FEDERAL COURT OF AUSTRALIA

SZGIC v Minister for Immigration and Citizenship [2009] FCA 517

MIGRATION – consideration of an appeal by an unsuccessful applicant for review of a decision of the Refugee Review Tribunal affirming the decision of the Minister’s delegate to refuse the appellant a Protection Visa under the provisions of the Migration Act 1958 (Cth) – consideration of whether the Tribunal failed to properly exercise its statutory jurisdiction of review having regard to contended errors of analysis and reasoning in the treatment of corroborative evidence

Migration Act 1958 (Cth), s 420; s 422B

SZANI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1298 – cited

WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188 – cited

Minister for Immigration v Yusuf (2001) 206 CLR 223 - cited

Minister for Immigration and Multicultural Affairs Ex parte Applicant S20/2002 (2003) 198 ALR 59 – cited

SZIEW v Minister for Immigration and Citizenship 101 ALD 295 - cited

SZGIC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD1057 of 2008

GREENWOOD J

20 MAY 2009

sydney (VIA VIDEO-LINK FROM brisbane)

THE COURT ORDERS THAT:

1.                  The appellant is given leave to amend the Notice of Appeal filed on 11 July 2008 so as to rely upon the Amended Notice of Appeal filed on 28 August 2008.

2.                  The appeal is dismissed.

3.                  The appellant shall pay the costs of the first respondent of and incidental to the appeal. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an appeal from orders of the Federal Magistrates Court of Australia (Lloyd‑Jones FM) made on 20 June 2008 dismissing the appellant’s application for orders for the issue of the Constitutional writs of certiorari and mandamus in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) made on 6 October 2006 and published on 19 October 2006.  The Tribunal by its decision affirmed the decision of the Minister’s delegate to reject the appellant’s application for a Protection Visa under the provisions of the Migration Act 1958 (Cth) (“the Migration Act”).

2                     The Tribunal’s decision of 6 October 2006 is the second decision of the Tribunal, differently constituted from the first, in the exercise or purported exercise of the Tribunal’s statutory review function.  The first decision made on 30 March 2005 and published on 19 April 2005 affirming the decision of the Minister’s delegate was set aside by the Federal Magistrates Court by consent on 29 March 2006 and was remitted to the Tribunal to be determined according to law. 

3                     The appellant sought to quash a second decision of the Tribunal on three grounds.  They were that the second Tribunal had not been reconstituted according to law having regard to the relevant provisions of the Migration Act; that the Tribunal failed to discharge its statutory review function in that it failed to consider whether the appellant’s so called “residual motive” in seeking protection gave rise to a well‑founded fear of persecution; and, that the Tribunal was affected by apprehended bias.  The appellant was unsuccessful on all three grounds. 

4                     The appellant filed a Notice of Appeal before this Court on 11 July 2008 which raised three grounds of appeal.  On the hearing of the appeal, the appellant represented by Mr Newman of Newman & Associates, sought to abandon the prosecution of any of those grounds and sought leave to amend the Notice of Appeal to rely upon one new ground of appeal.  The appellant now contends that the primary judge erred by failing to find jurisdictional error on the part of the Tribunal as it disregarded:

… much of the appellant’s corroborative evidence without ascribing reasons or, alternatively, misapplying the ruling in SZANI v MIMIA [2004] FCA 1298, Tamberlin J.

5                     In further elaboration of that ground, the appellant says the Tribunal failed to exercise its statutory review function as it applied, in error, an analytical method of first assessing the creditworthiness of the appellant and then, having formed an unfavourable view of the appellant’s credibility, concluded, wrongly, that it was entitled to reject the whole of the appellant’s corroborative evidence without subjecting that evidence to any assessment or ascribing any reasons for rejecting the evidence. 

6                     The Minister opposes the application for leave to amend the notice of appeal.  The Notice of Appeal filed on 11 July 2008 is a handwritten notice filed by the appellant under her own hand.  She does not appear to have been represented by a lawyer in preparing and filing that document.  The appellant was initially represented in the Federal Magistrates Court proceedings by Mr Newman.  For reasons which do not need to be repeated here, the hearing of the proceeding before the Federal Magistrates Court was adjourned.  Mr Turner of Parish Patience Immigration Lawyers appeared for the appellant on the adjournment application and later acted for her in the conduct of the hearing.  Mr Newman now acts for the appellant in the appeal.  The appellant as advised by Mr Newman now seeks to agitate the new and only ground of appeal. 

7                     The Minister contends that the subject matter of the new ground was not argued in the Court below.  It could have been argued.  The appellant was represented.  Nevertheless, Mr Kennett on behalf of the Minister has prepared written submissions addressing the new ground.  Having regard to the history of the matter, it seems to me that the interests of justice are served by granting leave to amend the Notice of Appeal so as to enable the appellant to argue the ground of appeal now thought, on advice, to be meritorious. 

8                     Accordingly, leave to amend is granted.  The appellant is a citizen of Nepal born in 1970 in the town of Khanigawn in the area of Parbat, Nepal.  She was a member of the Brahmin caste and was brought up within Nepal’s Hindu community and Hindu culture.  She married in 1987.  She is the mother of two sons born in 1990 and 1993 both of whom remain in Nepal. 

9                     The appellant arrived in Australia on 19 December 2003 in reliance on a visitor’s visa issued in Hong Kong.  She applied for a Protection Visa on 7 January 2004.  The appellant claims to hold a well‑founded fear of persecution should she return to Nepal, due to the political opinions she holds and expresses as a supporter of the ideology of the Maoist movement within the Nepalese Communist Party; the Christian religion she embraces and feels compelled to proselytize; her abandonment of Hindu beliefs and traditions in favour of the Christian faith; and the difficult social position she would endure in Nepal as a widow.  She contended that due to these considerations she would be in physical danger from the authorities in Nepal, individuals within the Maoist movement in Nepal, Hindu nationalists, her father as he is a Brahmin shamed by his daughter’s conversion to Christianity and, as to her social status in Nepal, by some members of the wider community in that country. 

10                  The factual content of these claims is contained in the appellant’s handwritten answers to questions in the application form for the visa and statutory declarations she swore on 20 February 2004, 9 June 2004, 10 January 2005 and 17 March 2005.  The appellant also gave oral evidence at the first Tribunal hearing.  She also swore a further consolidating statutory declaration on 2 June 2006 and gave further oral evidence before the second Tribunal at a hearing on 19 June 2006. 

11                  In her consolidating statutory declaration sworn on 2 June 2006, the appellant addressed a number of inconsistencies in her oral evidence given to the first Tribunal hearing as compared with earlier written answers and statutory declarations put before the Tribunal.  The appellant said those inconsistencies were due to the difficulties she experienced in communicating with a Tamil migration agent who had a limited understanding of her Hindi language.  She said her English language skills were not very good and to the extent that any earlier documents contained material inconsistent with her declaration of 2 June 2006, those documents were incorrect. 

12                  The central factual contentions of the appellant of importance were these. 

13                  The appellant’s husband had been a member of the Communist Party of Nepal, a very active member of a Maoist group within that party and a Maoist District Commander for the region of Parbat.  As a result, the appellant’s husband was always hiding from the Nepalese authorities, would visit his wife and children every three, six or eight months and would come and go in secret.  He would not tell her any details of his political activities.  The appellant contended that her husband had been killed in a clash between Maoist activists and the Nepalese army.  There was confusion in the appellant’s material before the Tribunal as to the month and year of her husband’s death.  The appellant contended that she was sympathetic to her husband’s Maoist ideals although she was not a person who engaged in acts of violence.  She said she supported the Maoists by distributing literature and medicines amongst the people.  She contended that before her husband died, the army and police used to come to her house and question her about her husband.  They would do so two or three times a month to search the house.  A few months before her husband died, a number of policemen took her to a building for questioning.  She was threatened with rape, beaten and raped, although she could not remember exactly what had happened to her during that ordeal.  She said that she was knocked unconscious.  During a period of approximately one or two years before her husband’s death, there were many incidents when members of the police or the army interrogated her about her husband’s whereabouts. 

14                  Apart from the interrogation and rape or suspected rape just mentioned, the appellant contended before the second Tribunal in her oral evidence that policemen used to come to her house when her husband was away engaged in Maoist activities.  These men used to demand information from her under threat of rape.  She said that when she could not tell them where her husband was since she did not know, they would rape her.  In her oral evidence she said that these events occurred over a four year period prior to her husband’s death.  The circumstances of her husband’s death in a battle with the Nepalese army, and seeing her husband’s body, were traumatic events for her.  After her husband’s death, she was helped by Maoist sympathisers, continued to support Maoist principles and continued to assist Maoist sympathisers in the distribution of pamphlets and medicines. 

15                  She contended that in 1998 after her husband’s death, her father‑in‑law took steps to obtain a passport for her to leave Nepal.  The passport was issued on 7 September 1998.  She contended that one day in November 1999 her father‑in‑law told her to go with him to Kathmandu Airport.  She was given a passport and ticket and told she was to fly to Hong Kong to be met by a person who would employ her in domestic service.  She worked for that person and his family for two years and then another family.  The second employer obtained a renewal of the appellant’s passport, that is, a new passport on 7 March 2003.  The appellant came to Australia with that family on 19 December 2003, fled from her employer and applied for a Protection Visa on 7 January 2004.  These events were examined closely and in great detail by the Tribunal as the appellant initially said she left Nepal from Kathmandu in August 2002 and although each passport was issued after her husband’s death, each passport nominated her husband as her next‑of‑kin. 

16                  In support of these contentions, the appellant relied on four witness statements.  She also relied on a letter addressed “To Whom it May Concern” under the letterhead of the “Human Rights Educational Radio Audience Club (Rilek‑Nepal) District Section – Chitwan”.

17                  In the first statement (in order of the Appeal Book) Bhim Kharel says that he came to Australia on 5 June 1996, is a permanent resident and has known the appellant and her husband for over 15 years.  He asserts that because the appellant and her husband supported Maoist political activities in Nepal, the appellant’s husband was killed by Nepalese authorities and the appellant was detained on a number of occasions.  He says that she was denied employment and ostracised by the society.  He says he grew up in the same village as the appellant and her husband. 

18                  The second statement is by Rita Kharel of the same address as Bhim Kharel.  She says she knew the appellant and her family in Nepal.  She says that the appellant has a psychological fear that if she returns to Nepal she will be arrested and tortured due to her membership of a Maoist organisation.  She says the appellant may commit suicide. 

19                  The third statement is by Choodamani Pramod.  He says he has seen many incidents in Nepal during clashes between the Nepalese army and Maoist groups.  He says he knew of the appellant and her family in his district.  He says, “We all used to move from one place to another place”.  He says he has a strong belief the appellant would be detained by Nepalese authorities. 

20                  The fourth statement is by Grishma Kharel.  She says that she knew the appellant and her husband from her village in Nepal.  She says the appellant’s husband was very popular, helped people and was generally known as a leader.  She sets out her beliefs about particular problems in Nepal and her belief that the appellant would be isolated from Nepalese society due to her and her husband’s past activities.  The witnesses also gave oral testimony.  A medical report was also put in evidence that addressed the appellant’s physical and emotional condition and referred to certain burn scars on the appellant’s back which she claimed she sustained during an event of torture. 

21                  The fifth document is the letter previously mentioned.  The author says that based on information supplied to him (or the agency) the appellant’s husband was an active member of a Maoist organisation and was killed in June 1998 in a battle between the Nepalese army and Maoist rebels. 

22                  The appellant also put before the Tribunal a statement from a social worker associated with the Jesus Family Centre which the appellant regularly attends as part of her Christian devotions.  A medical report dated 2 June 2006 concerning her condition was also put before the Tribunal.

23                  At AB282 (p 8 of the Tribunal’s reasons), the Tribunal describes the evidence of Bhim Kharel, Choodamani Pramod and Grishma Kharel.  The evidence of Bhim Kharel is also noted at AB286 (p 12 of the Tribunal’s reasons).  The Human Rights letter is addressed at AB287 (p 13 of the Tribunal’s reasons).  The Tribunal in very extensive reasons extending over 33 pages, analysed each of the claims made by the appellant and the evolution of those claims through the course of the appellant’s written answers, statutory declarations, oral evidence and responses to letters from the Tribunal. 

24                  Plainly enough, the Tribunal was concerned about fundamental inconsistencies in the evidence and statements made to the Tribunal by the appellant over time. 

25                  Although it is not necessary to recite in these reasons each of the findings made by the Tribunal arising out of its perception of important inconsistencies, some of the findings ought to be mentioned.  The Tribunal said this:

The Tribunal finds that the Applicant has not provided impressive evidence of an alignment with the Maoists (actual or imputed) on her part or on her husband’s part (AB302);

… The Applicant’s inconsistent evidence as to the level and formality of her involvement in the Maoists cannot be so simply overlooked (AB302);

The Applicant gave inconsistent evidence to the Tribunals as to the level of communication between herself and her husband about his, and their, Maoist activities (AB302);

The Tribunal has considered the Applicant’s explanation for not revealing the full nature of alleged sexual abuse suffered by her at the hands of the police.  …  The Tribunal is of the view that the Applicant’s claims about the traumatic nature of the torture she suffered do not satisfactorily explain discrepancies in her evidence as to when the pattern of torture began.  The Tribunal does not accept that the nature of the abuse the Applicant supposedly received from the police, over four years leading up to the alleged death of her husband, provides a satisfactory reason for having told the previously‑constituted Tribunal that abuse by the police only started after her husband died (AB303);

The Applicant has in very recent times given highly inconsistent evidence as to the “pattern” of sexual abuse she supposedly suffered at the hands of Nepalese officials.  She claimed as recently as 2 June 2006 that there was one “possible” instance of rape prior to her husband’s death but that she was unconscious and could not tell for sure.  Only a few weeks later she was citing a four‑year history of rape.  The Tribunal finds that it cannot rely on the Applicant’s evidence about rape by Nepalese officials (AB303); 

The Tribunal accepts that the Applicant has some scars on her body and that these may also be burn scars.  However, on the highly inconsistent evidence provided by the Applicant, the Tribunal does not accept that they are scars relating to injuries sustained in circumstances claimed by the Applicant (AB303); 

The Tribunal is concerned as to the highly inconsistent evidence the Applicant gave regarding the alleged date of her husband’s alleged death, and also concerned as to inconsistencies regarding the period between that alleged death and the Applicant’s November 1999 departure for Hong Kong.  Meanwhile, the Tribunal was struck by shifts in the Applicant’s evidence as to the motivation she attributed to her father‑in‑law for securing her a job in Hong Kong (AB303);

… The Tribunal finds it cannot rely on claims about the Applicant’s husband having died prior to the Applicant’s application for a passport, let alone in the circumstances claimed.  The Tribunal gives weight to the entry in the Applicant’s passport attesting to her husband being alive at least at the time of the application for the passport (AB304).

26                  The Tribunal concluded at AB305 that central aspects of the claims made by the appellant were a fabrication.  Having examined these inconsistencies which led the Tribunal to the conclusions identified, the Tribunal made this observation about the witness statements:

Given the nature and degree of the credibility problems with the Applicant’s own evidence, the Tribunal finds that it cannot give weight to the information from the Applicant’s witnesses attesting to her Maoist connections, or those of her husband, or relating to any consequences of such connections.  The Tribunal has duly considered material such as the 2 June 2006 medical report and the Jesus Family Centre’s social worker’s statement but finds that it cannot give these such weight as can help resolve the Applicant’s credibility problems in relation to her claims about abuse in Nepal (AB304). 

27                  Immediately preceding those observations, the Tribunal contextualised its conclusions concerning the weight and utility of the witness statements by making this observation:

In SZANI v MIMIA [2004] S[F]CA 1298 Tamberlin J referred to the decision of WAEJ v MIMIA [2003] FCAFC 188 where the Full Court at page [para] 52 said:

“On its face the foregoing was a statement by the RRT that the document was not authentic.  This was not a case where dishonesty on the part of the appellant had been demonstrated thereby providing support for the further conclusion that the appellant had arranged for the preparation, and tender of, a non authentic, or forged, document which the RRT could disregard.  There was no finding by the RRT that the evidence of the appellant was so discredited that any purportedly corroborative material presented on his behalf could be discarded without further analysis (emphasis added by the Full Federal Court).” 

                                                            [There is no emphasis in the quoted passage]

28                  The sequence of reasoning adopted by the Tribunal seems to have been reflected in four steps. 

29                  Firstly, the Tribunal has “duly considered” the information from the appellant’s witnesses relating to the appellant’s engagement with Maoist groups or her husband’s engagement with such groups and has duly considered information from these witnesses relating to the “consequences of such connections”.  Secondly, the nature and degree of the credibility problems the Tribunal has with the evidence of the appellant is such that the witness statements cannot be redemptive of the poisoned well of credibility, that is, the Tribunal cannot give the statements such weight “as can help resolve the appellant’s credibility problems in relation to her claims about abuse in Nepal”. 

30                  Thirdly, guidance in the approach to the utility of corroborative statements can be found in the decision of Tamberlin J in SZANI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1298 and the reference in that decision to the reasons of the Full Court in WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188, which suggest to the Tribunal that where there is a finding by the Tribunal that the evidence of the appellant is fundamentally “discredited”, any purportedly corroborative material presented in support of a discredited version of events, may be discarded. 

31                  Fourthly, although the witness statements ought not to be discarded from due consideration, no weight should be attached to them in resolving the Tribunal’s concern as to the appellant’s credit. 

32                  The appellant by her submissions made by Mr Newman, accepts that once a witness is found by the Tribunal to lack credibility, any documents that the witness tenders in corroboration of the primary evidence “may themselves be suspect”.  However, oral corroborative evidence from a supporting witness is, it is said, in “a different class altogether”.  Before oral evidence can be rejected it must be found to be “flawed or tainted” in some way.  Unless the evidence is assessed and reasons given for its rejection, the Tribunal has failed, it is said, to discharge its review function and has failed to properly exercise its jurisdiction. 

33                  In this case, the Tribunal has considered the evidence of the witnesses called by the appellant and has concluded that the content of the evidence does not overcome the Tribunal’s conclusions about the reliability of the primary evidence of the appellant.  In SZANI v MIMIA, Tamberlin J concluded that the Tribunal’s failure to make “any reference” [22] to the documents in question and the Tribunal’s failure “to refer to, consider, or give reasons for rejection of the documents” [25] constituted jurisdictional error.  In other words, the Tribunal had “ignored” relevant material in the sense contemplated by McHugh, Gummow and Hayne JJ in Minister for Immigration v Yusuf (2001) 206 CLR 223 at [82]. 

34                  That is not this case.  The Tribunal seems to have cited SZANI to illustrate the quoted reference to WAEJ v MIMIA.  In that case, the Full Court, Lee, Hill and Marshall JJ at [52] noted the class of case where an appellant’s evidence is so discredited that corroborative evidence presented in support of the primary claims “could be discarded without further analysis”. 

35                  The proper approach and one in which the resolution of this appeal is to be found is identified by Gleeson CJ in Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [12] to [14]:

[12]      It was contended that [the relevant passage] shows that the Tribunal member adopted a flawed approach to her evaluation of the evidence, failing to assess the evidence of the applicant/appellant in the light of the corroborating evidence, and giving no weight to the evidence of the corroborating witness for reasons that had nothing to do with the quality of that evidence.  The essence of the complaint is that the Tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant.  I do not accept that this is a fair criticism of the Tribunal’s reasons.  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.  The member could have expressed herself more clearly.  It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness. 

[13]      Upon analysis, the complaint is that the Tribunal member did not have regard to the whole of the evidence before deciding whether she believed the applicant/appellant, and did not properly assess the significance of the evidence of the corroborating witness.  I am not persuaded that this criticism is justified.

[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.  Expression 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 evidence of the witness who was said to corroborate him. 

36                  At [49], McHugh and Gummow JJ put the matter in these terms:

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 processors (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 appellant cannot be believed, it cannot be satisfied with the alleged corroboration.  The appellant’s argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question.  That may be a preferable method of going about the task presented by s 430 of the Act.  But it is not irrational to focus first upon the case as it was put by the appellant. 

37                  In this case, the Tribunal comprehensively examined the primary case first put by the appellant.  The Tribunal considered the evidence of the witnesses called by the appellant and reached the conclusions already identified.  The Tribunal did not simply ignore the evidence in the sense contemplated in Minister for Immigration v Yusuf (supra).  The point of principle referred to in the reasoning of the Chief Justice in Applicant S20/2002 remains determinative, whether the particular evidence is a document or a statutory declaration or embraces oral evidence.

38                  The appellant says that SZIEW v Minister for Immigration and Citizenship 101 ALD 295 per Madgwick J is authority for the proposition that a failure by the Tribunal to accord separate deliberative reasons for the rejection of the evidence of each witness is a failure to exercise jurisdiction.  In that case, Madgwick J concluded that the Tribunal wrongly accorded the evidence of a witness “little weight” for the sole reason that the Tribunal had no opportunity to test the claims made by a witness that her relative had been captured and had heard certain things about the particular applicant’s husband.  The case also concerned events in Nepal.  Having regard to the inquisitorial role of the Tribunal and its statutory function, the rejection of the evidence of a witness as to the statements made to the witness by her relative, on the sole ground identified by the Tribunal, reflected error. 

39                  In this case, the Tribunal elected to accord the evidence of the witnesses called in support of the appellant’s evidence, little weight, having duly considered the evidence.  It did so on the footing that the evidence did not assist the Tribunal in resolving its concerns about the reliability and creditworthiness of the appellant.  That conclusion was open to the Tribunal on the evidence and the treatment of the evidence is consistent with the principles established in Ex parte Applicant S20/2002. 

40                  Accordingly, the appeal must be dismissed. 

Associate:

Dated:         20 May 2009