WAIX v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 896

FEDERAL COURT OF AUSTRALIA

WAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 896

Migration Act 1958 (Cth) ss 414, 414(1), 415(2), 422B, 425(1)
Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) (No. 60 of 2002) item 6, item 7(5)

Bohills v Friedman (2001) 110 FCR 338 considered
Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 distinguished
Community Advocate v Gallop [2002] ACTSC 45 distinguished
Craig v South Australia (1995) 184 CLR 163 cited
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited
NAFF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 660 considered
Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 cited
WAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 729 affirmed

WAIX v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
WAD 259 of 2004

NICHOLSON J
29 JUNE 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 259 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	WAIX APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	NICHOLSON J
DATE OF ORDER:	29 JUNE 2005
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 259 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	WAIX APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	NICHOLSON J
DATE:	29 JUNE 2005
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate (Walters FM) made on 29 October 2004:  WAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 729. In that decision, his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 17 September 2002. In that decision the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the appellant.

   RELEVANT BACKGROUND

2. The appellant is a citizen of Iran who arrived in Australia by boat as an unlawful

   
   

   non-citizen on 20 December 2000.  He was interviewed by an officer of the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) on 29 December 2000.

3. On 6 January 2001 the appellant lodged an application for a protection visa with the Department pursuant to the provisions of the Migration Act 1958 (Cth) (‘the Act’). The appellant was interviewed by a delegate of the respondent on 14 January 2001.

4. On 22 February 2001 the delegate made the decision refusing to grant a protection visa to the appellant  (‘the delegate’s decision’).  The appellant sought review of the delegate’s decision by the Tribunal.

5. On 24 April 2001 the appellant’s adviser, Ms Homa Hazrati, forwarded a written submission in support of the appellant’s application to the Tribunal.  On 26 April 2001 the appellant’s adviser forwarded to the Tribunal a translated letter from the appellant’s mother to his adviser.

6. The appellant gave oral evidence to the Tribunal at a hearing held on 27 April 2001.  On 7 May 2001 the appellant’s adviser forwarded to the Tribunal a further submission and a translated letter from the appellant’s family’s lawyer in Iran.

7. On 9 May 2001 the Tribunal made a decision affirming the delegate’s decision refusing to grant a protection visa to the appellant.  That decision was set aside by the order of Lee J made on 9 April 2002 and the matter was remitted to the Tribunal for

   
   

   re-determination.

8. On 27 June 2002 the appellant’s counsel provided the Tribunal with copies of translated letters from the appellant’s father and the appellant’s family’s lawyer in Iran.

9. A further hearing was conducted by the Tribunal on 4 July 2002 at which the appellant again gave oral evidence.  On 15 July 2002 the appellant’s counsel provided the Tribunal with a translated letter from the appellant’s witness, Mr Vafa Nifkar.

10. On 17 September 2002 the Tribunal as reconstituted made a further decision, again affirming the delegate’s decision refusing to grant a protection visa to the appellant.

11. The appellant lodged an application with the Federal Court dated 5 October 2002 seeking review of the Tribunal’s decision made on 17 September 2002 (‘the application’). 

12. The application was transferred to the Federal Magistrates Court pursuant to an order made on 18 December 2002.

13. At the hearing of the application the appellant’s counsel relied upon amended grounds of review in the same terms as the grounds in the notice of appeal referred to below.

14. On 29 October 2004, Walters FM ordered that the application be dismissed and that the appellant pay the respondent’s costs.

    NOTICE OF APPEAL

15. By a notice of appeal filed with the Federal Court on 11 November 2004, the appellant appeals from the whole of the judgment of Walters FM given on 29 October 2004 on the grounds that:

    ‘1.The learned magistrate erred in finding that the Refugee Review Tribunal (“the Tribunal”) had not failed to exercise its jurisdiction and had not exceeded its jurisdiction in making the decision which it made on 17 September 2004 (“the decision”) when the learned magistrate ought to have found that:

    (a)the Tribunal had failed to exercise its jurisdiction or had exceeded its jurisdiction in making the decision; and

    (b)the Tribunal’s failure to exercise its jurisdiction or its excess of its jurisdiction gave the appellant a ground of review.

    [Particulars omitted]

    2.The learned magistrate erred in finding that the Tribunal had accorded the appellant procedural fairness when the learned magistrate ought to have found that:

    (a)the Tribunal had not accorded the appellant procedural fairness; and

    (b)that failure gave the appellant a ground of review.

    PARTICULARS

    The appellant repeats the particulars to Ground 1.’

    SUPPLEMENTARY NOTICE OF APPEAL

16. By a supplementary notice of appeal dated 14 April 2005, the appellant was given leave to supplement his grounds of appeal by the following additional grounds:

    ‘3.The learned Magistrate erred at law in not holding that the Tribunal failed to comply with the order of Lee J of the Federal Court who had ordered that the decision of the first Tribunal be “set aside” and “the matter be remitted to the Tribunal for redetermination”. 

    [Particulars omitted]

    4.The learned Magistrate erred at law in not holding that the second Tribunal failed to perform the duty imposed on it by section 414 of the Migration Act.

    5.The learned Magistrate erred at law in not holding that the Tribunal, by considering irrelevant material (the material relating to the first Tribunal hearing) had failed to properly exclude irrelevant material from consideration, had purported to make a decision for which it did not have jurisdiction (section 476(1)(b)), had failed to make a decision which it was not authorised to make (section 476(1)(c)), or had acted because of an error in its understanding, or application, of the relevant law (section 476(1)(e)).

    6.The learned Magistrate erred at law in failing to hold that the Tribunal had adopted an incorrect approach in its treatment of the letters from the Appellant’s mother, the Appellant’s father, the two letters from the Appellant’s family’s solicitor, and the testimony of the witness who supported the Appellant’s case.  The second Tribunal’s rejection of that evidence was in error as it was not done on probative material or reasonable grounds.

    7.The learned Magistrate erred at law in not holding that the second Tribunal had failed to sufficiently inform the Appellant and identify to him the matters in which it needed to be satisfied and in which it could make a finding that the Appellant’s evidence was concocted or not otherwise considered to be true.

    8.The learned Magistrate erred at law in not finding that the Tribunal had misunderstood the testimony given by the Appellant at the second Tribunal hearing (these misunderstandings leading to the Tribunal wrongly not accepting the evidence of the Appellant).’

    FURTHER EVIDENCE

17. At the commencement of the hearing of the appeal, pro bono counsel for the appellant sought leave to file two affidavits sworn on 19 April 2005 and 20 April 2005.  As the respondent was uninstructed on the matter, provisional leave was granted so that the use to be made of the affidavits could be assessed by the respondent in the course of argument.  No objection has been raised by the respondent to the leave now being made absolute. 

    FURTHER SUBMISSIONS

18. At the hearing of the appeal, the Court made orders for the filing and serving of further written submissions.  The grant of leave in that respect was limited to ‘the application of procedural fairness at common law to the use by the second Tribunal of the testimony of the appellant to the first Tribunal’.  Additionally, it related as part of that issue to ‘whether, if it is the case, the failure by the second Tribunal to give notice of such use materially affected the outcome of the decision of the second Tribunal’. 

19. The appellant filed supplementary submissions purportedly pursuant to that order.  In those submissions leave was sought to expand upon the contents of the reasons of the first Tribunal adopted by the second Tribunal.  Such leave is refused.  In so deciding, I rely on the submissions of the respondent in response to the appellant’s supplementary submissions.  In particular, the appellant’s submissions relate to matters which go to the merits of the second Tribunal’s decision and not to the establishment of jurisdictional error.  None of the alleged errors were raised by the appellant or his former counsel in the proceedings appealed from in the Federal Magistrates Court.  Nor were the alleged errors in the summary of the first Tribunal raised by the appellant or his former counsel in his previous application to the Federal Court in relation to the first Tribunal’s decision.  There is no foundation upon which to expand the grant of leave in the way sought.

20. In the supplementary submissions, the appellant seeks to deal with alleged inconsistencies found by the second Tribunal in relation to his claims.  These submissions also lie outside the scope of the leave granted by the order made during the hearing.  Leave is refused in respect of those submissions also. 

21. The appellant’s supplementary submissions will therefore be considered below in relation to the issue of procedural fairness.

22. The grounds of appeal are considered in the order which they were argued at the hearing.  Ground 5 was withdrawn at the hearing. 

    GROUND 3 - TRIBUNAL DID NOT COMPLY WITH THE ORDER OF LEE J

23. This ground of appeal alleges that the second Tribunal did not carry out a

    
    

    re-determination of the delegate’s decision refusing to grant a protection visa to the appellant because it had regard to the first Tribunal’s file, adopted the first Tribunal’s summary of the appellant’s claims and relied upon matters stated by the appellant at the first Tribunal hearing, when all matters relating to the first Tribunal hearing should have been ignored and matters of evidence should have been resolved solely on the basis of the evidence at the hearing before the second Tribunal.

24. In support of this ground the appellant relied upon Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 at 225 and 227 – 228. That case considered the effect of a conviction for a criminal offence being set aside. It was held that the setting aside of the conviction had the result that it was a void ab initio. It has no application to administrative decisions by a tribunal. It is not the case that the decision on review to set aside the decision of a tribunal has the effect that the processes before that tribunal are void ab initio. There are good reasons why that should not be so. Why should it be the case that a statement by a person such as the appellant in the migration jurisdiction taken upon arrival in Australia and subsequently while in detention should remain standing as evidence but not so the evidence given by him at a first Tribunal hearing not be taken into account? There is no basis in law or logic why the approach in the criminal jurisdiction should be applicable. Furthermore, there is every reason in law and logic why the setting aside of a conviction should have the consequences which Cavanough’s case found it to have. 

25. The order made by Lee J, that the decision of the first Tribunal be set aside, is an order which related only to the ‘decision’ of the first Tribunal.  It did not affect the reasons of that Tribunal.  Consequently, the order made by his Honour in no way precluded the second Tribunal from considering evidence given by the appellant at the first Tribunal hearing.  In the migration jurisdiction, it is common in the course of administrative tribunal hearings for evidence of witnesses to be compared to accounts which they may have given, for example, on arrival and on subsequent interviews.  This is done for the purpose of locating and considering the effect of any inconsistencies in that evidence.  The position is no different in relation to the account given by way of evidence by the appellant to the first Tribunal hearing.  There is nothing in law to preclude the second Tribunal having regard to the content of that account and examining it for any inconsistencies with the evidence given to the second Tribunal hearing.

26. Furthermore, when the second Tribunal adopted the first Tribunal’s summary of the appellant’s evidence, it said ‘the Tribunal, differently constituted, summarised the claims made at the different stages of the determination process as follows and the Tribunal is satisfied that this is an accurate summary of the applicant’s claims’.  The second Tribunal, therefore, put its own imprimatur on the summary of the first Tribunal and did not simply adopt that summary.  Furthermore, it was a summary of the claims made by the appellant. 

    GROUND 4 - TRIBUNAL FAILURE TO PERFORM THE DUTY IMPOSED ON IT BY s 414 OF THE ACT

27. Section 414 of the Act reads:

    ‘414

    (1)Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.

    (2)The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).’

28. The section was referred to NAFF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 660 per McHugh, Gummow, Callinan and Hayden JJ at [26] and [32]. Their Honours there accepted that s 414(1) created a duty to review a delegate’s decision to one of the outcomes described in s 415(2), namely, the decision was affirmed, varied or set aside. Further, their Honours held that the failure to complete the review process was a failure to comply with the duty imposed by s 414(1) to conduct the review as well as another duty under 425(1) to hear from the appellant. It is not alleged here that the review process was in any way incomplete. What the appellant argued in relation to ground 4 was that because the second Tribunal had reached a decision without probative evidence to support them, it had not discharged its duty to ‘review the decision’ pursuant to s 414 of the Act.

29. There was no error of law by Walters FM in not holding that the second Tribunal had failed to perform the duty imposed upon it by s 414 of the Act. This ground of appeal raises the same matter as is raised by particular (vi) of ground 1(b). As Walters FM noted, the thrust of the submissions for counsel for the appellant in relation to particular (f) of ground 1 of the application was that the second Tribunal had, in effect, erred in the same way as had the first Tribunal in its handling of the weight to be attached to the four letters (at [35]).

30. Walters FM was correct in concluding that the decision of the second Tribunal could not be equated with the situation confronting Lee J in relation to the decision of the first Tribunal, and there were a number of substantial differences identified by his Honour, at [41]. The Tribunal’s reasons for decision demonstrate that it did comply with its obligation under s 414 of the Act to conduct a review of the delegate’s decision. This ground of appeal is not made out.

    GROUND 6 - REJECTION OF EVIDENCE WITHOUT PROBATIVE MATERIAL OR REASONABLE GROUNDS

31. There are two items of evidence to which this relates, namely, four letters and the testimony of Mr Nifkar.

32. This ground of review is in essence the same as that raised by particular (vi) to ground 1(b).  Particular (vi) of ground 1(b) of the notice of appeal contends that the second Tribunal placed no weight on letters received from the appellant’s mother and father, and from the appellant’s family’s lawyer, solely because they were from interested parties and were produced or arrived after the delegate’s decision, from which the second Tribunal concluded that they were obtained for the purpose of bolstering the appellant’s claims.  It was also contended that the Tribunal had not identified any probative material or reasonable grounds that permitted it to dismiss the letters in that way.  As Walters FM observed, counsel for the appellant below ‘argued that, in effect, there were no reasonable grounds for the Tribunal rejecting the letters, or failing to give them significant weight’ (at [39]). 

33. While overturning the first Tribunal’s decision because of its treatment of the four letters, Lee J nevertheless concluded that the material could be rejected by the Tribunal ‘after due consideration, but it could not dismiss the material on intuition or inclination’: quoted by Walters FM at [38]. Lee J, in the review of the first Tribunal decision, sent the matter back because the effect of the failure of the Tribunal to consider and assess the letters was a failure to duly consider the appellant’s case and to conduct the appropriate inquiry. He was then applying the law as it stood prior to amendment in 2001 and as then set out in s 476 of the Act. For jurisdictional error to now be made apparent, the appellant would have to show that the second Tribunal had failed to have regard to the letters as the first Tribunal had done.

34. Reference, however, to the reasons of the second Tribunal shows that under the heading ‘Events following the applicant’s departure from Iran’, the Tribunal spent approximately a page and a half of its reasons discussing the four letters in question.  Walters FM dealt with this ground of review at pars [34] – [41] of his reasons.  The appellant sought to argue that because the second Tribunal had dismissed the letters as not having any credibility, it should be found to have ignored that material so that there was jurisdictional error:  Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] applying Craig v South Australia (1995) 184 CLR 163 at 179. There is no foundation whatsoever to support the view that a tribunal which has spent approximately one and a half pages of reasoning considering an item of evidence and reached an adverse conclusion concerning it has thereby ignored that relevant material.

35. The second Tribunal’s reasons for decision demonstrate that it did give due consideration to the four letters, but for the reasons which it set out it concluded ‘that they do not reflect the truth’.  As Walters FM correctly concluded, it ‘cannot fairly or reasonably be submitted that the (second) Tribunal dismissed the evidence presented by the [appellant] “on intuition or inclination”’ (at [41]).  There was no error by Walters FM in rejecting this claim.

1. The second aspect to this ground is the testimony of Mr Nifkar.  This was discussed by the Tribunal in a paragraph close to the conclusion of its reasoning.  It was not a matter raised before Walters FM.  It is clear that in discussing the effect of that statement and forming a view that it was not satisfied that the meeting asserted in it occurred as claimed, the Tribunal did not ignore that material.  The ground can do no better in application to that testimony than it can in relation to the letters.

   GROUNDS 7 AND 8 - TRIBUNAL ERRED IN HOLDING THAT THE APPELLANT’S EVIDENCE WAS INCONSISTENT

2. In the appellant’s outline of submissions dealing with both grounds 7 and 8, the appellant claims that the second Tribunal erred in holding that his evidence ‘was inconsistent’.  The inconsistencies identified were whether the appellant had ‘a large house or room as a (sic) accommodation at India’; concerning the number of Iranian students in India; his evidence about going to Bombay and Hyderabad; and his use of the words ‘embassy’ and ‘consulate’.

3. On one view of the evidence there was no error by the Tribunal in concluding that there was inconsistency in the appellant’s evidence as to his accommodation in India.  The Tribunal correctly noted that while at the second hearing he had stated that he rented a large house, in his protection visa interview he had stated that he ‘rented a room locally’.  However, the fresh affidavit of the appellant sworn on 19 April 2005 provides evidence that the reference to the room may have been a mistranslation. 

4. In any event, a finding of inconsistency will not of itself give rise to jurisdictional error unless it in some way invoked one of the recognised grounds of jurisdictional error.  Where the findings of inconsistency were used by the second Tribunal it was in relation to whether the appellant had been approached by Iranian authorities in India.  It was said that the second Tribunal found that story was inconsistent in a number of key elements.  One of those key elements was the matter of the appellant’s relationship to other Iranian students in India.  In the course of dealing with that matter the second Tribunal referred to the evidence concerning the appellant’s accommodation.  There was no statement by the second Tribunal of any inference which it drew from this inconsistency in the evidence; rather in recounting the whole of the evidence relevant to the relationship, it was the nature of the relationship which determined the second Tribunal’s finding.  Consequently, I do not consider there were any adverse consequences for the appellant even if there was a wrongful finding of inconsistency in respect of the appellant’s accommodation in India. 

5. There was also no error by the second Tribunal in considering that there was an inconsistency in the appellant’s evidence regarding Bombay and Hyderabad and whether he visited the Iranian ‘embassy’ or ‘consulate’.  During the appellant’s interview for his protection visa application, he had stated that the closest Iranian mission to where he was staying at Dharwad was in Bombay, and that at the beginning of 1993 he received a letter from the consulate in Bombay.  Later in the same interview he said that he did not go to Bombay other than except on his way in and out of India.  At the second Tribunal hearing the appellant stated that he went to the Iranian consulate in Hyderabad in 1995 to renew his passport and that this consulate was the one responsible for the area in which he was living.  It was this inconsistency which the Tribunal referred to in the ‘Findings and Reasons’ section of its reasons for decision.

6. The second Tribunal did not consider that the appellant had given inconsistent evidence as to whether he attended at the Iranian embassy or at an Iranian consulate.  While it noted that the only Iranian embassy in India at that time was in New Delhi, the second Tribunal stated that even though the appellant continued to refer to the embassy in Bombay, it assumed he meant the consulate.

7. In any event, the inconsistency in relation to Bombay and Hyderabad was not the only reason that the second Tribunal reached the conclusion as to whether appellant had been approached by Iranian authorities in India. 

8. In its reasons the second Tribunal said that the appellant stated he had applied for a government loan to set up his pharmacy.  The new affidavit evidence raises an issue in relation to this to the effect that he did not say that he had done so.  Nothing can attach to that evidence save an invitation to invite the Court to engage again in weighing the merits, which the Tribunal has already considered and which are precluded from this Court.  Furthermore, whether or not the appellant had applied for a government loan was not relevant to the second Tribunal’s decision. 

   GROUND 1 - TRIBUNAL FAILED TO EXERCISE ITS JURISDICTION OR EXCEEDED ITS JURISDICTION

9. There was no error on the part of Walters FM in finding that the Tribunal had not failed to exercise its jurisdiction and had not exceeded its jurisdiction in making its decision on 17 September 2002.  His Honour was correct in concluding that the matters raised in pars (a), (b), (c), (d) and (e) to ground 1 of the application (particulars (i) to (v) of ground 1(b) of the notice of appeal) all involved a re-examination of the merits of the Tribunal’s decision and invited the Court to enter into impermissible merits review.

   GROUND 2 - TRIBUNAL DID NOT ACCORD PROCEDURAL FAIRNESS TO THE APPELLANT

10. The appellant’s supplementary submissions address the issue of whether the use by the second Tribunal of the testimony of the appellant to the first Tribunal without notice to the appellant breached the rules of procedural fairness. The respondent does not dispute that the rules of natural justice apply to the second Tribunal’s decision. This was because the exclusion of the common law rules of natural justice to decisions of the Tribunal effected by s 422B of the Act only applies in relation to applications for review made to the Refugee Review Tribunal on or after 4 July 2002: item 6 and item 7(5) of the Schedule to the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) (No. 60 of 2002). Nor does the respondent dispute that there is an overriding principle that the decision-maker must bring to the applicant’s attention the critical issue or factor on which the decision is likely to turn. However, the respondent submits that there is no such requirement where the decision-maker intends only to rely on material provided by the applicant in making his or her decision: Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at 557, at [70] - [71]. Here it is said that the second Tribunal reached conclusions concerning what it regarded as inconsistencies in relation to the appellant’s claims made at different stages of the administrative review process in relation to his being approached by the Iranian authorities in India. The second Tribunal’s evaluation, it is argued, was based solely on information provided by the appellant (save only in relation to the location of the only Iranian embassy in India at New Delhi, which was not a matter relevant to the second Tribunal’s decision).

11. The appellant relies, firstly, upon the authority of Bohills v Friedman (2001) 110 FCR 338. There, the Disciplinary Appeal Committee had been provided prior to a hearing with a folder of documents which included findings of the inquiry officer in relation to five charges which were not before the Committee. It was also provided with an interview transcript which contains the opinion of the applicant’s former manager as to the credibility of the main witness against him. Additionally, the Committee received the reports of a psychologist and consultant psychiatrist as to the applicant’s earlier mental state and his personality. The latter contained a previous allegation of sexual misconduct. Gray J held that the receipt into evidence of the documents in the folder had the consequence that the Committee took into account irrelevant considerations in making its decision. It follows that Bohills is not authority for the proposition that where a decision is set aside upon review, the fresh decision-maker or tribunal cannot have regard to the material in evidence that was before the decision-maker or the tribunal whose decision was set aside.  The material utilised by the second Tribunal was based upon the appellant’s oral evidence to the first Tribunal in relation to questions asked of him concerning his claims to have a well-founded fear of persecution for Convention reasons.

12. The appellant’s submissions also rely upon Community Advocate v Gallop [2002] ACTSC 45. That was a case where a community advocate had not been alerted by a Board of Inquiry into Disability Services to the risk of adverse findings made against her resulting from evidence based upon a different statutory interpretation to that utilised by the advocate. That is not the position here with the use by the second Tribunal of the passage which it utilised from the first Tribunal. Its evaluative conclusions relating to the inconsistencies were in the character of an evaluation of the material placed before it by the appellant.

13. Accordingly, I do not consider that the second Tribunal engaged in any breach of procedural fairness to the appellant.  It follows that there was no failure by it to give notice to the appellant of the use of his testimony from the first Tribunal. 

14. Additionally, I accept the submission for the respondent that even if the second Tribunal had been required to give such notice to the appellant, its failure to do so was not a failure which materially affected the outcome of the second Tribunal’s decision.  This is because any reasonable person in the appellant’s position must be taken to have known that the second Tribunal would take into account the evidence and material before the first Tribunal.  Indeed, had the second Tribunal not taken that evidence and material into account, it may have been in breach of procedural fairness on that account. 

    CONCLUSION

15. For these reasons I do not consider that any of the grounds of appeal have been made out.  Accordingly the appeal must be dismissed.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Associate:

Dated:             29 June 2005

Pro Bono Counsel for the Applicant:	RK O’Connor QC
Counsel for the Respondent:	PR Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 April 2005
Date of Last Written Submissions:	18 May 2005
Date of Judgment:	29 June 2005