Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
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]. These findings were squarely within the province of the Tribunal. As McHugh J said in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (supra) at par [67], a finding on credibility "is the function of the primary decision-maker par excellence". Counsel for the appellant accepted that the Tribunal had to be satisfied that the appellant was a genuine convert and criticised the Tribunal for not asking one question during the hearing about the appellant's knowledge of Christianity. It was submitted that the Tribunal misdirected itself by focussing on how the appellant came to Australia and the circumstances surrounding his occupational training visa. It followed, said counsel for the appellant, that the Tribunal could not have been in a position to be satisfied that the appellant was not a genuine convert without having examined that fundamental issue. This submission, even if it be correct as a matter of factual analysis of what the Tribunal did, does not give rise to a jurisdictional error on the part of the Tribunal. The fact finding and assessment of credibility is quintessentially the task for the Tribunal. It is not for the Court, on review, to dictate to the Tribunal the method by which it is to undertake its factual analysis and assessment of the credibility of an applicant. The Tribunal may not have asked a specific question about a specific aspect of the appellant's knowledge of Christianity, but what is clear from a reading of the transcript of the hearing and listening to the audio recording of the hearing is that the Tribunal asked the appellant questions relating to his activities and actions as a Christian. The Tribunal asked the appellant whether, and when, he was baptised as a Christian, when he converted to Christianity, and what was involved in the classes to which he went for preparation to be baptised. In short, this submission of the appellant is no more than a claim to obtain merits review.