Case: WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912
Outcome: cited
the Federal Magistrate it was contended that the June 2008 letter provided corroborative evidence and had been rejected upon a " positive basis " which had not been put to the Applicant. In advancing this contention, reliance was placed upon the following observations of French J (as His Honour then was) in WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912: [36] Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party's credibility. In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness. This is just a special case of the general proposition that procedural fairness does not require the decision-maker, in this case the Tribunal, to invite comment upon its thought processes on the way to its decision. But where corroborative evidence is rejected on the basis of a finding of fraud or forgery or on some other positive basis which has never been put to the tendering party there may be a failure of procedural fairness. Such a failure may have very practical effects for it means that the corroborative material is never weighed in the balance of the general assessment of the tendering party's credibility. The Federal Magistrate concluded: [42] The June 2008 Letter clearly contained a spelling mistake in its last sentence and the name of the author was spelt differently in the June 2008 Letter. Whilst the Tribunal stated that it did not give the June 2008 Letter any weight and stated that the June 2008 Letter was " dubious in other ways ", the Tribunal referred in particular to the blacked out banner and the spelling mistakes. Certainly, it was open to the Tribunal to have regard to the spelling mistakes in characterising the letter as " dubious ". The blacked out banner, whilst forming part of the Tribunal's expression that the June 2008 Letter was " dubious ", did not cause the Tribunal to find that the June 2008 Letter was a forgery. Rather, the weight given by the Tribunal to the content of the June 2008 Letter provided no support to the " genuineness " of the Applicant's claims that his father was a vice president of the local Awami League. [43] In the circumstances, I am satisfied that the consideration by the Tribunal of the June 2008 Letter did not reflect a positive finding that the document was not genuine. Rather, the June 2008 Letter was simply a document that the Tribunal did not find provided any further corroborative evidence in respect of the Applicant's claims. With great respect to the learned Federal Magistrate, any conclusion as to whether or not there has been jurisdictional error by reason of a denial of procedural fairness is not to be confined to those circumstances where there has been " a positive finding that [a] document was not genuine ". If the weight to be given to any particular document or letter is to be affected by reasons other than those previously canvassed during the hearing, it is obviously a far preferable course for those other reasons to be disclosed and an opportunity expressly provided to respond to those reasons. Once such an opportunity has been provided, it is thereafter a matter for the Tribunal alone to give to the evidence before it such weight as it sees fit ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 291 to 292 per Kirby J), consistent with its duty to undertake a hearing de novo : ( SBLF v Minister for Immigration and Citizenship [2008] FCA 1219 , 103 ALD 566 per Gray J). However, no requirement is imposed upon the Tribunal to allow an applicant an opportunity to comment upon what are essentially its own thought processes ( SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] , [2007] HCA 26 ; 96 ALD 1 at 8, approving VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24] , [2004] FCAFC 123 ; 206 ALR 471 at 476 to 477 per Finn and Stone JJ; WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 per French J, as His Honour then was, at [36]; Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046 , 47 AAR 314.