Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: followed
A conclusion of fabrication and elaboration of claims is substantively different from a finding that the Tribunal was not satisfied as to the claims. It is one thing for a body, such as the Tribunal, where the question for its decision, as here (see s 65(1) of the Act), is whether a person has satisfied it, to reach a decision on the material before it, that it is not so satisfied (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-277). And in reaching such a conclusion, the body can weigh the material properly before it in accordance with its statutory functions ( Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 573: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 281-282). In such a case, the decision may not necessarily be invalid if, as here, the Tribunal considered other material together with what the appellant had given it and, without complying with s 424A, was still not satisfied that he had made out his claim. This is because the reason why it was not so satisfied would be and would remain that what the appellant had 'given' it was insufficient. The extra material would not be a reason or a part of the reason for that state of mind since it did not affect it. 61 But, it is another thing for such a body to use material not properly before it in coming to a positive conclusion of fabrication or elaboration. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 280, Brennan CJ, Toohey, McHugh and Gummow JJ said: 'Giving greater weight to one matter indicates that less weight is being given to another. Lesser weight is not the equivalent of rejection.' 62 Here, part of the reason for the Tribunal not being satisfied of the appellant's claims was its rejection of them as fabrications or elaborations after it took all of the information in the departmental file into account. 81 The reasons of an administrative decision-maker, including the Tribunal, are meant to inform and are not to be scrutinized upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at p 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. There is no such inadequacy to be found in the reasons of the Tribunal in the instant case. Rather, the reasons reveal as the Act required what the reasons were and the matters which the Tribunal considered were material. 82 The Minister submitted that the proper characterization of the Tribunal's reasons concerning the omissions in the appellant's initial claim was that this was simply an assessment or subjective appraisal of the information provided by the appellant. The Minister contended that the finding, based on what it said was the appellant's 'vague and generalized evidence in support of his claim' (at [30] of its decision: see [53] above), that his sur place claim was to elaborate on his claims based in China, to provide for himself the profile of and to enhance his claim to be a refugee, was mere assessment or appraisal which did not use any 'information' so as to enliven an obligation to provide particulars under s 424A. 83 But, in order to assess the appellant's 'general information' and 'vague and general evidence', the Tribunal had to have that evidence before it in accordance with the regime of procedural fairness for which s 424A provides. And, in stating its ultimate conclusion that it was not satisfied that the appellant was a person to whom Australia owed protection obligations the Tribunal said (at [32]) that it had '... considered the evidence as a whole'. The flaw in the Minister's argument is that the Tribunal made its assessment of all the information and evidence sourced to the appellant in the material before it, which included information he had earlier provided to the delegate but which he had not expressly given to the Tribunal for the purpose of his application pursuant to s 424(3)(b).