FEDERAL COURT OF AUSTRALIA

BHM15 v Minister for Immigration and Border Protection [2018] FCA 917

ORDERS

THE COURT ORDERS THAT:

1.    Grant leave to the appellants to rely on the ground of appeal.

2.    The appeal be allowed.

3.    The first respondent pay the appellants’ costs of the appeal.

4.    Order 1 of the orders of the Federal Circuit Court of Australia (Federal Circuit Court) made on 4 December 2017 be set aside and in its place:

(a)    order absolute in the first instance for a writ of certiorari to remove into the Court, for the purpose of it being quashed, the decision of the second respondent dated 5 June 2015 to affirm a decision of a delegate of the first respondent to refuse to grant protection visas to the applicants; and

(b)    order absolute in the first instance for a writ of mandamus directing the second respondent to review, according to law, the decision of a delegate of the first respondent to refuse to grant protection visas to the applicants.

5.    Within 14 days of the date of these orders the parties file and serve written submissions, not exceeding 2 pages in length, in relation to Order 2 made in the Federal Circuit Court on 4 December 2017 and the issue of the costs of that proceeding and indicate whether that issue can be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application for judicial review of a decision of the second respondent (Tribunal): see BMH15 v Minister for Immigration [2017] FCCA 2974. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the appellants Protection (Class XA) visas (Protection Visas).

2    The first appellant (Wife) is a national of Pakistan. She entered Australia on 12 July 2011 with the second appellant (Husband) as the holder of a Subclass 573 Student visa. On 28 August 2012 the third appellant (Child) was born in Sydney.

3    The single issue raised by the appellants on appeal is whether the Tribunal erred in failing to consider evidence that corroborated the Wife’s claims. This ground was not raised before the Federal Circuit Court. Accordingly, the appellants require leave to raise it on appeal.

4    For the reasons which follow, leave to raise the new ground on appeal should be granted and the appeal should be allowed.

background

5    The following background facts, which I understand to be uncontroversial, are based substantially on the appellants’ submissions.

6    On 13 May 2013 the Wife and Child travelled to Pakistan, returning to Australia on 23 July 2013.

7    On 26 August 2013 the Wife lodged her application for the Protection Visas. The Husband and Child applied for protection as members of the Wife’s family unit and do not have their own protection claims.

8    In her statement annexed to the application for the Protection Visas the Wife claimed that:

    she was a Christian from Rawalpindi. Her parents had permitted the Hosanna Church to occupy part of one of their properties and her father had given money to the churches to provide accommodation, food and lodging for poor Christians who were exploited by Muslims;

    her father was also an Elder of the Emmanuel Church;

    she was involved, with her family, in visiting Christian suburbs and the homes of people living in poverty in search of talented Christian children who, with the consent of their parents, were brought to the churches for education;

    upon completing her studies in 2007 she became involved full time in the church and was also involved in visiting remote Christian villages in the North West Frontier Province (NWFP). Her uncle and aunt lived in Peshawar in the NWFP and she travelled there frequently with her father. She was shocked to find talented Christian youths from poor families in that area who had been forcibly converted to Islam. She persuaded her father to permit her to bring these youths to Rawalpindi and accommodate them in the churches. She was assisted by Reverend Pastor Titus (Pastor Titus) of the Hosanna Church;

    in September 2008 she was offered a job at the Church World Service Pakistan/Afghanistan (CWSP/A) as an accounts assistant and was later promoted to assistant finance manager. At CWSP/A she was able to provide Pastor Titus with contact details of international organisations so that he could, in turn, contact them and inform them of the predicament of Christian children in the NWFP and Balochistan;

    in about 2009 Pastor Titus started travelling to Peshawar representing these organisations and met many church priests in the NWFP and Balochistan. He became well known as a person trying to protect Christian children held captive by militants. Because of his work, Pastor Titus was arrested, tortured and beaten by militants and police officers. He later died of a heart attack;

    her father heard from police officers that militants were planning to track down the Christians involved in taking Christian youths who had been converted to Islam. Her father advised her to apply to travel overseas. The Wife told her father that she and the Husband, who at the time was her fiancé, had applied for overseas study scholarships and were awaiting the outcome of those applications;

    the Husband obtained a scholarship to further his studies overseas and they married on 2 January 2011 so that she could accompany him as a dependant. She then moved to her Husband’s home in Rawalpindi;

    the police subsequently visited her father to question him about her involvement with Pastor Titus. Her father denied any such involvement. The police also visited her uncle and aunt in Peshawar and beat her aunt’s son when he objected to their accusations against her;

    the Wife moved to an uncle’s house for further protection while she awaited the issue of her visa to travel to Australia. Her uncle drove her to and from her workplace;

    once in Australia she was told by her parents that the police had returned to look for her and that her father continued to receive anonymous calls threatening to take her away because of her involvement in transporting Muslim youths from Peshawar. The local mullah also told her father that local terrorist groups had informed him that she had been involved in transporting Muslim children to Rawalpindi together with Pastor Titus but her father convinced the mullah that only Pastor Titus was involved. Her father told her that she could return to Pakistan once her husband had completed his course in Australia;

    after the birth of the Child in August 2012, the Wife’s parents and two sisters visited her in Australia and told her that the situation in Pakistan was getting worse for Christians. Her father again told her that she should return to Pakistan only when her Husband had completed his studies;

    she was very happy when told by her Husband that his course would be completed in mid-2013 as she could take the Child to Pakistan and live with her family. At the time her Husband’s house that she had lived in before departing Pakistan was being rented by tenants. They decided to terminate their tenancy and on 13 May 2013 the Wife left Australia with the Child and returned to Pakistan to arrange for the house to be cleaned and to ready it for her Husband’s arrival;

    on 12 July 2013, while travelling with her brother and the Child back to their house at about 7.30 pm, they were intercepted by a car carrying three people in Shilwar Kameez (a type of traditional dress) with beards and guns. She was dragged out of the car by one of the people and another snatched the Child. The Wife started screaming and passersby came to help. The men left telling her that while she had managed to escape this time, next time she would not escape and that she should “count the number of days before [she] die[s]”;

    her father took her to the police station and she lodged a first incident report (FIR). The police officers told her that it would not be wise to stay on any further as they would not be able to save her from the militants who were aware of her involvement with Pastor Titus. The police told her father that she should leave the country before she could be murdered or shot dead; and

    she spoke to her Husband who told her to come back to Australia immediately. She moved to her uncle’s house until she boarded a flight to Australia.

9    The Wife provided a copy and translation of the FIR dated 17 July 2013 with the application for the Protection Visas.

delegate’s decision

10    On 16 January 2014 the Wife was interviewed about her claims by the delegate. On 26 May 2014 the delegate made a decision to refuse the application for the Protection Visas.

11    The delegate set out his findings and reasons. In doing so, he referred to the FIR in the following terms:

There are a number of issues associated with the First Information Report (FIR) issued by the Police Station at Morgah District, Rawalpindi:

The FIR states the incident occurred at 7:30 pm on Friday 12 July, at which time it would have been nightfall, and the level of detail observed and activities of passers-by would seem inconsistent with a kidnapping attempt at this hour and the consequent intervention of onlookers;

The incident was claimed to have occurred on Friday 12 July 2012, yet the Report was not made at Rawalpindi Police Station until some days later at 17 July 2013 at 9pm, a considerable delay which would again appear inconsistent with the applicant seeking a timely police investigation and/or protection;

In relation to the veracity of such evidence, the Department of Foreign Affairs and Trade (DFAT) reported in 2008 that;

FIRs are not difficult documents to fraudulently produce. They are standard forms which can be completed by hand (the use of a computer or typewriter is not necessary)... Pakistani journalists advised us that it is possible to have false stories published in newspapers for a fee, however they believed that this occurs less frequently that (sic) it did in the past.

(footnotes omitted)

12    After considering each of the Wife’s claims, the delegate summarised his findings. While the delegate accepted that the Wife was a Christian, he did not accept that she was the author of her own narrative; that she visited Christian village people in Peshawar and NWFP to promote and raise the profile of children and youths being forcibly recruited to Islam; that she was directly involved in the re-conversion of Muslim children and youths to Christianity or that she was involved in transporting them to Rawalpindi; that she was involved in “rescuing” former Christian females who had been abducted in Peshawar and NWFP; or that she promoted the Christian religion. For those reasons the delegate noted that he was entitled to make an adverse credibility finding.

Tribunal decision

13    On 17 June 2014 the appellants sought review of the delegate’s decision.

14    On 28 May 2015 the Husband and Wife appeared before the Tribunal to give evidence and present arguments. They were assisted by an interpreter in the Urdu language.

15    At the commencement of the hearing the Wife provided the Tribunal with a number of documents, including a letter dated 8 May 2015 from the Hosanna church in Rawalpindi (Hosanna Church Letter) and a letter from the Australian Indian Christian Church in Sydney. The Hosanna Church Letter attested to the Wife’s involvement in the church and noted that following the death of Pastor Titus “she faced threats due to her involvement in bringing and reconversion of these children back to Christianity” and that she “was attacked by armed men in July 2013”.

16    In its decision record (DR) under the heading “Findings” the Tribunal addressed three issues:

(1)    “The [Wife’s] evidence about the events which led to her departure from Pakistan in July 2011”;

(2)    “Delay in seeking protection and the [Wife’s] willingness to return to Pakistan in 2013”; and

(3)    “Conclusions on credibility”.

17    In relation to the first issue, the Tribunal set out the Wife’s claims and evidence before making its findings commencing at [17] of the DR. In doing so, the Tribunal said that:

    given that someone from the church she attended every Sunday, which was operated in a building owned by her father, had been apprehended and badly treated in August 2010 because of the same work the Wife had done, it seemed “improbable” that the first inquiry to her family to locate her whereabouts was not made until February 2011 and that no further inquiries were made until after the Wife left Pakistan: DR at [17];

    it “had difficulty accepting” that the Hosanna church, where Pastor Titus was based, was not searched by the police or militants until February 2011 when the local mullah sent people: DR at [17];

    it was “very sceptical” of the Wife’s responses in relation to the Tribunal’s concern as to why there was only one attempt in February 2011 to locate her at the Hosanna church and that its “scepticism was enhanced by the [Wife’s] own behaviour from the time [Pastor Titus] was apprehended in August 2010”: DR at [19];

    it did not accept that the Wife would have behaved the way she did, by continuing to attend the Hosanna church until April 2011, continuing to attend work until her departure for Australia and doing very little to actually avoid being apprehended beyond leaving Pakistan, once she knew that the police and others were looking for her. The Tribunal did not believe that the Wife would think that the police would simply not pursue her after visiting her father in February 2011 when he told the police that she was not involved: DR at [22]; and

    did not believe that the Wife would fail to make some attempt from August 2010, when Pastor Titus was apprehended and maltreated, to live covertly.

18    The Tribunal then set out the Wife’s claims and evidence in relation to the second issue. It noted its concerns that the Wife did not apply for protection when she first came to Australia in July 2011 and that she was willing to return to Pakistan in May 2013. It also expressed concern about the Wife’s evidence in relation to her brother. The Tribunal made the following findings:

    it did not accept that when the Wife came to Australia in July 2011 she honestly thought that militants, the police and local mullah would lose interest in her when, at the same time, she persistently claimed that there is danger in Pakistan for Christians and for which no protection is offered by the authorities: DR at [31];

    overall it did not believe that, if the Wife fled Pakistan in July 2011 to save her life, she would not apply for protection at that time and would choose to return to Pakistan in May 2013. The Tribunal “put to the [Wife] that it had difficulty accepting her account that before she returned to Pakistan in May 2013 and while she was there she was unaware that her brother was in conflict with … the same local mullah from whom [she] had fled in July 2011” and noted that it “had difficulty believing that nothing was said to the [Wife] about this in her claimed circumstances as it could have well exacerbated the interest held in her by the local mullah, something her father and brother would have known”: DR at [32]; and

    the Tribunal did not accept that the Wife’s family failed to warn her, before her return to Pakistan and while she was there, that her brother was having problems with the same mullah: DR at [33].

19    In relation to the third issue, its conclusions on credibility, the Tribunal said at [34]-[36]:

34.    Considered cumulatively, the concerns the Tribunal holds about the applicant's credibility lead the Tribunal to find that she is not a witness of truth and the account of events on which her protection claims are based is false. The Tribunal disbelieves the applicant's claims about undertaking work in Peshawar to assist Christian children there and bring them to Rawalpindi. Accordingly, the Tribunal disbelieves her claims about the pastor performing the same work; coming to the attention of militants and police; getting attacked by them and then dying. The Tribunal therefore disbelieves the applicant's claims about militants, the police and the local mullah all pursuing her and making enquiries with others about her in relation to this work in Peshawar.

35.    The Tribunal also disbelieves the applicant's claims about being attacked on return to Pakistan in 2013. At the hearing, the applicant submitted reports from counsellors at STARTTS who said that the applicant had been receiving counselling since July 2014. They record the applicant self-reporting to them various symptoms of anxiety and also her claims about events in Pakistan on which her protection application is based. The Tribunal is willing to accept that the applicant may well be anxious about her uncertain status in Australia but that is not because she suffered harm in Pakistan as there is no credible evidence about that.

36.    To the Tribunal's observation, the applicant was well able to understand questions she was asked and properly respond to them. She was well able to comprehend the proceedings of the hearing and she had a meaningful opportunity to give evidence about her case. Reports about her receiving counselling do not demonstrate that her evidence as to why she left Pakistan is true. There is no credible evidence as to why the applicant is anxious and has been receiving counselling.

20    The Tribunal referred to the Husband’s evidence put before it and the brother’s claims made to a differently constituted Tribunal about a fear of harm from the local mullah at DR [37]-[39]. It noted that such evidence purported to corroborate the Wife’s claims but rejected it in both cases saying that it did not overcome the concerns the Tribunal held about the Wife’s credibility. The Tribunal rejected the Wife’s claim about being in conflict with the local mullah and found her evidence in this respect to be a fabrication.

21    The Tribunal then addressed the documents submitted by the Wife in support of her claims. At [40]-[42] the Tribunal referred to the FIR and the Hosanna Church Letter stating:

40.    In reaching its conclusions on the applicant's credibility, the Tribunal also considered documents submitted by her to support her claims. In this respect, she submitted a First Information Report from Pakistan police recording a complaint she made to them about the incident in July 2013 on her return to Pakistan. She also submitted to the Tribunal a letter dated 8 May 2015 from the [Hosanna] church saying that she was a member of that church and carrying out church activities in Rawalpindi and Peshawar. This letter also records the pastor being from that church, also doing the same work as the applicant, suffering harm for that reason and the applicant subsequently receiving threats and getting attacked in July 2013.

41.    The applicant also submitted to the Tribunal a letter written in May 2015 from the church she attends in Sydney stating that she suffered a traumatic incident in Pakistan in July 2013 for which she had been receiving counselling. The Tribunal has carefully considered the contents of these documents but they do not overcome the concerns the Tribunal holds about the applicant's credibility which significantly discredit her as a witness. The Tribunal therefore does not give evidentiary weight to the claims made in these documents because those claims are all false.

42.    To the department the applicant submitted letters from a church in Rawalpindi (not the [Hosanna] church) saying that she is a regular member of the church. The applicant also submitted evidence with respect to her church attendance in Australia, to the effect that she regularly attends, that she has, on occasions, preached at church and that she is involved in church and youth activities. The Tribunal accepts that the applicant, her husband and child are all Christians. However, because the applicant is not a witness of truth, it does not believe her claims about attending the [Hosanna] church and that this church was based in a building owned by her father.

22    At [44] of its decision record the Tribunal found that there was no credible evidence before it that the Wife and her family suffered harm in Pakistan; that anyone in Pakistan sought to harm them; why the Wife, the Husband and Child left Pakistan, why the Wife and the Child went back and why they then left again in 2013; and why they did not want to return there now.

23    The Tribunal then proceeded to consider the risk of the appellants suffering serious harm if they returned to Pakistan on the basis of them being Christian. It found that there was not a real chance that they would suffer serious harm in Pakistan, or a real risk that they would suffer significant harm as a consequence of removal from Australia to Pakistan.

proceeding in the federal circuit court

24    On 23 October 2015 the appellants filed an amended application for judicial review of the Tribunal’s decision in the Federal Circuit Court. Their application raised nine grounds.

25    The appellants were represented by solicitors and counsel before the Federal Circuit Court.

26    On 4 December 2017 the Federal Circuit Court ordered that the appellants’ amended application for judicial review be dismissed. As none of the grounds raised in the court below or findings made by the primary judge are in issue on this appeal it is not necessary for me to set them out or consider them further.

the appeal

27    The notice of appeal filed by the appellants raises a single ground of appeal as follows:

The Federal Circuit Court erred in failing to find that the second respondent did not consider evidence that corroborated the first appellant's claims.

Particulars

(a)    The first appellant claimed to have been the subject of an attack by militants in Pakistan on 12 July 2013.

(b)    The first appellant provided corroborating evidence of the attack; namely:

(i)    A First Instance Report made to the Pakistan police on 17 July 2013.

(ii)    A letter from the Hosanna Church dated 8 May 2015 confirming the attack and surrounding circumstances.

(c)    The second respondent, having made adverse findings about the first appellant's credibility in relation to other factual claims, gave no evidentiary weight to the corroborating evidence.

(d)    In the circumstances, the second respondent was required to specifically address and make findings in relation to the corroborating evidence, rather than rely upon its earlier credibility findings on other matters to give no evidentiary weight to the corroborating evidence.

28    As I have already observed this is a new ground not raised before the Federal Circuit Court.

29    Leave to raise a new ground on appeal should only be granted if it is expedient in the interests of justice to do so: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 (VUAX) at [46]. In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 (NAJT) Madgwick J, with whom Conti J agreed, after referring at [163] to the decision in VUAX as setting out the correct approach and one generally to be adopted in practice in this Court, set out the following as relevant questions to consider on an application for leave to raise a new ground on appeal at [166]:

1)     Do the new legal arguments have a reasonable prospect of success?

2)     Is there an acceptable explanation of why they were not raised below?

3)     How much dislocation to the Court and efficient use of judicial sitting time is really involved?

4)    What is at stake in the case for the appellant?

5)    Will the resolution of the issues raised have any importance beyond the case at hand?

6)     Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?

7)    If so, can it be justly and practicably cured?

8)     If not, where, in all the circumstances, do the interests of justice lie?

30    The Minister does not oppose the new ground being raised for the first time on appeal but contends that it is open to the Court to find that it is not expedient in the interests of justice to grant leave to raise it in circumstances where no acceptable explanation has been given for why the ground was not raised below, particularly where the appellants were represented by counsel, and where the proposed ground has no reasonable prospects of success relying on SZNCY v Minister for Immigration and Border Protection [2018] FCA 691 at [64], [67] and [71].

31    The appellants frankly concede that they have no explanation for why the ground was not raised below. In their written submissions the appellants note that they were represented below but the grounds raised were “prolix and unfocussed”. Since that time the appellants have retained new solicitors and counsel.

32    As to the other factors identified in NAJT as matters to be considered by the Court I accept the appellants’ submission that, putting to one side the question of merit of the new ground, they weigh in their favour. That is, a grant of leave would not result in any dislocation to the Court or inefficient use of judicial sitting time; much is at stake for the appellants given that this proceeding concerns their application for protection visas; it is unclear whether the resolution of the issues raised will have any importance beyond this case – I consider this to be a neutral factor; and, given that the Minister does not oppose the grant of leave, it could not be the case that he will suffer any prejudice if leave is granted.

33    The remaining issue is whether the proposed ground has reasonable prospects of success. In my opinion, it does.

Parties’ submissions

34    The appellants submitted that the Tribunal’s rejection of the Wife’s credibility was not based on comprehensive findings of dishonesty or untruthfulness. They further submitted that the Tribunal rejected the Wife’s factual claims in tentative and not exceptionally strong terms: it considered the delay in anyone making an enquiry at the appellants’ home to be “improbable”; it had “difficulty” in accepting that the church was not approached or searched earlier than February 2011; and it was “very sceptical” of the Wife’s explanation. By reference to the transcript of the Tribunal hearing, the appellants submitted that the Tribunal’s suggestion that the Wife had “tried to retract” her evidence about continuing to attend church in the three months before her departure was not based on probative material. The appellants also referred to the finding that the Tribunal had “difficulty in accepting” that nothing had been said to the Wife about her brother’s problems before she returned to Pakistan in 2013 and that the Tribunal concluded by “disbelieving” her claims.

35    The appellants contended that these findings were not sufficiently cogent to negate the FIR and the Hosanna Church letter (collectively, Corroborative Documents), relying on WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74; 80 ALD 568 (WAIJ) at [27] (Lee and Moore JJ). The appellants said that the findings were not sufficient to bring this within the “rare” category of cases where a party’s credibility has been so weakened that the Tribunal may treat what is proffered as corroborative evidence as being of no weight because “the well has been poisoned beyond redemption”, citing SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638 (SZDGC) at [23]-[24] and [27] per Finkelstein J and Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 (SZNSP) at [36]-[38] per North and Lander JJ and [50] per Katzmann J.

36    The appellants submitted that in such circumstances the Tribunal was required to consider and to make findings with regard to the Corroborative Documents and that it was not entitled to simply dismiss them as being of “no evidentiary weight” because of its rejection of the Wife’s earlier claims.

37    The Minister submitted that the Tribunal considered the Corroborative Documents at [40]-[41] of the DR and that this was not a case where the Tribunal said that it was unnecessary for it to consider material corroborative of an applicant’s claims referring to WAIJ at [27]. The Minster submitted that, viewed properly, the Tribunal’s decision is not one that can be characterised as rejecting the Wife’s claims in tentative terms but rather is one “where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness” citing WAIJ at [27].

38    The Minister contended that the Tribunal’s decision demonstrates that this is not a case where the sequence of events is an adverse credibility finding followed by a rejection of the Corroborative Documents but rather one in which those documents were considered by the Tribunal in reaching its conclusion on credibility. The Minister submitted that for that reason, the authorities relied on by the appellants, which are premised on findings of credibility preceding the consideration of corroborative material, are inapposite.

39    The Minister relied on the decision in BJT15 v Minister for Immigration [2016] FCCA 1084 (BJT15). While acknowledging that the decision was not binding on this Court, the Minister submitted that it was an example of the basis upon which the appellants’ proposed ground of appeal would be found to have no prospects of success.

Legal principles

40    Before turning to consider the issue raised in the proposed ground of appeal it is of assistance to set out the relevant legal principles which bear upon it.

41    In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 (S20/2002) at [49] McHugh and Gummow JJ said in obiter:

In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross‑examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the 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.

42    In WAIJ one of the issues considered by a Full Court of this Court was whether the review by the Tribunal in that case was procedurally unfair because it disregarded relevant material presented by the appellant. At [25] Lee and Moore JJ noted that it was not in issue that if events had occurred as claimed by the appellant, she had a well-founded fear of persecution. At [26]-[27] their Honours said:

26    The 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”.

27    Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material: see S20/2002 at [49] per McHugh, 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; 180 ALR 1; 62 ALD 225 at [82-[85] per McHugh, Gummow and Hayne JJ.

(emphasis added)

43    The documents in question in WAIJ were a letter to the appellant in that case from her sister and a notice of dismissal issued by the appellant’s former employer. At [12] their Honours referred to the tribunal’s treatment of that material as follows:

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.

44    Lee and Moore JJ considered the tribunal’s findings and at [39] said:

The tribunal acknowledged that each of the foregoing “problems” in the appellant’s evidence might not have been particularly significant but stated that when considered together, in conjunction with the failure of the appellant to disclose her fear of persecution at the “entry” interview, it led to the conclusion that her claim of such a fear should be taken to be not credible. It may be thought that a point of little significance does not become significant when considered with other matters of minor weight. Indeed the acknowledgement of the tribunal suggests that it did not use the word implausible to describe a circumstance that was inherently unlikely or beyond belief but to denote something not shown to have been likely or probable and to indicate that the tribunal doubted that certain events had occurred as claimed by the appellant. As 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 had occurred as claimed.

45    In SZDGC one of the grounds of appeal before the Court was an allegation that the Refugee Review Tribunal (RRT), as the Tribunal then was, failed to consider the corroborative evidence provided by the appellant, a summons against the applicant’s husband and an administrative penalty order, before making an adverse credibility finding. In relation to that ground, Finklestein J said at [23]:

… I take it to be a trite proposition that a decision-maker required to find facts, whether the decision-maker be a judge or an administrative official, must consider the totality of the evidence that bears upon the facts to be found. That requires the decision-maker to consider any direct evidence of the existence of the fact in issue together with any corroborative evidence that bears on that issue. This is nothing more than common sense. There may be circumstances where it is not necessary to pay due regard to corroborative evidence. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; 73 ALD 1; [2003] HCA 30 at [49] McHugh and Gummow JJ said “it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption”. That proposition is no doubt true. But the circumstances for its application will be rare indeed. Even experienced advocates can only point to a handful of cases where a witness’ credit has been so badly destroyed in cross-examination that it is possible to make findings of fact based on that evidence alone and simply disregard any corroborative evidence.

46    At [26] Finklestein J said:

I am in no doubt that, contrary to the views of the magistrate, the tribunal should have had regard to the documents put forward by the appellant in order to assess her credibility. In its reasons the tribunal explained how it would have regard to the documents. It said:

The applicant has claimed in her most recent submission that:

•    The documentary evidences [sic] that I have previously submitted is true and important evidence in support of my claims.

•    The Tribunal is not convinced that this statement is true as it finds that it does not accept her claims and it does not accept, therefore, that her documentary evidence is authentic.

47    In SZNSP the issue before the Court was whether there must be a finding by a tribunal that an applicant has lied rather than fabricated his or her claims before applying the principle in S20/2002 set out at [41] above. There the corroborative evidence was a witness statement dated 26 March 2009 of Ms Lu. At [12]-[13] North and Lander JJ (with whom Katzmann J agreed) referred to the findings of the RRT and its treatment of Ms Lu’s statement as follows:

12    The RRT did not believe the first respondent’s claims. Indeed, the RRT concluded that the first respondent had fabricated her claims. That conclusion was based upon a number of matters. First, the RRT found it difficult to accept that an active member of the Chinese Communist Party would assist a Falun Gong practitioner having regard to the potential consequences. Secondly, her evidence was general in nature and lacked particularity and detail. Thirdly, the first respondent’s written claims related to Lu and Zhong, whilst her oral evidence only referred to Lu. The RRT doubted her claims that she was dismissed from her employment because she was not able to provide any documentary proof in support of that claim. The RRT noted that the first respondent had no difficulties in departing China which suggested, contrary to her claims, she was not of any adverse interest to Chinese authorities.

13     After making those findings the RRT addressed the witness statement which had been provided and in its reasons said at [60]:

In support of her claims, the applicant has provided a document purported to be, Witness Statement, from Lu Mei Ya (folios 29-32). Given the adverse credibility finding, the Tribunal does not give weight to the document.

48    At [30], [32]-[33] and [36]-[38] their Honours said:

30    We do not agree with the contention that it is necessary to find expressly that a party has lied before concluding that a piece of evidence which might corroborate the party’s account should be rejected. We do not read McHugh and Gummow JJ as saying that a precondition to the exercise which is described at [49] of their reasons is a finding that the party who is tendering the corroborative evidence in support of the party’s evidence has lied.

…

32     But even if it is a precondition, a finding that the first respondent’s claims were not credible and that she had fabricated her claim is tantamount to a finding of lying. It is a finding that the party making the claims has made those claims up. To make up claims is to lie about the existence of those claims.

33    Thus, consistently with Applicant S20/2002 77 ALJR 1165; 198 ALR 59 it was open to the RRT to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement. This was the process followed by the RRT which it described in the sentence “Given the adverse credibility finding, the Tribunal does not give weight to the document”. Although expressed in the most cryptic terms, this statement shows that the RRT made an assessment of the value of the witness statement and then considered its effect in the light of the view it had formed to that point about the credibility of the first respondent.

…

36     When a decision maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant’s claims have been fabricated, the decision maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant’s account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision-maker could determine to reject it out of hand. In this case, as we have said, the document which is said to be the corroborative evidence is a document written in the Chinese language which has been interpreted, no doubt faithfully, into the English language and purports to be a statement of Lu. The applicant, whom the RRT believed was not a credible witness, proffered it as Lu’s statement, but there was no other evidence other than the applicant’s say so that it was. There is nothing irrational about the RRT in those circumstances rejecting the document by giving it no weight. In circumstances where the provenance of the document is unproved, but it is proffered by a witness whose credibility has been destroyed, the document has no more credit than the person proffering it. Consequently, the alternative argument relied upon by the appellants, outlined at [22] above, cannot be sustained.

37    Several further observations should be made concerning the type of situation addressed in Applicant S20/2002 77 ALJR 1165; 198 ALR 59. The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.

38     The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002 77 ALJR 1165; 198 ALR 59 does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence. Consequently, the observation concerning the dicta of McHugh and Gummow JJ at [49] in Applicant S20/2002 77 ALJR 1165; 198 ALR 59 made in SZDGC 105 ALD 25 at [23] is probably misdirected. Those observations addressed the situation where the corroborative evidence was disregarded.

Consideration

49    Two issues arise for consideration. The first is whether the Tribunal considered the Corroborative Documents in reaching its conclusions on the Wife’s credibility. The Minister says that it did and relies on the opening words of [40] of the DR where the Tribunal said that “[i]n reaching its conclusion on the [Wife’s] credibility, the Tribunal also considered documents submitted by her to support her claims” (emphasis added). The Minister submitted that this is an express statement by the Tribunal that it considered the Corroborative Documents in reaching those conclusions.

50    In my opinion it cannot be said, on the strength of the opening words of [40] of the DR, that the Tribunal considered the Corroborative Documents in reaching its conclusion on the Wife’s credibility. That bald statement is followed by a description of the Corroborative Documents and no more. It is difficult to see how it can be said that a mere reference to the Corroborative Documents in that way, without more, can demonstrate that the Tribunal in fact did consider them in making its credibility findings. The Tribunal gives no content to its assertion that it considered the Corroborative Documents in reaching its conclusions on the Wife’s credibility. It provides no assessment of those documents beyond a mere description nor does it say how they bear on its findings of credibility.

51    That conclusion is reinforced by the finding at [41] that the Corroborative Documents and a further letter submitted by the Wife did “not overcome the concerns the Tribunal holds about the [Wife’s] credibility which significantly discredits her as a witness”. That statement, which can only be read as a reference back to [34]-[36] of the DR where the Tribunal considered the Wife’s credibility, demonstrates that the Tribunal did not consider the Corroborative Documents in reaching its conclusions or, to use the Tribunal’s term, when it was formulating its “concerns” about the Wife’s credibility. It referred to the documents after reaching its conclusions and then determined that they did not overcome the concerns identified about the Wife’s credibility.

52    This case can be distinguished in that regard from BJT15. There, the applicant provided a number of contemporaneous records to the Minister’s department. The applicant alleged that the RRT had failed to address the corroborative evidence. At [33]-[37], in addressing the ground, Judge Driver found that the Tribunal had made comprehensive findings of untruthfulness about the applicant, that one of the documents was considered by it in reaching its adverse credibility conclusions and that, as evidenced by the invitation to comment issued by the Tribunal pursuant to s 424A of the Act, the Tribunal had regard to the material prior to the hearing. His Honour found that the Tribunal had not put the allegedly corroborative documents out of its mind in determining the applicant’s credit. Those circumstances are not present here. Unlike in BJT15, none of the Corroborative Documents were considered in reaching the credibility conclusions at [34]-[36] and there was no express reference to consideration of the Corroborative Documents in an invitation to comment issued by the Tribunal pursuant to s 424A of the Act.

53    Contrary to the Minister’s submission, I do not accept that the opening sentence of [40] and the statement at [41] of the DR, that “it carefully considered” the Corroborative Documents and the additional letter provided by the Wife, are sufficient to take the matter out of the reach of the decision in WAIJ and like authorities.

54    The second issue is whether the Tribunal emphatically rejected the Wife’s credit before turning to the Corroborative Documents. The Minister submitted that it did, such that it was not irrational in the sense discussed in S20/2002 that the Corroborative Documents were put to one side.

55    While finely balanced, in my opinion, for the reasons that follow the Tribunal did not make the comprehensive credit findings asserted by the Minister.

56    The findings about the Wife’s credit at [34]-[36] of the DR must be read in context. They were preceded by the findings on each of the Wife’s claims summarised at [16]-[18] above. None of those findings, individually, amounted to a comprehensive finding based on cogent evidence that the Wife fabricated her claims or that she lied. In many respects the findings included there are, as the appellants submitted, tentative. They reflect the fact that the Tribunal had concerns about her evidence, that it was lacking in some respects and that it raised doubts. However, none of those findings amount to a rejection of her evidence in the sense of a finding that the Wife had lied or fabricated her claims so as to relieve the Tribunal of having to deal with the Corroborative Documents.

57    While [34] of the DR is prefaced by the words, “considered cumulatively”, as observed in WAIJ at [39], matters which are of little significance do not become significant when considered with other matters of minor weight. Similarly, here it cannot be the case that the Tribunal’s concerns and doubts about the various aspects of the Wife’s claim when considered together then became matters of greater significance such as to amount to comprehensive findings about the Wife’s credibility.

58    That the Tribunal had not made the comprehensive findings alleged is also reflected in its language at [41] where, in considering documents provided by the Wife, including the Corroborative Documents, the Tribunal said that it had “concerns” about the Wife’s credibility which “significantly” discredited her as a witness. That is a finding about the Wife’s credibility in less than emphatic terms.

59    This is not a case where the findings about the Wife’s credibility could be said to be such that the “well was poisoned beyond redemption”. The Tribunal had expressed its doubt about the Wife’s claims but had not made, to adopt the description in WAIJ at [28], “stark findings of untruthfulness” about the Wife. Nor was there any finding on probative grounds that the Corroborative Documents were worthless so as to exclude them from consideration of the credibility of the Wife’s claims. In those circumstances, the Tribunal failed to consider the Corroborative Documents in reaching its conclusions on the Wife’s credibility as alleged by the appellants and gave them no evidentiary weight. In doing so, the Tribunal fell into jurisdictional error.

conclusion

60    In my opinion, the factors which govern the Court’s discretion to grant leave to an appellant to raise a new ground of appeal weigh in favour of the appellants. It follows that I would grant leave to the appellants to rely on the new ground of appeal. It also follows that the appeal should be allowed with costs. Save for the order as to costs made by the primary judge which I address below, the orders of the Federal Circuit Court should be set aside, the decision of the Tribunal should be set aside and the matter remitted to the Tribunal, differently constituted, for determination according to law.

61    In their notice of appeal the appellants seek their costs of the proceeding in the Federal Circuit Court but no submissions were made by either party about that order. Accordingly, if the parties cannot agree as to what order, if any, should be made in relation to the costs in the Federal Circuit Court, they should provide submissions, not exceeding two pages, on that issue within two weeks of the date of these reasons and indicate in those submissions whether that issue can be dealt with on the papers.

62    I will make orders accordingly.

Associate:

Dated:    19 June 2018