SZFBD v Minister for Immigration - [2006] FMCA 92

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFBD v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 92

MIGRATION – Review of decision by Refugee Review Tribunal – corroborative material – credibility of witness – cogent material to support a conclusion that an applicant has lied – jurisdictional error found.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; 483

W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703
Abalos v Australian Postal Commission (1998) 171 CLR 167
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044
WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74
Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20 of 2002 (2003) 198 ALR 59
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Applicant:

SZFBD

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3381 of 2004

Judgment of:

Emmett FM

Hearing date:

12 December 2005

Date of Last Submission:

12 December 2005

Delivered at:

Sydney

Delivered on:

30 January 2006

REPRESENTATION

Counsel for the Applicant:

Mr I.G. Archibald

Solicitors for the Applicant:

Ms U. O’Hanlon, Michael Byers Solicitors

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Ms A. Radich, Blake Dawson Waldron

ORDERS

That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
That the Applicant’s applications before this Court are dismissed.
That the Applicant pay the First Respondent’s costs in the amount of $5800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3381 of 2004

SZFBD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visas to the applicants.
The Applicant was born in Zhang Jing, Guang Dong, Peoples Republic of China (“the PRC”) on 21 November 1968.
The Applicant was born as a Chinese citizen and claims to remain a Chinese citizen.
The Applicant claims to belong to the Chinese ethnic group and is a Christian.
The Applicant claims that she graduated from the child education class of Zhanjiang City Teaching School in 1987 and between 1987 and 1993 she was employed as a teacher.
The Applicant has a son born on 3 August 1989, who was residing in the PRC when the Applicant left the PRC.
The Applicant claims that she legally departed from Guangzhou Airport on 31 December 2003.
The Applicant arrived in Australia on 1 January 2004.
On 14 January 2004, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
The Applicant claimed that if she returned to the PRC she would be arrested and deprived of employment due to her Christian practices and beliefs.
On 21 April 2004, the Delegate refused the application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 25 May 2004, the Applicant lodged an application for review before the Tribunal. On 20 October 2004, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 18 November 2004, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Pursuant to orders made by this Court 2 December 2004, the Applicant filed an amended application on 19 April 2004.

Legislative framework

Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.

Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia owes protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

The Tribunal had before it the Department’s file, including the protection visa application and the Delegate’s record of decision. The Tribunal also had regard to material referred to in the Delegate’s decision, and other material available to it from a variety of sources.
The Applicant gave oral evidence to the Tribunal on 10 September 2004, and was represented by a migration agent who also made submissions on her behalf.
The Tribunal identified with particularity the claims made by the Applicant in her statutory declaration, dated 12 January 2004; material provided by her in support of her application; a submission received from her adviser, dated 25 May 2004, various documents including further documents not provided to the Department; further material received from the adviser on 22 June 2004 including a letter from the pastor of her church and psychological reports; and a further statement from the Applicant dated 25 May 2004.
The Tribunal identified in detail the oral evidence given by the Applicant at the hearing on 10 September 2004. The Tribunal noted, in the Claims and Evidence section of its decision, the various matters that it put to the Applicant arising out of the Applicant’s claims and material. The Tribunal noted relevant responses from the Applicant.
The Tribunal accepted that the Applicant is a Christian. However, the Tribunal did not find the Applicant a credible witness and noted that, after the hearing, it was left with the “clear impression” that the Applicant had fabricated a number of essential claims in order to support her application for a protection visa. The Tribunal noted that the Applicant came across as being “overtly dramatic and clearly prone to exaggeration.”
The Tribunal noted that the Applicant made new claims at the hearing and that some of the Applicant’s supporting documents were in “clear contradiction with her oral testimony”.
The Tribunal acknowledged that each of its concerns might be perceived as being minor, however, looking at the evidence as a whole, the Tribunal found that the claims of harm made by the Applicant had been fabricated.
The Tribunal went on to reject each of the Applicant’s claims in respect of each incident identified as follows:
a)Her alleged detention in November 2001;
b)Her alleged detention on 10 April 1992;
c)Her alleged arrest on 6 November 1992;
d)Her alleged arrest on 23 April 1998;
e)Her face lift on 10 January 2000;
f)Her dismissal from employment on 3 January 1993;
g)The alleged bullying of her son at school as a result of her religious activities;
h)Her alleged Christian related activities;
i)Her psychiatric and psychological reports;
j)Her documentary material alleged to have been sent by her brother in the PRC.
The Tribunal found that the Applicant had not suffered any harm attributable to a Convention reason and was not satisfied that there was a real chance of such harm occurring in the reasonably foreseeable future.
The Tribunal found that any Christian activities, in which the Applicant may have been involved, have not caused the Applicant any Convention related harm. The Tribunal did not accept that the Applicant needed help in order to leave the PRC and was satisfied there was no Convention reason why the Applicant could not return to the PRC. The Tribunal was not satisfied ultimately that the Applicant has a well founded fear of persecution if she were to return to the PRC for a Convention reason.

The proceeding before this Court

The Applicant was represented by Counsel at the hearing before this Court. A copy of the transcript was tendered on behalf of the Applicant.
At the commencement of the hearing, Counsel for the Applicant sought leave to file and rely on a further amended application. On 2 December 2004, the Applicant was directed, by consent, to file an amended application by 14 April together with any additional evidence to be relied upon and was directed to file and serve written submissions 14 days before this hearing. An amended application was filed by the Applicant on 19 April 2005. No other document was filed by or on behalf of the Applicant.
The First Respondent filed written submissions in response to the Applicant’s amended application at the hearing before this Court and sought to rely on a further amended application. Counsel for the Applicant abandoned the grounds identified in the amended application. The First Respondent did not submit that the further amended application was entirely futile, nor that the First Respondent was prejudiced in dealing with the further amended application at the hearing, other than in respect of the costs thrown away by the First Respondent in preparing its response to the amended application. For those reasons, leave was granted to the Applicant to file in Court the further amended application in terms of the document signed by the solicitor for the Applicant dated 9 December 2005 and initialled and dated by me.
The Applicant was ordered to pay the costs of the First Respondent thrown away by the preparation by the First Respondent of written submissions in response to the amended application filed by the Applicant on 19 April 2005. Those costs were ordered to be paid within 28 days unless otherwise agreed.
The ground relied upon by the Applicant is fully particularised as follows:
“1.    The Refugee Review Tribunal fell into jurisdictional error in its finding that the applicant is not a credible witness.
PARTICULARS
a.   In circumstances where the applicant’s claims had not been discredited by comprehensive findings of dishonesty or untruthfulness, and,
b.   The applicant had submitted purportedly corroborative material of her claims as to past persecution,
it was not open to the Tribunal to fail to consider and/or reject material corroborative of he applicant’s claims substantially because it had found, without regard to that material, that the applicant was not a credible witness. In such circumstances the Tribunal was bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility as to the substance of her claims.
c.    The corroborative material included:
i.Detention and Fine Records issued by the Public Security Bureau of Zhanjiang City on:
1. 10 April 1992,
2. 6 November 1992,
3. 23 April, 1992,
4. 3 November 2001,
ii.Decision regarding the termination of employment dated 3 January 1993,
iii. Psychologist Report by Si H Guo,
iv.Psychiatrist reports by Dr S.K. Law,
v.Country reports submitted by the applicant.
vi.The express claims of the applicant as to having been an active Christian in China including preaching the Gospels and not recanting.
d.   The approach of the Tribunal to the issue of credibility was:
ii.Not open to it on the material,
iii.Was not based on rational grounds, and,
iv.Was arrived at after consideration of matters that were not logically probative of the issue of credibility including:
1.   The Tribunal mis-stated the claim of the applicant in relation to the events of 10 April, 1992,
2.   The Tribunal relied on the applicant not having included in her claims particulars of what happened to other persons on 10 April, 1992, 6 November, 1992 and 23 April, 1998,
3.   The Tribunal relied on the applicant not having included her account as to what she understood the PSB had said to her employer in relation to the applicant,
4.   The Tribunal to failed to consider the full explanation of the applicant in relation to the divorce document in so far as it related to the age of her son,
5.   The Tribunal mis-stated the account given by the applicant as to when she received the Detention and Fine Records issued by the Public Security Bureau of Zhanjiang City and then relied on its own mis-statement of the account in the adverse credibility finding.
e. By reason of the matters aforesaid the Tribunal did not act in accordance with s 420 (2) (b) of the Migration Act 1958 and reached its decision that the applicant was not a credible witness by adopting a procedure which in its effect placed on the applicant an onus of establishing that she was truthful.
f.     The failures of the Tribunal had the effect that the Tribunal’s review of the protection visa decision was not carried out according to law and the Tribunal’s decision was thereby affected by jurisdictional error.”
Essentially, Counsel for the Applicant submitted that the Tribunal should have considered the Applicant’s documents in support of her claims, before making its findings on her credibility.

Grounds 1(a) (b) and (c)

Counsel for the Applicant addressed the Court in respect of each of the incidents which resulted in adverse credibility findings by the Tribunal. Grounds 1(a) (b) and (c) are addressed below commencing with a consideration of each of the incidents referred to by Counsel for the Applicant.

Alleged detention of the Applicant in November 2001

The Applicant claimed in her oral evidence before the Tribunal that she was detained in November 2001. The Tribunal noted that the Applicant’s statutory declaration of 12 January 2004 made no mention of this claim.
The Applicant gave oral evidence before the Tribunal, that on

3 November 2001, she was detained for 15 days, beaten, tortured and told she needed to be educated. The Tribunal noted that it asked her to explain why that claim had not been in her original application for protection. The Tribunal noted that the Applicant responded that she was hurried by the agent.
However, the Tribunal found that the statutory declaration of

12 January 2004 was “by no means short and concise.” The Tribunal noted that the statutory declaration made 12 January 2004 went into “great details about the applicant’s claims.” For those reasons, the Tribunal was not persuaded by the Applicant’s explanation that the reason why the claim of being in detention in November 2001 was not made in the statutory declaration made 12 January 2004 was because she was rushed. The Tribunal gave the explanation no weight.
The Tribunal noted that it put to the Applicant that it was hard to accept that a recent detention would not have been mentioned in the statutory declaration. The Tribunal noted that the Applicant responded that she did not know how to prepare her documents. The Tribunal noted that, as the Applicant had an agent to advise and assist her in the completion of her application for a protection visa, it was not persuaded by the Applicant’s explanation.
Whilst the Tribunal accepted the possibility that the Applicant was rushed by her agent, the Tribunal was not satisfied that a serious claim of the most recent detention would have been left out of the statutory declaration made by her on 12 January 2004. For those reasons, the Tribunal found that this claim had been fabricated in order to enhance or create her refugee claim, thereby reflecting adversely on her credibility.
The Tribunal did not accept that the Applicant was detained in November 2001 and therefore rejected the Applicant’s claim of ill treatment as it had not accepted she was detained.

Alleged detention on 10 April 1992

The Applicant claimed, in her statutory declaration made 12 January 2004, that she was “warned” and fined 200 Yuan for preaching at a gathering in a schoolmates home. The Tribunal noted that the adviser’s submissions, dated 25 May 2004, claim that the Applicant was “arrested” by the PSB and fined 200 Yuan.
The Tribunal noted that, at the hearing, the Applicant gave evidence that she was arrested on 10 April 2002 with about 30 other preachers by the PSB. The Tribunal noted that it put to the Applicant that she had not previously asserted that 30 other people had been arrested with her. The Tribunal noted that the Applicant responded that she “could not tell all the details prior to today.”
The Tribunal found that the arrest of 30 people was a significant occurrence and did not accept the Applicant’s explanation as having any weight. The Tribunal’s failure to accept the explanation of the Applicant, led the Tribunal to make adverse credibility findings in respect of the Applicant’s claim and caused it not to accept the Applicant’s claim of having been detained on 10 April 1992. Because the Tribunal did not accept that the Applicant had been detained on

10 April 1992, it rejected her claim of ill treatment during detention.
The Tribunal made it clear that it was not persuaded by the Applicant’s explanation that she “could not tell all the details prior to today”. Counsel for the Applicant submitted that it was erroneous for the Tribunal to reject her evidence of detention on the basis that she had not asserted previously that 30 other people had been arrested. However, it was the Tribunal’s finding of the unsatisfactory nature of her explanation as to why she had not made that assertion before that was at the heart of the Tribunal’s adverse credibility finding, rather than her new assertion alone.

Alleged arrest on 6 November 1992

The Tribunal noted that, in her oral evidence, the Applicant asserted for the first time that others were arrested with her on 6 November 1992. Certainly, the Applicant, had claimed in her statutory declaration made 12 January 2004, that she had been arrested and detained for 15 days on 6 November 1992 at a religious family gathering.
The Tribunal noted that the Applicant’s explanation for failing to mention the arrest of the others was that in her statutory declaration, made 12 January 2004, she was narrating her own experience and she did not want to get others involved. The Tribunal noted that it was its view that the arrest of 10 people was a significant occurrence.
The Tribunal did not accept her explanation and noted that, as the hearing went on, the Tribunal was satisfied that the Applicant was “simply making things up.” However, the Tribunal did not expand on that statement.
The Tribunal concluded that, given its credibility concerns about the Applicant and the Applicant’s failure to claim that she had been arrested with 10 others, prior to the Tribunal hearing the Tribunal did not accept the Applicant’s claim of having been detained on

6 November 1992.

It is common ground between the parties that “the delay in making the claim” relates to the Applicant’s claim of arrest of others and not her original claim of her own arrest on 6 November 2002.
The Tribunal rejected the Applicant’s claims of ill treatment on the basis that it did not accept she had been detained.

Alleged arrest on 23 April 1998

The Applicant claimed that she was arrested whilst preaching and that she and others were detained.
Again, the Tribunal noted that the Applicant had not claimed in her statutory declaration made 12 January 2004 that others had been detained on that occasion. The Tribunal noted the Applicant’s response that when she had prepared her initial documents she had limited time.
The Tribunal applied the same reasoning process in respect of this claim as it did in its consideration of the claim at paragraphs [39]-[42] above, relating to the alleged detention on 1 November 2001. It rejected the Applicant’s explanation as not persuasive and thereby gave the explanation no weight.
The Tribunal concluded that, having regard to its credibility concerns and the delay in making the claim, it did not accept the Applicant was detained on 23 April 1998 and therefore rejected the Applicant’s claim of ill treatment on that occasion.

Alleged face lift on 10 January 2000

The Applicant claimed that she underwent a face lift on 10 January 2000 in order to change her appearance for the purposes of a new passport. The Tribunal noted that the medical records, furnished by the Applicant in support of this procedure, identified a double eye lid and nose lift during surgery.
The Tribunal noted that it put to the Applicant that the procedures were done for cosmetic purposes. The Tribunal noted that the Applicant said that they were done so she could change her appearance beyond recognition.
Having regard to the relatively minor nature of the medical procedures, the Tribunal was not prepared to accept that the procedures had resulted in a substantial change in the Applicant’s appearance beyond recognition, nor that such procedures would have resulted in a dramatic change of appearance. For those reasons, the Tribunal concluded that the Applicant’s claim of having facial surgery to alter her appearance beyond recognition was fabricated.

The Applicant’s dismissal from employment on 3 January 1993

The Applicant claimed that she had been dismissed from her employment for her religious beliefs.
The Tribunal noted that, in her oral evidence, she claimed that the PSB officers had called her employer and told him to dismiss her and that she was present at the time the call was made. The Tribunal noted that the Applicant had not made this claim previously and noted the Applicant’s explanation she saw her statement as providing details about herself and thought that what she had written was sufficient.
The Tribunal was not persuaded by the Applicant’s explanation and accordingly gave the explanation no weight. The Tribunal rejected the Applicant’s claim that she was ever detained by the PSB and did not accept that her employer was contacted resulting in her dismissal in 1993.

Alleged bullying of the Applicant’s son

The Applicant claimed that her son had been bullied at school as a result of her religious activities. The Applicant claimed at the hearing that the son was 14 years of age and in her custody
The Tribunal noted that that evidence was inconsistent with a document provided by the Applicant that stated that the son was aged 20 and “live independently”. Counsel for the Applicant submitted that the Tribunal put to the Applicant that the document said that “your son is 20 and lives independently” and that this was an incorrect correct summation by the Tribunal in because the document simply said “son: [NAME], aged 20, live independently”.
The transcript revealed that the Applicant responded that the document should have disclosed that she was entitled to receive maintenance until her son was 20. The Applicant also postulated that perhaps there had been a problem with the interpretation or translation of the document.
The Tribunal noted that there was an inconsistency between the document and the Applicant’s evidence that the son was 14 and, accordingly, gave the Applicant’s explanation no weight. It did not accept that the Applicant’s son was 14 years old or had been bullied or ill treated due to her religious activities.
The Tribunal rejected the explanation of a problem with the translation given that the translator was a level 3 NAATI translator and had no difficulty with the meaning conveyed by the words.

Applicant’s documents

Subsequent to the Applicant’s application for a protection visa, made on 14 January 2004, the Applicant’s adviser provided copies of documents in support of the Applicant’s claim to the Department, attached to a letter dated 29 January 2004. All the documents were copies and were in Chinese with English translations provided.
It is the Tribunal’s rejection of these documents as supportive of the Applicant’s claims that lies at the heart of the Applicant’s contention that the Tribunal committed jurisdictional error in failing to have regard to the Applicant’s documents as supportive material before attempting to reach a conclusion on the Applicant’s credibility as to the substance of her claims.
In respect of the Applicant’s corroborative material, the Tribunal stated that:
“In arriving at its conclusions and determinations, the Tribunal has given regard to the relevant documents provided by the applicant in support of her essential claims, in particular, documents 8-12 as numbered in the Decision. At the hearing, the Tribunal discussed with the applicant those documents. The Tribunal asked the applicant about the whereabouts of the original copies. The applicant said that the copies were with her brother in China. The Tribunal asked the applicant about when and how they were sent to her. The applicant said that she does not recall when they were sent to her, but they were sent by her brother. Given the credibility concerns and the applicant’s inability to advise when she had obtained the documents, the Tribunal does not accept that the documents are supportive of the applicant’s claims.” [Emphasis added]
Those documents purported to include:
i)the Applicant’s detention records issued by the Public Security Bureau of Zhanjiang City for the dates 3 November 2001 (see paragraphs [37]-[42] above); 10 April 1992 (see paragraphs [43]-[46] above); 6 November 1992 (see paragraphs [47]-[52] above); 23 April 1998 (see paragraphs [53]-[56] above).
ii)the Applicant’s medical records in respect of her plastic surgery on 10 January 2000 (see paragraphs [57]-[59] above);
iii)the termination of her employment on 3 January 1993 (see paragraphs [60]-[62] above);
iv)a divorce document dated 23 December 2003 (see paragraphs [63]-[68] above).
At the hearing, the Tribunal noted that it discussed those documents with the Applicant and, in particular, asked about the originals of those documents. The Tribunal noted that the Applicant had said that copies were with her brother in the PRC. The Tribunal noted that it asked the Applicant when and where they were sent to her and that the Applicant did not recall when they were sent, but said that they were sent by her brother. The Tribunal noted that, given its credibility concerns, and the Applicant’s inability to advise when she had “obtained the documents”, the Tribunal did not accept that the documents were corroborative of her claims.
The First Respondent submitted that it is clear, on a fair reading of the decision, that the context in which the Tribunal made its finding that the Applicant’s documents were not supportive of her claim was in the context of the Applicant’s answers that she was unsure when she received copies of those documents from her brother.
Counsel for the Applicant submitted that the transcript made it clear that the Applicant had obtained some of the documents originally from the PSB when she was in detention and that it was an erroneous finding of the Tribunal to state that she was unable to advise when she “obtained” the documents.
The Tribunal decision is not to be read with an eye keenly attuned to error, rather, it is to be given a fair reading taken as a whole (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 271; Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]). A common sense and realistic approach should be taken to understanding the Tribunal’s reasons as a whole to see what it was that a tribunal was saying. (Wu Shan Liang at 272). Accordingly, I am satisfied that the Tribunal in the using the word “obtained” used it with the meaning of “received” by the brother and not the meaning contented for by the First Respondent.
The Applicant submitted that the Tribunal should have considered whether her documents were supportive of her claims prior to making adverse credit findings. In making its adverse credit findings, the Tribunal stated that it also had regard to the Applicant’s demeanour in giving her evidence, which it found to be “overtly dramatic and clearly prone to exaggeration.” The Tribunal noted that it had a “clear impression” that the Applicant was not a credible witness. Certainly the Tribunal is entitled to have regard to the demeanour of the Applicant in the giving of her evidence in considering what weight to give her evidence (W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 (“W148/00A”) at [64]-[65]; Abalos v Australian Postal Commission (1998) 171 CLR 167 (“Abalos”) at 179).
The Applicant referred to WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 (“WAIJ”) at [22] and Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20 of 2002 (2003) 198 ALR 59 (“S20”) at 70 where McHugh and Gummow JJ stated:
“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 (emphasis added). 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 reasons of the tribunal be read as indicated above, the tribunal is reasoning that, because the applicant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant’s argument in this Court then has to be that if it was irrational for the tribunal to decide that the appellant had lied without, at that early stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented in s.430 of the Act. But it is not irrational to focus upon the case as it was put by the appellant. ”
Counsel for the Applicant submitted that, in the case before this Court, the Applicant’s credibility had not been “poisoned beyond redemption”. Counsel for the Applicant submitted that the principles espoused in S20 require an applicant’s claims to be discredited by comprehensive findings of dishonesty or untruthfulness and that there will need to be “cogent material to support a conclusion that the appellant has lied” (WAIJ at [27]), before a Tribunal can ignore otherwise corroborative material.
Whilst Counsel for the Applicant acknowledged that there are adverse credibility findings in the Tribunal decision, he contended that her claims have not been discredited by comprehensive findings of dishonesty or untruthfulness. Counsel for the Applicant submitted that, in the absence of such findings, the Tribunal was bound to have regard to the Applicant’s purportedly corroborative documents before attempting to reach a conclusion on her credibility as to the substance of her claims.
Counsel for the Applicant referred to the further passage in WAIJ at [27] where Moore J stated:
“However 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 (emphasis added). 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.”
In the case before this Court, the Tribunal stated in its decision that it did have regard to the Applicant’s “relevant documents”. However, it did not accept them as supportive of the Applicant’s claims because of its “credibility concerns” and the Applicant’s inability to identify when and how she received the documents from her brother.
The Applicant contends that the findings of the Tribunal, in the case before this Court, are more akin to findings that the events described by the Applicant were unlikely to have occurred, in the language of Moore J in WAIJ, rather than being comprehensive findings of dishonesty. Counsel for the Applicant contends that, in those circumstances, the Tribunal was bound to have regard to the Applicant’s documents in attempting to make a conclusion on the Applicant’s credibility.
True it is that the Tribunal found that the Applicant had fabricated 2 of her claims, namely her detention in November 2001 (see paragraphs [37]-[42] above) and the purpose of her face lift (see paragraphs [60]-[62] above). A finding of fabrication of evidence is a finding of dishonesty or untruthfulness. The question is whether, in the context of the Tribunal’s decision, the findings of dishonesty or untruthfulness on the part of the Applicant were “comprehensive”. Two findings of dishonesty or untruthfulness in respect of claims made by an applicant may well be “comprehensive findings of dishonesty or untruthfulness”, where they are in the context of the rejection essentially of every claim made by an applicant.
However, the Tribunal acknowledged in its decision that some of the concerns it had, that caused it to make the findings it did, may be “perceived as being minor”. It is not unsurprising that, having found two of the Applicant’s claims to have been fabricated, the Tribunal was not readily persuaded by other claims, where it was open on the material before the Tribunal not to accept those claims.
The Tribunal observed the Applicant in the giving of her evidence and concluded that she was not a credible witness. The Tribunal had specific regard to her demeanour in describing it as being “overtly dramatic and clearly prone to exaggeration”. However, the Tribunal does not go into particular detail or give any particular examples of the reasons for its conclusion that the Applicant “came across as being overtly dramatic and clearly prone to exaggeration.” Further, the Tribunal stated that it was left “with the clear impression that the applicant had fabricated a number of essential claims in order to support her application for a protection visa.”
The Full Court in WAIJ speak of “cogent materials to support a conclusion that the appellant has lied”. It is my view that a “clear impression” is not “cogent material”. As stated above, to the extent that “cogent material” is sought to be identified by the Tribunal, it is largely found in the rejection of the Applicant’s claims:
i)to have been arrested on 10 April 1992, 6 November 1992 and 23 April 1998, based on the fact that the Applicant had not provided a satisfactory explanation as to why she had not previously asserted that other people were arrested at the same time.
ii)of being dismissed for religious grounds (see paragraphs [60]-[62] above), on the basis the Tribunal was not persuaded by her explanation as to why she had not previously asserted that she was present when the PSB officers called her employer and told him to re-educate her. However, the claim of dismissal had been made in her statutory declaration of 12 January 2004, although the additional claim, of having been present when the PSB officer called, was not.
iii)of bullying of her son (see paragraphs [63]-[68] above), whom she claimed is 14, because a document, upon which she relied, said he was 20 and living independently. The Applicant explained that the document, upon which she relied, related to maintenance. The Tribunal did not accept this explanation and preferred the meaning conveyed by the translation of the documents by the accredited translater.
The First Respondent referred to W147/00A at [69] where the Full Court of the Federal Court of Australia stated as follows:
“Although some of the specific matters referred to by the Tribunal in this case, if taken separately, may not in themselves to warrant a conclusion that the appellant’s evidence should not be accepted, we consider that, on the cumulative weight of the matters referred to by the Tribunal, it was open to the Tribunal to reach its conclusion as to credibility. (Emphasis added) We find no substance in the grounds of appeal that the Tribunal misapplied the law, or that there was no evidence to justify the decision. There was evidentiary material on which it was open to the Tribunal to reach its final conclusion.”
The First Respondent submits that, in the case before this Court, the claims taken cumulatively and the concerns identified by the Tribunal in respect of each claim are sufficient to allow the Tribunal to reach its conclusion as to the Applicant’s credibility.
I am not persuaded that, either cumulatively or individually, there is “cogent material” to support a conclusion that the Applicant has lied in respect of her claims such that her credibility was “poisoned beyond redemption” where allegedly corroborative material was available. In this respect, the case before this Court differs from S20.
In the circumstances, it was incumbent on the Tribunal to have regard to the purportedly corroborative documents identified by the Applicant in support of her claims in making its credit findings in respect of the Applicant.
Having found that S20 does not apply to the case before this Court I do not consider that the Applicant’s credibility was “poisoned beyond redemption”.
The question then becomes, did the Tribunal have due regard to the Applicant’s documents in its determination of her claims.
Certainly, the documents are identified specifically in the Claims and Evidence section of the Tribunal’s decision. The Tribunal also stated, in the Findings and Reasons section of its decision, that it had “it had given regard to the relevant documents.”
The Tribunal considered each of the Applicant’s claims separately. Although it did not make any reference to the Applicant’s documents in its reasons for rejecting each of the Applicant’s claims, it cannot be ignored that the Tribunal stated unequivocally that it had given regard to the Applicant’s documents. However, the Tribunal did not regard the documents as reliable, having regard to its adverse findings on the Applicant’s credibility and her failure to satisfactorily explain when and how she received it.
The documents were not originals. The Tribunal found that they did not support the Applicant’s claims. I understand that finding to mean that the Tribunal was not satisfied as to the authenticity of the documents, having regard to the Tribunal’s conclusion about the Applicant’s credibility. The transcript makes it clear that the Tribunal put to the Applicant that it did not believe the documents were authentic and that the Tribunal had problems with her credibility. The Applicant does not contend that such matters were not put to her.

The Tribunal put to the Applicant its concerns in respect of each of the claims of persecution and the Applicant proffered an explanation in each case. The Tribunal was not persuaded by any of her explanations. The Tribunal referred specifically to the Applicant’s demeanour in its consideration of her evidence. It also had regard to the cumulative effect of the Applicant’s evidence in weighing the Applicant’s credit. In the words of Gleeson CJ in S20 at [14]:
“Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expressions of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the witness who was said to corroborate him.”
In the case before this Court, the Tribunal made clear to the Applicant its concerns about the authenticity of the documents and the Applicant’s credibility in general.
I do not accept that, simply because the Tribunal addressed the Applicant’s documents at the end of its decision, that it had not given regard to those documents in its consideration of all issues of fact.
Moreover, the Tribunal’s findings on these issues are findings of fact for which the Tribunal provided reasons that were not so unreasonable as to amount to “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 at 683) The unreasonableness referred to in that case is made out if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it. Whilst minds may well differ on the findings and conclusions one may make from the material and evidence before the Tribunal, I do not consider that the findings and conclusions of the Tribunal, based on the evidence and material before it, were so unreasonable as to amount to “Wednesbury unreasonableness” or jurisdictional error. The findings made by the Tribunal were open to it on the material and evidence before it.
For those reasons grounds 1(a) (b) and (c) are not made out.

Gound 1(d)

In light of these reasons as referred to in detail above, the particulars referred to in ground 1(d) of the further amended application are answered in summary as follows:
i)The Tribunal’s approach to the issues of credibility was open to it on the material
ii)The approach to the issue of credibility was based on rational grounds;
iii)The approach of the Tribunal to the issue of credibility was arrived at after due consideration of matters that were logically probabtive of the issue of credibility, including:
1.   The Tribunal misstated the claim of the Applicant in relation to the events of 10 April 1992. This claim is dealt with at paragraphs [43] – [46] above.
2.   The Tribunal relied on the Applicant not having included in her claims particulars of what happened to other persons on 10 April 1992, 6 November 1992 and 23 April 1998. This claim is dealt with at paragraphs [44] – [56] above. Having put to the Applicant its concerns about why she had not included assertions now made at the hearing in her written claim before the Tribunal, the Tribunal did not accept the Applicant’s explanation as to why the new assertions made by her had not been made prior to the hearing. Those are findings of fact open to the Tribunal on the material and evidence before it.
3.   The Tribunal relied on the “delay” of the Applicant in making the claims as to what happened to other persons on 10 April 1992, 6 November 1992 and 23 April 1998. This claim is dealt with at paragraphs [44] – [56] above. Having put to the Applicant its concerns about why she had delayed in making the assertions now made at the hearing in her written claim before the Tribunal, the Tribunal did not accept the Applicant’s explanation as to why the new assertions made by her had not been made prior to the hearing. Those are findings of fact open to the Tribunal on the material and evidence before it.
4.   The Tribunal relied on the Applicant not having included her account as to what she understood the PSB had said to her employer in relation to the Applicant.
This claim is dealt with at paragraphs

[60]-[62] above. The Tribunal gave the Applicant’s explanation as to its concerns about this claim no weight. Those are findings of fact open to the Tribunal on the material and evidence before it.
5.   The Tribunal misconstrued the Applicant’s divorce document in relation to age of the son of the Applicant. This claim is dealt with at paragraphs [63]-[68] above. The Tribunal preferred the translation of the accredited translator over the evidence of the Applicant. Those are findings of fact open to the Tribunal on the material and evidence before it.
6.   The Tribunal failed to consider the full explanation of the Applicant in relation to the divorce document in so far as it related to the age of her son. This claim is dealt with at paragraphs [63]-[68] above. The Tribunal preferred the translation of the accredited translator over the evidence of the Applicant. Those are findings of fact open to the Tribunal on the material and evidence before it.
7.   The Tribunal misstated the account given by the Applicant as to when she received the PSB records and then relied on its own misstatement of the account in the adverse credibility finding. This claim is dealt with at paragraphs [73] – [76] above. A fair reading of the decision makes it clear that the concern of the Tribunal was related to when the Applicant received the document from her brother rather than when she “obtained” them from the PSB.

Grounds 1(e) and (f)

For the reasons addressed above grounds 1(e) and (f) are not made out.

Conclusion

The findings of the Tribunal were open to it on the material and evidence before it and no jurisdictional error is disclosed in its decision.
In the circumstances, the decision of the Tribunal is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The applications before this Court are dismissed with costs.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S Riddle

Date: 30 January 2006