Case: NAHI v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 10
Outcome: cited
The weight the Tribunal accords the material before it is ultimately a factual matter for the Tribunal ( Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 ; Minister for Aboriginal Affairs &amp; Anor v Peko-Wallsend Limited &amp; Ors (1985 1986) [1986] HCA 40 ; 162 CLR 24 ; Tefonu Pty Limited v Insurance &amp; Superannuation Commissioner [1993] FCA 412 ; (1993) 44 FCR 361 ; NBKT v Minister for Immigration &amp; Multicultural Affairs [2006] FCAFC 195 ; (2006) 93 ALD 333). Whatever the boundaries of jurisdictional error might be, they do not comprehend errors of fact as to the merits of the case put to the Tribunal nor the weight to be attributed to evidence going to the issues raised before the Tribunal ( NAHI v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 10 per Gray, Tamberlin at Lander JJ at [10]). An appellant's disagreement with the conclusion reached as a result of the assessment of the weight to be attributed to particular material and the fact-finding by the Tribunal does not amount to an error of law ( Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272). In addition, there is no error of law in the Tribunal making a wrong finding of fact ( Abebe v Commonwealth of Australia [2004] HCA 32 ; (1999) 197 CLR 510 at 560 [137] . As to reliance upon 'country information' or any other information, the Full Court made these observations in NAHI at [11], [12] and [13] of the reasons: 11. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on 'country information'. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to 'guidance', as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on 'country information' that is not true. The question of the accuracy of the 'country information' is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of 'country information', it would be engaging in merits review. The Court does not have power to do that.' 12. ... The very function of the Tribunal was to assess the appellants' claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the appellants' country of origin. 13. It is clear from the reasons for decision that the Tribunal did rely on 'country information' in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.