BRGAA of 2009 v Minister for Immigration
[2010] FMCA 538
•6 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BRGAA OF 2009 v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 538 |
| MIGRATION – Review of Refugee Review Tribunal decision – applicant applied for protection visa – claimed the respondent failed to take into account a relevant consideration and denial of natural justice – Tribunal must give reasons for rejection of evidence. |
| Migration Act1958 (Cth) |
| Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 MZXRE v Minister for Immigration and Citizenship [2009] FCAFC 82 Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 Re: Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Servos v Repatriation Commission (1995) 56 FCR 377 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630 |
| Applicant: | BRGAA OF 2009 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 252 of 2009 |
| Judgment of: | Burnett FM |
| Hearing date: | 2 September 2009 |
| Date of Last Submission: | 2 September 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 6 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr W.J. Markwell |
| Counsel for the First Respondent: | Ms A. Wheatley |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | Ms A. Wheatley |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
That the application filed 14 April 2009 be dismissed.
That subject to any application by either party made within seven (7) days of this order, the applicant pay the respondent’s costs fixed in the sum of $5,285.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 252 of 2009
| BRGAA OF 2009 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a citizen of the People’s Republic of China (PRC) who entered Australia on 2 August 2008 as the holder of a Sub Class 676 Visitor Visa. It was issued to her in Guangzhou and had an expiration term of three months. On 10 September 2008 she lodged an application for a Protection (Class XA) Visa under section 65 of the Migration Act1958 (Cth).
The basis of her claim for protection was that she was a refugee and thereby a person to whom Australia had protection obligations under the Refugees Convention. In particular she claimed to be a Falun Gong practitioner and that as such, whilst she previously lived in China, she had been arrested in August 2003, beaten, interrogated and starved following her arrest. She says she was subsequently transferred, after several months, to Quangdong Forth (sic) Labour Camp and “brainwashed”. She says she was detained there for four months. Although not stated it appears she claims she was subjected to these privations without having been afforded due process.
She claimed it took two months to recover from the effects of her ordeal. In due course she returned to work as a teacher, bribed police to erase her criminal record, acquired a passport and successfully appled for a visa before then travelling to Australia.
Following her application for a protection visa an interview was scheduled with a delegate of the Minister for Thursday 6 November 2008 at Sydney. She did not attend that interview. In an affidavit subsequently filed in the proceedings she swore that her legal representatives had informed her the Department sent a letter by registered post advising that an interview had been arranged. She swore she had been informed that this letter had been forwarded to both her postal address and her residential address. She swears she never received any such letter and that that was the reason for her non-attendance.[1] I note that the applicant’s affidavit does not disclose whether the information was provided to her before or after the scheduled meeting.
[1] Although the affidavit was not admitted into the proceeding this aspect of the chronology is not contentious.
In any event the application proceeded in her absence and a decision was made that day refusing the application based on the material she had provided with her application together with country information. In refusing the application the delegate did not find there was a real chance of the applicant suffering persecution for a Convention reason in the reasonably foreseeable future.
The applicant then sought review of the delegate’s decision by the Refugee Review Tribunal (the Tribunal).
The application came on before the Tribunal on 13 February 2009. The applicant did not appear on that occasion. The Tribunal examined the applicant’s allegations and material filed earlier by her in support of her application. It noticed the applicant had failed to attend before the delegate. Ultimately it concluded it could not be satisfied that the applicant was a genuine Falun Gong practitioner as claimed or that she was imputed with such practices in the PRC in the past, nor that she has a real chance of being imputed with these practices should she return to the PRC in the future.[2]
[2] Decision page 7 of 7, para 36.
The Tribunal considered that the applicant does not have a real chance of persecution arising from her alleged religious opinions or any other Convention ground should she return to the PRC. Consequently it determined she did not have a well founded fear of persecution for a Convention reason. It affirmed the delegate’s decision.
Grounds of Review
The grounds raised in her application were:
“Ground 1 – The decision involved an important exercise of the power conferred by the Migration Act and Regulations;
Ground 2 – In paragraph 28 of the decision record, the Tribunal member does not consider it is impossible for me to provide evidence from China to demonstrate evidence I was jailed in China and the current situation in respect of Falun Gong in China;
Ground 3 – There was no evidence or other materials to justify making of the decision.”
This application was amended following the appointment of pro bono counsel. In the amended application the following grounds were advanced:
“Ground 1 – The decision maker has not taken into account a relevant consideration.
Ground 2 – That the matter be remitted back to the Refugee Tribunal for further consideration according to the law.
Ground 3 – The applicant was denied natural justice.
Particulars
(i) In relation to ground 1 as set out above the decision maker states in paragraph 34 of his decision “…there is not evidence that suggests that she had difficulty in the obtainment of her passport or problems existing PRC”. The decision maker in his decision did not consider that the applicant had stated (para 24 of decision) that her criminal record was expunged, as the applicant had advised that she had paid a colleague “to have her so-called criminal record washed and for a passport to be issued” (paras 11 and 17 of applicant’s affidavit). The applicant was able to exist in China, without hindrance, because her criminal record no longer existed, as it had been cleaned away by her colleague, who had been paid by the applicant, in order to ensure that her record was clean. In this regard the decision maker had not taken into account a relevant consideration.
(ii) Further in relation to the aspect of the decision maker’s decision as set out above in relation to ground number 2, the applicant has stated that she paid a colleague the amount of 50,000RMB, in order for him/her to obtain a passport. This is set out in paragraph 24 of the decision maker’s decision and also at paragraph 11 of the applicant’s affidavit. In this regard there is evidence that the applicant has obtained her passport illegally, given that she paid a colleague a significant amount of money to obtain the passport for and this would be illegal in any jurisdiction in the world. The decision maker has stated at paragraph 34 of the decision “… the evidence before this Tribunal indicates that the applicant obtained a passport lawfully….”. As stated above this is not correct and therefore the learned decision maker has made an erroneous finding, or reached a mistaken conclusion and/or not taken into account a relevant consideration. Accordingly the relevant consideration would be that the decision maker has not taken into account that the applicant paid an unlawful bribe to a colleague, in order for the colleague to procure a “legal” travel document, namely a passport, which was duly obtained.
(iii) In relation to ground number three particularly because the decision maker did not take into account the factors mentioned above, the applicant was denied natural justice. While it might have been that other factors were against the applicant, the applicant’s case was enabled to be properly evaluated, because of the jurisdictional errors outlined above and therefore the applicant was denied natural justice.
(iv) The decision maker, and therefore the respondent has made gross jurisdictional errors and therefore the probative clause, as set out in section 474 of the Migration Act is inoperable.
Preliminary Matter
The applicant’s amended application makes reference to and relies upon an affidavit by her filed 17 July 2009. The affidavit was objected to on the basis that it sought to adduce new evidence not previously before the Tribunal and that it was an attempt to engage in merits review and/or to contradict the factual findings of the Tribunal. It is well settled that such is impermissible: MZXHY v Minister for Immigration and Citizenship[3].
[3] [2007] FCA 622 at [8].
The applicant contended it ought be allowed because the matters contained within it could not, with reasonable diligence, have been adduced at the initial hearing and that the material would have impacted upon the result. It was contended for her that the material could not have been procured with reasonable diligence because the applicant was impecunious and could not afford legal representation and further because she had poor command of English.
It is now well settled that those factors do not support such a contention; MZXHY v Minister for Immigration and Citizenship Supra at [8]: following Servos v Repatriation Commission (1995) 56 FCR 377 at 380; Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 at 254.
I do not allow the applicant to read her affidavit filed 17 July 2009 and it is not admitted. The applicant is confined in her amended application to those matters available on the material considered by the Tribunal.
Ground 1
The essence of the applicant’s submission was that the Tribunal did not take into account a relevant consideration by giving appropriate consideration to the statement provided by the applicant where she stated she:
“…bribed a police officer to wash my so-called criminal record and issue a passport”.
In finding as it did the Tribunal stated:
“…The evidence before the Tribunal indicates that the applicant obtained a passport lawfully and there is no evidence that suggests that she had difficulty in the obtainment of the passport or problems exiting the PRC.”
The applicant contended the Tribunal’s decision clearly demonstrated it had not properly considered the applicant’s material or had ignored that material which, by inference, she submitted was relevant. In her submissions it followed the omission affected the exercise of the power and constituted jurisdictional error.
For the applicant it was further submitted that the correct approach would have been to examine the applicant’s “specific evidence in detail” and provide “reasons why (the Tribunal) did not consider that the applicant had obtained her passport illegally.”[4]
[4] Applicant’s outline of argument at para 12.
For the respondent Minister it was contended that the decision must be read as a whole and not “with an eye keenly attuned to error”; WAEE v Minister for Immigration and Multicultural Affairs[5].
[5] (2003) 75 ALD 630 at [46] – [47].
Further for the respondent it was submitted the applicant’s claims were of such a general and vague nature that the Tribunal could not establish the relevant facts. Furthermore it submitted the state of the material was such that the Tribunal could not reach the positive state of satisfaction as to whether protection obligations were owed and in the absence of such a state of satisfaction a refusal of the visa was mandated; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (at [17]).
In oral submissions made on behalf of the Minister it was emphasised that the finding was open particularly because of the applicant’s answers to questions 48 and 49 of the application form 866C.
In the form 866C in response to question 48, “How did you leave (China)?” the applicant checked the box “legally” adding details of her exit permit as “get Australia Class 676 Visa”. In response to question 49, “Did you have difficulty obtaining a travel document (such as a passport) in your home country?” the applicant checked the box “no”. Her statement, attached to the application, however did suggest otherwise by the remark that “I bribed a police officer to wash my so-called criminal record and issue a passport”.
The issue of sufficiency of reasons can be vexed. It requires a consideration of whether the Tribunal has satisfied the requirements of s430(1) of the Act.
Section 430 of the Migration Act details the requirements of a decision. Materially it provides:
“ (1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
(2) A decision on a review (other than an oral decision) is taken to have been made on the date of the written statement.
(3) Where the Tribunal has prepared the written statement, the Tribunal must:
(a) return to the Secretary any document that the Secretary has provided in relation to the review; and
(b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.”
Concerning this provision McHugh J in Re: Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 stated at 422:
“[64] There is some authority in the Full Court of the Federal Court for the proposition that s 430(1) requires the reasons of the Tribunal to refer to evidence contrary to findings of the Tribunal[47]. However the contrary view was taken by differently constituted Full Courts in Ahmed v Minister for Immigration and Multicultural Affairs [48], Addo v Minister for Immigration and Multicultural Affairs [49] and Sivaram v Minister for Immigration and Multicultural Affairs [50]. In Addo, the Court said [51]:
"Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act.
...
It is not necessary, in order to comply with s 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made."
[65] In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d). However, the obligation to set out "the reasons for the decision" (s 430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal. Indeed, to do so would be contrary to the direction in s 420 of the Act that:
"(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case."”
(Emphasis mine)
The respondent emphasised His Honour’s remarks that it was not necessary for the Tribunal to give a line by line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material facts made by the Tribunal. However those observations are informed by His Honour’s observation that whenever rejection of evidence is one of the reasons for the decision the Tribunal must set that out as one of its reasons.
Further assistance on the approach to the issue is to be found in the joint judgment of the Full Court in Applicant WAEE v Minister for Immigration and Multicultural Affairs[6] where the Full Court stated:
“[45] In conducting its review the Tribunal must have regard to the criteria for the grant of a protection visa and in particular the criterion that the applicant for a visa is (s.36(2)(a) read with s.415(1)):
... a non-citizen in Australia to whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;
The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision.
[46] It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30;; (2001) 206 CLR 323 at [87] – [97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised `with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
[6] (2003) 75 ALD 630 at 640.
In this case the issue of whether or not the applicant had a well founded fear of persecution was resolved against her because the Tribunal determined that the “…evidence before the Tribunal indicates that the applicant obtained a passport lawfully, and there is no evidence that suggests that she had difficulty in the obtainment of her passport or problems existing the PRC.”[7] That led the Tribunal to a conclusion that she was not of interest to the PRC authorities.
[7] Tribunal Decision paragraph [34].
The applicant complains the evidence that was not properly considered was the applicant’s evidence that she procured her passport illegally. The applicant submits the Tribunal should have examined this evidence in detail and provided reasons why it did not accept that matter. The applicant contends that the point is one which if it had been determined in her favour may have established a well founded fear of persecution for a Convention reason.
This complaint by the applicant needs to be reviewed against the principle that if the point would be determined in favour of the applicant a failure to do so sounds against the decision; Applicant WAEE (supra) at [45], and when a rejection of evidence is one of the reasons for finding against a person that must be set out as one of the reasons; Ex Parte Durairajasingham (Supra) at [45].
The Tribunal’s reasons contain a restatement of the applicant’s evidence. However beyond that restatement the matter of the issue of the passport was not addressed except at paragraph 34 of the decision where it stated that the applicant had lawfully obtained a passport.
The respondent contended that the finding was open in any event and merely constituted a finding of fact, albeit one not fully explained.[8] Accordingly the respondent submitted that the inference that the Tribunal had failed to consider an issue being drawn from a failure to expressly deal with that issue in its reasons is one that ought not too readily be drawn where the reasons are otherwise comprehensive and the issue has been identified at some point; WAEE at 641.
[8] The respondent contended that as the Tribunal was not a court but an administrative body reasons would not be scrutinised “with an eye keenly attuned to error” and nor would it be expected to provide reasons of the kind that ought be expected of a court of law; WAEE at 641.
For the respondent it was also contended that aside from the statement made by the applicant and attached to her application for a protection visa[9] there were also the apparently contradictory responses to questions 48 and 49.
[9] Unfortunately this statement was not included in the bundle of relevant documents but is reproduced in the Tribunal’s reasons.
However in my view that submission overlooks the proximity of the statement to the form 866C. It was and formed part of the form. Although I do not in any sense attribute to the applicant that degree of skill in completing the form that might be ascribed to a person with common English language skills it is apparent to me that her answers were intended to complement her statement. I would not expect that she intended to contradict herself with such proximate statements. The answer to question 49 that she left the country legally is arguably complementary to and consistent with her statement that she had procured a passport. She explained how she procured a passport that is by bribing “a police officer to wash my so-called criminal record and issue a passport”. However once obtained her passage was uneventful.
However while it was open to the Tribunal to adopt a benign view of the evidence as contended for by the applicant it was also open to the Tribunal to draw a more sinister conclusion from the statements. To draw such adverse conclusions it must have either rejected the statement as false or drawn an adverse inference premised upon its equivocal nature.
The Tribunal’s concerns were particularly highlighted by the observations at paragraph 30, 31 and 32 where it stated:
·In the absence of a more comprehensive statement the Tribunal wished to cross examine the applicant and test her evidence. By her non-appearance she did not provide it with this opportunity.
·The Tribunal had doubts about whether the applicant was ever arrested and detained by the Chinese authorities.
·The applicant’s non-appearance affected the Tribunal’s view of her bona fides.
Collectively these considerations gave rise to the Tribunal’s view that there may be some doubt about the applicant’s claim she obtained a criminal record (for Falun Gong activities) which had to be purged before she could successfully obtain a passport.
The Tribunal had considerable difficulty in assessing the applicant’s evidence because the applicant did not appear. It noted that it had hoped the applicant’s claims would be able to be stated. In particular it noted it had not had an opportunity “to test whether the applicant is a genuine Falun Gong practitioner, and whether the claims have been concocted in an attempt to misuse Australia’s protection responsibilities”.
Given the Tribunal’s observations on those matters I do not think it can be fairly submitted that the Tribunal was not alive to the inconsistency within the applicant’s statements and its need to resolve it by a factual finding as one of the reasons for its decision. This matter was clearly critical to the Tribunal for, as it held, “in the absence of the Tribunal being able to take evidence from the applicant during a hearing, the Tribunal cannot be satisfied that the applicant was ever arrested and detained by the Chinese authorities”. Clearly a finding of fact on those issues would in turn bear upon its ultimate reasons for decision.
Although the Tribunal appears to have moved promptly in paragraph 34 to its conclusion that the applicant had lawfully obtained a passport and departed China it did so immediately after having disposed of its concerns about the veracity of the applicant’s claims concerning her arrest and, in that context, membership of Falun Gong. Logically it could only have reached its conclusion if it dealt with those matters contrary to the claims of the applicant. Accordingly I do not consider it can be reasonably concluded the Tribunal did not identify that its rejection of the applicant’s evidence was one of the reasons for its findings and that in doing so its reasons for so rejecting that evidence were laid out.
I do not consider the applicant has made out this ground of her application.
Ground 2
Ground 2 seeks to incorporate the new material which I have ruled out. Insofar as it does, it is incompetent. That which remains at ground 2 after the exclusion of the inadmissible material merely restates ground 1 in respect of which I make no additional findings.
Ground 3
Ground 3 raises a catch-all general complaint about jurisdictional error based on a denial of natural justice. It is well settled that Division IV of the Act constitutes an exhaustive statement of the requirements of natural justice; s.422V of the Act; SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [48]; Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 at [12] and [6] – [18]; MZXRE v Minister for Immigration and Citizenship [2009] FCAFC 82 at [27] – [29]. It does not advance the applicant’s application beyond the matters addressed in ground 1.
The acknowledgement letter
A further ground advanced, although not vigorously pursued concerns the acknowledgement letter forwarded to the applicant by the Tribunal. In a section on page 2 (respondent’s bundle page 18) it requested the applicant, should “tell us immediately if you change your contact details” and “immediately send” the Tribunal any documents and information the applicant wanted the Tribunal to consider.
The applicant submitted the direction in the letter that those matters were to be attended to “immediately” contravened the requirements of such an invitation as provided for in s.424B(2) in that the direction to provide the information “immediately” is not a reasonable period given that there was no other time for compliance prescribed.
In Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109 the Full Court was considering an acknowledgement letter forwarded by the Tribunal. It was in all material respects expressed in the same form as the letter the subject of this application. In considering s.424 particularly, it noted concerning the letter:
“[23]… We do not accept that the acknowledgement letter, in the words of s.424(2) at the relevant time, was an invitation to a person to give additional information… The relevant part of the acknowledgement letter, construed in context, is nothing more than advice to the respondents about how to ensure that their application is complete. This does not involve any permission to the Tribunal to avoid its obligations under ss424(3) and 424B. Given the reasoning in SZKTI, the language of avoidance is inapt.”
The court held (at [25]) the letter was “an administrative exercise preliminary to the review. Its purpose was to provide the respondents with information about the review process and advise them of their rights.” It follows the applicant’s review on this ground also fails.
Conclusion
The applicant for judicial review was unsuccessful in her application before the Minister’s delegate and ultimately the Refugee Review Tribunal for a finding that she was a person to whom Australia owed protection obligations for the purposes of section 36 of the Migration Act. She did not appear before the Refugee Review Tribunal when the matter came on for hearing before it. However there was material before the Tribunal detailing the basis of her claim. The Tribunal’s finding that she was not owed protection obligations was founded principally in its conclusion that she had obtained a passport lawfully and had no difficulty in obtaining it or exiting the PRC. Although this finding was contrary to some of her written evidence the Tribunal’s basis for it was clear. It did not accept her statements in the absence of its ability to hear her oral testimony and test her evidence.
The Tribunal was not bound to accept her unchallenged evidence. This is particularly so when it was denied opportunity to test it because of the applicant’s failure to attend the Tribunal hearing and submit herself for her evidence to be tested. The Tribunal appeared to recognise the applicant’s contradiction between the evidence of her alleged persecution in China and her ready ability to obtain a passport and visa and subsequently travel to Australia.
Given the applicant’s failure to participate in the proceedings the Tribunal did all it was able to do to afford appropriate consideration to the applicant’s allegations. I do not consider the Tribunal failed to consider a relevant consideration.
Orders
The application is dismissed.
Subject to any application by either party made within seven (7) days of this order the applicant pay the respondent’s costs fixed in the sum of $5,285.00.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 4 August 2010
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