SZMSJ v Minister for Immigration & Anor [2009] FMCA 102 (20 March 2009)

Last Updated: 24 March 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMSJ v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 102

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Nepal – applicant’s claims of past harm not believed – corroborative evidence of past harm rejected because the applicant was not believed – applicant’s credibility partially intact because significant elements of his evidence was accepted – Tribunal erred in failing to take the corroborative evidence into account in considering the applicant’s claim of past harm – jurisdictional error found.

Migration Act 1958 (Cth), ss.36, 422B, 424A

Re Minister for Immigration; Ex parte S20/2002 [2003] HCA 30; (2003) 198 ALR 59 SZDGC v Minister for Immigration [2008] FCA 1638 WAGU v Minister for Immigration [2003] FCA 912 WAIJ v Minister for Immigration [2004] FCAFC 74

Applicant:

SZMSJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2329 of 2008

Judgment of:

Driver FM

Hearing date:

13 February 2009

Delivered at:

Sydney

Delivered on:

20 March 2009

REPRESENTATION

Counsel for the Applicant:

Mr J Young

Solicitors for the Applicant:

Simon Diab & Associates

Counsel for the Respondents:

Mr M Cleary

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) A writ of certiorari shall issue, quashing the decision of the Refugee Review Tribunal signed on 31 July 2008 and handed down on 12 August 2008.
(2) A writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the review application before it according to law.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2329 of 2008

SZMSJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 12 August 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Nepal and had claimed persecution by the Maoists. The following statement of background facts relating to the applicant’s claims and the Tribunal decision on them is derived from the applicant’s written submissions filed on 9 February 2009 and the Minister’s written submissions filed on the same day.
2. The applicant is a citizen of Nepal. The applicant arrived in Australia on 3 November 2007.
3. The applicant applied for a protection visa on 10 December 2007 under s.36 of the Migration Act 1958 (“the Migration Act”).

Applicant’s claims

4. The applicant claims Maoists/Communists will harm him if he returns to Nepal because of his involvement with a newspaper as a journalist. He claims that he cannot get protection in Nepal as the Maoists control the authorities[1]. The most significant incident of past persecution claimed by the applicant was that in January 2005, he was kidnapped by a group of Maoists and detained at their camp for 5 days.

Decision of the delegate

5. On 15 February 2008 a delegate of the Minister refused to grant a protection visa to the applicant[2].
6. The delegate found the applicant did not have a well-founded fear of persecution within the meaning of the Refugees Convention and the Migration Act.

Review in the Tribunal

7. On 11 March 2008, the applicant lodged an application for review of the delegate’s decision in the Tribunal[3].
8. On 7 May 2008, the applicant attended an oral hearing before the Tribunal. He gave evidence with the assistance of a Nepalese interpreter[4].
9. On 29 May 2008, the Tribunal received a submission from the applicant’s adviser[5].

Tribunal’s decision

10. On 12 August 2008, the Tribunal handed down its decision, and affirmed the delegate’s decision not to grant a protection visa to the applicant. In coming to its decision, first it reviewed the applicable law. It then set out the applicant’s claims and evidence. Finally, it set out its findings and reasons.
11. The Tribunal accepted the applicant was a citizen of Nepal and a journalist. However, after considering the evidence the Tribunal did not accept as true that the applicant left Nepal at any time because he feared/fears harm there from Maoists for the reasons he claims[6]. The Tribunal did not accept as plausible the explanations given by the applicant as to why he returned twice to Nepal if he feared harm there.[7]
12. The Tribunal did not accept as true that the applicant left his country and/or fears to return there because of feared harm from Maoists in Nepal due to his activities as a journalist, or because of his political opinion or imputed political opinion. The Tribunal gave no weight to a document provided in support of the applicant’s claims dated 7 January 2005[8].
13. The Tribunal concluded that the applicant did not have a well-founded fear of Convention-related persecution. The Tribunal found the applicant was not a person to whom Australia owed protection under the Migration Act.[9]

The application and evidence

14. These proceedings began with a show cause application filed on 8 September 2008. The applicant now relies upon an amended application filed on 13 February 2009. The grounds in the amended application are:
    • 1. The Second Respondent made jurisdictional error in that it failed to consider or in the alternative it failed to give proper, genuine and realistic consideration to, the claims of the Applicant that he had been threatened, harmed, kidnapped or mistreated by Maoists in Nepal.

Further or in the alternative to 1 above:

• 1A. The Second Respondent made jurisdictional error in that it made an error of law in relation to the application of the statement of French J in WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [200] FCA 912.

Further or in the alternative to 1 or 1A above:

• 1B. The Second Respondent made jurisdictional error by making a credibility finding relative to the applicant’s claims to have been kidnapped or detained without considering on its merits the corroborative material submitted by the applicant.
• 2. The Second Respondent made jurisdictional error in that it acted in contravention of section 425 of the Migration Act 1958 in that the Second Respondent did not reveal the determinative issues arising in relation to the decision under review.
  • Particulars
  • a) See 3(a) and 3(b) below.
• 3. The Second Respondent made jurisdictional error in that it failed to comply with the requirements of section 424A of the Migration Act 1958 in relation to information:
  • a) That the Applicant would not have returned to Nepal in 2005 and 2007 if he feared persecution;
  • b) That the Applicant at the time of returning to Nepal in 2007 had a visa to come to Australia.
• 4. The Second Respondent made jurisdictional error by assessing the requirement in relation to future persecution as evidence that enabled the Second Respondent “to conclude that the applicant will suffer persecution” which formulation is contrary to the real chance test.

15. Grounds 1A and 1B were treated as a single ground of review. Grounds 2 and 3 were not pressed.
16. I received as evidence the court book filed on 9 October 2008. That is the only evidence before me.

Submissions

17. The applicant’s principal complaint is that the Tribunal made an adverse credibility assessment on the applicant’s claim of past harm of having been kidnapped by the Maoists without taking into account corroborative evidence of that kidnapping given by the applicant to the Tribunal. The applicant submits that this was not one of those rare cases in which the applicant’s credibility was so fundamentally destroyed that the Tribunal was entitled to disregard the corroborative evidence. Indeed, the Tribunal accepted that the applicant was a journalist as he claimed and that the Maoists persecuted journalists.
18. The Minister submits that the Tribunal made specific reference to the document in issue but found that the document was not reliable evidence of the facts contained in it. The Tribunal gave little or no weight to the document in view of its adverse credibility findings. The relevant issues were discussed with the applicant at the hearing conducted by the Tribunal.
19. The Minister makes the following submissions in reply to the applicant’s submissions:
    • Ground 1A
    • In Ground 1A the applicant asserts the Tribunal committed an error of the kind identified by French J (as he then was) in WAGU v MIMIA [2003] FCA 912 (“WAGU”).
    • That argument must be rejected for following reasons.
    • In WAGU the Tribunal found that certain documents (namely emails) tendered and relied upon by the applicant were not genuine: see WAGU at [24]. In the Tribunal’s reasons for its decision the Tribunal found that it was suspicious of how the emails came into existence. They inferred that they were forgeries. French J held the applicant was denied procedural fairness because he was not given an opportunity to answer the allegation that the emails were not genuine. His Honour concluded that (at [39]),
      • ...there was, in the Tribunal's treatment of the email, a failure to accord procedural fairness to the appellant by at least putting to him the Tribunal's suspicions about the way in which the email came into existence.
    • His Honour relied upon two Full Court decisions to support his conclusion that such a denial of procedural fairness was a jurisdictional error: see WACO v MIMIA [2003] FCAFC 171 (“WACO”) and WAEJ v MIMIA [2003] FCAFC 188 (“WAEJ”). In those cases (cases decided before the enactment of s.422B of the Migration Act (“Act”)) the Full Court found that where the Tribunal makes a finding of forgery about a document relied upon by the applicant in support of his/her application for a protection visa, the Tribunal was obliged to put the issue of the authenticity of the particular document(s) to the applicant so that the applicant could comment upon the doubts expressed by the Tribunal about the authenticity of the documents. Not to give the applicant such an opportunity amounted to jurisdictional error in WACO and WAEJ.
    • WAGU, and WACO and WAEJ are completely distinguishable to the present case.
    • Firstly, the present Tribunal proceedings were governed by s.422B of the Act. Section 422B abrogates the common law requirements of procedural fairness. The only procedural fairness requirements that must be afforded to applicants are those contained in Division 4 of Part 7 of the Act. There was no provision in Division 4 Part 7 of the Act when the Tribunal heard the applicant’s review application that required the Tribunal to put the applicant’s own document, presented to the Tribunal by the applicant, to the applicant for comment. Such documents are caught by the exception to any obligation in s.424A by ss.424A(3)(b).
    • Secondly, in the present case there was no finding that the Notice dated 7 January 2005 was either a forgery or that was not authentic. In the present case the Tribunal found (at paragraph [49]) that because of the findings it made about the applicant’s lack of credibility, the document was “not reliable evidence”. In other words it gave it no weight because the Tribunal did not believe any of the applicant’s oral evidence about his claims. Where a Tribunal questions the reliability of a document in this context it is raising concerns about weight not authenticity. Further, it is incorrect to assert (as the applicant has) that the Tribunal did not consider the document. It did, but rejected it because of the credibility findings made about the applicant.
    • There was nothing erroneous in the Tribunal coming to such a conclusion and making the finding it made in paragraph [49]. Indeed French J in WAGU specifically commented that that rejection of corroborative evidence as being of no weight based on adverse credibility findings of the applicant was an unobjectionable finding. His Honour said (at [36]):
      • [36] Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party's credibility. In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness. This is just a special case of the general proposition that procedural fairness does not require the decision-maker, in this case the Tribunal, to invite comment upon its thought processes on the way to its decision. But where corroborative evidence is rejected on the basis of a finding of fraud or forgery or on some other positive basis which has never been put to the tendering party there may be a failure of procedural fairness. Such a failure may have very practical effects for it means that the corroborative material is never weighed in the balance of the general assessment of the tendering party's credibility.
    • In Lee v MIMIA [2005] FCA 464 French J held that a Tribunal is not obliged to give the applicant an opportunity to comment upon any proposed assessment it may make about the weight it gives to evidence: see Lee at [26]. Findings as to weight are questions of fact for the Tribunal. They cannot be challenged on judicial review applications under the Act.
    • The present case is on all fours with Lee and is distinguishable from either WAGU, or the Full Court decisions of WACO and WAEJ.
    • Ground 1A must be rejected.
    • Ground 1B
    • In his alternative second ground (ground 1B), the applicant seeks to challenge the credibility finding made by the Tribunal.
    • This argument should also be rejected for the following reasons.
    • Credit findings are factual findings and a matter for the Tribunal par excellence: see MIMIA; ex parte Durairajasingham (2000) 168 ALR 407 at [67]. In MIMIA; ex parte Durairajasingham McHugh J said,
      • [a] finding on credibility... is the function of the primary decision maker par excellence.
    • The decision of the Tribunal was one based essentially on adverse credibility findings made against the applicant. These findings related to extensive findings about the inconsistent evidence given by the applicant to the Tribunal. There was no requirement that the Tribunal assess the applicant’s credibility by considering the corroborative document, or Notice dated 7 January 2005. Credit findings are questions of fact. It was appropriate to assess the weight of the Notice as the Tribunal did. Such a course was perfectly acceptable and not a denial of procedural fairness: see French J in WAGU at [36].
    • There was nothing legally objectionable about the credit findings made by the Tribunal as they were logical and reasonably open on the evidence: see Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 (Full Court).
    • Ground 1B must be rejected.
    • Ground 4
    • In Ground 4 the applicant asserts that the Tribunal misapplied Chan v MIEA (1989) 169 CLR 379.
    • This ground is unmeritorious. There was nothing objectionable about the application of the real chance test in paragraph [51] of the Tribunal’s decision. The Tribunal concluded there was no plausible evidence that the applicant would suffer persecution now or in the future, and that it was not satisfied that the applicant had a “well-founded fear of persecution in Nepal within the meaning of the Convention”. This was nothing objectionable about this approach. The conclusion reflected the way the claims were put to the Tribunal. The Tribunal applied the test it set out for itself at paragraph [15].
    • If by this ground the applicant is arguing that the analysis was not adequately forward looking when considering the prospects of persecution then this must also be rejected. Paragraph [51] contains adequate forward looking analysis by its reference to “...in the future...”: see SZGHS v MIAC [2007] FCA 1572 at [28]-[30].

Reasoning

20. The corroborative evidence in issue appears at CB 152. It is a notice purportedly published by the publisher and chief editor of the newspaper at which the applicant worked as a journalist and is dated 7 January 2005. The notice identifies the applicant and states that he was serving as a field reporter and was kidnapped on 5 January 2005 while he was returning to his residence after finishing his duty. The notice requests the group who abducted the applicant to release him promptly. The Tribunal records in its reasons that the notice was discussed with the applicant at the hearing. The Tribunal states[10]:
    • The Tribunal noted that the letter described as from the paper dated 7 September 2007 states that the applicant worked as a field reporter there from 8 February 2004 until January 2006. The applicant said that was correct. He said that the newspaper in the departmental file is a sample of the newspaper that he worked for and that there is nothing about him in that paper. He said that the copy of the Notice from the newspaper dated 7 January 2005 about his kidnapping on 5 January 2005 was sent to him via DHL; he said he does not have the newspaper that the Notice appeared in.
21. The Tribunal dealt with the applicant’s claims of past harm in the following terms[11]:
    • Essentially the applicant claims that he left his country and cannot return there because he was, and will be, persecuted by Maoists in Nepal because of his work as a journalist there, including that he reported about Maoist atrocities, and because he is anti communist. He claims he was kidnapped, threatened and mistreated by Maoists, including in January 2005. He claims that he will face further persecution because of his activities as a journalist if he returns to Nepal and that his fear of harm is now heightened by recent political changes as the Maoists now form part of the government and are taking revenge. The applicant claims that he cannot get protection from the harm that he fears in his country because the government cannot maintain law and order and because the Maoists are now part of the government and are controlling every organ of the government and committing human rights abuses.
    • The Tribunal agrees that independent country information, including independent country information produced by the applicant, supports, in a general way, the applicant’s claims that in Nepal sometimes there is persecution by Maoists of those who oppose them and that there is not always protection available against that harm. Clearly however the Tribunal must determine whether the applicant before it has a genuine fear founded upon a real chance of persecution for a Convention reason if he returns to his country.
    • The Tribunal accepts that: "applicants for refugee status face particular problems of proof as an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule." The Tribunal also accepts that: "if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt". (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para. 196). However, the Handbook also states (at para 203): "The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts".
    • It is for the Tribunal not only to consider inconsistencies but also to determine what evidence it finds credible (Nicholson J. in Chen Xin He v MIEA, 23 November, 1995 (unreported) at p.11). The Tribunal does not have to accept uncritically all statements and allegations made by an applicant. (Beaumont J in Randhawa v MIEA, [1994] FCA 1253; 124 ALR 265 at p.278). "The mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is well-founded or that it is for reasons of political opinion.[it is] for the Applicant to persuade the reviewing decision-maker that all of the statutory elements are made out." (MIEA v Guo and Anor (1997) 144 ALR 567 at 596).
    • [The] Tribunal accepts and finds that the applicant is a citizen of Nepal and is who he claims to be; the applicant produced his passport to the Tribunal and a copy is placed on the Tribunal file.
    • The Tribunal finds that the applicant left Nepal and went to Thailand on 28 September 2005 and returned from Thailand to Nepal on 30 October 2005. He left Nepal again and returned to Thailand on 27 February 2006 where he stayed until 10 September 2007 when he returned again to Nepal. He obtained his visa for Australia in Bangkok on 24 August 2007 and worked in Thailand during his visit there in 2006/2007 from a short time after his arrival there. The Tribunal finds that the applicant remained living in Nepal from 10 September 2007 until 29 October 2007. He then left Nepal again on 29 October 2007 and went to Thailand from 29 October 2007 until 2 November 2007 and then entered Australia on 3 November 2007. The Tribunal makes these findings based on the entries in the applicant’s Nepalese passport issued 5 September 2004 which he produced to the Tribunal at the hearing and also on his oral evidence to the Tribunal.
    • Although the Tribunal has some doubts about the matter, the Tribunal finds that the applicant worked as journalist for a newspaper in Nepal as he claims for the period he claims.
    • The Tribunal does not accept as true that the applicant left Nepal at any time because he feared/fears harm there from Maoists as he claims for the reasons that he claims. The Tribunal finds that the applicant went to Thailand in 2005 to visit a friend and for tourism/a holiday as he mentioned in his evidence to the Tribunal. In the Tribunal’s view if he feared harm in Nepal from Maoists because of his activities as a journalist or because of his political opinion, or if he desisted in his activities as a journalist because he feared harm from Maoists as he claimed, he would not have then returned to Nepal in 2005 to live essentially in the same area in and around Kathmandu where he told the Tribunal that he had lived previously and then resume his writing about the Maoists a few months after he returned to Nepal. Also if the applicant left Nepal in February 2006 because he feared harm there for the reasons that he claimed he would not have returned there again in September 2007 and lived again in Kathmandu for six weeks or so, especially given that at that time he had a visa to come to Australia; it is clear that he had his visa to come to Australia in August 2007 before he returned to Nepal from Thailand for the second time.
    • In the Tribunal’s view the explanations given by the applicant as to why he would return twice to a country if he feared harm there, namely that he kept on ignoring the Maoists even though he was abused by them and that he was trying to appease people, are not plausible given the seriousness of the harm that the applicant claims he feared/fears in his country. Nor in the Tribunal’s view is his explanation for returning to Nepal in September 2007 plausible; he told the Tribunal that the Maoists were part of the government then and his parents told him things were alright so he felt he could return. On that occasion however he remained in Nepal for over six weeks even though he said he feared harm from Maoists and had a visa for Australia. The Tribunal does not consider that these facts are consistent with the applicant’s claims that he left Nepal because he feared harm there from Maoists/communists. The Tribunal does not accept as plausible that the applicant was able to remain in Nepal for over six weeks when he returned there in 2007 because those from whom he feared harm did not know he was there; he had entered the country using his own passport and returned to stay in the same area around Kathmandu, even if not the same address; he told the Tribunal that he always stayed with his cousin in Kathmandu and that the places he stayed were half an hour apart by bus.
    • The Tribunal does not accept as true that the applicant left his country and/or fears to return there because he feared/fears harm from Maoists in Nepal due to his activities as journalist or because of his political opinion or imputed political opinion. The Tribunal does not accept that the applicant was kidnapped, threatened, detained or ill treated by Maoists in Nepal at any time for the reasons that he claims and does not accept that he will be harmed, threatened or detained by Maoists/communists if he returns there. The Tribunal finds against the applicant in relation to these matters as it does not accept that he is telling the truth about being threatened, kidnapped harmed or mistreated in Nepal; the Tribunal finds that the applicant has made these claims to assist his application for a protection visa. Given the Tribunal’s findings about the applicant’s credibility, it finds that the Notice document dated 7 January 2005 referring to the alleged kidnapping on 5 January 2005is not reliable evidence of the facts contained in that document. The Tribunal notes the comments in WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 at [36] per French J: “Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party’s credibility.” (emphasis added)
22. In WAGU at [36] French J said:
    • Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party's credibility. In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness. This is just a special case of the general proposition that procedural fairness does not require the decision-maker, in this case the Tribunal, to invite comment upon its thought processes on the way to its decision. But where corroborative evidence is rejected on the basis of a finding of fraud or forgery or on some other positive basis which has never been put to the tendering party there may be a failure of procedural fairness. Such a failure may have very practical effects for it means that the corroborative material is never weighed in the balance of the general assessment of the tendering party's credibility.
23. His Honour’s statement needs to be put in context, first by reference to the immediately preceding paragraph in WAGU:
    • In Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59, McHugh and Gummow JJ observed at 70 [49]:
      • In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reason of the tribunal be read as indicated above, the tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.
24. The class of cases identified by the High Court in S20/2002 is necessarily a small one. The Tribunal cannot lightly dispose of corroborative evidence in a case not falling within that class: see WAIJ v Minister for Immigration [2004] FCAFC 74 at [39]- [40] and [52].
25. The issue was recently and cogently dealt with by the Federal Court in SZDGC v Minister for Immigration [2008] FCA 1638 at [23]-[27] where his Honour Finkelstein J said:
    • It is only necessary to deal briefly with the second ground. The complaint is that the tribunal failed to "consider the corroborative evidence in the form of the Summons against the husband of the applicant and the Administrative Penalty Order, before making the adverse credibility finding". I take it to be a trite proposition that a decision-maker required to find facts, whether the decision-maker be a judge or an administrative official, must consider the totality of the evidence that bears upon the facts to be found. That requires the decision-maker to consider any direct evidence of the existence of the fact in issue together with any corroborative evidence that bears on that issue. This is nothing more than common sense. There may be circumstances where it is not necessary to pay due regard to corroborative evidence. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; [2003] HCA 30; (2003) 198 ALR 59 at [49] McHugh and Gummow JJ said "it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption". That proposition is no doubt true. But the circumstances for its application will be rare indeed. Even experienced advocates can only point to a handful of cases where a witness’ credit has been so badly destroyed in cross-examination that it is possible to make findings of fact based on that evidence alone and simply disregard any corroborative evidence.
    • For example in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 568 the appellant complained that the tribunal failed to have regard to certain documents because the tribunal was not convinced that the documents could overcome the difficulties that it had with the appellant’s evidence. Lee and Moore JJ said at [27]:
      • Such a circumstance may arise where an applicant's claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material: see S20/2002 at [49] per McHugh and Gummow JJ. Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied ... it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant's claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant's credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 ; 180 ALR 1 ; 62 ALD 225 at [82]- [85] per McHugh, Gummow and Hayne JJ.
    • The appellant submitted that the conclusion that she had lied to the tribunal was based on the operation of Chinese law relating to the exit and entry of citizens and the issue of passports in circumstances where she had told to the tribunal that (a) she had only been administratively detained after her request for permission to hold a work related protest; (b) she had given an undertaking to persuade those unemployed workers to not engage in any protests in the future; (c) she had not come under any further adverse notice and was not actively sought until after her departure; (d) her application for the second passport was filed before her detention through a friend and money was involved; (e) her Australian visa was obtained through a secret member in the Tourism Bureau of Qingdao City; (f) Chinese law provides for cancellation of the passports of those who have been involved in activities that are endangering the safely, the honour and the interest of the country; and (g) some of the country information speaks only of the probability that a person who has obtained a Chinese passport and exit permit would not be on wanted lists.
    • I am in no doubt that, contrary to the views of the Magistrate, the tribunal should have had regard to the documents put forward by the appellant in order to assess her credibility. In its reasons the tribunal explained how it would have regard to the documents. It said:
      • The applicant has claimed in her most recent submission that: The documentary evidences [sic] that I have previously submitted is true and important evidence in support of my claims. The Tribunal is not convinced that this statement is true as it finds that it does not accept her claims and it does not accept, therefore, that her documentary evidence is authentic.
    • This is not a rational approach. Putting to one side the fact that the tribunal misunderstood the appellant’s claim, it is false reasoning to find that the corroborative evidence was not authentic because the tribunal without regard to that evidence found the appellant to be dishonest. The tribunal should have had regard to the documents when assessing the appellant’s credibility. In that process it might have found the documents not to be authentic. But that would need to have been for independent reasons, unless the appellant’s evidence fell into the S20/2002 category. It plainly did not fall into that category.
26. That decision is binding on me as a decision on appeal from this Court.
27. This was not truly a “poisoned well” case. The applicant’s credibility was not so comprehensively and totally destroyed that the Tribunal could avoid taking into account the corroborative evidence in dealing with the applicant’s claim of having been kidnapped. First, the Tribunal accepted that the applicant was a journalist in Nepal as he claimed and accepted from independent country information that the Maoists persecute those who oppose them and that there is not always protection available against that harm. Secondly, and even more importantly, in my view, the Tribunal relied upon the applicant’s own evidence as to his movements in and out of Nepal and within Nepal in order to reject the applicant’s claims of past harm. It must necessarily follow that the Tribunal accepted as truthful the applicant’s evidence about his movements. The unavoidable conclusion that I am left with is that the Tribunal treated the applicant’s account as truthful in some critical respects but untruthful in other respects. In other words, the Tribunal’s assessment of the applicant’s credibility was equivocal. It accepted and relied upon some of his evidence and rejected other evidence. The applicant was found, in effect, to be a person of mixed credibility – he was not found to be a person of no credibility.
28. It follows, in my view, that it was not open to the Tribunal to find that the corroborative evidence was not reliable evidence of the facts contained in it because of its adverse credibility finding. The corroborative evidence needed to be weighed in making the adverse credibility finding. There was no comprehensive finding by the Tribunal that the applicant was dishonest or untruthful. This case is relevantly indistinguishable from SZDGC. As in that case, it was false reasoning by the Tribunal to find that the corroborative evidence was not reliable because the Tribunal, without regard to that evidence, found the applicant to have fabricated his claims. The Tribunal should have had regard to the document when assessing the applicant’s credibility. In that process it might have found the document not to be authentic. That would have needed to be for independent reasons unless the applicant’s evidence, viewed as a whole, fell within the limited category identified by the High Court in S20/2002. In this case, it did not because the applicant’s evidence had, in significant respects, been accepted as truthful.
29. In this case the Tribunal fell into jurisdictional error and the applicant should receive relief in the form of the constitutional writs of certiorari and mandamus. I will so order.
30. It is unnecessary to deal with the other aspects of the amended application.
31. I will hear the parties as to costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 20 March 2009

---

[1] Court Book (CB) 164
[2] CB 94-107
[3] CB 109
[4] CB 127
[5] CB 141
[6] CB 169-170
[7] CB 170
[8] CB 170
[9] CB 171
[10] CB 167
[11] CB168-170