Case: NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
Outcome: discussed
to a particular issue in the reasons for decision of a Tribunal may provide a basis upon which a conclusion may be reached that that issue was in fact addressed and considered during the course of a Tribunal hearing. But the difficulty in drawing an inference that an issue was not addressed because of the absence of any reference to that issue in the reasons for decision of a Tribunal is a difficulty that has been adverted to by the Full Court in NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241. When addressing a submission that an inference should be drawn that the Tribunal did not raise an issue with the appellant, Beaumont, Merkel and Hely JJ there observed: [21] We cannot accept this submission, for several reasons. 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 appelant [ sic ] 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. Their Honours were obviously directing attention to the facts then before the Court. But the caution expressed as to the dangers in too readily drawing inferences from an incomplete factual foundation is to be heeded. The decision in NAOA has since been followed: NBBO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1132 at [31] per Conti J. The Full Court, it has also been said, " simply made its comments based on the particular facts of that case ": SZJYA v Minister for Immigration and Citizenship (No 2) [2008] FCA 911 at [32] , 102 ALD 598 at 606 per Rares J. In an appropriate case, inferences may be drawn from an account given by a Tribunal member: e.g. Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 at [28] to [30] [2004] HCA 62 ; , 221 CLR 1 at 10 to 11 per McHugh, Gummow, Callinan and Heydon JJ. Whether an inference is or is not available must obviously depend upon the facts and circumstances of each individual case. The difficulties adverted to by the Full Court in NAOA are only compounded in the present appeal when attention is directed to the Tribunal's reasons for decision and its account as to that which occurred during the course of the three hearings &#8212; the first being held on 23 June 2008, the second on 10 July 2008 and the resumed hearing on 24 July 2008. The first hearing took some 3 hours, the second some 2.5 hours and the third some 2 hours. Notwithstanding the length of each of the hearings, the Tribunal's summary of that which occurred was somewhat brief. No criticism is made of the Tribunal in so summarising the events that took place before it. But the very fact that the summary provided is necessarily so brief renders it very unsafe in the present proceeding to draw any inference that a particular issue was not addressed because it is not mentioned in the summary provided. Second, if a process of inference were engaged in, it would tell against the Appellant. Submissions advanced on behalf of the Appellant after the conclusion of the hearing thus addressed the question as to the Appellant's religious practices, including a submission stating in part as follows: In this matter, if you find that the applicant is a genuine Christian who is opposed to practicing [ sic ] his faith outside the State sanctioned religious institutions in the PRC, you must assess the extent of this commitment and whether he has a well-founded fear of being harmed as a consequence of his commitment to the practice of his faith in this manner. The Tribunal has been presented with a considerable amount of evidence from people who know the applicant in Australia and who knew him in the PRC. This evidence has been to the effect that the applicant has engaged in the practice of his Christian faith outside the confines of the State sanctioned religious institutions in the PRC for most of his life. With the exception of a brief period in Australia, the applicant has always practiced his faith publicly by attending religious services. The evidence of Rev. Lawrence in this regard is that the applicant has been a regular attendee at his church for more than 7 years. In our submission, the Tribunal ought to accept that the applicant is someone who has demonstrated a commitment to practicing his faith outside the confines of the State sanctioned religious institutions in the PRC and that he would continue to practice his faith in this manner in the future, even if he were returned to the PRC. If an inference were drawn, it would be an inference that the now Appellant recognised that an issue needing to be addressed was whether or not the Tribunal should find that he was " a genuine Christian ". Attempts by the Appellant to characterise this and other such submissions as more directed to the nature of the religious activity practised, as opposed to whether or not the Appellant was a genuine Christian, are rejected.