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.