Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1
Outcome: cited
It is, in my view, unsurprising that (i) no issue was raised before the Federal Magistrate as to the fairness of the Tribunal's proceedings, and (ii) it was not contended that the appellant was denied the opportunity required by s 425 or that he was not alerted to the issues that arose in the review. He was clearly put on notice that the Tribunal had difficulties "with his account of events" and the bases of those difficulties were revealed in his answers to the Tribunal's questions. He was given the opportunity to give further evidence "about claims you don't think we've covered". He was alerted to the possibility that he might be disbelieved. In consequence he suffered '[n]o practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at [38] ; from the manner in which the review hearing was conducted and his application determined. I do not consider that he can derive any comfort from s 425. 38 Counsel for the appellant stated in submissions that he only became aware of what he perceived to be the natural justice vice in the matter when the learned Federal Magistrate was giving his extempore judgment and was understood to be making references to the Tribunal's having had regard to inconsistent statements. There are two in particular I highlighted earlier in these reasons. It is necessary to refer again to them and to the contexts in which they were made. The first is at [26] of the reasons. Having indicated at [25] that the Tribunal's inconsistencies comment was made with s 424A in mind, his Honour considered that the purpose of the comment was to explain why the Tribunal had not felt it necessary to serve a s 424A notice. His Honour went on to say: "I find confirmation of this understanding of the paragraph in the Tribunal's subsequent reasons, rather than the converse. The first reason given by the Tribunal for rejecting the applicant's credibility was that he was 'unprepared to be tested on the specific details of his claim and found it difficult to fabricate those details because he had no experience to draw upon to give that specific evidence' . This indicates that the Tribunal drew a general conclusion about the content and manner of the applicant's responses to its questioning upon the contents of his original visa statement. The Tribunal then explained specific elements in his responses to questions which it found detracted from his credibility." (Emphasis added.) 39 The respondent Minister does not concede that this amounts to a finding that the Tribunal itself found inconsistency between the statement and the oral evidence. Rather, it says no more than that the statement provided the source, inspiration or prompt for the Tribunal's questioning, but that the general conclusion drawn was based on the content and manner of his responses to its questioning which the Tribunal then enlarged upon. 40 I can only say that I agree completely with the Minister's contention. As his Honour had earlier observed of the inconsistencies comment: "I consider that the paragraph indicates no more than, as is apparent from the Tribunal's subsequent reasoning, that it was able to determine the lack of credibility of the applicant's claims by an assessment of the evidence he gave at the hearing, without a need to rely upon inconsistencies between that evidence and his original visa statement." 41 The second alleged finding of the Federal Magistrate to the effect that the Tribunal had regard to inconsistent statements was no more than a dictum and a speculative one at that. His Honour stated at [29]: "I am inclined to read the Tribunal's reference to 'I do not accept that the applicant was a member, a supporter or even had a passing interest in any of the Marxist parties operating in Kerala at the time the applicant was at school' , in combination with the Tribunal's reference to the applicant's lack of knowledge of the Marxist or Communist Party in Kerala, as an oblique rejection of the applicant's original suggestion that he had been attracted by Marxist ideology [which was made in his visa statement]." (Emphasis added.) 42 Again the Minister denies this is a finding of reliance upon inconsistencies. Rather it is an observation to the effect that the lack of knowledge the appellant displayed at the hearing, belied any claim he may ever have made actually to have had an interest in Marxism. Again I agree with this contention. 43 For my own part I do not consider that the reasons of the Federal Magistrate betray in any event the vice alleged in the proposed ground of appeal. Ex tempore judgments have on occasion to be read with some generosity. They should not be read selectively and with a predisposition adverse to its correctness. 44 As I do not consider that the proposed amended ground of appeal has any reasonable prospect of success, I do not consider it to be in the interests of justice to grant leave to amend the notice of appeal. Accordingly, I will order that (i) leave to amend the notice of appeal be refused and (ii) the appeal be dismissed with costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 13 August 2007 Counsel for the Appellant: Mr R Killalea Solicitor for the Appellant: 3 Selborne Chambers Counsel for the Respondent: Ms S Sirtes Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 1 August 2007 Date of Judgment: 13 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1224.html