Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1165
Outcome: considered
Any assessment of the impact, in terms of an apprehended bias challenge, of the Tribunal's treatment of the Hospital Document and the Labour Reform Camp Document must be guided by the cautionary note sounded by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 ; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1165 at 1174, [49]. "[49] In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant." (Emphasis added) 59 On one view of matters, that is all that the Tribunal has done here. It is possible to discern differences of detail in respect of an event or experience both within the applicant's evidence at the Tribunal hearing and as between that evidence and that given in other material submitted either with the initial protection visa application or later. Such differences certainly could provide a basis for a finding about the applicant's credibility and an affording of no weight to seemingly corroborative documents. In relation to the apprehended bias challenge, the factors are certainly not all one way. 60 Yet the Tribunal's findings concerning the credibility of the applicant's account have themselves been influenced by comparison with inferences that the Tribunal drew from an inspection of the Hospital Document and the Labour Reform Camp Document. This interplay in my opinion distinguishes the present case from the position described by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 in the passage quoted above. 61 The Tribunal rightly acknowledged, explicitly, that the general information that it had from the Australian Embassy concerning document fraud in China did not mean that all documents from that country were fraudulent. Possession of such information reasonably puts any administrator on guard, but nothing more than that, in relation to particular documents. 62 The Tribunal's perception of the genuineness of the applicant's account of his beating at the hands of the police, as well as of the Hospital Document itself, was expressed to be influenced by the fact that this document did not state a cause for the injury. That is true, but the Tribunal had no material before it as to whether it was the usual practice in this or any such Chinese hospital to record a cause, especially when this would record an injury inflicted on a citizen at the hands of State officials.