Case: Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59
Outcome: followed
Federal Magistrate found that the Tribunal accurately set out the appellant's claims and evidence before it and the further material provided by the appellant and his representative in October 2007 and January 2008 but noted that it did not make findings on all the issues raised in the material when it rejected the entirety of the appellant's evidence and case because of its adverse credit findings: par [9] above. The Federal Magistrate said that: The Tribunal roundly disbelieved the appellant because of the matters set out in par [9] above and that each of those matters were findings that it was open to the Tribunal to make; Those matters were in the scheme of things important matters which were not peripheral to the issues before the Tribunal, including the very important credit issues. Once the Tribunal found that it did not believe the appellant in relation to these matters it was not illogical for the Tribunal to form the view that the entirety of the appellant's evidence about his conversion was untrue. Once the Tribunal decided that it did not believe the appellant, it was open to the Tribunal simply not to believe any of the rest of his evidence, applying the approach adopted in Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at par [49] and WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252 at par [45]. The Federal Magistrate was satisfied that the reasons the Tribunal gave were sufficient, relying on Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at pars [65]-[67]. Counsel for the appellant criticised the Tribunal for focussing on the manner in which the appellant came to Australia, namely as an occupational trainee, rather than examining whether the appellant was a genuine convert to Christianity. Counsel relied upon the reasoning in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264 and submitted that the present case was an example of the observations of the Full Court at par [115]: "By and large fact-finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error: Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002 (2003) 198 ALR 59 ; 73 ALD 1 ; [2003] HCA 30. Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. ..." Having rejected the fundamental basis of the appellant's claims, it was not necessary for the Tribunal to make specific findings or reach specific conclusions in relation to other aspects of the evidence of the appellant, such as the letters from clerical persons in Nigeria and Australia supporting his claims, and the Special Rapporteur's Report as the Tribunal found they were outweighed by "serious flaws" in the appellant's evidence. As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002 (supra) at par [12]: "It was contended that this 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." The Tribunal did not ignore or disregard the appellant's claim or the evidence upon which he relied. In the section of its decision headed "CLAIMS AND EVIDENCE" the Tribunal set out in considerable detail the claims and evidence upon which the appellant relied. In particular the Tribunal noted that the appellant feared persecution because he was a convert. It is also clear from this section of the Tribunal's decision that it included in its consideration the Tribunal's Guidelines on Credibility. The Tribunal referred to them in its decision and was not obliged to comply strictly with the guidelines given that they are not statutory in nature. In any event, failure to comply with the guidelines does not give rise to an apprehension of bias. It is also clear that the Tribunal took into account and had before it in the consideration of its decision the psychologist's report which, according to the Tribunal: "Stated that he will have difficulty presenting his case well at an RRT hearing. He is likely to become anxious and confused. He has trouble remembering dates and incidents."