NBKB v Minister for Immigration
[2010] FMCA 939
•7 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBKB v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 939 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal erred in finding that the Applicant was not a Falun Gong practitioner – whether the Refugee Review Tribunal misconstrued country information – whether the Refugee Review Tribunal erred in disregarding the Applicant’s Falun Gong activities in Australia. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 474; pt.8 div.2 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Minister for Immigration and Citizenshipv SZJGV (2009) 238 CLR 642 |
| Applicant: | NBKB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2085 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 26 November 2010 |
| Date of Last Submission: | 26 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2010 |
REPRESENTATION
| The Applicant appeared in person assisted by a Mandarin Interpreter |
| Counsel for the Respondent: | Mr M.P. Cleary |
| Solicitors for the Respondent: | Mr D. Smith (Clayton Utz) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2085 of 2010
| NBKB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 23 August 2010 and handed down on 24 August 2010.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and a Falun Gong practitioner. (“the Applicant”).
The issues in this case are whether the Tribunal misconstrued country information and whether the Tribunal erred in disregarding the Applicant’s Falun Gong activities in Australia. These issues are considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.
Background
The Applicant arrived in Australia on 12 June 2004 having departed legally from China on a passport issued in her own name.
On 6 July 2004, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 13 July 2004, the Delegate refused the Applicant’s application for a protection visa.
On 5 August 2004, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 19 November 2004, the Tribunal affirmed the decision of the Delegate not to grant a protection visa (“the First Tribunal”).
The Applicant sought review of the Tribunal’s decision by the Federal Magistrates Court and on 1 September 2006, by consent, the Court set aside the decision and remitted the matter to the Tribunal to be determined according to law.
The Tribunal, differently constituted, again affirmed the Delegate’s decision on 18 December 2006 (“the Second Tribunal”). The Applicant sought review of the Tribunal’s decision by the Federal Magistrates Court. That application was dismissed. However on 11 February 2009 the Federal Court set aside the decision and remitted the matter to the Tribunal to be determined according to law.
On 23 August 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa (“the Third Tribunal”).
On 23 September 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
The Applicant provided a statement in support of her protection visa application. The Applicant claimed to have been an outstanding sales person and manager in China with a happy life. She stated that she commenced practising Falun Gong because she became ill. She stated she was introduced to Falun Gong through a friend in July 1997.
The Applicant claimed she was arrested on 2 March 2001 and detained by the Public Security Bureau for 3 days. She stated she was sentenced to re-education through labour for a year, during which she was tortured. She was also forced to denounce her Falun Gong support and to promise that she would not practise Falun Gong again.
The Applicant stated that, following her release from the labour camp, she was required to report to the local police station “at all times”.
The Delegate’s decision
On 13 July 2010, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Delegate found that the Applicant provided no evidence to substantiate her claims to have suffered Convention related persecution in China. The Delegate noted that the Applicant had lived at the same address in China for at least 10 years at the time of her departure from China. The Delegate also had regard to the Applicant’s ability to obtain a passport and to depart from China legally. The Delegate concluded that this indicated that she was of no interest to the Chinese authorities for any Convention related reason at the time she departed.
The Tribunal’s review and decision
The Applicant provided no further documents in support of her review application.
On 26 November 2009, the Tribunal wrote to the Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 18 January 2010 to give oral evidence and present arguments. The Applicant attended that hearing and provided oral evidence. The hearing was adjourned and a second hearing was scheduled.
On 29 January 2010, the Applicant provided further documentary evidence to the Tribunal through a migration agent, as requested at the hearing.
On 8 June 2010, the Tribunal wrote to the Applicant inviting her to attend a second hearing. The Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources, including the decisions of the First, Second and Third Tribunals.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“10. On 23 August 2010 the Tribunal Member affirmed the delegate’s decision not to grant a protection visa to the applicant.
11. In coming to her decision to affirm the decision of the delegate the Tribunal Member reviewed at length the written and oral claims and evidence provided by the applicant. Firstly, she reviewed the applicable law in unobjectionable terms. She then set out the first applicant’s claims and evidence. Finally, the Tribunal Member set out her findings and reasons.
12. The Third Tribunal Member found the applicant was not a genuine Falun Gong practitioner and that she had not suffered any Convention based harm whilst she was in China on that basis. The Third Tribunal found that having regard to the many inconsistencies in her account and the evolution of her evidence she did not consider the applicant’s claims relating to her Falun Gong practice or her activities in China to be credible, and found they were not credible [CB 308].
13. In coming to this conclusion the Tribunal set out seven reasons in paragraphs [124] to [130] why it considered the applicant’s claims were highly implausible and why the Tribunal did not accept that the claimed events occurred.
14. The Tribunal Member was not satisfied the applicant was a Falun Gong practitioner in China; that she distributed leaflets about the treatment of practitioners; or that she was held in a labour camp for a year as a result [CB 308]. The Tribunal Member did not accept the applicant was on reporting conditions to the PSB from 2002 to 2004, or was of any interest to the authorities when she left China openly and legally in 2004.
15. On the basis of the evidence presented to the Tribunal, in the form of statutory declarations, statements and photographs, the Tribunal Member accepted that the applicant had participated in Falun Gong related activities since her arrival in Australia in 2004. However, the Tribunal Member was not sufficiently persuaded by the evidence that the applicant had become a genuine practitioner since 2004 [CB 309]. The Tribunal was not satisfied that the applicant’s conduct whilst in Australia of participating in Falun Gong related exercises study and protest was otherwise than for the purpose of strengthening her claim to be a refugee, and accordingly disregarded those activities pursuant to s.91R(3) of the Act [ibid].
16. The Tribunal found the applicant was not a person to whom Australia owed protection obligations under the Act [CB 309]’
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 25 October 2010, the Applicant attended a directions hearing before me. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing and submissions in support of her application.
At the directions hearing, the Applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The Applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.
At the commencement of the hearing, the Applicant confirmed that she had not filed any amended application, evidence or submissions in support of her application and that she had no further documents to present to the Court this morning in support of her application.
The Applicant confirmed that she relied on the grounds contained in her application filed on 23 September 2010 as follows:
“1. The Tribunal fell into jurisdictional error by misconstruing the applicant’s claim about her Falun Gong background that she should have an assumed knowledge of the political events surrounding Falun Gong.
2. The Tribunal fell into jurisdictional error at ground 1 that the applicant was not a Falun Gong practitioner in China as she had a lack of knowledge of the events in April 1999 in her home town of Tianjin. And at paragraph 125 the Tribunal makes contradictory findings that constitutes a jurisdictional error that the applicant claimed that she clandlestinely [sic] distributed pamphlets from 1999-2001 was not consistent with her claim to have taken up the exercise for her health and to have done them only occasionally before 1999. The Tribunal made a further finding that it is implausible that a person with her claimed background would have taken such risks.
3. The Tribunal fell into jurisdictional error by finding that as the applicant was issued a passport she was not of any adverse interest to the police in Tianjin. At paragraph 126 by misconstruing the Independent Country Information that the applicant had the profile and / or background of someone who would be banned by a competent Department of the State Council from leaving China on national interest grounds.
4. The Tribunal fell into jurisdictional error by making a finding under s.91R(3) to disregard her activities in Australia in determining whether she has a well-founded fear of being persecuted for a Convention reason. At paragraph 141 on two flawed findings firstly, her claim that she was a Falun Gong practitioner was not credible and that she had not been truthful in her initial actions when she arrived in Australia.”
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
Grounds 1 and 2
Ground 1 asserts that the Tribunal erred by misconstruing the Applicant’s claims about her Falun Gong background and that the Tribunal was incorrect to assume that she had knowledge of the political events surrounding Falun Gong. Ground 1 was supported by particulars that recited claims made by the Applicant and findings made by the Tribunal.
In Ground 2, the Applicant asserts that the Tribunal erred in finding that the Applicant was not a Falun Gong practitioner in China because of her lack of knowledge of the events in April 1999 in her home town in Tianjin. Ground 2 asserts that the Tribunal’s findings were contradictory and the Tribunal was wrong to find that it was implausible that a person with her claimed background would have taken such risks.
In support of Grounds 1 and 2, the Applicant made oral submissions that the Tribunal’s decision was unfair. She said that the Tribunal Member did not have an understanding of Falun Gong because the Tribunal thought that handing out pamphlets was not part of Falun Gong and that Falun Gong is generally practised only for health reasons. The Applicant also said that the Tribunal’s view that only leaders of Falun Gong would be persecuted in China was incorrect.
The Applicant’s complaints arise from the following findings made by the Tribunal. They are as follows;
“I accept the evidence in the U.S Department of State report (2000 and 2002) that in 1999 there was a huge official propaganda campaign against Falungong, and that thousands of adherents were suffering very serious human rights abuses, a situation which was continuing in 2001. [The Applicant] claims that throughout this two year period she was clandestinely distributing pamphlets which she knew to be in support of the then banned Falungong. She could not have failed to be aware that this was an activity that could lead to her arrest. The high level of commitment to Falungong is not consistent with her claim to have taken up the exercises for her heath and to have done them only occasionally before 19999. It is implausible that a person with her claimed background would have taken such risks.”
The Tribunal found that the Applicant’s claims to have participated in Falun Gong related activities in China and to have been persecuted for those activities, are not credible for several reasons. They are substantially, as follows:
(i)The Applicant’s lack of awareness of the protest by Falun Gong practitioners in April 1999 in her home town. The Tribunal did not find the Applicant’s explanation that she was in another province at the time of the protest as persuasive. The Tribunal found that if she had been a Falun Gong practitioner in Tianjin from 1997 to 1999, as claimed, she would have heard about the protest from fellow practitioners there at some point, despite having been away when it took place. The Tribunal found that on her evidence she would have had numerous opportunities to learn of the protest in Tianjin, given that she stated she was clandestinely circulating Falun Gong pamphlets about the Government’s crack-down between 1999 and 2001. The Tribunal found that her lack of awareness was not consistent with her having been a Falun Gong practitioner in Tianjin, either before or after 1999.
(ii)The Tribunal found it implausible that a person with the Applicant’s claimed background would have taken the risks involved with distributing Falun Gong pamphlets between 1999 and 2001, given that she had commenced Falun Gong for health reasons and that she must have been aware that such an activity could lead to her arrest.
(iii)Based on country information before the Tribunal, if the Applicant had indeed been arrested and detained for being a Falun Gong practitioner and distributing leaflets after Falun Gong was banned, it was not plausible that she would be issued with a passport legally in Tianjin in November 2003 and able to leave China legally in 2004. The Tribunal noted the Applicant’s explanation that she was “lucky”. However the Tribunal was not satisfied by that explanation and found that the authorities would not have issued her with a passport or allowed her to leave the country openly if she was of adverse interest in China.
The Tribunal found that her evidence relating to her Falun Gong practice between 2002 and 2004 was “shifting and internally contradictory.” The Tribunal noted the various inconsistent statements made to the First Tribunal and the Tribunal. The Tribunal also identified the evidence that it found to be inconsistent in respect of information given to the Applicant to the First Tribunal and evidence given to the Tribunal.
The Tribunal noted that “Having regard to the many inconsistencies in her account and the evolution of her evidence as set out above, I do not consider her claims relating to Falun Gong practise or activities in China credible, and find that they are not”
The Tribunal then rejected the Applicant’s claims of ever having been a Falun Gong practitioner in China or of ever having distributed leaflets about the treatment of practitioners, or of ever having been held in a labour camp for a year as a result. The Tribunal did not accept that the Applicant had been on reporting conditions to the Public Security Bureau between 2002 and 2004 or that she was of any interest to authorities when she left China.
The Tribunal had regard to statutory declarations, statements and photographs provided by the Applicant in support of her various Falun Gong related activities in Australia in 2004. However, the Tribunal was not satisfied that the Applicant had engaged in such conduct other than for the purpose of strengthening her refugee claims.
It was open to the Tribunal to find that, if the Applicant was a genuine Falun Gong practitioner, she would have been aware of the protests in her home town in Tianjin in April 2001. It was also open to the Tribunal to reject the explanation given by the Applicant.
It was also open to the Tribunal to have regard to country information before it that persons of interests to authorities in China would not be able to freely leave China in a way the Applicant did. The Tribunal identified with specificity, the country information to which it had regard. It was open to the Tribunal to prefer that information to the evidence of the Applicant that the reason she was able to depart China openly and legally was because she was “lucky”.
The Applicant’s complaints to this Court were that the Tribunal Member did not understand Falun Gong, thought that handing out pamphlets was not part of Falun Gong and that Falun Gong was only for health. However, these complaints do not accurately reflect the Tribunal’s knowledge of Falun Gong as disclosed in its decision record.
At the heart of the Tribunal’s concern about the Applicant’s lack of awareness of the protest was the fact that the reports of the April 2001 protest were profound within the knowledge of Falun Gong practitioners. The Tribunal found this was particularly so where the Applicant claimed to have handed out pamphlets for two years, protesting against the crack-down of Falun Gong.
In the circumstances, the Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
“[67]…However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. …”.
Otherwise, the complaints by the Applicant in Grounds 1 and 2 are more in the nature of a disagreement with the findings and conclusions of the Tribunal. Such complaints invite merits review which this Court can not undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [195] per Gummow and Hayne JJ; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 40-42 per Mason J).
Accordingly Grounds 1 and 2 are not made out.
Ground 3
Ground 3 complains that the Tribunal’s finding that because the Applicant was issued with a passport, she was not of any adverse interest to the police in Tianjin, and that the Tribunal misconstrued independent country information. Ground 3 is supported by particulars that repeat the country information referred to by the Tribunal and that otherwise cavil the Tribunal’s findings.
As stated in Grounds 1 and 2 above, it was open to the Tribunal based on the country information to find that it was highly implausible that a passport would have been issued to the Applicant and that she would be allowed to leave the country openly, if she had been involved in Falun Gong activities in China for which she was persecuted as claimed.
It is well established that the country information to which the Tribunal has regard and the weight it gives to such information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10).
I accept the written submissions of counsel for the first respondent, Mr Cleary, that the dates of the DFAT reports are not necessarily relevant to the issue that the reports addressed. I accept that it was open to the Tribunal to supplement the evidence regarding the situation in 2004 in China in relation to Falun Gong practitioners with reports dated 2006 and 2008 from other authoritative sources.
As stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 3 is not made out.
Ground 4
Ground 4 asserts that the Tribunal erred in disregarding the Applicant’s activities in Australia in considering whether the Applicant has a well founded fear of persecution for a Convention related reason. Again, the particulars in support of Ground 4 cavil with the findings of the Tribunal. In particular, the Applicant disagreed with the finding of the Tribunal that she engaged in her Falun Gong activities in Australia other than to strengthen her refugee claims.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal accepted that the Applicant had been engaged in Falun Gong activities in Australia since 2004. However, the Tribunal found it particularly concerning that she told the First Tribunal that, when she arrived in Australia, she went to South Australia for business; whereas, she told the present Tribunal that she did not.
The transcript of the First Tribunal hearing was contained in the bundle of relevant documents, marked Exhibit 1R. The present Tribunal concluded that the Applicant “unequivocally told the first tribunal that she visited Adelaide on business shortly after her arrival, and told the Tribunal as now constituted that she did not”. (emphasis added).
There is no evidence before this Court that the transcript of the First Tribunal is in any way incorrect. Neither is there any evidence before this Court that the Tribunal’s summary of exchanges it had with the Applicant at the present Tribunal hearing is in any way incorrect. At the directions hearing before me on 25 October 2010, the Applicant was directed to file any evidence in support of her application, including any transcript. She was also directed to give notice to the Court and the first respondent if she wished to rely on the tapes of the Tribunal hearing. However, no such documents were filed by the Applicant, either in accordance with the Court’s directions or otherwise.
I also note that, as stated above, the Applicant participated in the Court’s legal advice scheme and received free legal advice. Further, she was provided with the contact details of other legal services providers and translating and interpreting services in documents headed in her own language.
In the circumstances, the Applicant has had every opportunity to obtain advice and file evidence in support of her claims and has failed to do so. Accordingly, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant, which makes clear that it put the inconsistent information to the Applicant.
Further, the extract from the First Tribunal’s hearing below makes clear that the present Tribunal’s characterisation of the Applicant’s evidence to the First Tribunal about going to South Australia as “unequivocal”, was correct. The relevant exchanges that the First Tribunal had with the Applicant about her reasons for coming to Australia and her travel to South Australia soon after her arrival are as follows:
TRIBUNAL MEMBER: Your statement to the Department doesn’t provide any details on why you obtained a passport in November of last year. Why did you obtain a passport then?
APPLICANT: At that time I was thinking I would not go back.
TRIBUNAL MEMBER: Not go back to where?
AAPLICANT: At that time when I was applying for the passport I was thinking of doing the alcohol business.
TRIBUNAL MEMBER: And you obtained – I’ll just check- you obtained I think it was in May of this year a temporary business visa to come to Australia. Did you say that you were coming for the alcohol business?
APPLICANT: To import red wine to China.
TRIBUNAL MEMBER: And when you came to Australia did you make any inquiries about red wine imports into China?
APPLICANT: No because two days after my arrival in Australia I went to Central in Chinatown and I saw a lot
...
TRIBUNAL MEMBER: That might explain how you would get employment but basically right up to the time you left China. It is my impression that you divorced before you left China, but in every other respect you appear to have been a very successful businesswomen, and that’s how you obtained a business visa to come to Australia.
APPLICANT: I did involve in the alcohol business in China and here I first come here I had no intention to stay here, not to go back.
TRIBUNAL MEMBER: What was your intention when you came to Australia?
APPLICANT: I stay in Sydney for two days and then I went to South Australia.
TRIBUNAL MEMBER: What took you to South Australia?
APPLICANT: There were winery there producing red wine and also to talk about alcohol business there.
TRIBUNAL MEMBER: Did you have any business cards or did you actually make contact with wine makers in South Australia?
APPLICANT: I’ve got an invitation, it was through a fax machine.
TRIBUNAL MEMBER: So when you went to South Australia you discussed business with the wine makers there?
APPLICANT: Yes, talk business.
Returning to the Applicant’s complaint about the Tribunal’s decision to disregard her evidence of Falun Gong practice in Australia, the Tribunal explored with the Applicant in some detail those claims. The Tribunal accepted that the Applicant had attended various Falun Gong activities. However, in considering the Applicant’s motivation for engaging in those activities, the Tribunal found that the Applicant engaged in those activities only to strengthen her refugee claims. The Tribunal did have regard to the Applicant’s advisor’s submission that the Applicant continued to engage in Falun Gong practice in Australia even when she thought she may have no chance of a further review. However, the Tribunal was not persuaded by that submission in the light of the Applicant’s general lack of credibility.
It was open to the Tribunal on the evidence and material before it to find that the Applicant had not engaged in Falun Gong practice in Australia other than for the reason of strengthening her refugee claims. The Tribunal correctly noted that, therefore, pursuant to s.91R(3) of the Act, it must disregard that conduct (see Minister for Immigration and Citizenshipv SZJGV (2009) 238 CLR 642).
Accordingly Ground 4 is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing and had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about her evidence, including inconsistent evidence given to the First Tribunal, and noted the Applicant’s responses. The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 7 December 2010
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