Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12
Outcome: applied
response to a question put to him in the same terms, counsel for the appellant said it was incumbent on the Tribunal to ascertain the appellant's means as to whether he would be able to prosecute any appeal against charges that might be made against him up to the superior courts. This was put in the context that the information in the US Department of State report was correct and the information in the DFAT ICI, to the extent of the dichotomy drawn between the lower courts and the higher courts by the US Department of State, was wrong. This, in itself, illustrates that if there was error, it was error of fact, not law. Moreover, even if the US Department of State report correctly reflected the position as at the date of the Tribunal's decision, the Tribunal was under no obligation to enquire of the appellant as to whether or not he had the means to prosecute an appeal to the higher appellate courts: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [42] [44]. This ground of appeal cannot be sustained. The second ground asserts that his Honour erred in finding at [4] that s 424A of the Act did not apply in circumstances where 'it appeared ... the decision of the [Tribunal] turned on information provided by the [ appellant ] himself for the purposes of the review application to the [Tribunal] and also general country information'. This second ground was particularised in the amended Notice of Appeal in the following way: (i) Contrary to his Honour's finding, information specifically concerning the appellant was provided by the appellant's adviser who faxed a copy of a document dated 6 August 2003. (ii) The appellant's adviser also 'submitted by fax a number of photographs of the [appellant] and a copy of a poster of the [appellant] seeking support in the student council election of 1991'. The appellant's argument in relation to this ground was put on two bases: One correct, the other incorrect. First, it is correct to say that, as a matter of fact, the information referred to in the particulars was not given by the appellant himself; it was given by his adviser. Second it is incorrect to say that, as a matter of the proper construction of s 424A(3)(b) of the Act, such information was not given by the appellant, and therefore excluded from the obligation imposed on the Tribunal by s 424A(1). Counsel for the appellant disavowed any reliance on an argument that the information given was not for the purpose of the appellant's application. His case was confined to his Honour's reference to the word 'himself', in reliance on a contention that the information was not given by the appellant himself, but by the appellant's adviser. His Honour's use of the word 'himself' is perhaps unfortunate, but I do not think it conveys any suggestion that his Honour was of the view that information falling within the exclusion that is s 424A(3)(b) is confined to information which the appellant himself gives and does not include information given by others on his behalf. If it does then, in my view, that construction is wrong. This ground of appeal must be rejected. The third ground of appeal asserts that the Tribunal constructively failed to exercise jurisdiction by concluding its fact finding task substantially in a manner that a fair-minded observer might 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. This third ground was particularised in the amended Notice of Appeal in the following way: (i) The Tribunal did not accept 'that outside of student politics the [appellant] has a high political profile' because of 'the generality of his answers to the Tribunal's questions about the philosophy, mandate and objectives of the Chatra League and Awami League'. (ii) The transcript of the Tribunal hearing demonstrates that, contrary to the Tribunal's assessment of the generality of the appellant's responses, the appellant responded specifically to the Tribunal's generic question Q182. (iii) The appellant's response to the Tribunal's Q182 spans approximately six typed pages of the transcript and was made in difficult circumstances where the appellant was specifically told by the Tribunal 'No, I don't want a political discourse' and later, 'Now, I think I've got that'. (v) The particulars to grounds 1 above and 4 below were repeated.