Case: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559
Outcome: cited
In respect of the other basis of challenge to the decision of the Federal Magistrate, that ground might be regarded as seeking to engage the "What if I am wrong?" approach. The basis for that description can be found in the judgments delivered by the High Court in the Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559. At para 24 of his reasons for judgment, the learned Federal Magistrate observed: The exercise of the Tribunal's function clearly involves it in considering each claim, or integer or aspect of a claim, and to weigh the evidence and material before it, and to make findings upon which it may base its conclusion of whether or not an applicant's fear of persecution for a Convention reason is well-founded. If such a finding is not made with an appropriate degree or sufficiency of confidence, that is, if it is attendant with such a degree of doubt, then the Tribunal may need, in those circumstances, to consider the alternative, that is to consider that its finding may be incorrect and then to determine whether an applicant may have a well-founded fear in those circumstances. 13 His Honour, having made this observation, then makes reference to relevant supporting authority. The passage quoted is, with respect, a useful summary of an obligation which can fall on the Tribunal having regard to what was said by the High Court in Guo . As the Federal Magistrate plainly appreciated, if it is clear that the Tribunal had no real doubt as to the correctness of its findings it was not required to consider whether its findings might be wrong. As the Magistrate, with respect, correctly observed the issue is the Tribunal's apparent confidence in its conclusions. Regard to the Tribunal's reasons in this case gives no basis for an apprehension that the findings made were anything other than findings made with confidence. 14 Like the Federal Magistrate, I do not see that any obligation fell on the Tribunal to apply the "What if I am wrong test?" The Federal Magistrate plainly appreciated that findings of fact, particularly those referable to credibility findings, were peculiarly matters for the Tribunal, not a court undertaking a judicial review role. Even more so that is the case in respect of a court entertaining an appeal from the Federal Magistrates Court in such circumstances. In other words, it is nothing to the point whether I or the Federal Magistrate, had we been exercising the powers of the Tribunal, would have been disposed to accept the Appellant's claim for a protection visa notwithstanding particular inconsistencies or subsequent additions to the basis for the claim. So to do would be to go beyond the jurisdiction that is consigned to the Federal Magistrates Court and to this Court respectively. 15 It follows then that I do not see any merit in either of the grounds of appeal. In those circumstances the appeal must be dismissed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 5 August 2008 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondents: Ms Sirtes Solicitor for the Respondents: Clayton Utz Date of Hearing: 4 August 2008 Date of Judgment: 4 August 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1162.html