FTK24 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 733
•16 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FTK24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 733
File number(s): SYG 1841 of 2024 Judgment of: JUDGE LAING Date of judgment: 16 August 2024 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal’s decision was affected by bias – whether the Tribunal failed to consider evidence – whether the Tribunal’s decision was open to it on the material before it or affected by any other form of legally recognisable error – application dismissed Legislation: Migration Act 1958 (Cth) ss 91R, 418, 424AA & 425 Cases cited: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83
BBS15 v Minister for Immigration and Border Protection [2017] FCAFC 61; (2017) 248 FCR 159
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of hearing: 5 August 2024 Place: Sydney Appearing for the Applicants: In person Solicitor for the First Respondent: Ms Q Ren of HWL Ebsworth Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1841 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FTK24
First Applicant
FTL24
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
16 AUGUST 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs” dispensing with the need for filing any further document in this regard.
2.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
Before the Court is an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicants Protection (Class XA) (Subclass 866) visas (protection visas).
BACKGROUND
The applicants are citizens of the People’s Republic of China (China). The first applicant (Applicant) applied for a protection visa on 26 March 2015, together with his wife who is the second applicant.
On 10 November 2015, the Delegate refused the application.
On 4 December 2015, the applicants applied to the Tribunal for review of the Delegate’s decision. The applicants appeared before the Tribunal on 30 January 2018.
On 30 April 2018, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal found aspects of the Applicant’s evidence to be “evasive, contradictory, implausible and unconvincing” and concluded that the Applicant was not a credible witness. The Tribunal’s concerns in this regard included the following:
(a)The Tribunal found that the Applicant had given inconsistent evidence regarding the period in which he claimed to have been detained and what had happened to him during his detention. The Tribunal found that the Applicant’s claim to have been told about practitioners setting themselves alight in Tiananmen Square during his detention was inconsistent with country information indicating that this occurred after the claimed period of detention (at [24]-[26]).
(b)The Tribunal found that the Applicant had given inconsistent evidence regarding how often he was required to report to the Police Station, the frequency of police visits to his home and the total number of times the police visited his home after he was released from detention ([27]-[28]).
(c)The Tribunal found a late claim the Applicant made to be implausible. This was that a practitioner he had been warned against contacting, and who was under surveillance, lived with the Applicant for two weeks (at [29]-[32]). The Tribunal found similarly implausible that the practitioner would have been able to carry out Falun Gong activities with the Applicant and other practitioners at a known location, in circumstances where it was claimed that the police were monitoring him (at [34]-[35]).
(d)The Tribunal found that the Applicant had given inconsistent and implausible evidence regarding how he obtained a copy of the book Zhuan Falun and took it back to China. The Tribunal was concerned that the Applicant had given different versions of how he had been able to acquire the book undetected by his tour group. The Tribunal did not find plausible that the Applicant would have been able to acquire the book undetected in circumstances he had described. The Tribunal also found implausible that the Applicant would have risked smuggling the book into China, given the level of adverse attention he had claimed he was attracting around that time (at [35]-[41]).
(e)The Tribunal was concerned by the Applicant’s evidence regarding his ability to obtain and renew his passport and exit and enter China. This was in circumstances where country information indicated that it was unlikely that he would have been able to do this if he were of the adverse interest claimed. The Tribunal also considered that the applicants had given inconsistent evidence in this regard and was concerned by the applicants’ previous voluntary return to China despite their claims (at [42]-[49]).
(f)The Tribunal considered that the applicants had given inconsistent evidence about the purpose of their travel to Australia (at [50]-[54]).
(g)The Tribunal found it implausible that the Applicant would leave a copy of Zhuan Falun in his house in China. This was given his claim that the police randomly searched his house and that this would have put his elderly mother at risk. The Tribunal also considered that the Applicant had given inconsistent evidence regarding how his mother was or would be treated by the police (at [55]-[56]).
(h)The Tribunal was concerned by the applicants’ delay in applying for protection in Australia (at [59]-[62]).
(i)The Tribunal considered that the Applicant had made late claims about what the police had done and knew after he left China. The Tribunal was concerned that these claims had not been raised earlier (at [58] and [63]).
(j)The Tribunal was concerned that the second applicant had delayed making claims for protection in her own right until the Tribunal hearing (at [64]-[68]).
(k)Although the Tribunal accepted that the Applicant had some knowledge of Falun Gong, it did not consider that his knowledge was consistent with the level of knowledge and involvement that he had claimed (at [70]-[72]).
(l)The Tribunal was concerned about the applicants’ motivation for participating in Falun Gong activities in Australia. This was noting the Applicant’s evidence that he had asked Falun Gong practitioners to take the photographs submitted in order to support his protection visa application (at [74]-[76]).
The Tribunal accepted certain details regarding the applicants’ background, family and travel (at [80]). These will not be reproduced lest they provide some means of identifying the applicants. The Tribunal made the following findings at [81]-[83]:
81.The Tribunal accepts that the applicants travelled to Australia… as part of a tour group and that they absconded from the tour ground on the day they arrived in Australia… The Tribunal accepts that they stayed with the first named applicant’s brother for one night and rented their own premises on the following day.
82.The Tribunal does not accept that the first named applicant was a Falun Gong practitioner in China. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal does not accept that he was of adverse interest to the Chinese authorities. The Tribunal does not accept that the second named applicant was a Falun Gong practitioner in China. The Tribunal accepts that, since coming to Australia, the applicants have participated in Falun Gong related activities. The Tribunal is not satisfied that they are genuine Falun Gong practitioners.
83.The Tribunal does not accept that the applicants are at risk of serious harm or significant harm, for any of the reasons claimed, if they returned to China now or in the foreseeable future.
In relation to the applicants’ practice of Falun Gong in Australia, the Tribunal found that it was precluded from considering this under the refugee criterion by s 91R(3) of the Migration Act 1958 (Cth) (Act). This is because the Tribunal was not satisfied that it had been undertaken other than for the purpose of strengthening their protection claims. The Tribunal reasoned as follows in relation to this issue under the complementary protection criterion (at [87]-[88]):
87.The Tribunal is mindful that s.91R(3) of the Act does not apply with respect to conduct in Australia in the context of complementary protection. For the reasons given above, the Tribunal is not satisfied that the applicants are genuine Falun Gong practitioners. The Tribunal is not satisfied that they will practise Falun Gong or have any desire to do so on their return to China now or in the reasonably foreseeable future. The Tribunal does not accept that the Chinese authorities are aware of their Falun Gong related activities in Australia or that they are of adverse interest to the Chinese authorities for this reason.
88.The Tribunal is of the view that even if the Chinese authorities become aware of the applicants’ Falun Gong related activities in Australia in the foreseeable future, their concern would be with what activities they will engage in on their return to China. In view of the above, the Tribunal is not satisfied that they will practise Falun Gong or have any desire to do so on their return to China now or in the reasonably foreseeable future. Accordingly, the Tribunal finds that there is no real risk that they will come to the adverse attention of the Chinese authorities for this reason.
Having regard to the above, the Tribunal was not satisfied that the applicants met the criteria for a protection visa. Accordingly, the Tribunal affirmed the Delegate’s decision (at [84]-[94]).
PROCEEDINGS BEFORE THIS COURT
The applicants relied upon the following grounds contained in an application filed on 21 May 2018:
1.I have been a Falun Gong Practitioner for over 20 years. I am very devoted to my Practice of Falun Gong. Unfortunately, the Chinese Communist Party feels threatened by the influence of Falun Gong and has outlawed the practice, deeming all practitioners as part of an “evil cult”. I am in constant fear of the Chinese Communist Party because I believe I will suffer significant harm if I was ever taken by the Chinese Communist Party.
2.Personally, I believe I am someone who deserves Australia’s protection; that is my opinion and I understand it is up to Australia to decide. However, I strongly believe this decision should be made in fairness and justice. My application should be reviewed with an open and unbiased perspective that is absent of prejudice, I do not believe I have been treated fairly and equally during my application for protection. The following is my reasoning for this.
3.I attended a hearing before the Tribunal to provide vocal evidence for my application. During the hearing, the Tribunal member had a computer in front of her that she constantly operated and never lifted her eyes from. The Tribunal member relied heavily on the computer during the hearing as she would always be staring at the computer, tapping away on the keyboard, when asking questions or listening to my answers. This immediately gave me immense pressure because I felt as if she had already prepared a script of questions on the computer that she was following. Her style of questioning also revealed that her script formed the basis of the entire hearing because she would ask sets of questions that revolved around very specific parts, and would move on abruptly once I responded in a manner to her liking. As the hearing progressed and her style of questioning remained consistent, I became more and more nervous because I felt as if my answers did not matter unless she heard what she wanted to hear from me. It seemed to me she had already made up her mind about my case and was only asking questions so I could slip up and reinforce her position. I was extremely nervous when giving my responses, especially on things I could not exactly remember, because I believed she was only looking for mistakes.
4.After I received the decision record and read the Tribunal member’s reasoning for her decision, I was even more convinced that she was only trying to find mistakes and never really tried to see my situation from my perspective. Her main argument was that I gave inconsistent and evasive answers and she cited very specific detail errors to support her point. The Tribunal member understands fully well that given the circumstances of the hearing, it’s almost impossible to recount every detail exactly. Yet, she disregarded all the evidence I gave that were consistent with evidence I gave in previous interviews and applications and solely focused on the specificities I got wrong.
5.The Tribunal member went as far as showing indifference to all the witnesses whom were willing to vouch for the legitimacy of my status as a Falun Gong Practitioner and continue to make the assumption that I was only practicing Falun Gong for other interests. As a matter of fact, Falun Gong Practitioners are unforgiving towards those who do not take Falun Gong seriously and will never act their witness. I understand the Tribunal member may underestimate the significance of a Falun Gong Practitioner’s vouch for the legitimacy of a fellow practitioner, but to totally dismiss the witnesses and carry on making the assumption that I am not a real Falun Gong Practitioner speaks volumes to the prejudice the Tribunal member has over the legitimacy of my case. It further shows her intent had always been to look for mistakes and gather evidence to fail me.
6.Falun Gong is very sensitive and serious topic in China. There are serious consequences for its practice in China. I only wish for Your Honour to judge me with the appropriate empathy and understanding that anyone in my predicament deserves.
To the extent that the applicants sought to persuade the Court as to the merits of their protection claims, as was explained at the hearing of this matter, such a determination is beyond the jurisdiction of this Court. It is not this Court’s role to evaluate whether or not the applicants meet the criteria for a protection visa. This Court’s role is limited to determining whether there is some legally relevant error in the procedure or decision of the Tribunal.
Complaints that may have legal relevance that are identifiable in the application, and in the applicants’ written submissions filed on 9 July 2024, are that the Tribunal’s decision was affected by:
(a)actual or apprehended bias;
(b)identification of the wrong issue or asking of the wrong question; and/or
(c)the making of findings without evidence, without considering evidence, or in a manner that was not open on the evidence.
Was the Tribunal’s decision affected by bias?
As was discussed with the applicants at hearing, actual bias requires prejudgment in a manner so committed to a conclusion that it is “incapable of alteration”, regardless of arguments or evidence: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72] (Gleeson CJ and Gummow J). Apprehended bias requires that a “fair-minded lay observer might reasonably apprehend” that a decision maker “might not bring an impartial mind” to determination of the matter: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [33] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
The applicants contended that bias was demonstrated by the Tribunal treating them unfairly through the Member:
(a)relying heavily upon her computer and “script of questions” at the Tribunal hearing;
(b)adopting a style of questioning that appeared to seek errors or other issues in the evidence;
(c)disregarding the evidence the Applicant gave that was consistent and focusing upon what he “got wrong”;
(d)relying upon “specific detail errors” to support her credibility findings;
(e)showing indifference to, and dismissing, the applicants' witnesses; and
(f)making incorrect findings regarding Falun Gong.
Reliance upon the computer
The applicants contended that the Member relied heavily upon her computer at the Tribunal hearing and appeared to have prepared a “script of questions”.
At the hearing, it was discussed that there appeared to be no evidence of this. It was explained that the Court is unable to take into account what is said in the application, and from the bar table, as evidence. The applicants were informed of their ability to seek leave to give oral evidence. Ultimately, however, the issue was resolved by the parties agreeing as a fact for the purposes of these proceedings that the Member relied heavily upon her computer during the Tribunal hearing, was looking at it for much of the hearing, and appeared to be reading from a script of questions. The Minister was agreeable to this being taken to have been agreed without the need for sworn evidence.
I accept that the applicants may have been concerned at the hearing before the Tribunal that the Member was paying too much attention to her computer. This may have been misunderstood as disinterest on the part of the Member in relation to the evidence that was being given. However, the reason that the Member was relying upon her computer was most likely due to her desire to understand and consider the applicants’ evidence and claims. This is consistent with the detailed approach that seems to have been taken by the Member to the evidence. Although that evidence and those claims may have been familiar to the applicants, it is understandable that a person not as familiar with the applicants’ past experiences and situation might require some technological assistance in testing, recording and evaluating what was said during the Tribunal hearing.
Even assuming that the Member had prepared a list of questions for the purpose of testing the applicants’ evidence, this does not necessarily indicate actual or apprehended bias on the part of the Member. The Member was entitled to test the evidence before her, within reason: see SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [4] (Allsop CJ) and [33] (Flick J).
For the above reasons, I am not persuaded that the Member’s reliance upon her computer is capable of meeting the tests for bias. I am not persuaded that it indicates that the Member’s mind was closed to persuasion. I am also not satisfied that, on account of this, a “fair-minded lay observer might reasonably apprehend” that the Member “might not bring an impartial mind” to determination of the matter.
Questioning style and treatment of the applicants’ evidence
The applicants contended that the Member "was only asking questions…[to] reinforce her position", "was only trying to find mistakes", asked “sets of questions that revolved around specific parts, and would move on abruptly once” she received an answer that she wished.
As was raised in the Minister’s submissions and discussed at the hearing, there is no transcript in evidence demonstrating precisely what was or was not said at the hearing before the Tribunal. However, the Tribunal’s decision record sets out in some detail over a number of pages exchanges between the Member and the applicants. At the hearing before the Court, the applicants confirmed that it was these exchanges that they relied upon as indicating bias.
I accept that the Tribunal’s decision record indicates that many of the questions asked by the Tribunal concerned issues that it had identified regarding specific features of the applicants’ claims. For example:
(a)[29]-[31] of the decision indicates that the Member “raised” as “an issue” what it ultimately found to be the implausibility of the Applicant’s late claim that a practitioner the Applicant had been warned against contacting, and who was under surveillance, lived with the Applicant after his house had been demolished for two weeks.
(b)[36]-[41] indicates that the Tribunal “raised” as “an issue” that the Applicant had given a different version of events at the Tribunal hearing from what he had previously claimed as to how he obtained a copy of the book Zhuan Falun and took it back to China. The Tribunal also appears from these paragraphs to have raised “issues” regarding its concerns as to the plausibility of this claim which are summarised above.
(c)[42]-[43] indicates that the Tribunal asked the Applicant questions about any difficulties he had experienced in obtaining his passport, and “raised” as “an issue” with him country information suggesting that a person in his claimed circumstances would have had problems with obtaining a passport.
(d)[44] indicates that the Tribunal “reminded” the Applicant of his earlier evidence when discussing whether he had any problems in obtaining and renewing his passport.
(e)[46] indicates that the Tribunal “raised as an issue” with the Applicant “its doubts” regarding his ability to leave China twice in the circumstances claimed.
(f)[53] indicates that the Tribunal put to the applicants, pursuant to s 424AA of the Act, inconsistent evidence they had given regarding the purpose of their travel to Australia.
(g)[55]-[56] indicates that the Tribunal “raised as an issue with the applicants the implausibility” of the Applicant leaving a copy of Zhuan Falun in his house in China. This was given his claim that the police randomly searched his house and that this would have put his elderly mother at risk. The Tribunal also “reminded” the Applicant of earlier evidence he had given that was inconsistent with how he had said his mother would be treated by the police.
(h)[58] indicates that the Tribunal “asked” the Applicant about answers given in his visa application form and “sought clarification” about a new claim he had made at hearing regarding an arrest warrant.
(i)[59] indicates that the Tribunal “put” information to the applicants regarding their delay in applying for protection, “noted that it would expect that if they feared serious harm on their return to China” they would not have delayed applying for protection and “noted” that this “raised concerns about the credibility” of their claims.
(j)[60] indicates that the Tribunal “asked whether there was some reason why” the Applicant “was unable to respond at the hearing” to the above concern.
(k)[66] indicates that the Tribunal “asked” why the second applicant did not make any claims for protection on her own behalf in her visa application.
(l)[70]-[71] indicates that the Tribunal “asked [the Applicant] a number of questions in relation to his knowledge of Falun Gong”. Those questions are further considered below.
(m)[74] indicates that the Tribunal “asked about” photographs that had been submitted.
(n)[76] indicates that the Tribunal “discussed” its “concerns” with the applicants regarding their motivations for participating in Falun Gong related activities in Australia, within the context of s 91R(3) of the Act.
The questioning recorded in the Tribunal’s decision record appears to have been for the purpose of allowing the applicants to respond to various issues that it had identified with their evidence. This is reflected in the wording used in the decision record, where the Tribunal described “raising” as “issue[s]” various difficulties in the evidence that it had identified. The language used in this regard does not demonstrate that the issues were put to the applicants in such strong terms that a fair-minded lay observer might consider may have been other than for the purpose of allowing an opportunity to respond. The applicants’ responses appear to have been considered by the Tribunal. Although it is understandable that the applicants may have felt nervous at the hearing before the Tribunal, it has also not been demonstrated that this rose to a level whereby the applicants were denied the hearing required under s 425 of the Act.
It is understandable that the applicants may feel that the Tribunal was against them. This is in circumstances where the Tribunal has provided them with a decision in which their claims were significantly disbelieved on credibility grounds. It is also in circumstances where the Tribunal appears, from its decision record, to have been quite active during the hearing in testing their evidence and putting to them a number of credibility concerns.
However, the fact that the Tribunal did not accept the applicants’ claims is insufficient to found a contention of bias: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]. As was observed above, the Tribunal Member was entitled to test, and was under no obligation to accept, the evidence that was given. The examples of testing indicated by the Tribunal’s decision record does not demonstrate that any line was crossed regarding the permissible boundaries in this regard.
As was observed by the Minister, the Tribunal Member in this case considered the applicants’ claims and evidence in some detail, over 55 paragraphs, between [22] and [77] of her decision. This showed a level of interest on the part of the Tribunal Member in understanding and assessing the applicants’ claims.
I do not accept that it has been demonstrated that the Member disregarded, ignored or failed to consider any consistencies in the evidence or other matters favourable to the applicants. The inconsistencies in the evidence were a focus of the Tribunal’s decision, as they formed part of the reasons the Tribunal gave for its adverse credibility findings. However, this did not mean that the Tribunal was disinterested in considering evidence favourable to the applicants. The Tribunal did not doubt that parts of the applicants’ claims or evidence had otherwise been consistent. The Tribunal acknowledged some evidence in the applicants’ favour, through its acceptance that the Applicant had demonstrated some level of knowledge regarding Falun Gong (at [72]) and that the applicants had participated in Falun Gong activities in Australia (at [82]).
Ultimately, I am not persuaded that the evidence before the Court regarding the Tribunal’s questioning of the applicants and/or its treatment of the applicants’ evidence is capable of demonstrating actual or apprehended bias.
Reliance upon specific details
The applicants further contended that the Tribunal relied upon “very specific detail errors to support" its adverse findings. I accept that the Tribunal was concerned by inconsistencies in the specific detail of the applicants’ evidence. Those inconsistencies are summarised above.
However, I accept the Minister’s submission that the inconsistencies relied upon could not be said to have been peripheral or objectively minor matters: see AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83 at [28]. Rather, the inconsistencies concerned matters of central relevance to the Applicant’s claims, including how long he claimed to have been detained, what had happened to him during his detention, how often he had been required to report to the police, how often the police visited him, whether he experienced difficulties in obtaining his passport, and why he had travelled to Australia. It was the collective force of such issues that influenced the Tribunal’s credibility findings. I accept the Minister’s submission that it was open to the Tribunal to have been concerned by these matters and that such concern is not capable of meeting the high thresholds associated with grounds of bias.
Treatment of the applicants’ witnesses
The applicants contended that the Member showed indifference to their witnesses, notwithstanding the willingness of Falun Gong practitioners to support their claims.
The Tribunal was not persuaded that the evidence of the applicants’ witnesses overcame its credibility concerns. However, this does not mean that the Tribunal was indifferent to or failed to engage with the evidence before it from those witnesses.
The Tribunal summarised the witnesses’ evidence at [73] of its decision. No error in that summary has been demonstrated. The Tribunal observed that the witnesses had given evidence that the applicants participated in Falun Gong related activities in Australia. The Tribunal accepted this evidence (at [82]). However, the Tribunal was not satisfied that the applicants’ attendance at those activities was other than for the purpose of strengthening their protection claims (at [84]).
The Tribunal’s reasons for this were open to it on the evidence. In support of those reasons, the Tribunal raised a number of credibility concerns, which are summarised above. These included various inconsistencies that the Tribunal had identified, what it found to be the implausibility of certain aspects of the applicants’ claims and the applicants’ delay in seeking protection. The Tribunal was also concerned by the Applicant’s evidence that the photographic evidence of their participation in Falun Gong related activities had been taken for the purposes of their protection visa application.
It has not been demonstrated that this reasoning was relevantly closed to the Tribunal. The applicants may well disagree with this reasoning and consider that the Tribunal ought to have placed greater weight upon the fact that Falun Gong practitioners had been willing to give evidence in support of their application. However, that disagreement, without more, is not capable of demonstrating that the Tribunal’s reasoning was relevantly closed to it. Nor is it capable of demonstrating bias on the part of the Tribunal Member.
Findings regarding Falun Gong
At [7] of the applicants’ submissions, it was suggested that the Tribunal misunderstood what was said by Master Li regarding children from “mixed blood” marriages. This was submitted to suggest a “strong prejudice” on the part of the Member against Falun Gong.
However, as considered below, it has not been demonstrated that the Member’s understanding of Falun Gong based upon the information that was cited was relevantly closed to the Member. Further, even if the Member misunderstood this information, such misunderstanding would not in and of itself demonstrate prejudice on the part of the Member.
Conclusion regarding bias allegations
Having regard to the above in its totality, I am not persuaded that the thresholds associated with the tests for actual or apprehended bias have been met.
Did the Tribunal identify the wrong issue, ask the wrong question, make findings without evidence, or otherwise relevantly err in relation to the evidence before it?
In written submissions, the applicants drew attention to [71]-[72] of the Tribunal’s decision, which was as follows (footnotes omitted):
71.The Tribunal asked the first named applicant what the one thing is that Master Li tells Falun Gong practitioners they must do. He responded that they must learn the law and practise the exercises every day. In his teachings Li Hongzhi emphasises that the focus of Falun Gong practice is the mind with the cultivation of one’s mind and thoughts or “Xingxing” being singled out as the key to increasing Gong energy.3 When asked, according to Falun Gong teachings, what happens when a Falun Gong practitioner dies, he responded “we go to Falun World”. The Tribunal asked him what Master Li teaches about children from interracial marriages. He responded that he believes that everyone is equal and there is no difference. This is not consistent with Master Li’s teachings in relation to, for example, children from interracial marriages and homosexuals. For instance, Li Hongzhi teaches that children of “mixed blood” have a partition in the middle of their life and, if separated, the child will be physically and intellectually incomplete or a person with “an incomplete body.”4 The Tribunal would expect that if he was a devout Falun Gong practitioner as claimed he would have been aware of these teachings and if he was not aware of them, he would have truthfully answered that he did not know.
72.The Tribunal is satisfied that the first named applicant has some knowledge of the Falun Gong exercises and some basic knowledge of the teachings of Falun Gong. The Tribunal does not purport to be an arbiter of Falun Gong doctrine but his knowledge of the teachings of Falun Gong is not consistent with his claims that he has read Zhuan Falun, is a devout Falun Gong practitioner and has been a Falun Gong practitioner since 1998.
The applicants submitted that the question of what was “the one thing” that Master Li tells Falun Gong practitioners they must do was very general and unspecific. The applicants submitted that Master Li tells practitioners that they must do many things every day, including learning the law and practicing the exercises. The proper question, it was submitted, was what was “the focus” of Falun Gong practice.
I accept the Minister’s submission that the Tribunal’s question in this regard constituted permissible exploration of the Applicant’s beliefs and practices of Falun Gong. However, the applicants’ complaint goes further than this. The complaint raised appears to be that it was not open to the Tribunal to have used the answer that the Applicant gave against him in the manner that it did, given the imprecise nature of the question that was asked.
I have some sympathy with the applicants’ complaint in relation to this issue. The question regarding “the one thing” was potentially open to different interpretations. Another decision maker may well have considered the Applicant’s response as being an acceptable one. However, this is not sufficient to demonstrate that the Tribunal’s approach was logically closed to the Tribunal: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131] per Crennan and Bell JJ.
On balance, I accept the Minister’s submission that it has not been demonstrated that this part of the reasoning was relevantly closed to the Tribunal on the evidence. The Tribunal’s concern appears to have been based not upon a consideration that the Applicant had provided a wrong answer, but upon a lack of reference by the Applicant when discussing Falun Gong practice to what was indicated by the independent information as being the focus of Falun Gong practice. This was in a context where the Applicant had claimed a level of familiarity with the independent information that was considered by the Tribunal.
In written submissions, the applicants also appeared to take issue with the Tribunal’s reference to the Applicant’s response about what happens when a Falun Gong practitioner dies (recorded as “we go to Falun World”). It is not apparent that this was one of the answers with which the Tribunal took issue at [71]. In any event, it is not apparent how the Tribunal could be said to have relevantly erred in not reciting the additional information relied upon by the applicants in their submissions regarding what was said in Zhuan Falun about the Primordial Spirit (“From a high level, we find that when a person is dead, his Primordial Spirit does not become extinct”). It has not been demonstrated that the Tribunal’s approach to the evidence at [71] was not open to it, simply because it did not recite this material from Zhuan Falun.
At [6] to [8] of the applicants’ written submissions, challenge was made to information cited by the Tribunal regarding Falun Gong, which was said to have been “without evidence”. In particular, the applicants challenged what the Tribunal recorded as information about children with “mixed blood”. However, the Tribunal’s recitation of that evidence was derived from external information cited at footnotes 3 and 4 of the Tribunal’s decision. The material in question was annexed to the Affidavit of Sophia Russo filed on 22 July 2024 (Russo Affidavit).
The information in the Russo Affidavit is consistent with what the Tribunal considered had been said by Li Hongzhi in relation to children of “mixed blood” (page 39 of the Russo Affidavit). I accept, as was submitted by the Applicant at hearing, that the information did not state that Li Hongzhi had said that such people were unable to “cultivate themselves” or to “achieve salvation”. However, this is not what the Tribunal said at [71]. It has not been demonstrated that the Tribunal’s understanding of the evidence cited at [71] was relevantly closed to the Tribunal, based upon the information that it cited.
At [8] of their written submissions, the applicants complained that the Tribunal’s question to the Applicant at hearing (as recorded in [71] of the Tribunal’s decision) did not relate to homosexuality. However, the Tribunal’s observations about Master Li’s teachings in this regard were not in response to a question asked by the Tribunal, but rather an answer that had been given by the Applicant regarding equality.
The submissions also took issue with the Tribunal’s use of the term “interracial marriage” when discussing “mixed blood” children. Although the Tribunal appears to have asked about “children from interracial marriages” rather than “mixed blood” children in questioning the Applicant (at [71]), such terminology appears to have been used fairly interchangeably in the independent information that was relied upon. It is not apparent how any understanding on the part of the Applicant that the Tribunal was asking about children from “interracial marriages” caused any misunderstanding capable of affecting the outcome in the matter.
At [12]-[15] of the applicants’ written submissions, the applicants disagreed with the Tribunal’s assessment of their evidence regarding their motivations for practicing Falun Gong in Australia. However, the Tribunal was not obliged to accept the applicants’ evidence in this regard.
The applicants have not identified any evidence that was before the Tribunal that the Tribunal failed to consider. The Tribunal considered the applicants’ evidence from Falun Gong practitioners at [73], a USB containing photographs and videos said to show the “rainbow light of Gong energy” at [75], and other photographs at [74] of its decision. It was open to the Tribunal to have nonetheless not been satisfied that the applicants had participated in Falun Gong activities for purposes other than strengthening their claims to protection for the reasons that it gave. Those reasons have been considered above.
As found above, it was open to the Tribunal to have reasoned that that the evidence from the applicants’ witnesses demonstrated that the applicants had practised Falun Gong, but not that they had practised for purposes other than their protection claims. It was also open to the Tribunal to have been concerned that the photographs of the applicants participating in such activities had been taken for the purposes of the application. Similarly, it could not be said to have been closed to the Tribunal to have reasoned in relation to the material on the USB that it ought to be accorded no weight. This was in circumstances where the Tribunal considered that it was unable to verify that this material showed the “rainbow light of Gong energy”.
I appreciate that the applicants may well disagree with the Tribunal’s decision. I accept that it is possible that another decision maker may have taken a different view of their evidence. However, as has been considered above and was discussed with the applicants at the hearing, this does not provide the Court with a sufficient basis to set aside the decision of the Tribunal. It has not been demonstrated that the Tribunal’s reasoning was logically closed to it on the material. Nor has it been demonstrated that the Tribunal failed to consider evidence that was before it, denied the applicants procedural fairness, or otherwise made some error capable of attracting the intervention of this Court. For the reasons given above, I have not accepted that the ground of bias is able to be made out.
A FURTHER ISSUE
In written submissions, the Minister identified a further issue. This was that the Secretary failed to provide to the Tribunal a letter (Letter) that had been submitted by the applicants. The Letter was contained in the Supplementary Court Book. It was said to have been written by a Falun Gong instructor (Instructor). The Letter was dated 10 October 2015 and attested to various Falun Gong activities that had been participated in by the applicants in Australia.
The Secretary was required under s 418(3) of the Act to provide the Letter to the Tribunal. This did not occur. However, as was found in BBS15 v Minister for Immigration and Border Protection [2017] FCAFC 61; (2017) 248 FCR 159 (BBS15) at [105], a failure of the Secretary to comply with the duty under s 418 of the Act does not in and of itself constitute jurisdictional error. Such a breach may result in jurisdictional error, however, if an applicant were misled regarding the materials before the Tribunal, so as to cause the applicant to conduct the hearing to his or her substantive disadvantage: BBS15 at [93]. This was found to have occurred in BBS15 at [106]-[109].
I accept the Minister’s submission that the applicants could not be said to have been caused substantive disadvantage in circumstances where:
(a)on 16 January 2018, the applicant's representative emailed the Tribunal attaching a second letter from the Instructor dated 26 December 2017 that contained almost the same content as the Letter, with further additions and updates in accordance with the passage of time (CB 415-416);
(b)the Instructor attended the Tribunal hearing to give evidence. The Tribunal stated at [73] that the witnesses gave evidence that the applicants had done Falun Gong exercises with them, attended classes and various Falun Gong related activities, and that Falun Gong practitioners have been persecuted in China (at [73]). This indicates that there was already evidence before the Tribunal that the applicants had engaged in Falun Gong activities;
(c)the Tribunal expressly considered other evidence that the applicants had participated in Falun Gong activities in Australia including photographs (at [74] to [75]); and
(d)the Tribunal accepted that since coming to Australia, the applicants have participated in Falun Gong activities, however the Tribunal was not satisfied that they were genuine Falun Gong practitioners (at [82]). The Tribunal's finding on genuineness was not based upon a lack of participation in Falun Gong events, which the Letter would have corroborated.
On the basis of the above, I also accept the Minister’s submission that there was no realistic possibility that the Tribunal’s decision could have been different if the Letter had been provided to and considered by the Tribunal: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [7] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ.
It follows that I accept the Minister’s submission that the non-provision of the Letter to the Tribunal does not provide a basis for overturning the Tribunal’s decision.
CONCLUSION
For the above reasons, the application before the Court must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 16 August 2024
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