FEDERAL COURT OF AUSTRALIA SZNOY v Minister for Immigration and Citizenship [2010] FCA 1192 Citation: SZNOY v Minister for Immigration and Citizenship [2010] FCA 1192 Appeal from: SZNOY v Minister for Immigration and Citizenship and Anor [2010] FMCA 510 Parties: SZNOY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1020 of 2010 Judge: COLLIER J Date of judgment: 3 November 2010 Catchwords: PRACTICE AND PROCEDURE – notice of motion moving for orders to amend notice of appeal – whether expedient and in the interests of justice that a new ground of appeal be raised MIGRATION – Appeal against decision of Federal Magistrate dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) – Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant – whether Tribunal erred in treating issues related to the appellant's pro-monarchy political opinion as an adjunct to his association with a monarchist political party in Nepal – whether Tribunal erred in its treatment of documents produced by the appellant referring to country information concerning the prevalence of document fraud in Nepal and its view of the credibility of the appellant – whether Tribunal specifically required to make finding of fraud or forgery before according little weight to documents – consideration of the principles in SZNYF v Minister of Immigration and Citizenship (2010) 117 ALD 80 – consideration of the principles in Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 and Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 Legislation: Migration Act 1958 (Cth) s 91R Cases cited: Coulton v Holcombe (1986) 162 CLR 1 cited Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 applied Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 applied O'Brien v Komesaroff (1982) 150 CLR 310 cited Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 cited SZNYF v Minister of Immigration and Citizenship (2010) 117 ALD 80 distinguished SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129 cited Win v Minister for Immigration and Multicultural Affairs (2010) 114 ALD 71 cited Date of hearing: 2 November 2010 Place: Brisbane (Heard in Sydney) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 48 Counsel for the Appellant: Mr P Reynolds Solicitor for the Appellant: Parish Patience Lawyers Solicitor for the First and Second Respondents: Mr A Markus of the Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1020 of 2010 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZNOY Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: COLLIER J DATE OF ORDER: 3 NOVEMBER 2010 WHERE MADE: BRISBANE (HEARD IN SYDNEY) THE COURT ORDERS THAT: The appeal be dismissed with costs. 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 Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1020 of 2010 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZNOY Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: COLLIER J DATE: 3 NOVEMBER 2010 PLACE: BRISBANE (HEARD IN SYDNEY) REASONS FOR JUDGMENT 1 This is an appeal against the decision of Cameron FM delivered on 20 July 2010 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 22 November 2009. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant. BACKGROUND 2 The appellant is a citizen of Nepal who last arrived in Australia on 6 February 2007. On 19 March 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 20 July 2007. On 15 August 2007 the appellant applied to the Tribunal for a review of that decision. The Tribunal, differently constituted (the first Tribunal), affirmed the decision under review in the decision handed down on 29 November 2007. On 30 June 2008 the Federal Magistrates Court dismissed an application for review. On 25 November 2008, the Federal Court ordered, by consent, that the appeal be allowed and directed the Tribunal to reconsider the matter according to law. The Tribunal, differently constituted (the second Tribunal), affirmed the decision under review on 12 April 2009. On 10 August 2009 the Federal Magistrates Court remitted the matter to the Tribunal to be determined according to law. 3 In his application for a protection visa, the appellant claimed that he had been associated with the Rastriya Prajatantra Party (RPP), a monarchist political party in Nepal, since 1992. He claimed that he had been attacked twice in 1996 and had survived with dangerous wounds. Thereafter, he moved to Kathmandu where he worked as a head cook in a hotel from 1997 until February 2007. He continued to visit his village, Beni, during this period as this was his family home and all his properties were located there. He claimed that during this time his house was attacked and he managed to escape to Kathmandu. 4 The appellant claimed that when the king was overthrown in 2005 it became almost impossible for him to stay in Nepal. He claimed that the Seven-Party Alliance which had deposed the king took revenge on the RPP, and that many leaders were put in gaol and other members were brutally tortured. He claimed that he was attacked by Maoists on 12 August 2006 in Kathmandu, and again on 24 December 2006. After both attacks he was hospitalised. He claimed that the Maoists believed that he had provided intelligence to the authorities, and that he feared that he would be killed if he returned. REFUGEE REVIEW TRIBUNAL 5 The appellant appeared before the Tribunal for the third time on 1 October 2009 to give evidence and present arguments. After discussing the claims made by the appellant and the evidence before it, the Tribunal again found that it was not satisfied that the appellant was a person to whom Australia has protection obligations. 6 The Tribunal stated that there were good reasons for concluding that the appellant was not telling the truth about his involvement in the RPP and the problems he claimed to have as a result. In particular, the Tribunal found his claims were undermined by the inconsistencies in his evidence regarding the alleged attacks in August and December 2006; his level of support for the monarchy; and his involvement in the RPP. 7 In light of the problems it had with the appellant's evidence, the Tribunal did not accept he was a witness of truth. On this basis, and having regard to the information available to it that forged documents are easily obtained in Nepal, the Tribunal gave less weight to the documents produced by the appellant than to its adverse credibility finding. The Tribunal concluded that it did not accept the appellant was telling the truth about his claimed involvement in the RPP, or that he was ever a member of it. The Tribunal also stated that there was no evidence before it to suggest that he would be persecuted as a former Gurkha if he were to return to his home in Kathmandu now or in the reasonably foreseeable future. 8 For these reasons, the Tribunal affirmed the decision of the delegate. FEDERAL MAGISTRATES COURT 9 On 21 December 2009 the appellant filed an application for judicial review of the Tribunal's decision. In an amended application filed on 18 June 2010 the appellant claimed the following: 1. The Tribunal committed jurisdictional error by failing to consider a claim and/or misconstruing a claim made to it. Particular (a) The Tribunal misconstrued the Applicant's claims that he held a well founded fear of persecution on the basis of being a Monarchist in Nepal. The Tribunal rejected this claim on the basis that he was not a member of the RPP party (Tribunal Decision at paragraph 121), without comprehending that the claim to fear persecution by reason of being a Monarchist was a separate basis upon which he claimed to fear persecution. Rather, the Tribunal incorrectly construed the claim to be a Monarchist as an extension of the claim that the Applicant belonged to the RPP political party. (b) Further and in the alternative, by reason of the Tribunal not separately dealing with the Applicant's claim to fear persecution on the basis of being a Monarchist in Nepal, the Tribunal did not consider the claim in the sense of engaging in an active intellectual process in respect of it. (c) Further and in the alternative, as a consequence of the Tribunal not correctly construing the Applicant's claim to be a Monarchist (as distinct from his claim to be a member of the RPP), the Tribunal failed to consider whether the Applicant faced a well founded fear of persecution having regard to the totality of the Applicant's claims (i.e. his claim to be a Monarchist in combination with his accepted claim to have been a Gurkha). 2. In the alternative, the Tribunal committed jurisdictional error by purporting to conduct a review under Part 7 of the Act in the absence of jurisdiction. Particulars a) The letter sent by the delegate of the Minister to the Applicant purporting to notify him of his decision did not set out all the addresses at which an application for review to the Tribunal could be made. (b) Therefore, the purported notification of the delegate's decision did not comply with section 66(2)(d)(iv) of the Act and there was no valid notification of the delegate's decision. (c) As a consequence, the Tribunal's jurisdiction was not enlivened, as such jurisdiction only commenced upon valid notification of the delegate's decision as a consequence of the operation of section 412(1)(b) of the Act and reg.4.31 of the Migration Regulations 1994 (Cth). 10 In relation to particulars (a) and (b) of ground 1, the Federal Magistrate found that it was plain that the Tribunal's principal emphasis on this occasion was to consider the appellant's claims to have been a member of the RPP, given that this was the basis upon which the matter had been remitted to it for rehearing. Even so, that consideration was intertwined with the Tribunal's consideration of his claims to fear persecution by reason of his support for the monarchy, in respect of which a specific finding was made in its decision. 11 The Federal Magistrate stated that because the appellant's claim to fear persecution by reason of his political beliefs arose out of his activism, and because that activism was manifested through his membership of the RPP, it was by reference to his claimed RPP membership and activism that his claim to fear political persecution was considered by the Tribunal. His Honour found that the RPP claim was not separate from his monarchy-based claim: his RPP membership and activism were the expression of his monarchical views. Therefore, because the Tribunal did not accept that the appellant had been an RPP member or politically active in the way he alleged, it could conclude that there was no real chance, were he to return to Nepal, that he would be persecuted for reasons of his involvement in the RPP or for reasons of his support for the monarchy. 12 His Honour concluded that because the appellant's claim was based on the practical manifestations of his claimed monarchism, a separate finding on whether he was subjectively a monarchist was not necessary, and the absence of such a finding did not amount to a constructive failure to exercise jurisdiction. 13 In relation to particular (c) of ground 1, the Federal Magistrate found that the Tribunal plainly did consider the applicant's cumulative claim as a monarchist ex-Gurkha, but rejected it in short form. His Honour stated that the fact that the Tribunal went on to express its reasons for this conclusion in a fashion which could be characterised as representing an individual or sequential consideration of the monarchism and Gurkha points, did not alter this. His Honour noted that the Tribunal's reasons should not be examined with an eye keenly attuned to the perception of error, and concluded that the way the Tribunal expressed its reasons for its conclusion did not demonstrate that it failed to consider the submission put to it in the terms in which it was put. 14 In relation to ground 2, the Federal Magistrate found that the applicant was not denied an effective and adequate opportunity to make an application for review and, secondly, that the wording of the department's letter of 20 July 2007 did not vitiate the notification intended to be effected by that letter: SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129 per Buchanan and Nicholas JJ. 15 Having found that the Tribunal decision was not affected by jurisdictional error, his Honour dismissed the application for review. AMENDMENT TO NOTICE OF APPEAL 16 At the hearing before me yesterday, by notice of motion filed 25 October 2010 the appellant moved for orders that he be allowed to amend his notice of appeal. The substance of the proposed amendment was to abandon a number of grounds previously pressed, and to add a new ground 2. 17 An appellant must demonstrate that it is expedient and in the interests of justice that a new ground of appeal be raised (O'Brien v Komesaroff (1982) 150 CLR 310 at 319). The appellant submits that the Court should grant leave for ground 2 to be added to the notice of appeal because, in summary: · ground 2 is based on a decision which post-dates the decision of the Federal Magistrate, namely SZNYF v Minister of Immigration and Citizenship (2010) 117 ALD 80; · in granting leave there would be minimal dislocation to the Court or disruption to efficient use of judicial sitting time; · the appellant is claiming to be a refugee and the issues at stake are significant for him; · there is no prejudice to the Minister should leave be granted to raise ground 2; · proposed ground of appeal has merit. 18 In my view these submissions are persuasive. I note the submissions of Mr Markus for the Minister in relation to the decision of the High Court in Coulton v Holcombe (1986) 162 CLR 1 and the justice of allowing new grounds to be raised on appeal, however I am satisfied that neither expedition, finality nor justice would be denied if leave were granted in these circumstances. Further, at the hearing I asked Mr Markus for the Minister if he was in a position to deal with proposed ground 2, and he responded affirmatively. 19 It follows in my view that the orders sought by the appellant in his notice of motion filed 25 October 2010 should be granted. 20 Accordingly the appellant's grounds of appeal as set out in the amended notice of appeal are as follows: (1) The learned Federal Magistrate erred by failing to find that the Tribunal had committed jurisdictional error by failing to consider a claim and/or misconstruing a claim made to it. Particular (a) The Tribunal misconstrued the Appellant's claim that he held a well founded fear of persecution on the basis of being a Monarchist in Nepal. The Tribunal rejected this claim on the basis that he was not a member of the RPP party (Tribunal Decision at paragraph 121), without comprehending that the claim to fear persecution by reason of being a Monarchist was a separate basis upon which he claimed to fear persecution. Rather, the Tribunal incorrectly construed the claim to be a Monarchist as an extension of the claim that the Appellant belonged to the RPP political party. (2) The learned Federal Magistrate erred by failing to find that the Tribunal committed jurisdictional error by rejecting corroborative documentation submitted by the Appellant in the manner in which it did. Particulars It was not open to the Tribunal to place little weight on the documents by virtue of general country information as to the prevalence of document fraud in Nepal and/or the its view of the Appellant's credibility without making a finding as to whether each document was a forgery or otherwise the product of document fraud. SUBMISSIONS OF THE PARTIES 21 At the hearing of the appeal before me the appellant was represented by Counsel, and the Minister by the Australian Government Solicitor. 22 In summary, the appellant submitted as follows: · In relation to ground 1 o The appellant repeatedly articulated a claim that he had a well-founded fear of persecution by virtue of a political opinion held by him, namely a pro-monarchist or royalist opinion. This was additional to his claim that he was an RPP activist. o The Tribunal erred in treating issues related to the appellant's pro-monarchy political opinion as an adjunct to his RPP claims. It did not make findings as to whether the appellant held a pro-monarchy political opinion as claimed. o The Tribunal only considered whether the appellant had engaged in claimed past activities. It did not consider whether the appellant's pro-monarchy political opinion would give rise to a well-founded fear of persecution in the future. To the extent that the Federal Magistrate considered that it was not necessary for the Tribunal to make a separate finding on whether the appellant was subjectively a monarchist, the Federal Magistrate was in error. o The Federal Magistrate was also in error in finding that the Tribunal was only obliged to deal with manifestations of political opinion. This is clear from comments of Madgwick J in Win v Minister for Immigration and Multicultural Affairs (2010) 114 ALD 71 at [20]. o Accordingly, it was still incumbent on the Tribunal to consider whether the appellant held a monarchist political opinion and, if so, whether this would lead to persecution or, if not, whether this in itself constituted persecution. · In relation to ground 2 o The decision of the Court in SZNYF is applicable in this case. o The Tribunal rejected a number of documents produced by the appellant, referring to country information concerning the prevalence of document fraud in Nepal and its view of the credibility of the appellant. 23 The Minister submitted, in summary, as follows: · Before the Tribunal, the appellant's claim, to the extent that it related to his monarchism, arose not simply out of abstract political beliefs, but out of his actions which purportedly exemplified or manifested such beliefs. The appellant's RPP membership and activism were the expression of his monarchical views. · At no point before the Tribunal did the appellant differentiate his activity as a monarchist from his RPP membership, and plainly they were linked. The appellant's claim to fear persecution by reason of his political beliefs arose out of his activism, and because that activism was manifested through his membership of the RPP, it was by reference to his claimed RPP membership and activism that his claim to fear political persecution was considered by the Tribunal. · The Tribunal rejected all the appellant's allegations concerning his RPP membership and his claimed activities associated with it because of the manifold inconsistencies and weaknesses in his various versions of relevant events. · Because the Tribunal did not accept that the appellant had been an RPP member or politically active in the way alleged, it could conclude that there was no real chance, were he to return to Nepal, that he would be persecuted for reasons of his involvement in the RPP or for reasons of his support for the monarchy. · To that extent a separate finding on whether the appellant was subjectively a monarchist was not necessary. · The Tribunal did not accept that the appellant would be involved in any political activity if he returned to Nepal now or the reasonably near future. · In relation to the second ground of appeal, the decisions of the Full Court in Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 and Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 confirm that no legal error is involved in a decision-maker's refusal to give certain evidence sufficient weight to overcome his/her concerns arising out of the assessment of the appellant's credit, even where the brevity of the treatment of the corroborative evidence is unsatisfactory. · SZNYF is in any event distinguishable on the facts from the present case. CONSIDERATION Ground 1 24 In my view the submissions of the Minister comprehensively answer this ground of appeal. 25 First, I agree with the Minister that the case presented by the appellant to the Tribunal at all times inextricably linked his monarchist views with his past RPP activities. This is clear not only from the evidence presented to the Tribunal each time the matter came before the Tribunal for hearing (as summarised by the Tribunal following the third hearing), but also from the material prepared by the appellant and included in his application for a protection visa. Indeed this makes perfect sense – as a general proposition one could, for example, hold private views, but in the absence of manifestation or public expression of those views it is difficult to imagine circumstances where a person would be persecuted in the sense contemplated by s 91R of the Migration Act 1958 (Cth). And so, in this case, the appellant clearly tied his pro-monarchy views with his activities with the pro-monarchy RPP, and explained the attention he had received by way of persecution with involvement in those activities. So, for example, the appellant stated: • I left the country to remain alive and stay out of reach from my political enemies. The particular group of Maoist I had long association with the political party in Nepal, called Rastriya Prajatatra Party RPP since 1992. RRP has been blamed for supporting King Gyanendra Government, that took effect in Feb 2005 after ousting the democratically elected government. • …all these political party's (sic) and their activists are taking widespread revenge through their action to proking (sic) supporters or RRP party member. I was one of them in victim side, therefore many RRP leaders and senior members are in jail now with out any reasons. The other member have been brutally tortured and physically harmed and warned us everyday, this action has been taken mostly by Maoist supporters, now they are in recent government as well. Following several fatal attacks on me due to my political opinion as King supporter, they are always threatening and giving lots of harassment to kill… 26 There are many other similar statements in the appellant's visa application. 27 Second, in any event in its findings the Tribunal made it clear that it was not satisfied that the appellant was an active monarchist. At [117] of its reasons for decision the Tribunal said: Sixthly, in his original application the applicant said that he had been one of the most active monarchist supporters, that most people in politics would know him across the country and that the Maoist party cadres knew him very well wherever he went in Nepal. At the hearing before me the applicant attempted to downplay these claims, saying that he had been one of the most active monarchist supporters in the village and the district, that most people in politics would have known him at the district level, that usually the members of his party would not have recognised him but the could not say the same for other parties, that his district had been heavily populated by the Maoists and that it was virtually a Maoist network so in that context they had known him. As I put to the applicant, his claims that he was one of the most active monarchist supporters and that he was well-known throughout the country do not appear to be consistent with his own evidence regarding his involvement in the RPP. The applicant said that if the Maoists sincerely desired to find anyone it would be no problem for them and they would be able to locate someone anywhere in Nepal. That may very well be true but even if I were to accept the applicant's account of his involvement in the RPP in his district it is difficult to accept that he would have attracted this level of attention from the Maoists. (emphasis added) 28 Accordingly the Tribunal to that extent did consider the appellant's claim that he was an active monarchist, but nonetheless was not convinced by that claim. 29 Third, the findings of the Tribunal are clear that, on the material put before it, even if the appellant had pro-monarchy views, the fact that he had not been involved in the RPP meant that the Tribunal did not accept there was a real chance that he would be persecuted if he returned to Nepal now or in the reasonably foreseeable future (Tribunal Reasons for Decision para 121). To that extent the Tribunal clearly not only acknowledged – but rejected – the possibility of persecution of the appellant if he returned to Nepal with pro-monarchy views, but also addressed the appellant's concern that he would in future be persecuted. 30 Finally, at paras 39-40 of his reasons for decision Cameron FM said: [39] The Tribunal rejected all the applicant's allegations concerning his RPP membership and his claimed activities associated with it because of the manifold inconsistencies and weaknesses in his various versions of relevant events. Thus, although the Tribunal articulated no specific finding concerning whether the applicant was a monarchist, its findings are to the effect that, should he have held such beliefs, they provided insufficient motivation for him to join the RPP or to become involved in its activities, this being the essence of his claim to fear persecution by reason of his political beliefs. [40] It is plain that the Tribunal's principal emphasis on this occasion was to consider the applicant's claims to have been a member of the RPP, given that this was the basis upon which the matter had been remitted to it for rehearing. Even so, that consideration was intertwined with the Tribunal's consideration of the applicant's claim to fear persecution by reason of his support for the monarchy, in respect of which a specific finding was made at para. 121 of its decision… Because the applicant's claim to fear persecution by reason of his political beliefs arose out of his activism, and because that activism was manifested through his membership of the RPP, it was by reference to his claimed RPP membership and activism that his claim to fear political persecution was considered by the Tribunal. The RPP claim was not separate from his monarchy-based claim; his RPP membership and activism were the expression of his monarchical views. Because the Tribunal did not accept that the applicant had been an RPP member or politically active in the way he alleged, it could conclude that there was no real chance, were he to return to Nepal, that he would be persecuted for reasons of his involvement in the RPP or for reasons of his support for the monarchy. Because the applicant's claim was based on the practical manifestations of his claimed monarchism, a separate finding on whether he was subjectively a monarchist was not necessary and the absence of such a finding does not evidence a constructive failure to exercise jurisdiction. 31 In my view these findings demonstrate no appellable error. Ground 2 32 In ground 2 the appellant claims that the Federal Magistrate erred by failing to find that the Tribunal committed jurisdictional error by rejecting corroborative documentation submitted by the appellant in the manner in which it did. In particular, I note the following passages from the reasons of decision of the Tribunal: [119] Having regard to the problems I have with the applicant's evidence I do not accept that he is a witness of truth. He produced a number of documents in an attempt to corroborate his claims. Besides the documents from the Sukraraj Hospital … these included two membership cards purporting to have been issued by the RPP, two receipts for renewal of membership purporting to have been issued by the RPP in 1994 and 2000 respectively, a letter dated 9 February 2007 from the RPP certifying that the applicant was an active member and that "[w]e are informed that he was threatened and beaten by opposition party workers various times"; two letters purporting to have been issued by the police in Kathmandu dated 12 and 15 December 2006 stating that the applicant had applied for security as he had been threatened and assaulted by opposition party workers and that the police were providing him with security and a "Protecting Certificate" dated 9 January 2007 issued by the UK Ministry of Defence stating that the applicant had deserted from Her Majesty's Military Forces but that he was "a person who is no longer to be proceeded against as a deserter in respect of such desertion". [120] As I put to the applicant, I consider it relevant to all these documents that the information available to me indicates that it is very easy to get forged documents in Nepal and that any Nepalese document can be obtained by fraud (DFAT Country Information Report No. 194/98, dated 11 May 1998, CX 29684, and Research Directorate, Immigration and Refugee Board of Canada, "NPL103010.E: Pevalence of forged, fake or falsely acquired documents, including identity documents, professional certifications, membership cards and employment records", 26 January 2009). Having regard to that information I give less weight to these documents than I do to my assessment of the applicant's credibility. 33 In challenging this finding of the Tribunal, and the approach of the Federal Magistrate, the appellant relied on the decision in SZNYF. 34 The Minister submitted that SZNYF was distinguishable, and further referred me to the decisions of the Full Court in SZNPG and SZNSP, two appeals heard together and in which the refusal of the Tribunal to give weight to allegedly corroborative evidence produced by the applicant was considered. 35 So far as relevant, in SZNSP the applicants presented a witness statement from a third party, translated into English, and which corroborated the claim of one of the applicants. The Tribunal did not believe the claims of the applicants, and, in relation to the witness statement said: Given the adverse credibility finding, the Tribunal does not give weight to the document. 36 The Federal Magistrate in those proceedings, referring to Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59, said that that decision did not support a suggestion that corroborative evidence can be ignored if the Tribunal comes to a preliminary view that an applicant's evidence cannot satisfy it that that person is one to whom Australia has protection obligations without the Tribunal first deciding that the applicant had lied (at [16]). 37 After consideration of relevant case law, North and Lander JJ observed: [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 [in Applicant S20/2002] 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. [31] As we have said in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 in reasons published today, the RRT should not be encouraged to find that an applicant for a Protection visa has lied. A finding of fabrication is enough to allow the RRT to consider whether the evidence which has been tendered in support of the applicant's case has the capacity to affect the RRT's assessment of the applicant's credibility. [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 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 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. [34] It was not part of the first respondent's case that the RRT erred in its assessment of the weight of the corroborative evidence. Indeed no such submission could have succeeded. Without more, a failure to accord any weight to a piece of evidence does not give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21. [35] Moreover, it was open to the RRT to conclude that, in view of all the evidence in the case, no reliance should be placed on the witness statement. The corroborative evidence was not corroborative evidence at all… It was evidence presented to the RRT by a person whom the RRT was of the opinion was fabricating her claims… [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… 38 Importantly, their Honours later said: [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 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… 39 I also note comments of Katzmann J at [50] in SZNSP. 40 Similarly in SZNPG the claimant provided the Tribunal with two documents, one of which purported to be a baptism certificate which certified that he had been baptised on a certain date. The Tribunal found that the claimant's evidence in respect of the issue of baptism was not plausible, and further was not satisfied that the claimant practised the Christian religion. In relation to the baptism certificate the Tribunal said: The Tribunal has considered the baptism certificate given its concerns with the applicant's knowledge of his own baptism, it is not prepared to give this document sufficient weight to overcome its concerns with the applicant's evidence. 41 In considering the Tribunal's decision, North and Lander JJ said: The weight to be given to the baptismal certificate was a matter for the RRT. The RRT was not precluded from giving the baptismal certificate little weight because it had not first decided that the first respondent was a liar. Indeed, in our opinion, the RRT should not be encouraged to make findings of that kind: c.f. Smith v New South Wales Bar Association (1992) 176 CLR 256 at 271. It is enough if the RRT is not persuaded that the claims which have been made out for the RRT to say so. It is not a precondition to the consideration of the weight to be given to any particular evidence that the RRT find that the particular applicant is a liar. (at [24]) 42 In relation to the language used by the Tribunal, their Honours continued: Neither does the RRT fall into jurisdictional error if it fails to express its reasons for rejecting corroborative evidence with full clarity. In the present case, the RRT dealt with the evidence of a baptismal certificate by saying that it was "not prepared to give this document sufficient weight to overcome its concerns with the applicant's evidence". It would have assisted if the RRT had explained its rejection in greater detail. As we have said, it was implicit in the reasoning of the RRT that it did not regard the baptismal certificate as genuine. It was desirable that the RRT set out the basis of the doubts concerning the baptismal certificate beyond simply its doubts concerning the first respondent's evidence generally. This deficiency in the way the RRT articulated its reasoning may explain why the federal magistrate said the RRT failed to engage in an "active intellectual process of considering the corroborative material", and that the RRT "failed to engage in any meaningful consideration of the purported baptismal certificate". The brevity with which the RRT dealt with the corroborative evidence is unsatisfactory, but does not justify the conclusion drawn by the Federal Magistrate that the RRT fell into jurisdictional error. (at [26]) 43 In my view the decisions of the Full Court in SZNSP and SZNPG answer the second ground raised on appeal in these proceedings. The Tribunal in these proceedings exhaustively examined the claims of the appellant, and concluded that he was not a witness of truth. In particular, the Tribunal considered that the appellant was not telling the truth in respect of, inter alia, his claimed involvement in the RPP, his claims as an active monarchist, or the problems he claims to have experienced as a result. The adverse findings in respect of the appellant's credit are apparent, for example, in [96], [98], [100], [102], [111], [112], [114], [115], [116], [117], [118], [119], [121], [122] and [125]. 44 At [120] of its reasons for decision the Tribunal indicates that, in light of the view it had taken as to the credibility of the appellant, it was prepared to accord only little weight to the corroborative material produced by the appellant in support of his claim. In light of the decision of the Full Court in SZNSP and SZNPG the approach taken by the Tribunal was proper. Indeed the language used by the Tribunal at [120] is similar to that considered by the Full Court in SZNPG at [26] of that decision. While the conclusion reached by the Tribunal in these proceedings could have been better articulated, it was not required to find, as a precondition to the view it had taken in respect of the corroborative evidence, that the evidence was forged or otherwise the product of document fraud as claimed by the appellant in ground 2. The weight to be given to the corroborative material presented by the appellant was a matter for the Tribunal (SZNPG at [24]). 45 Finally I accept the submission of the Minister that the facts in SZNYF are distinguishable from the facts in this case. In particular, I note: · the document the subject of consideration in SZNYF appeared to be a sealed public document issued by a government instrumentality in the People's Republic of China. The apparent forensic value of a document of this nature is, in my view, of a different quality to that of membership cards, receipts and a letter purported to have been issued by a political party, or letters purportedly issued by police; · the document purportedly issued by the UK Ministry of Defence, and noted by the Tribunal at [119], in any event appears to add nothing to the appellant's claim to be entitled to protection under the Refugee's Convention because of his monarchist activities in Nepal. It merely confirmed that he was not the subject of a potential prosecution in respect of his desertion from the Gurkhas; · in SZNYF the Tribunal stated that it gave no weight to the relevant document. In these proceedings, the Tribunal clearly considered the relevant documentation but concluded in the circumstances that they should be given little weight. 46 Accordingly, in my view SZNYF is of little assistance to the appellant in these proceedings. 47 It follows that ground 2 of the notice of appeal must be rejected. ORDERS 48 No appellable error appears from the decision of the learned Federal Magistrate below. The appeal should be dismissed with costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 3 November 2010