SZLOR v Minister for Immigration

[2008] FMCA 1165

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1165

MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal’s findings supported by logical grounds – whether document (letter) corroborative of claims – whether there was sufficient basis for the Tribunal to reject the document without having analysed that document – adverse credibility finding – findings open to the Tribunal – no failure to consider document – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.65, 36

WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; [2003] FCAFC 171
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 70; [2003] HCA 30
WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138

Applicant: SZLOR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3380 of 2007

Judgment of: Nicholls FM

Hearing date: 5 June 2008

Date of Last Submission: 5 June 2008

Delivered at: Sydney

Delivered on: 25 August 2008

REPRESENTATION

Counsel for the Applicant: Mr G Kennett

Solicitors for the Applicant: Parish Patience

Counsel for the Respondents: Mr J Smith

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 31 October 2007, and amended on 5 June 2008, is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3380 of 2007

SZLOR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 31 October 2007, and amended on 5 June 2008, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 25 September 2007, and handed down on 4 October 2007, which affirmed the decision of the delegate of the first respondent to refuse a protection visa to the applicant.

Background

1. The first respondent has put a bundle of relevant documents before the Court (Court Book – “CB”) from which the following relevant background may be discerned.

2. The applicant is a citizen of Nepal. He arrived in Australia on 18 July 2005. He applied for a protection visa on 16 August 2005. (The application is reproduced at CB 1 to CB 38, including submissions by the applicant’s then migration adviser and copies of documents submitted by the applicant.)

3. The delegate refused the application because of what was said to be the lack of details provided by the applicant of ever suffering harm or mistreatment in Nepal (CB 45).

The Tribunal

1. The applicant sought review by the Tribunal on 11 November 2005 (CB 47 to CB 50). He was assisted by a migration agent. The applicant provided further documents to the Tribunal (see CB 60, and CB 63 to CB 68, and CB 70 to CB 74). The applicant appeared before the Tribunal at a hearing on 23 January 2006 (see CB 77). The Tribunal affirmed the delegate’s decision on 2 February 2006 (CB 83 to CB 95).

2. Given what is set out at CB 97 (and not disputed by the Minister before the Court now), it appears the applicant sought judicial review by this Court, and was successful (CB 97).  The applicant appeared before the Tribunal, now differently constituted, for a second time on 20 August 2007 (CB 117).  Relevantly the Tribunal’s decision record contains the following (at CB 147.8):

   “The applicant appeared before the first Tribunal on 23 January 2006.  At this Tribunal hearing, he presented a letter written in Nepali.  A copy of this letter was not placed on the Tribunal file.  The applicant claimed that the letter had a Maoist letterhead and threatened him because he had left the party and asked him to return to his village.  He stated that the letter was forwarded by his wife.  It was sent to his house in Meghauli after he came to Australia.”

3. The Tribunal’s decision record also contains its account of what occurred at the hearing before it (CB 147.9 to CB 150.5).  Relevantly, I note (at CB 149.5):

   “In relation to the letter presented to the previous Tribunal, the applicant stated that the letter was written in 2005 and asked him to go back to the party.  It came from the centre of the Maoist party.  The Tribunal asked the applicant and his representative if they had a copy of this letter, but neither party had a copy.”

4. The Tribunal properly understood the applicant’s claims to be that if he were to return to Nepal he would be persecuted by the Maoists, whose party he left in 2004.  Second, that he would be persecuted by the Nepalese authorities due to his previous involvement with the Maoists. 

5. In relation to the first, the Tribunal found that it did not accept that the applicant had been involved with the Maoists in the past, and did not accept that he could become involved with them if he were to return to Nepal.  It therefore rejected the claim that there was any real chance of harm should the applicant return to Nepal, as it was said to arise from this claim (CB 153.7).

6. The Tribunal’s reasons for this were:

   1)The applicant at the hearing “demonstrated very limited knowledge of the Maoists’ political objectives, ideology or their tactics”, and when pressed was unable to provide anything further to the Tribunal (CB 152.4).

   2)The applicant could only provide limited details as to what he said when he spoke to other villagers in favour of the Maoists and how he promoted their ideologies.  The Tribunal records that it put its concerns to the applicant regarding his lack of knowledge and he made no further comment on this issue.  The Tribunal found that given the applicant’s claims that he was actively involved in working with Maoists and in promoting the Maoist cause for 12 years, it would have expected him to provide more information (CB 152 .7).

   3)For those reasons and “the Tribunal’s concerns about other aspects of his evidence”, the Tribunal did not accept the applicant’s claims that he had joined the Maoists, worked secretly for them from 1992 to 2004, and spoke to other villagers in favour of the Maoist cause, and had committed arson on their behalf.  Nor that he quit the party in 2004, as it did not accept that he was involved with the party in the first place.  The Tribunal therefore reasoned that it did not accept that the applicant was threatened by the Maoists after he claimed to have left the party in 2004 (CB 152.9 to CB 153.2).

7. The Tribunal then reports in summary (at CB 153.3):

   “For the reasons given in the preceding four paragraphs, the Tribunal finds that the applicant has not given a credible account of key aspects of his claims.  The Tribunal finds that the applicant’s evidence about important aspects of his claims are vague and lacking in detail.  For these reasons, the Tribunal does not accept that the applicant is a credible witness and does not accept that the applicant is telling the truth about the events leading up to his departure from Nepal.  The Tribunal does not accept the applicant’s claims that he was involved with the Maoists in the past, that he quit the party, or that he was threatened by the Maoists because he quit the party.”

8. The next paragraph in the Tribunal’s reasoning is important in terms of the issue for consideration before the Court (at CB 153.4):

   “The Tribunal has had regard to the letter presented by the applicant at the first Tribunal hearing.  The applicant claims that this letter was a threat from the Maoists because he had left the party and a demand for him to return to the village.  The Tribunal notes that it has not sighted a copy of this letter.  At the hearing, the Tribunal asked whether the applicant or the representative had a copy of this letter, but they did not.  The Tribunal does not accept that the letter was a genuine letter from the Maoists, given that the Tribunal has found the applicant was not a credible witness and that it has rejected other aspects of the applicant’s evidence as outlined above.  In particular, the Tribunal has not accepted that the applicant was involved with the Maoists and subsequently quit the party in 2004.  Therefore, it does not accept that the Maoists would send the applicant a letter threatening him because he had quit the party.”

9. The Tribunal then set out its findings in relation to the applicant’s second claim that he would be persecuted by the Nepalese authorities.  It ultimately reasoned that as it had not accepted that the applicant was involved with the Maoists in the past, and was not wanted by the Nepalese authorities when he left Nepal, the Tribunal did not accept that he could be of interest to the authorities for reason of his actual or perceived Maoist involvement if he were to return to Nepal.   Further, the Tribunal was not satisfied that there was a real chance that the applicant would be persecuted by the Nepalese authorities in the reasonably foreseeable future for any of those relevant claims (CB 154.5). 

Hearing before the Court

1. At the hearing before the Court, the applicant was represented by Mr G Kennett of Counsel, and the first respondent by Mr J Smith of Counsel. The applicant was granted leave to file an amended application in Court in the following terms:

   “Grounds of Application

   (Ground One not pressed.)

   2.The Tribunal failed to carry out is statutory duty.

   Particulars

   a.    The Tribunal’s decision was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.

   3.The Tribunal lacked the authority to make the decision.

   Particulars

   a. The Tribunal was not re-constituted in accordance with the Migration Act 1958 s.422 and 422A.”

2. Also before the Court is the affidavit of Robert Balzola, solicitor in the employee of the applicant’s solicitors and annexed to the affidavit are transcripts of the two hearings conducted by the Tribunal (as differently constituted).  The Court also has written submissions filed on behalf of both parties, and has had the benefit of hearing oral submissions from both counsel. 

The Applicant’s submissions

1. Mr Kennett submitted that the applicant did not press Ground Three as pleaded in the amended application.  The Court was therefore left with one ground, being that the Tribunal failed to carry out its statutory duty because its decision was said to be: “irrational, illogical and not based on findings or inferences of facts supported by logical grounds”.

2. In submissions, Mr Kennett explained that the applicant’s complaint is that the Tribunal treated the letter (presented by the applicant at the “the first” Tribunal hearing, but no longer available before the Tribunal constituted by the member who made the decision currently under review before this Court), in a manner that was inconsistent with its duties under the Act.

3. The applicant’s complaint centres around the way in which the Tribunal dealt with the letter that he had presented to the (earlier constituted) Tribunal. Mr Kennett submitted that the Tribunal had reached very strong findings in relation to the letter (see extract quoted from CB 153.4) (at [12] above). Findings that (with reference to WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; [2003] FCAFC 171 at [53])) should not be lightly made. Namely, that it concluded that the letter was a forgery, or at least not a genuine letter in the sense of not being what it purported to be.

4. The applicant’s submission was that the reason for reaching such a “strong finding” appears to be no more than that the remainder of his evidence had been rejected.

5. Mr Kennett referred the Court to what was relevantly said Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 70; [2003] HCA 30 (“Applicant S20/2002”) at [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.”

6. Mr Kennett submitted that such reasoning on the part of the Tribunal is only rational where the “well has been poisoned beyond redemption” such 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”.  The submission was that there must be a sufficient or a considerable degree of confidence that the applicant’s claims are untrue before the Tribunal is entitled to consciously ignore, or discount, evidence that supports those claims.

7. Mr Kennett invited the Court to view the Tribunal’s findings as being something less than a strong or confident finding that the applicant had been untruthful before it.  He submitted that the Tribunal describing the applicant’s evidence as “vague and lacking in detail” is not such as to show that the Tribunal was strongly unconvinced such as to say that the evidence had been wholly rejected.

8. The submission was that the applicant was not found out on any major inconsistency in his evidence, that there was no external evidence that what he told the Tribunal was untrue, and that there was no reference to any “uncontroversial country information” that would have made everything that he said implausible.  At best, what is presented in this case is a lack of convincing detail in his evidence.  The submission was that there could be many reasons why the applicant could not give detail.  In this case, therefore, there was corroboration in the form of the letter which could have undone the view taken by the Tribunal that the applicant’s evidence lacked detail.

9. Mr Kennett sought to explain his submissions by reference to (the majority of the Full Federal Court) in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74 (“WAIJ”).

10. WAIJ involved an application before the Tribunal (as in this case, ultimately considered by a reconstituted Tribunal following remittal by the Court).  It was a term of the orders made during the remittal that the Tribunal give due consideration to certain documents (see [8]).  The documents relevant to the issue of corroboration in that case were, as in this case, produced to an earlier constituted Tribunal at the hearing.  That Tribunal did not refer to the documents (see WAIJ at [7]). The documents were a letter from the applicant’s sister, and the other, a notice of dismissal issued by the applicant’s former employer in Iran. At [12] (of WAIJ) the Court reproduced what was a critical part of the Tribunal’s decision record:

    “[12]On 29 July 2002 the tribunal determined that the appellant was not entitled to the grant of a protection visa. In the reasons for decision provided by the Tribunal pursuant to s 430 of the Act the tribunal stated as follows in respect of the two documents:

    ‘I note also the letters provided by the applicant in support of her claims.  In relation to the letter purportedly from the applicant’s sister, I am of the view that it would have been a straightforward matter for the applicant to either write the letter herself, or to ask her sister to write the letter for her.  I am also of the view that the letter of dismissal would have been an easy letter to manufacture, particularly by someone who had access either to a blank hospital letterhead or to another letter containing the letterhead.  In relation to this particular letter, I note that at the hearing the applicant said the letter was on the hospital noticeboard and that her sister had gone to the hospital office to obtain the letter.  However, in submissions provided after the hearing, the applicant’s adviser asserts that the letter provided to the Tribunal was taken from the hospital noticeboard.  In my view, these letters do not overcome the problems I have with the applicant’s evidence and I place no weight on them as proof of the credibility of the applicant’s claims.’”

11. Mr Kennett’s submission was that the majority of the Court in WAIJ treated the Tribunal’s reasoning as reasoning which discounted the letters without having any regard to what the letters said or how convincing they were in themselves, but that it reasoned that it was unnecessary to be concerned with the letters because of other findings that had been made about the applicant’s case.

12. Mr Kennett in particular referred to the following in WAIJ about the role of the Tribunal:

    1)At [18]: as to the role of the Tribunal in conducting a review under the Act, and the assessment that the Tribunal is required to conduct as to its level of satisfaction pursuant to ss.65 and 36 of the Act.

    2)At [19]: “[i]n carrying out that assessment, involving as it does a determination of great importance to an applicant, the Tribunal must act ‘judicially’ and according to law.  In so acting the Tribunal does not exercise judicial power …”.

    3)At [20]: “[w]hile the expression ‘acting judicially’ is not now often used when referring to administrative decision making, it usefully comprehends concepts relevant to this appeal: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 365 … per Deane J).

    4)At [21]: “[f]ailure of the tribunal to act ‘judicially’ will necessarily stamp the review procedure as one which did not accord an applicant practical fairness or justice. To act ‘judicially’ and according to law the tribunal must carry out its decision-making function rationally and reasonably and not arbitrarily: see Bond at CLR 366-367 … per Deane J).  That is to say, the Tribunal cannot determine the matter by a ‘tossing a coin’ or by making a ‘snap decision’ or by acting on instinct, a ‘hunch’ or a ‘gut-feeling’.”

    5)At [22]: “… [a] determination based on illogical or irrational findings or inferences of fact will be shown to be a decision not supported by reason and to have no better foundation than an arbitrary selection of a result.  It is because it is based upon such findings that the determination is an unreasoned decision.  Such findings or inferences of fact become part of, and are not distinguishable from, the decision subject to judicial review: see S20/2002 at [54] per McHugh and Gummow JJ; Bond at 338, 359-360 per Mason CJ. A review culminating in such a decision would be a process lacking practical fairness or justice and would not be a process conducted according to law.”

    6)At [23]: “…[t]he requirement that the tribunal be so satisfied is a ‘jurisdictional fact’ and not a state of mind formed at the Tribunal’s discretion.  The satisfaction, or lack thereof, must be determined reasonably, that is, properly, according to the principles set out above: see [Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21] Eshetu at [134]-[146] per Gummow J).”

13. In relation to how the majority in WAIJ applied these principles to the facts before it in that case, Mr Kennett referred the Court to:

    1)At [26]: “[t]he tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this Court, stating that the documents ‘do not overcome the problems I have with the applicant’s evidence’.”

    2)At [27]: “[s]uch 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.  Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the tribunal in assessing the credibility of an applicant’s claims.  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.  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) 206 CLR 323 … at [82]-[85] per McHugh, Gummow and Hayne JJ).”

    3)At [28]: “[t]his appeal did not involve a case in which the credibility of the appellant had been destroyed by stark findings of untruthfulness. The tribunal accepted that in her youth the appellant had distributed ‘MKO’ newsletters at university and that her brother had engaged in similar activities and had been killed in unexplained circumstances. The tribunal accepted that the appellant believed that the security forces had been responsible for the death of her brother.”

    4)At [40]: “[a]s noted above, matters the tribunal described as implausible were not claims disproved by proved facts nor events so contradicted by commonsense as to be able to be dismissed as possible occurrences.  The tribunal engaged in speculation as to what it thought would have been a more likely course of events but it had no basis on which it could say that the events described by the appellant, and corroborated in the documents, could not have occurred.  The tribunal may not have been persuaded that the events had occurred but the tribunal had no material on which it could convert such a doubt into a positive finding that the events had not taken place.”

    5)At [52]: “[t]he reasons provided by the tribunal in relation to its rejection of the documents revealed that the tribunal failed to act judicially in respect of that material.  The tribunal appears to have considered that it could disregard documents that it was otherwise bound to consider if it surmised that it was possible that the documents could have been fabricated.  That was not a course open to a tribunal acting judicially.  There was no material before the tribunal that permitted it to so dispose of the documents, and, thus, of the tendency of the documents to corroborate the appellant’s account.”

    6)At [53]: “[i]t is a denial of a fair process to purport to dismiss documents from consideration where the material therein supports an applicant’s case in substantive respects and no ground for such a course is provided by the documents on their face or by other facts.”

1. In light of what is referred to above, the applicant’s position is that the current case is very much like the case in WAIJ in that there are a series of reasons set out by the Tribunal for not being convinced by the claims that the applicant had put forward, yet there existed a “piece of corroborative material” that could have been capable of “turning that around”.

2. In these circumstances, the applicant complained that it was irrational and illogical of the Tribunal to not have considered the letter. Further that it was a breach of the Tribunal’s duty for it to reject this corroborative material without some analysis of that letter. The applicant also complained that in these circumstances there was also an insufficient basis for making such a strong finding against the applicant, that not only that the letter was not useful for the purposes of its consideration, but that it was fraudulent. Even further, this finding was made without even the letter, or a copy of the letter, being before the Tribunal member who actually made the decision. Mr Kennett submitted that this finding did influence the Tribunal in its consideration.

The Respondent’s submissions in reply

1. In reply Mr Smith at first referred the Court to:

   1)Applicant S20/2002 at [12] per Gleeson CJ:

   “In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant’s story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering.”

   2)Mr Smith’s submission was that this highlights the importance of properly understanding the Tribunal’s reasons, but also that the rejection of corroborative evidence because of the lack of credibility of other evidence is not jurisdictional error and does not involve in itself any irrationality.

   3)Applicant S20/2002 at [37] (per McHugh and Gummow JJ) for the importance in applications of this type to examine what the statement prepared by the Tribunal under s.430 actually says (“much depends upon the particular circumstances disclosed by the written statement required by s 430 of the Act”).

   4)At [43] what their Honours in Applicant S20/2002 noted about the Tribunal’s reasons in the case before them was instructive to assist this Court in considering the applicant’s complaint in light of the reasons given, as stated by this Tribunal in its decision record:

   i)At [42] where the Tribunal described the applicant’s “oral evidence given at hearing [as] exaggerated, far-fetched and implausible and therefore lacking in credibility”.  Further, that “‘[i]n particular the Tribunal does not accept as credible or plausible the [appellant’s] claims and evidence that:

   ·   He was arrested on suspicion of supporting the LTTE as a result of having given residence to two young Tamil men

   ·   His whole family have ‘all been arrested and killed’ by the Sri Lankan security forces.’”

   ii)At [43]: that the reasons given by the Tribunal to elaborate on its conclusions included that at the hearing “ … ‘[h]is physical description of each of [his siblings] was extremely ill-defined’”.

   iii)At [44]: “‘In light of:

   ·   the remarkable lack of detail about the circumstances of the arrest and killing of the [appellant’s] “whole family” and;

   ·   the [appellant’s] extreme vagueness about the person who reported these events to him and what that person saw and;

   ·   the [appellant’s] claim that his family was arrested because of his “escape” from Sri Lanka and his evidence at hearing that he in fact left the country legally and without difficulty

   And finally, because the Tribunal has made grave adverse findings … on the [appellant’s] credibility in relation to his claims to be of interest to the Sri Lankan authorities, the Tribunal cannot be satisfied that the [appellant’s] family have been arrested or killed.’”

   5)Mr Smith submitted that the case before the High Court in Applicant S20/2002 involved the Tribunal making a very clear finding that the applicant’s claims were comprised of lies. 

   6)In relation to paragraph [49] of Applicant S20/2002 (that paragraph was also relied on by Mr Kennett) that, as in the case before the High Court, the Tribunal in the current case found the applicant’s evidence to be “comprised of lies”, and that the circumstances therefore of the current case fall squarely within what was said by the High Court at [49].

   7)Further that that paragraph does not stand as authority for the principle that it is irrational for a decision-maker in an inquisitorial process to make a finding that corroborative evidence is rejected simply because it does not believe the applicant.  That is, unless it finds also that the case comprises lies by the party.

   8)Further, also squarely relevant to the circumstances of the case currently before the Court, is the High Court’s understanding in the circumstances of the case before it that the critical passage in the Tribunal’s reasons was: “[i]f the critical passage in the reasons 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”.

2. In all, Mr Smith’s submission was that on the basis of the principles applied by the High Court in Applicant S20/2002 that the factual circumstances in the current case are indistinguishable, and the result in the current case should therefore mirror the outcome in Applicant S20/2002.

3. In relation to WAIJ he submitted, that the critical part of the reasoning of the majority in that case was that prior to considering the corroborative evidence in that case the Tribunal had only arrived at a state of what could be said to be a lack of persuasion.  That is, that it was simply not convinced.  To be distinguished from a situation where the Tribunal forms at that stage a clear view that the applicant’s claims are to be rejected because they are not true.  

4. The basis for this submission was that the Refugees Convention and the Migration Act require the Tribunal to find, not on a question of probabilities, but on the basis of being satisfied, that there is no well-founded fear arising from the circumstances before it. That is, that there is no real chance of future harm.

5. Mr Smith also relied particularly on what is set out at [18] of WAIJ (the role of the Tribunal in conducting the review), at [27] (the reference to Applicant S20/2002), and at [39], in particular: “[a]s discussed earlier, in such a state of non-persuasion the tribunal remained bound to consider the corroborative material provided by the documents, before it could determine whether it was possible that those events that occurred as claimed”.

6. In essence therefore the submission was that what the majority in WAIJ set out was that it was not open to the Tribunal to proceed on a balance of probabilities, and then to either reject, or not consider, corroborative material in those circumstances such material might dissuade or persuade one way or the other. In that sense, what the Court set out at [27] can be understood as support for the proposition that it is not open for the Tribunal to consider it unnecessary to consider corroborative material in those circumstances where it is unlikely, only, that events have occurred.

7. The reasoning of the Court in WAIJ therefore is to be seen in the Court’s finding that the Tribunal was in a state of satisfaction (as opposed to a clear finding absent doubt) and that this was so even in circumstances where the Tribunal said that the applicant’s claims were not credible, and this is because of the way that that Tribunal arrived at that conclusion which was analysed by the Court beginning at [31], and the following paragraphs. 

8. Mr Smith submitted that the Court’s view in WAIJ was that some of the matters relied on by the Tribunal were minor, and to the extent that it relied on inconsistencies in the applicant’s evidence, these were not inconsistencies at all.  Further, that some of the factors relied on by the Tribunal in finding that the applicant’s claims were not credible that certain matters were not raised at an interview conducted immediately upon the applicant’s arrival in Australia.  

9. The Court variously found that that Tribunal’s rejection of some factual aspect of the applicant’s claims as being implausible was done in circumstances where there was no evidence to suggest or support an important part of the conclusion relied on, and reached by the Tribunal.  Further, that what the Tribunal considered to be inconsistent in the factual evidence was not so inconsistent.

10. The first respondent’s submission therefore was that on an application of what was set out by the High Court in Applicant S20/2002, and on a proper understanding of what was said by the majority in WAIJ (that is an understanding based on, and derived from, the circumstances before the Court in that case). That in the circumstances of the current case, there was no lack of persuasion in relation to the Tribunal’s findings.  It had made a very clear finding in rejecting the applicant’s claims on the basis of a lack of credibility such that this Court should apply what was said by the High Court in Applicant S20/2002 (at [49]) (and [27] of WAIJ) such that the Tribunal was able to reject the corroborative material in the way that it did because the applicant’s credibility had been so discredited. That is, that the applicant could not be believed, and that the Tribunal therefore could not be satisfied with the alleged corroboration.

Consideration

1. In further submissions Mr Kennett submitted that the applicant and respondent were not that far apart on how WAIJ is to be analysed, but that the issue (in the current case) is how it is to be compared with, and applied to, the circumstances of the current case. 

2. The issue therefore for this Court, with reference to the Tribunal’s reasoning, was whether there was a lack of persuasion in relation to the applicant’s credibility (as was found in WAIJ), or whether the Tribunal reached a clear view that the applicant was not telling the truth (a liar) even before turning to consider the letter.

3. In this regard I agree with submissions made by Mr Smith.

4. In my view, a plain reading of the Tribunal’s analysis, that is its “Findings and Reasons”, reveals (with reference to the material where the applicant set out his claims) that the Tribunal properly understood the applicant’s claims to be that if he were to return to Nepal he would be persecuted by the Maoists, a party to which he had belonged, and for which he had actively worked and promoted their cause from 1992 to 2004. That he would be persecuted by the Maoists because he left that party in 2004. It also understood the applicant’s claims to be that on return he would be persecuted by the Nepalese authorities due to this involvement with the Maoists.

5. The Tribunal did not accept the applicant’s claims to have been involved with the Maoists, or that he had been threatened by the Maoists after he said that he had quit the party. The Tribunal’s reasons (including reference to the letter presented at the “first” Tribunal hearing) was that the applicant had not given a credible account of what he said was the factual basis of his claims.  The Tribunal plainly found that the applicant was not telling the truth about events leading up to his departure from Nepal (CB 153.3). (See also and in particular [7]-[13] of this judgment above.)

6. In my view, this was a comprehensive finding of dishonesty and untruthfulness on the part of the applicant, such that the Tribunal found the applicant’s claims to have been discredited by this.  I cannot see that the Tribunal in the current case can be said to have relied on “hunches”, seen inconsistencies where none existed, or made findings of implausibility without any proper basis for doing so. 

7. What is important to understand is that the applicant before the Tribunal claimed to have been a Maoist, and not just to have been a Maoist, but to have been actively involved over a period of 12 years and to have been actively working with Maoists to promote the Maoist cause.

8. In these circumstances, it is not illogical or unreasonable of the Tribunal to have expected the applicant to have provided some detail about the Maoist’s objectives, and to have displayed more than a “very limited knowledge” of their political ideology or their tactics, and further to have provided more than just “limited details” as to what he said when he spoke to other villagers in support of the Maoists, and how he promoted their ideologies.  

9. These were not matters peripheral to the applicant’s claims. What must be emphasised is that the applicant claimed to have been an active Maoist for over 12 years. The Tribunal’s expectation in this regard in relation to the applicant’s evidence was not unreasonable. It was plainly open to the Tribunal therefore to find that given his demonstrated lack of knowledge about matters which were central to, and at the heart of, his claims, to have then formed the view that the applicant was not a credible witness and was not telling the truth. It was not illogical or irrational of the Tribunal to have so reasoned given the circumstances before it. Its conclusion was based on findings (which were open to it) given the applicant’s own evidence at the hearing before it (see in particular transcript “B” to the affidavit of Mr Balzola).

10. It must also be noted that the applicant was represented throughout the processing of his protection visa application, and more relevantly before the Tribunal during the period of the review, by a registered migration agent. The agent was present at the hearing when the applicant gave his evidence. Any plain reading of the transcript of the Tribunal’s hearing with the applicant (attached at “B” to the affidavit of Mr Balzola) reveals that the Tribunal through its questions gave the applicant every opportunity to put forward the factual basis of his claims. The Tribunal squarely put to the applicant its concerns about his inability to give information about Maoist ideology beyond what was said to be “vague information about what they believe in” (see transcript at p.19.8, and further at transcript p.20.2).

11. Further, it was the applicant’s evidence that he ceased his involvement with the Maoist party after they had bombed an airport (see transcript p.24). It was his evidence that he just stopped attending their programs and that “my connections started to dwindle”. In answer to the question as to whether he was approached by the Maoists because of his having ceased participation his answer was: “no they did not” (transcript p.24.7). Then further it was his evidence that he did not have any problems with the Maoists after he stopped his activities even in circumstances where he continued to stay on in his village and to work at a clinic there (see transcript p.24.10). Nor did they threaten anyone from his family up until he left the village in 2005, noting that the bombing of the airport had taken place in March 2004 (see transcript p.25.5).

12. The Tribunal’s finding as to the applicant’s lack of truthfulness was clearly based on the view of the evidence presented by the applicant himself. A view that, on any plain reading of the transcript, was entirely open to the Tribunal to take. This is a case where the credibility of the applicant had been destroyed by a clear finding of untruthfulness, which was plainly open to the Tribunal to make given the applicant’s evidence, and which was based on reasoning which was entirely logical, and derived from matters of consequence. That is, from matters that went to the very heart of the applicant’s claims.

13. In relation to the letter presented by the applicant at the earlier Tribunal hearing before the differently constituted Tribunal, the Tribunal plainly had regard to that matter.

14. I should just note that in light of SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 (“SZHKA”) (a decision handed down after the hearing in this matter by the full Federal Court), to the extent that the Tribunal had regard to what had occurred at the hearing before an earlier constituted Tribunal, the Tribunal was entitled to have such regard (see SZHKA at [37]: “[s]uch a conclusion would not mean that what has taken place in the previous review cannot be taken into account in the second review if considered relevant.  The proceedings are administrative, not judicial, and the Tribunal can have regard to all relevant material, including a transcript of what took place at the previous hearing, subject compliance with the statutory regime”.  (Per Gyles J, with whom Gray J agreed (see [24]).)

15. In my view, the Tribunal made a clear finding, not based on likelihood or speculation, that the applicant had not told the truth in giving his evidence at the hearing before it.  In these circumstances, the Tribunal did not accept that a letter provided by the applicant, to the previously constituted Tribunal, and which was said to have been a letter from the Maoists in Nepal demanding of him to return to his village, was a genuine letter from the Maoists “given that the Tribunal has found the applicant is not a credible witness and that it has rejected other aspects of the applicant’s evidence as outlined above”.  

16. The Tribunal’s reasoning, plainly, was that given that it did not accept (because it found that the applicant had not been truthful) that he had been involved with the Maoists and subsequently quit the party in 2004, in those circumstances, it could not accept that the Maoists would then send the applicant a letter threatening him because he had quit the party. The Tribunal’s reasoning in this regard does not reveal any lack of logic. If the applicant had never been involved with Maoists, then plainly the Maoists would not have sent such a letter to him.

17. Given that the Tribunal’s finding as to the applicant’s credibility was made absent doubt, and not based on speculation or reasoning which can be seen to have no basis, the circumstances of this case do fall squarely within what was said by the High Court in Applicant S20/2002 at [49]. The Tribunal’s clear reasoning is that because the applicant could be believed (believed in the evidence that he gave to the Tribunal), then it could not also be satisfied that the evidence which was said to have been given in support of those claims was “genuine”.

Conclusion

1. I cannot discern error on the part of the Tribunal on the issue advanced by the applicant with the benefit of legal assistance.  For this reason this application is dismissed. 

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  25 August 2008