Case: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Outcome: cited
In relation to the lack of any discussion in the Tribunal's reasons of the matters particularised from the visa application statement, his Honour considered that the Tribunal's conclusion refusing to accept that the appellant "was ever a member of a Marxist party" rendered reference to those statements unnecessary. It was implicit in the Tribunal that they had been dealt with and rejected in the above conclusion which embodied a finding "of greater generality": Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]. 17 In para 29 of its reasons, his Honour made the following specific observation about one particular finding of the Tribunal: "Moreover, 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. " (Emphasis added) 18 I simply note in passing that the reference to the appellant being attracted by Marxist ideology was made in the statement accompanying the visa application. The Federal Magistrate concluded that: "As a matter of practicality, it is difficult to see how the Tribunal could have decided the refugee claims of the present applicant, other than by starting with his written statement, testing him at a hearing on its contents, and then assessing the responses he gave to the Tribunal's questions. In my opinion, this is how the Tribunal has decided this case." 19 I would again emphasise that the ground of application before the Federal Magistrate was focused on a failure to take into account particulars of the applicant's claim. Unsurprisingly then the Federal Magistrate's findings were directed at showing that account had been taken of them. 20 The application for judicial review was rejected. 21 Because of the different course the appellant now seeks to take in this appeal there are two further matters, both noted by the Federal Magistrate, to which I should refer. The first is that, as indicated in the Tribunal's reasons, it put to the appellant at the hearing that it "had serious difficulty with his account of events for reasons already discussed with him during the hearing". The second is that at the end of the hearing the Tribunal asked the appellant if there "is anything you want to tell me about your claims you don't think we've covered". The appellant added nothing of present relevance. 22 The unamended notice of appeal raised three grounds. The first two grounds challenged his Honour's findings that the Tribunal did take account of the claims made in the visa application statement. The third ground asserted that "his Honour erred in not finding that the Refugee Review Tribunal failed to comply with s 425A [sic] of the Migration Act 1958 in failing to inform the appellant that there were inconsistencies between his written claims and his oral evidence." As I have indicated, the first two grounds have been abandoned but leave is being sought to modify the third ground. Before dealing with that matter I should comment briefly on why in any event I consider that the Tribunal's alleged failure to take account of the claims in the visa application statement was unarguable. This provides some background to my view of the prospects of the proposed amendment. 23 The first substantive issue the Tribunal addressed in making its findings was the appellant's credibility. This it decided adversely to the appellant on the basis of the evidence given at the hearing. The Tribunal's questioning of the appellant at that time obviously was informed, inter alia, by the statement accompanying the original visa application, as his Honour observed. However, the credibility finding made was not, on its face, based at all on inconsistencies between the oral evidence and the statement. What the appellant said on the day sufficed for that purpose. When regard was had to what the appellant had said then and to the reasons given for rejecting his oral evidence, the bases of his claims to refugee status, whether made in the statement or at the hearing, fell away. This was not because of any inconsistencies between the two. It was because, at the hearing, he authored his own failure. The Tribunal clearly was aware of, and considered, the claims in the statement. There is no reason to doubt its truthfulness in this regard. Having heard the appellant giving evidence and having discussed his claims with him, it was quite proper for the Tribunal to observe that the claims made at hearing represented the appellant's claims for refugee status. These, at the close of the hearing, were the claims being prosecuted by the appellant. The Tribunal could disregard earlier inconsistent claims. And, as it indicated, it needed to have no regard to the inconsistencies themselves as part of its reason for affirming the delegate's decision. 24 Moreover, I should add that the Tribunal in any event had no need to make any specific reference to, or findings on the earlier claims. Its rejection of the claims put at the hearing was so comprehensive so all encompassing as to obviate any need for such particular reference or findings. They fell necessarily with the findings made, even if they were inconsistent with, or different from, the claims made at the hearing. I am satisfied the Tribunal was aware of this: cf Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]. 25 I refer to these matters by way of background to what is now sought to be raised in the proposed amended notice of appeal. It is to be alleged that the Tribunal not only took into account the claims that were made in the visa application statement, it also took into account the inconsistencies between that statement and the oral evidence without drawing these to the attention of the appellant and giving him the opportunity to consider and comment upon them. This failure is said to constitute a failure to accord procedural fairness and/or a failure to comply with s 425 of the Migration Act . 26 The first and most obvious point to make about the proposed new ground of appeal is that this matter was not raised in the court below. As was said by his Honour in his reasons "no issue is taken in the grounds of review in this Court to the fairness of the Tribunal's proceedings. It is not contended the applicant was denied the opportunity required by s 425 of the Migration Act , nor that he was not alerted to the issues that arose in the review before the Tribunal."