SZKDT v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The proper construction of s 424A of the Migration Act 1958 (Cth) ('the Act'), as it was on 3 November 2006, lies at the heart of this matter. On 9 January 2007, the Refugee Review Tribunal ('the Tribunal'), constituted by Tribunal Member Robert Wilson, handed down its decision of 21 December 2006, affirming the decision of the Minister's Delegate not to grant the appellant a Protection (Class XA) visa. At the time s 424A relevantly provided: '424A(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. …' 2 Since 29 June 2007 paragraph (b) of s 424A(1) has provided: '(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and' 3 In this matter, a Federal Magistrate decided on 6 June 2007 to dismiss the appellant's application for constitutional writ relief in respect of the Tribunal's decision (SZKDT v Minister for Immigration [2007] FMCA 870). 4 In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 ('SZBYR'), which was handed down on 13 June 2007, the High Court gave close attention to the circumstances in which s 424A was engaged. The Court's consideration was primarily directed at s 424A(1)(a) of the Act. Whilst it did not deal expressly with s 424A(1)(b), it made a number of general observations in respect of s 424A which demonstrate that the scope of the 'it' referred to in s 424A(1)(b), namely the 'information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review' is limited. In their joint reasons for judgment, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ commenced their consideration of s 424A by observing that firstly, its effect was mandatory, in that a breach of it constituted jurisdictional error, and secondly, that its temporal effect was not limited to the pre-hearing stage, referring to the Court's earlier judgment in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 ('SAAP') (see SZBYR at [13]). 5 At [22] their Honours drew attention to the 'limited scope of s 424A' and at [15] and [21] they said: '[15] … Section 424A does not require notice to be given of every matter the tribunal might think relevant to the decision under review. … … [21] … Section 424A has a more limited operation than the appellants assumed: its effect is not to create a back-door route to a merits review in the federal courts of credibility findings made by the tribunal. …' 6 Importantly, their Honours found at [17] that the use of the future conditional tense (would be) rather than the indicative strongly suggested that 'the operation of s 424A(1)(a) [was] to be determined in advance - and independently - of the tribunal's particular reasoning on the facts of the case' (emphasis added). 7 At [18] their Honours approved a passage in the joint reasons for judgment of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477 saying: '… Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information": "… does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. …" If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. …' (footnotes omitted and emphasis added) 8 Their Honours continued by saying, at [18], that in SZBYR the appellants were correct to concede that the relevant 'information' was not to be found in inconsistencies or disbelief as opposed to the text of a particular statutory declaration. 9 At [14] their Honours pointed out that the 'information' in SZBYR, if indeed there was information to which s 424A applied,consisted of the appellants' own prior statutory declaration, to which the Tribunal explicitly drew their attention during the course of the Tribunal hearing. However, they pointed out, following SAAP, that once s 424A was engaged, only written notice would suffice. 10 In the appellants' written submissions in SZBYR they appeared to have focussed on the requisite 'information' as being the 'inconsistencies' between their statutory declaration and oral evidence. However, as their Honours pointed out at [15], in oral argument they focussed on the provision of the relevant passages in the statutory declaration itself, from which the inconsistencies were later said to arise. 11 At the end of the day their Honours found that s 424A was not engaged at all. They said at [21]: 'The short answer to all these points is that, on the facts of this case, s 424A was not engaged at all: the relevant parts of the appellants' statutory declaration were not "information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review".' 12 At [17] their Honours pointed out that the Tribunal did not operate in a statutory vacuum, and that its role was dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. They pointed out that the appropriate criterion in respect of a protection visa was to be found in s 36(1) of the Act. They proceeded to say at [17]: '… The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light [the operation of s 424A(1)(a) having to be determined in advance - and independently - of the tribunal's particular reasoning on the facts of the case], it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. …' (emphasis added) 13 Proceedings before the Tribunal are not adversarial, but inquisitorial; the Tribunal is not in the position of a contradictor of the case being advanced by an applicant. A Tribunal Member conducting the enquiry is not an adversarial cross-examiner but an inquisitor obliged to be fair. In an application for review before the Tribunal it is for the applicant to advance whatever evidence or argument he wishes to advance, and for the Tribunal to decide whether his claim has been made out; it is not part of the function of the Tribunal to seek to damage the credibility of an applicant's story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation. The Tribunal, conducting an inquisitorial hearing, is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on (see per Gummow and Heydon JJ in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs); ex parte APPLICANT S154/2002 (2003) 201 ALR 437 at [57] - [58]). 14 Whilst the present case focuses upon the statutory requirements of s 424A of the Act, it is not inappropriate to refer to what Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 ('SZBEL')in relation to matters of procedural fairness at a Tribunal hearing, especially since Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ had said in SZBYR at [14], '… given the presence of s 422B, it might be surprising if s 424A were interpreted to have an operation that went well beyond the requirements of the hearing rule at common law'. At [47]-[48] in SZBEL, their Honours said: '[47] … It is not necessary (and often would be inappropriate) for the tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the tribunal considers maybe important to the decision and may be open to doubt, the tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. [48] … as Lord Diplock said in F Hoffmann‑La Roche & Co AG v Secretary of State for Trade and Industry: "… the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished." Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.' (footnotes omitted) 15 In relation to the Tribunal's obligation under s 424A(1)(b) of the Act to 'ensure, as far as is reasonably practicable, that the applicant understands why it [the information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review] is relevant to the review', the appellant relied upon the judgment of a Full Court, comprising Branson, Finn and Bennett JJ in Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 ('SZGMF'). In that case the Tribunal's s 424A letter provided, inter alia, as follows: 'The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa. The information is as follows: The [respondent] submitted documents of support from prominent political figures in Bangladesh in support of his claims. He also submitted documents purporting to be police documents involving a charge against him. The Tribunal has received reliable information as follows: 1. Many members of the Awami League are prepared to offer such documents on request in a humanitarian way to help former supporters. They are worded in a way to offer support to obtain economic refugee status, rather than to verify any particular status within the Awami League. 2. The purported police documents do not match with the original case documents held at the Moulvibazar Additional District Magistrates Court and are not authentic. …' 16 The reasons for decision of the Tribunal in SZGMF gave no weight to the respondent's letters of support because of advice which it received from the Australian High Commission in Dhaka. That advice included advice that the letters were genuine. The decision of the Tribunal to give no weight to the letters was based on a conclusion that, notwithstanding that the letters were genuine, the content of the letters was false (see per Branson, Finn and Bennett JJ at [39]). 17 In the Tribunal's s 424A letter (see SZGMF at [9])it had attempted to satisfy the requirements of s 424A(1)(b) in respect of the information mentioned by saying: 'This information is relevant because it may undermine the general credibility of the [respondent] and may cause these documents to be disregarded.' 18 In SZGMF the Federal Magistrates Court had quashed the decision of the Tribunal and ordered the Tribunal to redetermine the matter according to law. The Minister's appeal was dismissed, the Full Court concluding that the Tribunal had failed to comply with its statutory obligations under s 424A(1)(b). At [40] - [41] and [43] the Full Court said: '40 As mentioned above, the obligation on the Tribunal was to 'ensure, as far as is reasonably practicable', that the respondent understood why the information set out in the s 424A letter was relevant to the review. No practical or other difficulty stood in the way of the Tribunal telling the respondent that the information which it had received about his letters of support caused it to disbelieve or doubt the content of those letters. Yet the s 424A letter did not explicitly tell the respondent that the relevance to the review of the information which it had received about his letters of support was that the information indicated that the content of the letters was false. 41 The Tribunal's failure to state explicitly the relevance to the review of the information concerning the respondent's letters of support is of importance because of the opaque nature of the particulars of the information provided to the respondent by the s 424A letter; the use that the Tribunal could make of the information as particularised was not self-evident. … 43 In our view, it was reasonably open to the respondent to conclude from the s 424A letter that the information which the Tribunal had received was information about a class of documents rather than information specifically about his letters of support. For this reason he may not have understood that the relevance of the information to the Tribunal's review was that it caused the Tribunal to disbelieve or doubt the content of his letters of support.' 19 The appellant in the matter presently before the Court was born in Bhulbhule-1 Lamjung, Nepal on 24 February 1981. 20 On 15 July 2002 he was issued with a Nepalese passport. He left Nepal in January 2003 and moved to live in the United Arab Emirates under visas, one of which appeared to remain current until 21 April 2009. On or about 3 July 2006 he secured an Australian visa in Abu Dhabi in the United Arab Emirates. Travelling on his Nepalese passport and using his Australian visa he arrived in Australia from the United Arab Emirates on 10 July 2006. 21 By an application dated 16 August 2006 he applied for a Protection (Class XA) visa. His application was refused by the Minister's Delegate on 30 August 2006. On 20 September 2006 he applied to the Tribunal for review of the Minister's Delegate's decision. 22 The appellant attended a lengthy hearing before the Tribunal on 20 November 2006 having been invited to a hearing to give oral evidence and present arguments in support of his claims by letter dated 3 November 2006. 23 On 3 November 2006 two other letters were sent to the appellant. One such letter sought information from the appellant in accordance with s 424 of the Act. The third letter, which is central to this case, was the Tribunal's 's 424A letter'. It relevantly provided: 'INVITATION TO COMMENT ON INFORMATION The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa. The information is as follows: 1.) Your passport, issued on 15 July 2002, states your next of kin is Mr [name of a person included who was later identified by the appellant as his father] of Bhulbhule - 1 Lanjung (sic), Nepal. Your Application for a Protection visa stated that you lived at this address from 1981 to 2000, and that you were born there. You have not included any details regarding your father. In your typed statement accompanying your Application for a Protection visa you stated that your father was killed in 2001 in Kathmandu by miscreants. 2.) In your Application for a Protection visa you stated that you do have a right to enter or reside in the UAE, temporarily or permanently. Your passport shows a current UAE Residence visa from 22 April 2004 to 21 April 2009. It is the UAE visa from 24 March 2003 to 23 March 2006 which has been marked 'cancelled'. In your application for a visa to travel to Australia it was noted that you have a right of return to UAE in the form of an emirate visa valid until 21 April 2009 (recently renewed). 3.) In your typed statement filed with your Application for a Protection visa, you stated 'There is no difference between staying in Nepal and India coz its basically same country.' You also stated that 'I was planning to go to India coz we don't need any visa to stay over there.' Country information indicates that as a citizen of Nepal you can enter, re-enter and live in India with all the rights and privileges available to nationals of India without any fear that you will be returned to Nepal. County information indicates that India has a population in excess of one billion persons, and is a functioning democracy, where the state is willing and able to protect persons there. 4.) Your Application for a Protection visa states at Q.'s 45-48 that you legally left Tribhuban airport on 29 January 2003, and you did not have any difficulties in obtaining a travel document (such as a passport). In your typed statement you stated 'I left Nepal to avoid attack and sure death from the anger of the Maoist …' In answer to Q.32 you stated that you travelled to the UAE to 'work as well as to avoid attack and death.' There is no indication that you have returned to Nepal before travelling to Australia. You indicated in answer to Q.55 that you have never applied for refugee status in a country other than Australia. 5.) In your visa application to travel to Australia you stated that the purpose of travel to Australia was family reunion. You had strong representation and support from an Australian permanent resident and citizen, a strong employment record and a return right. In this regard you were going to visit your cousin and sister-in-law in Sydney. You stated that you were a line leader with a scaffolding and construction company, Scaffco, in Abu Dhabi. You arrived in Australia on 10 July 2006, and applied for a Protection visa on 17 August 2006. In your Application for a Protection visa and typed statement you stated that you were a machine operator/welder at Saffco Ltd in Abu Dhabi (UAE), you were seeking protection as a refugee, and that your then existing UAE visa had been cancelled, because the 'employer reported to the responsible authority of my failure to return to the job on time. It is their rule.' 6.) Country information indicates that internal flight is viable. Further, you have 12 years of education, have a trade(s), have worked overseas, have a solid work record, you are single, can speak read and write Nepali and English, and you are relatively young (born 1981). 7.) Country information indicates that there is peace in Nepal. You have 12 years of education, trade skills (Machine welder), overseas work experience, young age (dob 24/2/81), solid work history, ability to speak, read and write English and Nepali, and your marital status is single. Why this information is relevant to the review. Numbers below correspond to the numbers above. 1.) If Mr [name of a person included who was later identified by the appellant as his father] is your father, then there is an inconsistency in your evidence in that he could not have died in 2001 and still be your next of kin in 2002. This may reflect negatively on your credibility. Further, if the Tribunal were to accept the evidence that your father is not dead, then it may consider that Kathmandu is a safe place, and not at all like you describe it in your written statement. Further, your comments regarding the inability of the Nepalese authorities to protect you as they did not protect your father would also become irrelevant if he is still alive. 2.) As you appear to have this right, then Australia does not have any protection obligations to you. 3.) As you appear to have this right, then Australia does not have any protection obligations to you. 4.) As you did not seek refugee protection in the UAE, this would indicate that you had no fear of persecution in Nepal, but rather, you travelled to the UAE in order to work. 5.) The information provided in the two applications is inconsistent and suggests that your evidence is not plausible. Further, your delay in applying for a Protection visa in Australia may indicate that you had no real fear of persecution in Nepal (and/or UAE if that is your claim). Moreover, if the UAE employer's rule is as you stated, then you were aware of that rule and its consequences. It could therefore be considered that by remaining in Australia you deliberately created a situation where you could not return to the UAE, thus cutting off your legal right to enter into and reside there. This may also be considered as a deliberate attempt to create a sur place claim. 6.) This information suggests that you could successfully relocate in Nepal. 7.) This information suggests that you would not have a real fear of persecution if you were to return to Nepal. You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 17 November 2006.' 24 The appellant's case, as ably presented by his counsel, J R Young, was confined to whether, by setting out why the information contained in the appellant's Nepalese passport, issued to him on 15 July 2002, which stated that a named person with the same surname as the appellant was his next of kin, was relevant to the review, as it did (see the second paragraph numbered '1.)' ), the Tribunal ensured, as far as was reasonably practicable, that the appellant understood why it was relevant to the review. 25 In the Tribunal's s 424 letter of 3 November 2006 to the appellant requesting him to provide additional information he was asked, amongst other things: ' ● Please advise as to who Mr [name of a person included who was later identified by the appellant as his father] of Bhulbhule - 1 Lanjun (sic), Nepal is.' 26 By a facsimile dated 17 November 2006 Shamser S Thapa, the appellant's Migration Agent, of Simon Diab & Associates, Solicitors & Migration Agents, forwarded a statutory declaration made by the appellant to the Tribunal indicating that it was responsive to the request for information in the Tribunal's s 424 letter. In the statutory declaration of the appellant made on 17 November 2006 he confirmed that the person who had been identified as his next of kin in his passport, and whose name had been included in the Tribunal's s 424A letter of 3 November 2006 in two places, was indeed the appellant's father. 27 Counsel for the respondent Minister, Mrs S A H Sirtes, submitted that the Court was not required to consider whether the Tribunal had complied with s 424A(1)(b) because the appellant, himself, provided his passport to the Tribunal at the Tribunal hearing on 20 November 2006 and had given the information concerning the identity of the person, identified as the appellant's next of kin in his passport, to the Tribunal in the appellant's statutory declaration. The submission was that s 424A did not apply to the relevant information because it was information that the appellant had given to the Tribunal for the purpose of the application for review in accordance with s 424A(3)(b) of the Act. 28 I do not accept this submission. Once the Tribunal considered that the information contained in the appellant's passport issued to him on 15 July 2002 would be the reason, or a part of the reason, for affirming the Minister's Delegate's decision to refuse the appellant a protection visa, as it plainly did on or before 3 November 2006, it was obliged by s 424A(1)(a) of the Act to give to the appellant particulars of that information. The section had been engaged. The later provision of the same information by the appellant to the Tribunal could not exonerate the Tribunal from its obligations under s 424A(1)(b) of the Act in circumstances where it chose to write its s 424A letter to the appellant, as set out above, on 3 November 2006. 29 Having said that, it is clear that the Tribunal did not have to send a further s 424A notice to the appellant providing particulars of the information that was contained in the statutory declaration of the appellant made on 17 November 2006 which was forwarded to the Tribunal under cover of Mr Thapa's facsimile of the same date. 30 Given my findings that the information contained in the appellant's passport issued on 15 July 2002 did not fall within the s 424A(3)(b) exception, it became common ground that, whatever may have been thought to be the case at the time when the application for constitutional writ relief was before the Federal Magistrates Court of Australia, the information, particulars of which the Tribunal was required to give to the appellant, was the information contained in the passport issued to him on 15 July 2002. 31 It is apparent that the Tribunal suspected that the person identified as the appellant's next of kin in his passport was in fact his father. Were this to prove to be the case, it would not sit comfortably with the appellant's claim to refugee status. In his application for a Protection (Class XA) visa dated 16 August 2006 the appellant had said: 'I left Nepal to avoid attack and sure death from the anger of the Maoist and their associated (sic) who killed my father and put life threat on all my family members and close relatives. … … … Despite of our relocation (sic) to Kathmandu from Lamjung (Maoist Predominantly Area) coz my father think Kathmandu is the only safe place for us. There is no place to go else where except Kathmandu coz of the capital and very tight security. Relocation to Kathmandu city and my father's restricted movement at one evening, in the end of 2001, on his way back home he was openly, in public hacked to death by some unknown miscreants. My mother knew one day it would happen to our family like his other two colleagues who also lost all their family members, in the hand of Maoist terrorist, shortly after their desertion from the revolution.' 32 It is apparent to me that the Tribunal considered that information in the appellant's own passport suggesting that the appellant's father was 'alive and kicking', if I may use the vernacular, as at 15 July 2002, when the appellant was relying upon him having been slain in the previous year by Maoist terrorists in Kathmandu, a place which the appellant's father considered to be the only safe place in Nepal for the family to live, was information the relevance of which it was required to ensure, as far as was reasonably practicable, that the appellant understood in relation to the appellant's account of how he came to have a well-founded fear of persecution in Nepal, predicated upon his father having been slain 'in the end of 2001', and accordingly its relevance to the review of the Minister's Delegate's decision. 33 In my opinion, the Tribunal's s 424A letter of 3 November 2006 worked to discharge its obligations under s 424A(1) in respect of the relevant information, contained in the appellant's passport, in an exemplary manner. It is appropriate to repeat what was said in the Tribunal's disclosure of why the information contained in the appellant's passport was relevant to its review, with appropriate emphasis added: '1.) If Mr [name of a person included who was later identified by the appellant as his father] is your father, then there is an inconsistency in your evidence in that he could not have died in 2001 and still be your next of kin in 2002. This may reflect negatively on your credibility. Further, if the Tribunal were to accept the evidence that your father is not dead, then it may consider that Kathmandu is a safe place, and not at all like you describe it in your written statement. Further, your comments regarding the inability of the Nepalese authorities to protect you as they did not protect your father would also become irrelevant if he is still alive.' 34 The Tribunal summarised the appellant's claim that he had a well-founded fear of persecution within the meaning of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (collectively referred to as 'the Refugees Convention'), as follows: 'The applicant stated that he will not be able to live in peace and safety anywhere in Kathmandu (Nepal). He stated that he lost faith in the Nepalese authorities who failed to protect his father from the Maoists. He stated that if the Maoists' demands are not met, or one doesn't obey their rules, then the punishment will be very harsh such as kidnapping, torturing, or death. He is sure that eventually he will be the next victim if he goes back to Nepal. He stated that the Maoist rebels who killed his father and assaulted him and his relatives will harm and/or mistreat him if he goes back. He is the target as he refused to join them and expressed an opinion against their ideology to the public. They have branded him as a traitor 'and would warn us in various ways to avenge my father and our family relatives.' If he returns to Nepal, because of his father's desertion and the applicant's refusal to join them, he will be their target. He stated that the rebels would purposely ask for him to join them knowing that some day he would be killed by the authorities like many other guerrillas. The applicant stated that the Nepalese authorities completely failed to protect his family and would not be able to offer any protection at all. He has no faith in them and he believes they will not be able to protect him from the Maoists' grudge. The applicant stated that he has a right to enter or reside in, whether temporarily or permanently, the UAE, but he had recently learned that his existing visa to the UAE had been cancelled as the employer reported to the responsible authority the applicant's failure to return to the job on time. He stated that it is their rule.' 35 The applicant's proffered explanation as to the discrepancy between the fact that his father was apparently alive on 15 July 2002, at the time of issue to him of his Nepalese passport, and the assertion in his protection visa application that he had been killed at the end of 2001, was recorded in his statutory declaration made 17 November 2006 as follows: 'I note that I made a mistake regarding the date of my father [name inserted]'s death. It was an error in converting the dates from the Nepali Calendar into English Calendar. My father [name inserted] was killed on Bikarm Sambat (Nepali Calendar) KARTIK 13, 2059, the corresponding date should have been 30 October 2002. The date motioned in my Statement is wrong.' 36 The appellant was effectively saying that he made an error in translating from the Nepalese calendar to the Gregorian calendar in selecting the date of his father's death. He asserted that his father had in fact died on 30 October 2002, after the passport identifying his father as his next of kin, had been issued. 37 It is apparent that the Tribunal doubted the appellant's explanation of his 'mistake'. In his reasons for decision the Tribunal Member said, amongst other things: 'The tribunal referred to the applicant's claim that there was a mistake made in converting from the Nepalese calendar the date of the death of his father. He stated that when he said the Nepalese date to his friend he translated it incorrectly. He stated that the other dates had been converted correctly. The tribunal stated that it was not sure that it accepted this explanation. It stated that perhaps the fact was that his father was alive. He asked what the tribunal meant. The tribunal stated that it had been explored in a letter to the applicant, but it went through it again with him. The upshot was that it could be that his father was alive on the 15th of July 2002 when the applicant's passport was issued. The applicant stated there was a mistake in the translation. The tribunal said that in his statement he had said that at the end of 2001 his father had been hacked to death. The applicant said that this was definitely due to a mistake of translation, and that when the passport was issued to him his father was alive and in October (2002) his father was killed.' 38 It is apparent from the Tribunal's reasons for decision that it did not use the information contained in the appellant's passport, which occasioned the relevant provision of particulars, in a manner which might be said to have 'come from left field'. It used it in the very manner that it foreshadowed that it may have to use it, were it to transpire that the person named as the appellant's next of kin in his passport was, in fact, the appellant's father. 39 The Tribunal's 'FINDINGS AND REASONS' are recorded on four closely typed pages. The passage in the reasons on which the appellant places the greatest reliance is that contained in the paragraph commencing 'The applicant's passport' and ending with 'These findings are supported by the following findings' (see below). 40 It is unnecessary to set out the entirety of the Tribunal Member's findings and reasons but necessary to point to some passages from those findings and reasons as follows: 'The applicant's claims may be summarized as follows. He left Nepal to avoid being attacked and killed by the Maoists and their associates who killed his father and put at threat all his family and close relatives. The applicant's father reluctantly joined the Maoist revolution group. He was promoted to Regional Lieutenant in the Maoist rebels and was a very well known figure in the group. The father joined the Maoist group to protect the applicant and his mother from them. The Royal Nepalese Army continuously monitored the applicant and his mother all the time and they interrogated them all the time. They received physical abuse and were threatened by the Royal Nepalese Army. In the course of time his father, along with a few comrades, defied the Maoist Supreme Command. Later with the direct assistance and with a hope of safety from the then Prime Minister his father and few of his colleagues in the middle of 2001 deserted the Maoist rebels and surrendered to the Nepalese government. His father and his colleagues were pardoned by the Nepalese Authority and were repeatedly assured that he and his family would receive an extra measure of protection from the Maoist rebels. The family relocated to Kathmandu city and one evening, in the end of 2001 (later this date was changed to October 2002 by the applicant, who stated that there had been a mistake in converting from the Nepali calendar), on his way back home, the applicant's father was openly, in public, hacked to death by some unknown miscreants. The two other colleagues lost all their family members at the hands of Maoist terrorists, shortly after their desertion from the revolution. Initially the applicant and his mother received sympathy and financial compensation from the Nepalese government for the loss of their family due to his father's assassination but eventually they withdrew their assistance and advised them to return to the village where they came from. They were afraid of future attacks from the Maoists because they never let live anyone's family who betrayed or deserted them. Since his father's death the Maoists keep pressuring and threatening him [the appellant] to join their Group, which he rejected. During his time in Kathmandu in mid 2002 the applicant was suddenly attacked by some musketeers who wanted him to join them. … … … for the reasons that follow, the Tribunal does not accept the applicant's claims that he has suffered, or has a well-founded fear of persecution. The applicant's passport, issued on 15 July 2002, states that his next of kin is his father [name and other identification inserted]. In his typed statement accompanying his Application for a Protection visa the applicant stated that his father was killed in 2001 in Kathmandu by miscreants. There is an inconsistency in the applicant's evidence in that his father could not have died in 2001 and still be his next of kin in 2002. The applicant stated that a mistake was made in converting the dates from the Nepali Calendar into the English Calendar regarding the date of his father's death. He stated that his father was killed on 30 October 2002 and the date mentioned in his Statement, 'in the end of 2001', is wrong. The Tribunal does not accept the applicant's explanation that there was a mistake in translation. The Tribunal finds that he forgot that his father was named as his next of kin in the passport, and when this was brought to his attention by the Tribunal, he tried to cover up the mistake by stating there was a mistake in the translation. As a result, the Tribunal finds that the applicant's evidence in this regard is not credible and makes the following findings. The Tribunal finds that the applicant's father was alive at the time of the issue of the applicant's passport, and that he was not killed by Maoists, or at least not in the circumstances described by the applicant. The Tribunal does not accept the applicant's claims in relation to his father being a Maoist, and that he then deserted the Maoists who then killed him and harassed his family. As such, the basis of the applicant's claims based on his father being a Maoist is removed, and the Tribunal rejects those claims, and accordingly makes this finding. Therefore the Tribunal also rejects the applicant's claims that a local MP helped the applicant's father surrender his weapons to the government and assisted the applicant get to the UAE. Further, the applicant's claims that he was a member of a particular social group described as an able bodied person, overseas returnee, and son of the active member of United Marxist and Leninist (UML) political opinion (member of student Union called All Nepal National Free Students Union which is a brother organisation of UML), are rejected as the Tribunal finds that his father was not a member. Further, the Tribunal considers that the applicant's evidence that Kathmandu is not a safe place is placed in question. Moreover, the applicant's comments regarding the inability of the Nepalese authorities to protect him, because they did not protect his father, are rejected by the Tribunal. These findings are supported by the following findings. … … The Tribunal finds that the information provided in the two applications [one for a visitor visa to Australia and another for the protection visa] is inconsistent and, as a result, he is not a credible witness. … Moreover, the applicant stated in his Statutory Declaration that he was residing in the UAE on a temporary basis, and did not have legally enforceable rights to enter the UAE, but he had a visa to stay in the UAE until 21 April 2009. … The Tribunal finds that by remaining in Australia the applicant attempted to deliberately create a situation where he could state that he could not return to the UAE, thus putting himself into the position of stating he had no legal right to enter into and reside there. The Tribunal finds that this reflects negatively on his credibility. … The Tribunal finds that the applicant cannot be believed and is not prepared to accept that any of his claims are true. The Tribunal does not accept the applicant's claims that he has suffered persecution in Nepal. As a result, the Tribunal is not satisfied that the applicant faces a real chance of persecution should he return to Nepal now or in the foreseeable future. Therefore the Tribunal is not satisfied on the evidence before it that the applicant has a well-founded fear of persecution for any Convention related reason.' 41 As indicated above the Tribunal proceeded to affirm the decision of the Minister's Delegate not to grant the appellant a Protection (Class XA) visa. 42 It is undoubtedly true to say that the Tribunal could not rely upon a rejection or lack of satisfaction with a person's evidence in respect of a particular fact to found a finding, absent any other evidence, that the true fact was the very opposite of that which had been asserted in the person's evidence which it had rejected or found did not satisfy it. 43 In relation to matters of lying, rejection and non-satisfaction regard should be had to Smith v New South Wales Bar Association (No 2) (1992) 66 ALJR 605 at 609, where Brennan, Dawson, Toohey and Gaudron JJ said: '… There is a difference between the rejection of a person's evidence and a finding that he or she deliberately lied. … In some cases, a rejection of evidence may lead to a finding that that person lied on another occasion. … … The mere rejection of evidence can neither justify a consequence over and above that which properly attaches to the matter charged, nor deprive the person of the benefit of personal considerations which might otherwise be taken into account [in professional misconduct proceedings] … A finding that a person deliberately lied when giving evidence is, in effect, a finding of perjury and, thus, it ought not to be made on "the single oath of another man, without any confirmatory evidence" …' 44 It may be observed that in the passage from the 'REASONS FOR DECISION' of the Tribunal on which the appellant primarily relies the Tribunal has used the word 'finds', 'finding' and 'findings' on about seven occasions. The Tribunal has also used the word 'rejects' or 'rejected' on about three occasions. In addition, the Tribunal has used the expression 'does not accept' on a couple of occasions. Importantly, the Tribunal did not accept the appellant's explanation that there had been a mistake in the translation from the Nepali calendar to the Gregorian calendar which resulted in the timing of his father's alleged slaying having been incorrectly recorded in the appellant's visa application as having taken place at the end of 2001. His later assertion that it had occurred on 30 October 2002 was rejected. Following from this the Tribunal said as indicated above: '… the Tribunal finds that the applicant's evidence in this regard is not credible and makes the following findings.' 45 Consistent with the Tribunal's non-acceptance of the appellant's explanation that he had made a mistake in the translation of the relevant date from the Nepali calendar to the Gregorian calendar, it was open to the Tribunal to find, as it did, that the appellant was simply engaging in a cover-up exercise in respect of a material divergence between the appellant's claims and the passport information. It was open to the Tribunal to find, as it did, that the appellant's father was alive at the time of the issue of the passport and that he had not been killed by Maoists in the circumstances described by the appellant in his protection visa application before the passport was issued. The Tribunal's non-acceptance of the appellant's claims in relation to his father being a Maoist and his father's desertion of the Maoists and that the Maoists killed his father and harassed his family was open to it. 46 Once having rejected the appellant's claims concerning the appellant's father, it was open to the Tribunal to also reject the appellant's claims concerning help said to have been afforded to the appellant's father in respect of the surrender of weapons to the government and also in respect of help said to have been afforded to the appellant to get to the United Arab Emirates. 47 It was open to the appellant to reject, as it did, the appellant's claims that he was a member of a particular social group as, amongst other things, the son of an active member of United Marxist and Leninist. 48 The Tribunal made a finding that the appellant's father was not a member of the United Marxist and Leninist political opinion. It may be that this was a finding which transgressed the rule limiting the scope to which rejection of an appellant's claims may be put but, it is plain from the reasoning of the Tribunal that it was immaterial whether the appellant's father was or was not, in fact, a member of the United Marxist and Leninist political opinion. 49 The Tribunal's findings which led to the conclusion that the decision of the Minister's Delegate should be affirmed all turned upon findings of credibility in relation to the appellant's account of what had transpired that was said to lead to him having a well-founded fear of persecution. The Tribunal was not satisfied on the evidence before it that the appellant had a well-founded fear of persecution for any Convention related reason. This it was entitled to do for the reasons which it indicated. 50 It was also open to the Tribunal to find that any suggestion by the appellant that Kathmandu was not a safe place was open to doubt in circumstances where the appellant's evidence, concerning the history of his father's alleged involvement with the Maoists and what thereafter happened to him, did not find favour with the Tribunal. 51 It was also open to the Tribunal to reject the appellant's suggestion that the Nepalese authorities were unable to protect the appellant when that inability was predicated upon the Nepalese authority's inability to protect the appellant's father. The Tribunal was entitled to reject the appellant's claim that the Nepalese authorities had been unable to protect the appellant's father. 52 It is important to note that the findings of the Tribunal referable to the appellant's lack of credibility were supported by like findings in relation to a number of other matters detailed in the Tribunal's reasons for decision apart from those which flowed from the information contained in the appellant's passport issued on 15 July 2002. 53 Given the manner in which the Tribunal ultimately decided the review it is apparent that it ensured, as far as was reasonably practicable on 3 November 2006, that the appellant understood why the information in the appellant's passport issued 15 July 2002 would be the reason, or a part of the reason, for affirming the decision under review, was relevant to the review. No considerations were taken into account in respect of the information in the passport which had not been telegraphed in the Tribunal's s 424A letter. No considerations from 'left field' were taken into account. At the heart of the matter was the appellant's credibility. Given that s 65(1) of the Act called for a determination either of satisfaction that the relevant criterion had been satisfied or of non-satisfaction, the appellant's credibility was critical. Once his credibility was destroyed it was apparent that a finding that the appellant's father had been slain in late October 2001 could not, having regard to the information contained in the passport, be made. In these circumstances the underlying basis for the appellant's claimed well-founded fear of persecution was rendered nugatory. 54 It is apparent that the Tribunal did not fall into jurisdictional error. Accordingly, the appeal should be dismissed. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.