Case: Minister for Immigration and Multicultural Affairs Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59
Outcome: cited
proper approach and one in which the resolution of this appeal is to be found is identified by Gleeson CJ in Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at [12] to [14]: [12] It was contended that [the relevant passage] shows that the Tribunal member adopted a flawed approach to her evaluation of the evidence, failing to assess the evidence of the applicant/appellant in the light of the corroborating evidence, and giving no weight to the evidence of the corroborating witness for reasons that had nothing to do with the quality of that evidence. The essence of the complaint is that the Tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant. I do not accept that this is a fair criticism of the Tribunal's reasons. In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant's story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness. [13] Upon analysis, the complaint is that the Tribunal member did not have regard to the whole of the evidence before deciding whether she believed the applicant/appellant, and did not properly assess the significance of the evidence of the corroborating witness. I am not persuaded that this criticism is justified. [14] Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him. At [49], McHugh and Gummow JJ put the matter in these terms: 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 processors (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 s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant. In this case, the Tribunal comprehensively examined the primary case first put by the appellant. The Tribunal considered the evidence of the witnesses called by the appellant and reached the conclusions already identified. The Tribunal did not simply ignore the evidence in the sense contemplated in Minister for Immigration v Yusuf (supra). The point of principle referred to in the reasoning of the Chief Justice in Applicant S20/2002 remains determinative, whether the particular evidence is a document or a statutory declaration or embraces oral evidence. In this case, the Tribunal elected to accord the evidence of the witnesses called in support of the appellant's evidence, little weight, having duly considered the evidence. It did so on the footing that the evidence did not assist the Tribunal in resolving its concerns about the reliability and creditworthiness of the appellant. That conclusion was open to the Tribunal on the evidence and the treatment of the evidence is consistent with the principles established in Ex parte Applicant S20/2002 . Accordingly, the appeal must be dismissed. I certify that the preceding forty (40) numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 20 May 2009 Counsel for the Appellant: Appellant represented by her solicitor Solicitor for the Appellant: Mr N Newman, Solicitor, Newman &amp; Associates Counsel for the First Respondent: Mr G Kennett Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Second Respondent abiding by decision Solicitor for the Second Respondent: Second Respondent abiding by decision Date of Hearing: 12 September 2008 Date of Judgment: 20 May 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/517.html