiness of his version of the facts, is an emblematic finding of fact in the sense described in the well known passage from the judgment of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at [67] . Secondly, the desire of the appellant to put a consolidating and in some respects new and expansive statement of facts to the Court is not a basis upon which error on the part of the Federal Magistrates Court can be made out or jurisdictional error made out on the part of the Tribunal in reaching its decision. The ground of appeal relied upon by the appellant is that the Tribunal adopted a methodological or procedural approach to the gathering of evidence so as to inform itself about aspects of the appellant's contentions, which was not authorised by the Migration Act . It follows, it is said, that in gathering the evidence, the Tribunal stepped outside its statutory powers and thus exceeded its jurisdiction. The enquiries made by the Tribunal were these. On 31 August 2004, Taran Ramrakha, a senior researcher employed by the Tribunal, wrote to the Dir Area Development Organisation seeking information in relation to aspects of the appellant's claims put to the Tribunal. On 31 August 2004, Taran Ramrakha also wrote to the Human Rights Commission of Pakistan , the Revolutionary Association of the Women of Afghanistan and the Aurat Publication and Information Service Foundation . By each of these letters, the Tribunal sought to inform itself about aspects of the contentions made by the appellant for the purposes of the review proceeding before the Tribunal. On 6 January 2005, the Tribunal wrote to the appellant pursuant to s 424A giving details of information the Tribunal had received in response from each of these organisations.