Paul Cutler's Migration Case Law Blog

You may remember that the High Court remitted QYFM to a differently constituted Full Federal Court after it found that Justice Bromich should have recused himself. I have previously blogged about the recusal decision.

When the matter arrived back in the Full Court the original grounds of appeal were “jettisoned” and leave was sought to rely on six new ones. The appellant was also granted leave to rely on the AAT transcript which had not been before the original Full Court. That transcript revealed that the Appellant (who was self represented in the AAT) had been given a warning about the privilege against self incrimination. One of those warnings arose in the context of a reference from a former employer WS. Apart from being unsure of WS’s gender the following occurred:

SENIOR MEMBER: All right. And how do you know [WS]?

WITNESS: I know him from a long way back, so [WS] is a long way back.

SENIOR MEMBER: Okay. And what do you mean a long way back, is that a friendship or did you work for him or how do you know each other?

WITNESS: It’s a friend – he’s a friend.

SENIOR MEMBER: Oh he’s a friend?

WITNESS: Yes.

SENIOR MEMBER: So have you worked for [WS]?

WITNESS: No.

WITNESS: No, I have not worked for him (indistinct).

SENIOR MEMBER: All right. Well why does [WS] then say in his letter, he was with us from July 2011 to December 2012 and his high work ethic and leadership potential was realised, resulting in [the appellant] being quickly promoted to warehouse supervisor, if you haven’t worked for him, how can it be that he said these things?

WITNESS: I think I must ask him what do they call it? I must ask him some character reference and that’s what he was referring to so (indistinct) people to – (indistinct) people as, you know, helping them – yes, you know, as a friendship helping and that’s why I think he might have meant it that way.  But I have no word for it.

SENIOR MEMBER: So has [WS] provided false information to the tribunal, saying that you had worked for him?

WITNESS: It could be so – – –

SENIOR MEMBER: But … you provided these letters to the tribunal in support of your case, why have you provided something that’s false?

Things only got worse when later that day, the Tribunal telephoned WS.  The transcript records, in essence, his evidence that he had never known the appellant.  The Tribunal then asked whether the appellant had “any questions at all of the witness”.  The appellant replied:  “No”. This led the Senior Member to say: ” … I have some serious doubts … that you have provided statements that are true and accurate“.

Whatever the legal merits (or not) of this case were, credibility issues like the one created for himself were very unhelpful to the application!

Creative commons acknowledgment for the photograph.