NBDS v Minister for Immigration - [2005] FMCA 368

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBDS v MINISTER FOR IMMIGRATION

[2005] FMCA 368

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of China – claim of well-founded fear or persecution for religious belief – applicant a follower of Falun Gong.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.475A

Abebe v Commonwealth (1999) 197 CLR 509
Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547
Minister for Immigration & Multicultural & Indigenous Affairs ex parte Durairajasingham (2001) 168 ALR 407
Minister for Immigration & Multicultural & Indigenous Affairs v Farahanipour (2001) 181 ALR 535
Minister for Immigration & Multicultural & Indigenous Affairs v Mohammed (2000) 98 FLR 405
Mohammed v Minister for Immigration & Multicultural & Indigenous Affairs [1999] FCA 868
NAQS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1137
Pilbara Land Council v MATSIA (2000) 103 FCR 539
Samaghi v Minister for Immigration, Local Government Ethnic Affairs (1991) 31 FCR 100
W148/00 A v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 95 ALR 703
W412/01 A v Minister for Immigration & Multicultural & Indigenous Affairs[2002] FCA 432
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFA 74

Applicant:

NBDS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2861 of 2004

Judgment of:

Scarlett FM

Hearing date:

16 March 2005

Date of Last Submission:

16 March 2005

Delivered at:

Sydney

Delivered on:

21 March 2005

REPRESENTATION

Counsel for the Applicant:

Mr Morris

Solicitors for the Applicant:

Michaela Byers

Counsel for the Respondent:

Mr Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That a Writ of Certiorari issue quashing a decision of the Refugee Review Tribunal made on 27 February 2004 and handed down on

18 March 2004.
That a Writ of Mandamus issue requiring the Refugee Review Tribunal to redetermine the matter according to law.
The Respondent is to pay the Applicant’s costs of this Application fixed in the sum of $7,150.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2861 of 2004

NBDS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Refugee Review Tribunal, affirming a decision of the delegate of the minister not to grant a protection visa to the applicant. The decision was made on

27 February 2004, and handed down on 18 March 2004.
On the day of the hearing the applicant obtained leave to file in Court an amended application seeking the following orders: (1) an order of certiorari against the respondent, quashing the decision of the Refugee Review Tribunal made on 27 February 2004 and handed down on

18 March 2004; (2) an order of mandamus requiring the respondent to consider and to redetermine, according to law, his refusal to grant to the applicant a protection visa application which was lodged by the applicant on 12 November 2001; (3) an order of prohibition against the respondent preventing the respondent from acting upon the decision of the Refugee Review Tribunal made on 27 February 2004 and handed down on 18 March 2004; (4) such further or other relief pursuant to section 39B of the Judiciary Act as may be required; (5) an order for costs.
The application sets out 11 grounds for relief. Those grounds are:

(1) the tribunal in its decision found the applicant was not a member of Falun Gong in China and in his decision failed to refer to the affidavit of Jing Hui Li, a document of such critical relevance of Falun Gong that the tribunal's failure to do so was a jurisdictional error; (2) the tribunal in its decision made a finding adverse to the credibility of the applicant and in doing so avoided considering documents from the Chinese police dated 12 January 2001, substantiating her detention and imposition of a monetary penalty, and thereby denying the applicant procedural fairness and natural justice; (3) the tribunal found that it could not accept the:
"...veracity of the statutory declaration from another person supporting the applicant's claims of persecution in China".
By not naming or identifying the unnamed person, or giving the applicant the opportunity to comment on or support the genuineness of the unidentified declaration, thereby failing to ensure procedural fairness in making its decision; (4) the tribunal in its findings introduced facts as the basis in part for its decision against the applicant, claiming an unproved expert knowledge of airline operations in China and in Australia, then comparing the operations of different airlines in different countries during unrelated times of the Sydney Olympics and a trade fair in Guangdong, China, without giving the applicant procedural fairness; (5) the tribunal erred in its findings by not accepting the veracity of the applicant husband's statutory declaration, and does not give any reasons for dismissing the statutory declaration, thereby denying the applicant natural justice and procedural fairness; (6) the tribunal has, in making its findings based on adverse credibility, failed to decide whether the applicant held a well‑founded fear of persecution if she should return to China and practice Falun Gong, thereby making a jurisdictional error; (7) the tribunal rejected the applicant's claim that she would be persecuted if she returned to China, in doing so failed to refer or take into account the statutory declarations of Jing Li, Chen Phuang and Nancy Chen, which were of such critical relevance that the tribunal, in not considering them, has committed a jurisdictional error; (8) the tribunal in its decision failed to take into account the relevant consideration of her husband's statutory declaration, and the applicant has been detained in custody is evidence which showed or tended to show that the applicant has a well‑founded fear of persecution if she returns to China; (9) the tribunal did not accord procedural fairness to the applicant in that the material presented by the applicant relevant to the applicant's case was disregarded by the tribunal, and so made a jurisdictional error; (10) the tribunal in its decision on the applicant's credibility takes into account irrelevant issues, and an irrelevant issue of the conduct of an unlicensed beauty salon from the applicant's premises, and proceeds to an adverse finding without any ground upon which to base its findings, contrary to procedural fairness and natural justice; (11) the tribunal did not put to the application the allegation that she commenced Falun Gong activities in Australia with the express purposes of strengthening her claim as to refugee status sur place within the meaning of section 91(O) of the Act. Those, then, are the grounds.
The fact situation is that the applicant is a citizen of the People's Republic of China. She arrived in Australia on 30 October 2001. She applied to the Department of Immigration and Multicultural Affairs, as it then was, for a protection visa on 12 November 2001.
The applicant submitted with her application a lengthy statement setting out the reasons why she sought protection in Australia. They referred particularly to her practice of Falun Gong in China, and the fact that she saw a special badge on Mr Li Jing Hui, a business manager in the company for which she worked. She said that she was very interested in the badge, and Mr Li Jing Hui told her that the badge was a symbol of Falun Gong, and that he was a Falun Gong practitioner himself.
A delegate of the Minister for Immigration and Multicultural Affairs refused the visa, and the Refugee Review Tribunal, differently constituted from the tribunal whose decision is before me, affirmed the delegate's decision on 16 April 2003. The applicant sought a review of the tribunal's decision by the Federal Court, and that Court set the decision aside and remitted the matter to the tribunal to be determined according to law.
The matter then came back before the tribunal, differently constituted, and the tribunal heard the application on 20 and 28 January 2004. The applicant gave oral evidence on both occasions in what were lengthy proceedings. It is clear that those proceedings were difficult for the applicant, as I note that on pages 358 and 359 of the Court book, the tribunal member, in his recitation of the facts, or recitation of the details of the hearing, pointed out that the applicant was in tears.
The first time he asked her if she wanted a break, but she said that she would prefer to continue. The second time the applicant was in tears, again the tribunal offered her an adjournment, quite properly, which she accepted. The hearing resumed. By that stage it had reached the end of its scheduled time, although it was, of course, part heard, and the matter was adjourned until 28 January. The applicant then gave further evidence on that date.
I note also that the tribunal member, on 20 January, not only asked the applicant to name the Falun Gong exercises, but asked her to demonstrate them. He said, at page 356 of the Court book, at about page 5:
"I asked her to name and demonstrate the Falun Gong exercises (I did not ask her to show the fifth one as she was wearing a skirt and it was performed seated on the floor and cross‑legged). She demonstrated the others to my satisfaction."
After the hearing, which extended over two days, the applicant considered the matter and made a number of findings with reasons. Those findings led the decision maker to the conclusion that he was not satisfied that the applicant was a person to whom Australia has protection obligations under the refugees convention as amended by the refugees protocol. That finding was based on a finding that the applicant did not have a well‑founded fear of persecution in China on any convention ground. As a result, the tribunal affirmed the decision not to grant a protection visa. It is this decision which the applicant seeks to have reviewed.
When the matter came before me I was fortunate enough to have written submissions on behalf of the applicant, prepared by Mr Morris of counsel. I was also fortunate to have written submissions on behalf of the respondent, prepared by Mr Reilly of counsel. Those submissions were detailed and well prepared by both counsel, and I found them to be very helpful.
In the applicant's submissions, Mr Morris put a number of matters on behalf of the applicant. In respect of grounds 1, 2, 3, 5, 7, 8 and 9, he submitted that the tribunal disregarded written statements from witnesses provided in post‑hearing submissions. He referred to statements by the applicant's husband, relating to her practice in Falun Gong in China, a statement by Jing Hui Li, to whom I have previously mentioned, relating to her practice of Falun Gong in China, of

Chen ‑ Phuang Chen and Nancy Chen, which related to persecution of Falun Gong practitioners upon return to China from Australia.
Mr Morris referred to the tribunal's finding that it could not accept the voracity of the statutory declaration from another person supporting the applicant's claims of persecution in China. That finding did not indicate the person's name, and did not state any reasons for such a finding.
Mr Morris put to me that this was a breach of section 430 of the Migration Act. He also submitted that this finding was not put to the applicant, she was not given the opportunity to address those findings. The submission also related to the failure by the tribunal to consider documents from the Chinese police dated 12 January 2001, relating to her detention and monetary penalty, as referred to at page 42 of the Court book. The documents show that the applicant was penalised with 15 days in custody for disturbing social order, and that she had appeal rights within 60 days to the superior level of the Police Department, and the document was a security management penalty.
Mr Morris noted that the tribunal was directed to consider this document by his Honour Hill J as an addition to the decision in

NAQS v The Minister of Immigration & Multicultural & Indigenous Affairs
, which was the proceedings taken by the applicant in the Federal Court, proceedings number N613 of 2003.
Mr Morris submitted that this evidence was relevant and cogent and was corroborative of the applicant's claim to have been detained in the circumstances that she alleged, for refugee convention reason ‑ see W412/01 A v The Minister For Immigration and Multicultural Affairs

2 FCA 432.
It was not open to the tribunal, he submitted, to state that it is unnecessary for it to consider material corroborative of an applicant's claims merely because it considers it unlikely that the evidence described by an applicant occurred. In such circumstances he submitted the tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant's credibility ‑ see WAIJ v The Minister For Multicultural and Indigenous Affairs [2004] FCAFC 74, at paragraph 27. I note that that is a decision of the Full Court of the Federal Court of Australia, and as such it is binding on the Federal Magistrates Court.
Mr Morris, in relation to ground 4, submitted that the tribunal erred by introducing facts and speculation into its findings related to unproved findings or knowledge on the operations of the airlines in China and in Australia. It is submitted in respect of ground 6 that the tribunal had, in making its findings, based on adverse credibility, failed to decide whether the applicant held a well‑founded fear of persecution if she should return to China and practice Falun Gong.
In respect of ground 10 Mr Morris submitted that the tribunal, in its decision on the applicant's credibility, took into account the irrelevant and insignificant issue of the conduct of an unlicensed beauty salon from the applicant's premises.
In respect of ground 11, Mr Morris submitted the section 91R(3) of the Migration Act has central importance in this case. That is the section, of course, that imposes an additional requirement on any person seeking to make a sur place claim under the convention. In that submission Mr Morris referred the Court to the decisions in Mohammed v Minister for Immigration and Multicultural Affairs (1999) FCA 868, judgment of Lee J; Minister for Immigration and Multicultural and Indigenous Affairs v Mohammed (2000) 98 FLR 405; Minister For Immigration v Farahanipaur (2001) 181 ALR 535.
Mr Morris also referred to a countervailing line of authority in Samaghi v Minister For Immigration, Local Government Ethnic Affairs (1991) 31 FCR 100, and pointed out to me that Lee J in Mohammed, the 1999 decision, had summarised the reasons of Gummow J in that case.
Mr Morris submitted that section 91R(3) was enacted to give primacy to the approach taken by Gummow J in Samaghi, to overcome what was perceived to be a different line taken by the Full Court in Mohammed. He submitted that the approach taken by Gummow J was not necessarily inconsistent with the convention.
Indeed, one would expect section 91R(3) is not intended by parliament to be inconsistent with Australia's obligations under the convention. Ultimately, as Lee J observed in Mohammed, the actions taken in Australia, which may be the basis of a sur place claim need to be ultimately assessed as against the protections afforded by the convention.
For the respondent, Mr Reilly of counsel pointed out that, in his submission, it was apparent that the applicant was unsuccessful because of the view the tribunal took of the facts; in particular its finding that the applicant was not credible and her claims were untrue. Such findings, he submitted, were matters of fact for the tribunal par excellence.
He referred to the decision of the Minister of Immigration and Multicultural Affairs ex parte Durairajasingham (2001) 168 ALR 407. He also referred the Court to Kopalapillai v The Minister For Immigration and Multicultural Affairs (1998) 86 FCR 547, and also W148/00A v The Minister for Immigration & Multicultural Affairs (2001) 95 ALR 703.
Those latter authorities support the proposition that so long as the tribunal's credibility findings were open to it, no error was demonstrated in those conclusions.
Mr Reilly referred the Court to the claim the tribunal failed to refer to the statutory declaration in Jing Hui Li, to which I have previously referred, but points out that the tribunal does refer to it at page 354 of the Court book, point 8, and rejects it at page 357 of the Court book, point 7.
He said that even if the tribunal did not refer to all of the evidence before it, this could not constitute a jurisdictional error because section 430 of the Migration Act does not require this.
Mr Reilly submitted that the ground 2 claim that the tribunal did not consider the Chinese police document, at page 42 of the Court book, points out that it was referred to at page 354 of the Court book, but was not considered supportive of the applicant's claims, and that was set out at page 357 of the Court book at point 7.
Mr Reilly referred to ground 3 in the claim, that the tribunal did not refer to the affidavit of Jing Hui Li by name. That can hardly constitute a jurisdictional error. He rejected the comment that this showed that the applicant was denied procedural fairness, and that she was not offered an opportunity to comment on the tribunal's findings rejecting the document.
He pointed out that it is well established that the tribunal does not need to put its thought processes or potential factual conclusions to an applicant for comment, or make a warning that claims may not be believed ‑ see Abebe v The Commonwealth (1999) 197 CLR 509 and Pilbara Land Council v MATSIA (2000) 103 FCR 539.
Again, Mr Reilly pointed out that in ground 4, that the fact that the tribunal did not expose its thought process to the applicant, and the issue of her explanation for the delay in leaving China, this ground fails, he submits; both because the tribunal did not have to, but also because the tribunal did raise the issue with the applicant.
He submits that the tribunal did not give reasons for rejecting the voracity of the applicant husband's letter, but he submits that it was plain that the tribunal rejected the letter as being inconsistent with its findings concerning the applicant, so reasons are given; therefore a failure to do so is not a jurisdictional error.
He points out the tribunal did decide whether the applicant had a well‑grounded fear of persecution, and he refers me to page 368 of the Court book at point 3. He points out, in respect to the claims at ground 7, that the tribunal did refer to the declarations of Chen Phuang and Nancy Chen because they are referred to at page 354 of the Court book at point 8. He did not need to give those declarations further consideration if they did not relate to the applicant's experiences in China.
He pointed out that the failure, or the alleged failure, by the tribunal to take into account the applicant husband's letter failed for the reasons previously given. He denied that the applicant then had procedural fairness by having material submitted by her disregarded, in that the tribunal did, he says, have regard to the material, but did not accept the claims, and that that was not a breach of procedural fairness.
In respect of ground 10, and the claim about the beauty parlour, Mr Reilly submitted that the tribunal did not need to warn the applicant that she may not be believed. He did point out that at page 360 of the Court book, at about point 3, that the tribunal expressed doubt about this claim to the applicant during the hearing.

Mr Reilly also submitted in respect of ground 11, that the tribunal did not have to give its potential conclusion that the applicant's activities in Australia were to be disregarded pursuant to section 91R of the Act. He did not need to give them to the applicant for her comment.
Mr Reilly's submissions went on to say that whilst the applicant's submissions rely heavily upon the decisions in the majority of

WAIJ v The Minister
(previously cited), but he submits that WAIJ turns on its own facts, in particular the majority's interpretation that the tribunal regarded itself as being able to disregard documents submitted on behalf of the applicant, if doubts could be cast on their provenance. He said that differs from the clear objection of relevant documents in this case, which is clearly a factual matter for the tribunal.
He said that as there was no jurisdictional error in the tribunal's decision, it follows that it is a primitive clause decision – see section 474 of the Act.
In oral submissions Mr Morris spoke to those submissions in some detail, and made points again about the police documents, and pointed out about the reference to the affidavit of Jing Hui Li; that if the tribunal is referring to Mr Li's statutory declaration, which is the important one, it seems strange that the tribunal should refer to

Jing Hui Li by use of a female pronoun.
Mr Reilly submitted that there was no evidence that Mr Li's gender had ever been made clear, but it is apparent from the documents to which I have referred, that the applicant makes it quite clear that Jing Hui Li is, in fact, a man. His evidence is most important to the applicant's claim.
At this stage I should say that it is apparent that the tribunal member may well have considered a number of cases relating to people from the People's Republic of China, who claim a protection visa on the basis of a well‑founded fear of persecution, they say, because of their following of the practices of Falun Gong.
It should be stressed, however, that it is not appropriate to deal with the applicant's case, or any other case, on the basis that this is "just another Falun Gong case". It may, in fact, be the 20th or the 50th case that the tribunal has heard relating to people who claim a protection visa on the basis of following the Falun Gong beliefs. However, each case must be considered on its individual merits. Each case must be considered afresh, and the facts of each case must be weighed by the decision maker with the same care as the decision maker would consider any other claim for a protection visa.
There are some matters that cause me some concern. I am mindful that a decision on the facts as to the credibility of facts is a decision for the tribunal par excellence. There are, however, matters in this decision which, at the very least, cause me some unease, but in certain cases go much further than that.
There is the issue of the applicant's claim that her departure from China was delayed for three weeks after she received her Australian visa because there was a trade fair in Guangdong, and it was difficult to book tickets to Australia. This is set out in ground 4 of the application.
The tribunal member said that that was not logical. He said that a major trade fair might make it difficult to obtain flights into, but not out of it over a period of several weeks. He goes on to say:
"I personally recall that during the Sydney Olympics, an event of far greater magnitude, while it was difficult to get inward flights, there was an abundance of spare seats for outward flights. I do not accept the advisor's contention that three weeks is not a large amount of time."
It has been submitted to me that this is an illogical method of reasoning. With respect, counsel for the applicant, logicality does not necessarily equate to jurisdictional error. However, taking an irrelevant consideration into account does constitute a jurisdictional error, where the taking into account of that consideration is of such a significance that it leads to an adverse finding as to the applicant's credibility.
With respect, it is not an appropriate comparison to compare airline flights in China during a trade fair with airline flights in Australia during the Olympic Games. It is a comparison of apples and oranges, and whilst it may not be logical, it is more than that.
The situation in Australia during the Olympic Games is irrelevant. It is an irrelevant consideration. But great weight has been put on it, to the extent that doubt was cast on the applicant's credibility. The assessment of credibility may well be a matter for the tribunal, but taking an irrelevant consideration into account to cast a shadow on the applicant's credibility is a jurisdictional error.
Mr Morris, of counsel, referred to the police documents. Those documents related to the applicant's return from a period of custody. It is apparent that the police in China have the power to impose a form of administrative detention ‑ though the applicant, on being released, travels back and is required to make payment for travel.
The documents did not refer to Falun Gong activities, but merely for disturbing the social order. Mr Reilly submits "Well, this is just a factual matter", but the Court may well say "So what?", but this is just a finding on the facts.
With respect, it is more than that. It is importing a concept into a factual situation that is not necessarily there, and is not, in fact, probative of the conclusion which it is intended to prove. It is irrelevant that the police documents did not refer to Falun Gong activities. Taking an irrelevant consideration into account is a jurisdictional error.
Again, in ground 10, counsel for the applicant refers me to the tribunal's adverse findings of the implausibility set out at page 366 of the Court book, relating to the applicant's operation of an unlicensed beauty parlour.
This implausibility ‑ namely the latent disclosure of the operation of that unlicensed beauty parlour ‑ was a significant finding going directly to the applicant's credibility. At page 366, at about point 9, the tribunal says:
"There are other implausibilities in her evidence which compound by adverse credibility findings. I am unable to be satisfied that the applicant did not mention the unlicensed beauty parlour business which she owned ‑ though did not attend very often ‑

in any of her evidence prior to the hearing before me because she did not consider it important and no‑one asked her about it.

I make this finding in view of her otherwise very considerable extremely detailed written evidence. I find that the existence of the beauty parlour, a not significant claim -"
That is my emphasis:
"- was a late invention aimed at explaining how she was able to carry out the copying of flyers unobserved and substantiating the flyers claim itself."
It is quite clear that this finding was a major finding by the tribunal, in finding adversely on the applicant's credibility.
Mr Morris, however, points out that this is not just a factual issue.

It would appear to me that the late finding of the backyard beauty salon, the unlicensed beauty salon, may well be insignificant, as Mr Morris submits, or, as he also submits, that it is an irrelevant consideration. It does not matter what it was. It is irrelevant to the claim that the tribunal had to consider.
Mr Morris submits, and I believe with some force:
"The tribunal erred in its conclusion that the applicant's claims could be discarded because it was not raised at the first opportunity. The tribunal must consider any of the material that supports the applicant's case, before determining that the failure to raise claims of a fear of persecution at the first opportunity led to the conclusion that the subsequent claim of copying flyers in the beauty salon was a late invention ‑ see Kopalapillai v The Minister For Immigration and Multicultural Affairs."
To which I have previously referred.
The tribunal commented at times that it was unable to accept the veracity of such matters as the husband's statement, and the husband's claims relating to a practice of Falun Gong in China. The tribunal does not say why. I accept the fact that a finding of fact is the province of the tribunal, but the tribunal is an administrative decision maker. It does not have the right of a jury in this country to make a finding without giving any reasons at all. It is an error, and an error of considerable magnitude, to make a finding of such gravity that an applicant's claim cannot be accepted, and thereby refusing to consider corroborative evidence to which Mr Morris has referred me.
By considering part of the evidence in order to make an adverse finding, and to disregard ordinary parts, the tribunal does not consider the evidence as a whole. To my mind, where that is on a significant issue, that must lead to jurisdictional error.
I am also referred to the statement at page 367 of the Court book, at about point 8:
"I am also unable to accept the veracity of the statutory declaration from another person supporting the applicant's claims of persecution in China."
Mr Morris submits, again, with respect, with some force, that this is just not good enough; that it was not made clear which statutory declaration is referred to. Mr Reilly of counsel begged to differ, and pointed out that by going through the statutory declarations, as other ones referred only to the practice of Falun Gong in Australia, by a process of elimination, one would come to the statutory declaration of Mr Jing Hui Li, whose evidence, as Mr Morris rightfully submitted, is important. It's important because it is only his evidence, and the evidence of the applicant's husband, that support the applicant's significant and substantial claim that she practised Falun Gong in China before she came to Australia, which is the reason why she came to Australia. The importance of that claim cannot be underestimated.
Now, to my mind it is just not appropriate to refer to evidence of such importance as:
"The statutory declaration from another person."
It is not appropriate for a decision maker, who is required to provide reasons, to refer to important evidence in such a vague way because a decision maker is only too well aware of the fact that his or her decision may well be subject to judicial review; and it is inappropriate to make a statement ‑ and quite a damning statement ‑ with such imprecision that the Court conducting judicial review is expected to trawl through the evidence in order to find a particular piece of evidence, a particular declaration, that meets the description given to it by the decision maker.
If there is a particular statement that is not to be accepted, it must be appropriately identified, otherwise the Court conducting the review cannot be satisfied that it is that piece of evidence that has been considered. Particularly in this case, where as Mr Morris pointed out to me in the hearing, where the important statutory declaration of Mr Li is referred to ‑ the decision maker refers to Mr Li as if Mr Li was a woman. To my mind this amounts to judicial error.
The other matter which I find a matter of concern is contained at page 368 of the Court book, at about point 5. The particular passage that concerns me is:
"On the basis of the evidence before me, of my adverse credibility findings, and of my sur place finding, I find that the applicant does not have a well‑founded fear of persecution in China on any convention ground."
Now, I have given my reasoning about the adverse credibility findings, and the basis for some of them. Looking at the sur place finding, to my mind that is a relatively minor part of the applicant's claim. The important part of the applicant's claim ‑ indeed, the significant part of the applicant's claim ‑ is that to which she has submitted a considerable amount of evidence, and that to which the declarations of her husband, and of Mr Jing Hui Li, go to, is the fact that she was practising

Falun Gong in China before she left China, and that is why she left China, to seek a protection visa. That is made quite clear in her application for a protection visa. The sur place refugee sur place finding, and the entire issue is, to my mind, insignificant and, in fact, so insignificant as to almost be a red herring.
To attach that degree of weight and to ignore or disregard, more correctly, evidence relating to the principal claim in the circumstances described to my mind, amounts to jurisdictional error.
It is for these reasons that I find that there are reviewable errors, and I propose to make a finding in favour of the applicant.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 29 March 2005