SZONR v Minister for Immigration & Anor [2011] FMCA 89 (3 March 2011)

Federal Magistrates Court of Australia

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SZONR v Minister for Immigration & Anor [2011] FMCA 89 (3 March 2011)

Last Updated: 4 March 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZONR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 89

MIGRATION – Review of a decision of Refugee Review Tribunal – consideration of weight assigned by the Tribunal to documents – whether the way the Tribunal dealt with the documents before it was illogical, irrational or unreasonable – whether Tribunal finding was “oxymoronic” – whether the Tribunal did not take into account or into consideration corroborative documents – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.414, 430, 476

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59; (2003) 73 ALD 1 WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 586 Minister for Immigration and Multicultural Affairs v Yusef [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256; (1992) 66 ALJR 605; (1992) 108 ALR 55 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; (2005) 80 ALJR 367; (2005) 223 ALR 171; (2005) 88 ALD 257 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 SZJSS v Minister for Immigration and Citizenship [2009] FCA 1577; (2009) 113 ALD 270 Zentai v Honourable Brendan O'Connor (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293 Abebe v Commonwealth [1999] HCA 14; 197 CLR 510; 162 ALR 1; 73 ALJR 584 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15 SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 85 ALJR 306; (2010) 273 ALR 122 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248

Applicant:

SZONR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1618 of 2010

Judgment of:

Nicholls FM

Hearing dates:

19 October 2010 and 19 November 2010

Date of Last Submission:

19 November 2010

Delivered at:

Sydney

Delivered on:

3 March 2011

REPRESENTATION

Counsel for the Applicant:

Mr S M Jeppesen

Solicitors for the Applicant:

Simon Diab & Associates

Counsel for the Respondents:

Mr J A C Potts

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The application made on 23 July 2010, and amended on 19 October 2010, is dismissed.
(2) The applicant to pay the first respondent’s costs set in the amount of $5,865.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1618 of 2010

SZONR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 23 July 2010 under s.476 of the Migration Act 1958 (Cth) (“the Act”), and amended on 19 October 2010, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

2. The applicant is a citizen of Nepal. He arrived in Australia in July 2009, apparently to attend the “Asia Pacific Model United Nations Conference 2009”. He applied for a protection visa on 20 July 2009 (Court Book – “CB” – CB 1 to CB 37).

Claims to Protection

3. The applicant’s claims, initially set out in a statement attached to his protection visa application, were that he feared persecutory harm from the Maoists and the Young Communist League (YCL) in Nepal because of his membership of the youth wing of the Nepali Congress, a democratic party.
4. The applicant provided certain documents in support of his claims:
   1. Letters from “UNESCO and Youth Nepal” of 6 July 2009 (CB 51) and 2 April 2009 (CB 52) (“the UNESCO letters”).
   2. Letters from Nepal Youth Wing of 23 April 2009 (CB 53), 20 March 2009 (CB 57), 16 March 2009 (CB 59) and 24 January 2008 (CB 55).
   3. Identity cards from UNESCO and Youth Nepal (CB 63 to CB 64).

The Delegate

5. The Minister’s delegate refused the application on 2 March 2010 on the basis that country information available to the delegate about the changed political environment in Nepal meant that the applicant’s claims to protection arising from his political opinion no longer revealed a well-founded fear of persecution for a Convention reason if he were to return to Nepal.

The Tribunal

6. The Tribunal’s reasoning was that the applicant’s account given before the Tribunal of relevant events was “completely different” from the account in his written statement accompanying his protection visa application ([74] at CB 206 and [78] at CB 207). In particular this related to three claimed incidents of fighting between the applicant and rival political opponents involving the Maoists ([74] at CB 206 to [76] at CB 207).
7. The Tribunal was of the view that he had: “... altered the account given in the statement accompanying his original application in order to accord with the documents he had produced...” ([77] at CB 207).
8. The Tribunal rejected the applicant’s explanation for the inconsistency in his accounts (including mistakes in translation or mental incapacity) ([78] at CB 207 to [80] at CB 208).
9. In all, the Tribunal found that the applicant was not a witness of truth and rejected his claimed membership of any political organisation, and that he had been attacked by Maoists or their allies for reason of his political opinion ([81] at CB 208).
10. The Tribunal found in the circumstances that there was not a real chance that the applicant would be persecuted for reason of his real or imputed political opinion if he were to return to Nepal. It therefore affirmed the delegate’s decision.

Before the Court

11. At the hearing before the Court Mr S M Jeppesen of counsel appeared for the applicant. Mr J A C Potts of counsel for the first respondent.
12. By way of amended application made on 19 October 2010, the applicant put forward four grounds with particulars.
13. Mr Jeppesen advised that the applicant did not press grounds one and four of the amended application. This left the following grounds:
    • “2. The Second Respondent made jurisdictional error by dismissing, not taking into consideration certain documents and/or failing to give proper weight to corroborative evidence (“the supporting letters”), notwithstanding that it had no basis to determine that the supporting letters were ingenuine, on the basis of a finding on the applicants credibility;
      • Particulars of Supporting Letters
    • Letters provided by applicant to DIAC:
    • (a) Letters from UNESCO and Youth Nepal dated 6 July 2009 and 21 April 2009;
    • (b) Letters from Nepal Youth Wing dated 23 April 2009, 16 March 2009, 26 January 2009 and 24 January 2008; and
    • (c) Identity cards from UNESCO and Youth Nepal, and Nepal Tarun Dal.
    • 3. The Second Respondent failed to give proper, genuine and realistic consideration to the evidence and information including the supporting letters and/or made a determination which was irrational, illogical and not based on findings or inferences of fact supported by logical grounds...”.

The Applicant’s Grounds

14. The applicant’s complaint is that the Tribunal did not consider the letters from UNESCO signed by Professor Budhatholi, the Executive Director of the Department of Youth (CB 51 and CB 52) (“the UNESCO letters”).
15. I understood the circumstances of the applicant’s position to be that the Tribunal’s approach was not such that the applicant’s credibility was so “poisoned” (probably a reference to Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59; (2003) 73 ALD 1 (“Applicant S20/2002”)) that those documents did not need to be considered.
16. While the Tribunal found adversely to the applicant’s credit this was based on inconsistencies between the applicant’s written statement and his oral evidence to the Tribunal, and not on any inconsistencies between the statement, his evidence and the UNESCO letters.
17. The applicant stresses that the points of inconsistency were not such as to say that the applicant was completely dishonest, such that the corroborating evidence of the UNESCO letters could be treated by the Tribunal in the way alleged.
18. The applicant relied on:
    1. Applicant S20/2002 at [14] per Gleeson CJ for the proposition that the whole of the evidence must be considered, and at [49] per McHugh and Gummow JJ for the proposition that the “well must be poisoned beyond redemption” in relation to credibility.
    2. WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 586 per Lee and Moore JJ for the proposition that only “comprehensive findings of dishonesty or untruthfulness” negated allegedly corroborative material. The corroborative material must be weighed or else risk jurisdictional error.
    3. Minister for Immigration and Multicultural Affairs v Yusef [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] to [85] per McHugh, Gummow and Hayne JJ.
    4. Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256; (1992) 66 ALJR 605; (1992) 108 ALR 55 at [37] to [38] for the distinction between a rejection of evidence and a finding of a deliberate lie.
    5. NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; (2005) 80 ALJR 367; (2005) 223 ALR 171; (2005) 88 ALD 257 (“NAIS”) at [8] per Gleeson CJ for the proposition that even exaggeration which leads to a lie does not necessarily result in a destruction of credibility.
19. In relation to ground two the applicant complains that the UNESCO letters were “merely adverted to” and not “properly considered” before rejecting the applicant’s claim. The Tribunal should have properly considered the UNESCO letters.
20. Ground three complains that the letters were “impliedly given no weight”. The letters were said to have been rejected because the applicant was found to have been untruthful. This was said to be illogical given that the UNESCO letters were “authentic”.
21. In this latter regard, the applicant relies on the delegate’s decision record which notes that she contacted the author of these
    letters: “... who verified he was the signatory and explained the history of [UNESCO]” (CB 113.4).
22. In essence I understood the complaint to be that the way the Tribunal dealt, or rather failed to properly deal, with the UNESCO letters was illogical and unreasonable. In effect it found the UNESCO letters to be forgeries, when there was evidence that made that finding “oxymoronic”.
23. The applicant relied on Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [133] to [135] per Crennan and Bell JJ, to submit that the correct approach for this Court to pursue in these circumstances was to ask whether a logical, rational decision maker could have come to the same conclusion in these circumstances.
24. Mr Jeppesen also relied on SZJSS v Minister for Immigration and Citizenship [2009] FCA 1577; (2009) 113 ALD 270 per Rares J. At the time of hearing before me the Minister’s appeal in that matter had been heard by the High Court but judgment had not been given.
25. I ultimately granted leave for the parties to make further written submissions in light of the High Court’s judgment given on 15 December 2010. Both parties made submissions. I will refer to these below.

Consideration

26. A proper understanding of the applicant’s complaints requires notice of the following part of the Tribunal’s decision record (at CB 208):
    • “80. I consider that he has altered his account to accord with the documents which he produced. As I put to him, the information available to me indicates hat it is very easy to get forged documents in Nepal and that any Nepalese document can be obtained by fraud (DFAT Country Information Report No.194/98, dated 11 May 1998, CX29684, and Research Directorate, Immigration and Refugee Board of Canada, ‘NPL103010.E: Prevalence of forged, fake or falsely acquired documents, including identity documents, professional certifications, membership cards and employment records’, 26 January 2009). The applicant said that the documents he had produced were originals and that they could be verified with the office in Pokhara or Kathmandu. However, having regard to the information about the ready availability of forged documents in Nepal, I give greater weight to the view I have formed of the applicant’s credibility based on the shift in his evidence from what he said in the statement accompanying his original application than I do to the documents he produced.
    • 81. I do not consider that the applicant is a witness of truth. I do not accept that he was involved in the Nepali Congress, the Nepal Tarun Dal or the Nepal Student Union in Nepal nor that he was attacked or threatened by Maoists or the YCL for reasons of his political opinion.”
27. A proper resolution of the complaint however requires in the first instance, a holistic reading and understanding of the approach taken by the Tribunal. This, with the application of relevant authorities, reveals no reviewable error in what the Tribunal has done.
28. That reasoning is outlined at [6] to [10] above. The critical element is that the Tribunal did not consider the applicant to be a witness of truth. This was because of the completely different accounts be had presented of claimed relevant circumstances in Nepal.
29. The Tribunal’s approach to the documents in question should, on at least a fair reading of its decision record, be seen in that light.
30. However, the issue does then become somewhat problematic. Did the Tribunal, with its reference to country information and the ready availability of forged documents, make a finding, or take the view, that the UNESCO letters were forgeries, or was this a reference only to the other documents produced by the applicant? Or did the Tribunal deal with the documents on the basis of comparative weight between them and the credibility consequence of the applicant’s completely different factual accounts?
31. It must be said that what appears at [80] to [81] of its decision record (quoted at [26] above) is not clear in this regard. The elements of forged/fraudulent documents and weight appear to have been interwoven such as to make it difficult to discern whether the documents were rejected as forgeries, or simply given lesser or no weight, or given lesser or no weight in circumstances where forged documents are readily available and given the completely different factual accounts given by the applicant were such as to persuade the Tribunal that the applicant was not a witness of truth. What exactly was it that persuaded the Tribunal that the applicant was not telling the truth?
32. I was, on a fair reading, persuaded to the latter reading of what the Tribunal has done. In this regard, the sequence of the Tribunal’s reasoning is important.
    1. The extent of the differences in his two accounts of events in Nepal was so great as to cause concern to the Tribunal ([74] at CB 206 to CB 207).
    2. The Tribunal postulated that the reason for the change was to enable his account of relevant events to accord with all of the documents he had provided ([77] at CB 207).
    3. The Tribunal considered and rejected the applicant’s explanations for this change in his account:
       1. Mistakes in translation ([78] at CB 207).
       2. The applicant’s inability to concentrate ([79] at CB 207 to CB 208).
       100. The claims were the same anyway ([79] at CB 208).
    4. This led the Tribunal to find that the applicant had altered his account to accord with the documents ([77] and [80] at CB 208).
33. At the hearing the Tribunal told the applicant that it was concerned that he had altered his factual account to accord with the documents he had submitted in support of his application. The applicant claimed his documents were genuine and supported his claims. Plainly this was not directly responsive to the Tribunal’s concern. In any event, the Tribunal as a result of the applicant’s claims had regard to country information about the availability of forged or fraudulent documents in Nepal.
34. The Tribunal’s reasoning as expressed at the conclusion in [80] of its decision record reveals, on a fair reading, that the Tribunal had concerns with the applicant’s explanation that his documents were genuine given the availability of forged documents, and in light of this gave greater weight to its findings that he had significantly changed his evidence to accord with the documents. Both that fact and his insistence that there was no inconsistency in his two accounts led it to find he was not a witness of truth.
35. In my view the reason the Tribunal affirmed the delegate’s decision was that the complete change in his account, which was not satisfactorily explained, led it to find he was untruthful.
36. In this, the reference to forged documents was a reaction to one of the applicant’s explanations that his documents were genuine, but in any event led to greater weight given to its already formed view.
37. A distinction can be drawn between the critical finding that the applicant completely changed his account to accord with the documents and that this damaged his credibility, and the Tribunal’s response to the applicant that in the context of the ready availability of fraudulent documents it gave greater weight to its view of his lack of credibility than to the documents he produced.
38. In that light therefore a number of things can be said.
39. First, as Mr Potts submitted the important first question for this Court is whether it was open to the Tribunal to find that there were discrepancies in the applicant’s two accounts, and then whether these were so significant that they affected his credibility.
40. The applicant’s initial account was set out in a written statement (CB 35 to CB 37). The applicant had provided a number of documents to the Minister’s delegate, which relevantly included the UNESCO letters.
41. The Tribunal’s account of what occurred at the hearing with the applicant has not been challenged by him before this Court. This account reveals, relevantly, that the applicant began by confirming that the written statement he had provided accurately reflected his claims to refugee status ([27] at CB 197).
42. However, as the Tribunal progressively sought to understand the applicant’s claims it noted with him inconsistencies in his account, in particular inconsistencies between the written account and what was presented in the documents ([31] at CB 198 to [36] at CB 199).
43. The applicant’s attempts to explain the inconsistencies were clearly a problem for the Tribunal. As it said his explanations left
    it: “... becoming more and more confused as to what he had actually done...” ([37] at CB 199.4).
44. The Tribunal’s subsequent attempts to clarify his account led to further inconsistencies ([38] at CB 199 to [48] at CB 201), which ultimately prompted the Tribunal to: “... put to the applicant that in the statement accompanying his original application he had given a different account of the problems he claimed to have had before he had left Nepal.” ([49] at CB 201.)
45. The Tribunal squarely put to the applicant: “... that it appeared to me that he had changed his account to accord with these documents. I put to him that what was in the statement accompanying his original application was quite different from what was in those documents and what he had said at the hearing before me.” ([50] at CB 201 to CB 202.)
46. The remainder of the hearing focussed specifically on further concerns and inconsistencies and the applicant’s explanation for these ([51] at CB 202 to [69] at CB 205 to CB 206).
47. What is clear on any plain, let alone fair reading of the record is that it was certainly open to the Tribunal to find that the two accounts were fundamentally different, particularly in relation to his membership of certain political organisations and the timing and nature of certain incidents.
48. As to the significance of these discrepancies and their impact on the applicant’s credibility, care must be taken that this Court does not stray over the “vigorously policed” line between merits review and judicial review (Zentai v Honourable Brendan O'Connor (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293).
49. After all the sifting and weighing of evidence before it, it is for the Tribunal (Abebe v Commonwealth [1999] HCA 14; 197 CLR 510; 162 ALR 1; 73 ALJR 584 (“Abebe”)) to make findings based on the evidence, including findings as to credibility, as the Tribunal is the decision maker “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405 at [67] per McHugh J).
50. In any event, I cannot see that it was not open to the Tribunal to find that the discrepancies were significant given their direct link to the central part of the applicant’s claims, namely his membership of certain political groups and certain instances of harm said to have occurred because of his political activities. There was clearly a probative basis for the Tribunal’s findings in this regard.
51. Second, to the extent that in ground two the applicant complains specifically about the weight accorded to the UNESCO letters, that complaint must be rejected partly for the same reason. The applicant says the Tribunal did not give proper weight to the documents, but the according of weight is a matter for the Tribunal (as set out above).
52. Third, and importantly, this is not a case where the Tribunal accorded no weight to the UNESCO letters and other documents. The applicant invoked Applicant S20/2002 to argue that the Tribunal’s adverse credibility finding was not of such a nature that what was proffered in corroboration could be not taken into account or given no weight.
53. But the current case is not one where no weight was given to the documents. As set out above the Tribunal was clearly and strongly concerned with the applicant’s completely different accounts. This is plainly the real reason that the Tribunal found adversely to the applicant’s credit and affirmed the delegate’s decision.
54. In my view the reference to Applicant S20/2002 can only serve to confuse the resolution of this case. Even if it were to be accepted (and I do not do so) that the applicant’s credibility was not so fundamentally weakened as required for the “Applicant S20/2002 situation” to apply, what we are still left with is that the Tribunal gave “greater weight” to its view about the applicant’s credibility (because of the significant shift in his evidence) than it did to the documents.
55. These circumstances are therefore and for example far closer to the case relied on by the respondent in this regard (Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 (“SZNPG”) particularly at [20], [23] to [26] and [28]). In the current case, the Tribunal was of the view that lesser, and not greater, weight should be given to the corroborative documents. The according of such weight was a matter for the Tribunal.
56. Fourth, nor, it must be noted, did the Tribunal make an express finding that the documents, including the UNESCO letters, were fraudulent or forgeries. The Tribunal’s reasoning in this regard may be described as either quite subtle or, in contrast, confusing. But whichever it is, it is at least clear that no finding of forgery or fraud was made.
57. In the context of already having arrived at a strong view adverse to the applicant’s credit, the Tribunal was not swayed to a different conclusion by the documents given the strength of its conviction about the applicant’s lack of credibility (because of the complete change in his account), and further in light of country information concerning the availability of fraudulent documents.
58. A second element of the applicant’s complaint in ground two is that the Tribunal did not take into account, or into consideration, the corroborative documents.
59. This must be rejected.
60. First, the documents, including the UNESCO letters, were provided to the delegate. The Tribunal, amongst other things, made specific reference to this in its decision record ([24] at CB 196):
    • “The applicant produced two letters on the letterhead of UNESCO and Youth Nepal dated 21 April and 6 July 2009 respectively confirming the applicant’s employment with the organisation and stating that he had been working for ‘youth empowerment, youth leadership, youth crime prevention, promotion of Model United Nations Activities to the students in the colleges and schools etc’. The more recent letter said that the applicant had been receiving threats from the YCL while he had been working in Pokhara and that ‘the YCL put his name in most wanted and chased him from Pokhara’. It said that the Board of Directors had therefore appointed him to work in the same field in Kathmandu but that his life was in danger in Nepal.”
61. At the hearing the Tribunal made specific reference to his UNESCO identity card which raised an inconsistency with his oral evidence as to when he started working with UNESCO and his whereabouts in Nepal for part of the relevant period ([45] at CB 200).
62. Although no specific reference was made at the hearing to the two UNESCO letters it cannot be said, given the other reference in its decision record, that the Tribunal was not aware of the letters, nor, given its other clear reference that the applicant claimed to have worked for UNESCO and Youth Nepal.
63. But what is immediately clear is that the applicant had never claimed to fear harm from the Maoists or any other group because he worked for UNESCO and Youth Nepal. His claim to fear harm was said to emanate from the Maoists and their allies because he was a member of, associated with, and pursued activities for, the Nepali Congress, the Nepal Tarun Dal and the Nepal Student Union.
64. The applicant’s written statement made no reference to UNESCO and Youth Nepal other than in the context of his employment by them.
65. While the applicant claimed to have received threats while he was employed by UNESCO in rural villages, these threats were clearly directed to him because of his activities on behalf of the Nepali Congress. See for example at [44] (at CB 200):
    • “... The applicant said that after the election he had not been able to remain at his home because he had been getting frequent threats. He said that also at that time he had been working for UNESCO in Pokhara. He said that he had been deployed to go to the villages but this had been very difficult because he had been getting frequent threats. He said that his parents had been told that if he did not leave the party and join them he would be in trouble and his parents had also been forced to make donations. He said that his life had been threatened as well. He said that this had probably been around the year 2008. He said that because he had been getting these threats he had asked UNESCO if he could move to their office in Kathmandu because he had not been able to live in Pokhara any more due to these threats. He said that he had moved to Kathmandu believing that he would be more secure.”
    • [Emphasis added.]
66. That he worked for UNESCO and Youth Nepal was never at issue. The Tribunal was certainly aware of the contents of the two letters (see [24] at CB 196). But beyond the discussion at the hearing (as set out above) it is difficult to see in all the circumstances what further account the Tribunal should have taken of these two letters.
67. Section 430 of the Act directs the Tribunal as to the content of its decision record. Relevantly, the evidence to be set out is that on which its findings of fact are based (s.430(1)(d)).
68. The relevant findings were ([81] at CB 208):
    • “... I do not accept that he was involved in the Nepali Congress, the Nepal Tarun Dal or the Nepal Student Union in Nepal nor that he was attacked or threatened by Maoists or the YCL for reasons of his political opinion...”.
69. The Tribunal’s reference in general terms to these letters in its analysis (at [80] at CB 208: see in particular the reference to “employment records”) was sufficient consideration of these documents. I agree with Mr Potts, and bearing in mind what was said by the Full Federal Court in SZNPG (see above at [55]), that the Tribunal acknowledged all the documents before it, but was plainly concerned with the inconsistency of the applicant’s two completely different accounts.
70. The Tribunal considered that the reason for this change was so that the applicant could make his account consistent with what was stated in the documents. In this regard the Tribunal had regard to all the documents, including the two UNESCO letters, and came to a conclusion which was open to it that the applicant was not to be believed given the reason for the change in his account.
71. In this context, there was plainly no need for the Tribunal to make any further specific reference to any other documents, nor to address the specifics of what was said by the author of the two UNESCO letters.
72. Ground two is not made out.
73. Ground three has some overlap with ground two. The specific complaint is that the Tribunal did not give proper, genuine, realistic consideration to the two letters, and its determination was therefore irrational, illogical or not based on findings of fact supported by logical grounds.
74. The applicant’s position is that the Tribunal’s statutory duty is to review the delegate’s decision (s.414 of the Act and Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15), and that this requires consideration of the claims and evidence. The relevant evidence (the UNESCO letters) was critical to the applicant’s claim and the failure to consider the evidence, that is to give it proper, genuine and realistic consideration, amounts to a failure to review and therefore jurisdictional error. The applicant relied on SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [38] to [39] and [59].
75. Further, that it was irrational and unreasonable to give the letters, which had been “authenticated” by the delegate, “no weight”. This was a reference to the delegate’s decision which recorded that (at CB 113):
    • “... The decision maker contacted the author of the letters who verified he was the signatory and explained the history of the NGO...”.
76. Mr Jeppesen submitted that it was irrational and unreasonable of the Tribunal to have dealt with the UNESCO letters in this way. That is they were “lumped in” with the other documents, and said to be forgeries, when there was evidence that made such a finding “oxymoronic”. He relied of SZJSS (Full Federal Court) at [46] and [63] in support of the argument.
77. At that time, judgment in Minister for Immigration and Citizenship v SZJSS on appeal to the High Court was reserved. The parties made written submissions after judgment was delivered (Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 85 ALJR 306; (2010) 273 ALR 122 (“SZJSS”)).
78. The applicant’s position is that SZJSS had no adverse impact on the applicant in the current case because the High Court noted the Minister’s submissions that the statutory duty to appear and give evidence implies that such evidence be given proper, genuine and realistic consideration (at [29] at CB 197 and see the reference to NAIS). The applicant contends that it was the methodology employed by the Federal Court that fell into merits review, not the proposition on which it was based.
79. He invites this Court to review the Tribunal’s failure to properly consider the UNESCO letters and argues that such a review would not amount to merits review (SZJSS at [30]).
80. It was said that the distinction with the circumstances in SZJSS is that the Tribunal’s finding in that case (that it gave no weight to the corroborative letters) was found by the High Court to be soundly based because there was other evidence, inconsistent with the corroborative evidence, on which the Tribunal could base its “no weight” finding.
81. The argument was that, by contrast, in the current case there was no evidence that contradicted the corroborating letters. In fact it was said there was evidence that “authenticated” the letters. Nor was there any finding that the applicant’s account was inconsistent with what had been stated in the letters.
82. The applicant’s attack centres on the Tribunal having “disregarded” the letters, giving them no weight, because of the existence of country information, which was said to be irrelevant, about the ease with which forged or fraudulent documents could be obtained in Nepal.
83. The applicant argues that there was no objective basis to say that this country information was relevant to the question the Tribunal had to determine, and in any event there was no finding as to any “absence of authenticity” of the letters, or a finding that the letters were forged.
84. In short, the Tribunal made no finding of fact to support its exclusion of the letters. This meant its reasoning process was irrational and unreasonable, if not arbitrary and capricious. The applicant relies on Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [133] and [135] per Crennan and Bell JJ, to submit that the question for the Court is whether a logical or rational decision maker could have come to the same conclusion as the Tribunal in the circumstances.
85. A number of preliminary points need to be made.
86. First, the argument that the letters were critical to the applicant’s claims, and therefore the failure to properly consider them amounts to a failure of review, misrepresents the relationship of the letters to the applicant’s claims to fear persecutory harm, but even more importantly, as set out in relation to the previous ground, misrepresents the Tribunal’s reasoning process.
87. Second, it is not correct to say the Tribunal gave “no weight” to the letters. The Tribunal clearly stated it gave “greater weight” to its view of the complete change in the applicant’s account than to the documents. That it did so in part because of the country information relating to forged documents does not mean that it made a finding to give “no weight” to the documents. There is clearly a distinction between “no weight” and “greater weight”.
88. Third, while the Tribunal plainly made reference to the prevalence of fraudulent or forged letters, it did not make any express finding that the letters were of such character. However the applicant’s contention appears to be that such a finding was implicit in the Tribunal’s analysis.
89. In my view, this again misrepresents the Tribunal’s approach. For the reasons already set out above, the Tribunal’s finding that it gave greater weight to its view than to the documents was a finding open to it on what was before it. That it did so in part because of the availability of fraudulent or forged documents does not mean it failed to give proper consideration.
90. Fourth, and in any event, I agree with Mr Potts that SZJSS clearly approved the proposition that that to which the Tribunal is required to give proper, genuine and realistic consideration is not every piece of evidence before it, but to the “merits of the case” (at [30]).
91. The “merits” of the applicant’s case were that he had suffered incidents of harm in Nepal in the past. He feared persecutory harm on return because of his political opinion as expressed in his involvement in a number of political bodies. That persecution would emanate from the Maoists and their allies because of this.
92. The Tribunal considered the entirety of this claim. The letters contained no new claim or aspect of the applicant’s claim such as to have required the Tribunal to further engage with them.
93. What was left therefore was the weight to be accorded to the letters as corroborating evidence. In this regard SZJSS makes it plain
    that: “... the weighing of various pieces of evidence is a matter for the Tribunal” (at [33] with reference to Abebe at [197]).
94. Fifth, it is the case, as repeatedly referred to above, that the Tribunal referred to the availability of forged documents in circumstances where the applicant says the letters were “authenticated” by the delegate. On balance, I cannot agree. What was “authenticated” by the delegate was that the purported signatory to the letter had signed the letter. So at most what can be said is that there was evidence that the letter was not a forgery in the sense that the author signed the letters provided.
95. It is true, as Mr Jeppesen submits, that the Tribunal made reference to “forged” documents and country information about the prevalence of “forged, fake or falsely acquired documents” (see at [80] and at CB 214). But ultimately the Tribunal made no finding that the letters were forgeries. What it found was that it preferred its view of the fundamental change in the applicant’s account of persecutory harm to what was stated in the letters and that it did so in part because of the ready availability of “forged” documents. That it therefore gave “greater weight” to its view does not offend anything said in SZJSS.
96. The letters may indeed not have been forgeries. But it is not for this Court to substitute its own finding in this regard. The High Court gives clear direction in this regard (SZJSS at [35] to [36]):
    • “Whether the letters were ‘highly supportive’ or ‘powerfully corroborative’ (as they appeared to the Federal Court) of the first respondent’s claim that Maoists were pursuing him in Kathmandu was a question upon which reasonable minds might come to different conclusions. The Tribunal’s preference for other evidence, including the first respondent’s own evidence about numerous matters, including the effect of social and political changes from, and since, 2006, over the evidence of the letters written during the first half of 2006, could not be said to constitute a failure to take into account a relevant consideration as canvassed in Peko-Wallsend or Yusuf’s case. Nor could it be said to be a failure to respond to a substantial argument thereby giving rise to the kind of error identified in Dranichnikov v Minister for Immigration and Multicultural Affairs.
    • The conclusion that the Tribunal erred in giving ‘no weight’ to the letters, with the implication that it should have given different, presumably determinative, weight to them, depended on the Federal Court reviewing the factual findings of the Tribunal rather than the process by which it arrived at its conclusions.”
    • [Footnotes omitted.]
97. As Mr Potts submits, the Tribunal’s preference for its view of the applicant’s own evidence and the change in his claims over the letters is not a failure to take into account a relevant consideration, nor a failure to respond to the applicant’s argument (SZJSS at [35]).
98. For this Court to agree with the applicant would require it to find that greater weight should have been given to the letters, or that the weight given by the Tribunal should have been different. SZJSS does not assist the applicant in this way. This Court cannot review the factual findings of the Tribunal (SZJSS at [36]).
99. The Tribunal’s finding in this regard was not irrational or unreasonable. Nor for that matter was it arbitrary or capricious. The fact that the delegate “authenticated” the letters does not assist the applicant in circumstances where the Tribunal made no finding that the letters were not authentic. On the Tribunal’s approach, as Heydon J said in SZMDS (at [78]):
    • “The issue was one on which minds might differ. The Federal Court evidently operated on one assumption or conclusion about that issue. The Tribunal operated on another. The difference was one of degree, impression and empirical judgment. It did not stem from an error in logic by the Tribunal member. The difference could not be said to reveal an absence of any basis whatsoever for her conclusion.”
100. The Tribunal preferred its own view of the applicant’s evidence over what was in the letters. That it did so in part because of the general availability of fraudulent documents in Nepal does not make its conclusion “oxymoronic”.
101. Ground three is not made out.

Conclusion

102. The grounds of the applicant’s amended application, as pressed and argued by the applicant’s legal representatives, are not made out. The application, as amended, is to be dismissed.

I certify that the preceding 102102one hundred102102twothirty-twoone hundred and two (102) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 3 March 2011