NBKC v Minister for Immigration - [2008] FMCA 1043

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBKC v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1043

MIGRATION – Review of Refugee Review Tribunal decision – no breach of s.424A of the Act – no obligation on Tribunal in circumstances to make enquiries – no denial of procedural fairness – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R(3), 424A, 424, 427, 65, 36(2)
Migration Amendment (Review Provisions) Act 2007 (Cth)

VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559; [2004] FCAFC 82
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
WAJA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330
QAAC v Refugee Review Tribunal [2005] FCAFC 92
Minister for Immigration and Citizenship v SZHXF [2008] FCAFC 36
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 47; [2004] FCAFC 123
SZICU v Minister for Immigration and Citizenship (2008) 100 ALD 1
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162; [2005] HCA 24
SZEPZ v Minister for Immigration and Multicultural Affairs (2006) FCR 291; [2006] FCAFC 107
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27; [2001] FCA 919
SZEZI v Minister for Immigration and Multicultural Affairs [2005] FCA 1195
SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78
SZCIC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1194
SZIDH v Minister for Immigration and Citizenship [2007] FCA 369
Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27; [2001] FCA 919
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91
SZDLR Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 773
Mahzar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188
Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472
Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230
Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant:

NBKC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 265 of 2007

Judgment of:

Nicholls FM

Hearing date:

9 May 2008

Date of Last Submission:

23 May 2008

Delivered at:

Sydney

Delivered on:

31 July 2008

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Appearance for the Respondents:

Ms M Mafessanti

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application made on 30 January 2007, and amended on 9 May 2007, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,950.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 265 of 2007

NBKC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

This is an application filed on 30 January 2007, and amended on 9 May 2007, made under the Migration Act 1958 (Cth) (“the Act”), which seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 15 December 2006, and handed down on 4 January 2007, which affirmed the decision of a delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.

Background

In compliance with orders made by the Court the first respondent has filed a bundle of relevant documents in this matter (the Court Book – “CB”) from which the following background may be discerned.
The applicant is a citizen of the People’s Republic of China (“China”). She arrived in Australia in April 2004. She applied for a protection visa on 23 April 2004. (The application is reproduced at CB 1 to CB 31, with annexures.) In her attached statement (at CB 26), she claimed to have been a “Falun Dafa” (Falun Gong) practitioner in China, and that in March 2002 she was detained by police, taken to the local police station and physically and mentally attacked.
The delegate’s decision is reproduced at CB 34 to CB 41. The delegate found that the applicant’s claims were “generalised and imprecise” and that her “fundamental claim that she is a Falun Gong practitioner is unsubstantiated by any documentary or other evidence”. The delegate found that the applicant had not had any organisational or spiritual involvement in Falun Gong (CB 40.6).

The Tribunal

The applicant sought review by the Tribunal on 28 May 2004 (CB 42 to CB 45). She asserted that she was a “Falun Gong believer”, and had been persecuted “due to … religious belief in Falun Gong”. The applicant appeared before the Tribunal (as previously constituted) on 24 August 2004. A report of what occurred at that hearing is contained in the decision record of the Tribunal (as earlier constituted) (see CB 61 to CB 72).
This decision was the subject of judicial review in this Court. It appears the matter never reached a hearing in this Court. Orders were made (by consent) on 1 September 2006 quashing the decision and returning the matter to the Tribunal to be determined according to law (CB 73).
The applicant was then invited to, and did appear, before the Tribunal (as subsequently constituted). The Tribunal’s account of what occurred at that hearing is set out in its decision record (see CB 109 to CB 120, and for the hearing in particular, see CB 112.8 to CB 115.4). The applicant also provided a number of documents and photographs, both at the hearing, and subsequently (see CB 87 to CB 91, and CB 97 to CB 105).
The Tribunal was not satisfied that the applicant had ever been a Falun Gong practitioner in China. This was based on inconsistencies in the applicant’s evidence given at the first and second hearings before the Tribunal. Further, it considered that her knowledge of “a number [of] facts relating to Falun Gong” was incommensurate with her claim that she had been a practitioner since 2001.
The Tribunal gave detailed reasons for this. These included that the applicant was confused with respect to questions relating to Falun Gong (which raised doubts about the level of her knowledge), several of her answers were inconsistent with independent country information, and based on the applicant’s initial inability to name any Falun Gong exercises or texts as compared with her ability to answer the questions before the Tribunal on the second occasion (CB 117 and CB 118).
It found her evidence to be confused and inconsistent with country information available to it, which raised doubts “about the veracity of her claims and her level of knowledge of Falun Gong” (CB 118 and CB 119).
The Tribunal reasoned that while it (at CB 119.4):
“… appreciates that some of the evidentiary concerns noted above may appear to be minor, when considered cumulatively, they are legitimate matters to be taken into consideration in raising serious doubts about the veracity of the applicant’s claims and her credibility generally. In light of those comments and in consideration of the evidence as a whole, the Tribunal reaches an adverse credibility finding.”
The Tribunal therefore rejected all of the applicant’s claims to have suffered any harm in the past in China, or that there was any real chance of persecutory harm in the future if she were to return to China.
In relation to the applicant’s claims to have been involved in some Falun Gong activities in Australia, the Tribunal accepted that the applicant had engaged in these activities, but found that it could not be satisfied that the applicant engaged in these activities otherwise than for the purpose of enhancing her application for a protection visa. It therefore disregarded this conduct pursuant to s.91R(3)(b) of the Act (see CB 119.8).
In relation to the applicant’s claim that she suffered from “uterine fibroids” and that this had led her to practise Falun Gong, the Tribunal noted that there was no evidence to show that the applicant could not receive appropriate medical treatment if she were to return to China (CB 119.9).
In all, therefore, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations, and affirmed the decision under review.

Application to the Court

By way of amended application, the applicant claims that there were errors of law in the Tribunal’s decision constituting jurisdictional error (see paragraph 3), the complaints are:
1)There was a failure by the Tribunal to comply with its obligations pursuant to s.424A of the Act in that the Tribunal relied on certain country information (four reports are referred to at paragraph 4 of the amended application), and did not provide that information to the applicant pursuant to s.424A of the Act. Further, it did not ensure that the applicant understood why that information was relevant to the review. Further, that this information should have been provided to the applicant before the hearing so that she could either comment in writing, or at the hearing.
2)The Tribunal only relied on independent country information that was not in her “favour”. Further, that there was other “ICI” (independent country information) that was available and was in the applicant’s “favour”, which the Tribunal failed to consider. The applicant lists three reports that the Tribunal failed to consider and that she alleges were “in her favour”.
3)The Tribunal breached s.424A(1) of the Act in: “its consideration of information obtained from material that I provided to the Department of Immigration and evidence I provided to the Tribunal” (paragraph 7).
4)There were “procedural errors in the Tribunal’s decision constituting an absence of natural justice” (see paragraph 12 of the applicant’s amended application). The applicant does not particularise these beyond what is already set out in the amended application although some of her complaints in her written and oral submissions probably relate to this complaint.
The applicant has also put before the Court two outlines of her written submissions – one filed on 9 May 2007 and the other filed on 3 December 2007. The submissions of 9 May 2007 mirror what is in the amended application. The submissions of 3 December 2007 are identical, other than they contained a further complaint (at paragraph 4):
“The member of the Tribunal who conducted the hearing for me showed a ‘bias’ and ‘inimical’ attitude on me. She always interrupted my answer. Before I finished answer one question, she interrupted me and jumped to the next one. I don’t believe that the Tribunal conducted a justice hearing for me.”
The applicant has also put before the Court, annexed to her affidavit of 8 May 2007, what she asserts is a transcript (“T”) of the hearing before the Tribunal.

Hearing Before the Court

At the hearing before the Court, the applicant appeared in person. She was assisted by an interpreter in the Mandarin language. Ms M Mafessanti appeared for the first respondent.
At the hearing the applicant submitted that:
1)The Tribunal “breached fair procedure”.
2)The Tribunal did not consider her claim fairly, and that she would be persecuted if she returned to China.
3)The Tribunal did not consider evidence which was to her advantage, it only considered material which was of “disadvantage” to her. The Tribunal did have country information before it which showed that Falun Gong was prohibited in China, and that in 2000 there was a “major crackdown on Falun Gong and other religious organisations in China” (see CB 116).
4)The Tribunal member treated me “unfairly at the hearing”, that she displayed “adversarial attributes” and was “full of bias”. In particular that she:
i)always “looked at the clock” when asking a question, and
ii)interrupted her answers.
5)That the interpreter at the hearing used an “electronic dictionary” and therefore the applicant did not know if her interpretation was “correct at all”.
At the hearing before the Court, and bearing in mind that the applicant was unrepresented before the Court (although I do note that she did access the Court’s Legal Advice Scheme), I gave the parties the opportunity to make further written submissions on the issue of whether the Tribunal relied on “information” with respect to the founder of Falun Gong (Li Hongzhi) which enlivened the obligation in s.424A(1) of the Act, and did not fall within the exception in s.424A(3)(a) of the Act.
Subsequent written submissions were received from the first respondent. Nothing further was received from the applicant.

Consideration – s.424A of the Act

The applicant asserts that the Tribunal breached its obligations pursuant to s.424A of the Act in a number of ways.
The applicant complains that the Tribunal relied on a number of international reports in the making of its decision yet it did not provide such information to the applicant for comment pursuant to s.424A(1) of the Act.
These reports under the heading of “Independent Country Information” were: UK Home Office 2002 – Revolution of the Wheel – the Falun Gong in China and in Exile (April) (CB 115.9), Human Rights Watch 2002 – Dangerous Meditation: China’s Campaign Against Falun Gong (February) (CB 116.1), Amnesty International 2000 – the People’s Republic of China: the Crackdown on Falun Gong and other So-called ‘Heretical Organisations’... (23 March) (CB 116.6), and UK Home Office China Country Assessment October 2002 (CB 116.8)).
To the extent that the Tribunal relied on independent country information being non-in personam information (that is, general country information that is not specifically about the applicant or another person) this falls within the exception contained in s.424A(3)(a) of the Act from the obligation in s.424A(1) of the Act. Other than in one regard (see further immediately below), the country information relied upon by the Tribunal plainly falls within this exception.
I did consider whether the reference by the Tribunal to “Li Hongzhi” and the time that he stopped teaching Falun Gong, taken from the UK Home Office report, fell within this exception.
A proper construction of s.424A(3)(a) of the Act has been the subject of consideration by the Full Federal Court (VHAP of 2002v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559; [2004] FCAFC 82 (“VHAP of 2002”), Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; see also WAJA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330, ultimately endorsed in QAAC v Refugee Review Tribunal [2005] FCAFC 92 (“QAAC”)).
See in QAAC the reference to VHAP of 2002 (at [20]):
“In VHAP of 2002, Gyles and Conti JJ held that the proper construction of s 424A(3)(a) of the Act was that the words ‘just about a class of persons of which the applicant or other person is a member’ were included to underline the specificity required and to preclude any argument that reference to a class would be taken as reference to all individuals falling within it. Allsop J agreed with the construction arrived at by Gyles and Conti JJ.”
In this regard see Minister for Immigration and Citizenship v SZHXF [2008] FCAFC 36 (“SZHXF”) (at [19]) for the proposition that there is no obligation on the Tribunal to put certain information to an applicant for comment:
“In considering whether certain information is specifically about an applicant or another person for the purposes of s 424A(3)(a) of the Act, it is not necessary for the Tribunal, as a separate requirement, to make a finding that the relevant ‘information’ is ‘just about a class of persons of which the applicant or other person is a member’. The Full Court observed in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at 563 that the reference to the ‘class of persons’ in s 424A(3)(a) ‘is not another criterion to be met’. Rather, the reference ‘is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it’ ….”
The issue for consideration now is that even within what is set out in the authorities above with regard to the proper construction of s.424A(3)(a), whether the Tribunal’s reference to country information, including the reference to Li Hongzhi (the founder of Falun Gong) and in particular, as to when Li Hongzhi wrote an important text relating to the philosophy of Falun Gong (see CB 118.4), and information about when Li Hongzhi stopped teaching Falun Gong (see CB 118.9), enlivened the obligation in s.424A(1) of the Act, and did not fall within the exception in s.424A(3)(a) of the Act.
The Tribunal made reference to Li Hongzhi at the hearing it conducted with the applicant (with reference to the applicant’s transcript (“T”) and the Tribunal’s account):
1)T 9 (see also CB 113 to CB 114, and CB 118):
“Member:Who wrote Zhuan Falun?
Interpreter:    (Mandarin)
Applicant:(Mandarin)
Interpreter:    Li Hongzhi. L i ….
Member:Okay, I can spell that.
Member:When did Li Hongzhi write Zhuan Falun?
Interpreter:    (Mandarin)
Applicant:(Mandarin)
Interpreter:    He wrote this book in May 1992.
Member:Are you sure that’s the time when he wrote the book?
Interpreter:    (Mandarin)
Member:You sure?
Interpreter:    (Mandarin)
Applicant:(Mandarin)
Interpreter:    Yes.
Member:When did Li Hongzhi fund Falungong?
Interpreter:    (Mandarin)
Applicant:(Mandarin)
Interpreter:    In May 1992.
Member:So he wrote the book and funded it then, didn’t he?
Interpreter:    (Mandarin)
Applicant:(Mandarin)
Interpreter:    Sorry.
Applicant:(Mandarin)
Interpreter:    Sorry, he funded Falungong in 1992, he wrote the book in maybe 1993, sorry I cannot remember he exact date.
Member:When I asked you before, you were very certain that he wrote in May 1992, why are you confusing now?
Interpreter:    (Mandarin)
Applicant:(Mandarin)
Interpreter:    I was very nervous just now, so I mixed up the date, the date.
Interpreter:    (Mandarin)
Applicant:(Mandarin)
Interpreter:    I am really nervous.
Member:I will need to think about that, thank you.”
2)T 10 (see also CB 113 to CB 114, and CB 118):
“Member:How much do you know about Li Hongzhi”
Interpreter:    (Mandarin)
Applicant:(Mandarin)
Interpreter:    (Mandarin)
Applicant:(Mandarin)
Interpreter:    I mainly just lean the way, the way of Falungong that he funded because I had some medical condition.
Member:That doesn’t tell me how much you know about him at all, I am sorry.
Interpreter:    (Mandarin)
Applicant:(Mandarin)
Interpreter:    I don’t quite understand your mean.
Member:I am giving you an opportunity to demonstrate to me that you know something about Li Hognzhi.
Interpreter:    (Mandarin)
Applicant:(Mandarin)
Interpreter:    I don’t know how to say. Li Hognzhi is the person somehow, he is in America now, he just called, told, encouraged us to be truthfulness, to be truthful, to be benevolent and to be tolerate.
Member:That’s very big and general, [applicant].”
3)T 11 (see also CB 113 to CB 114, and CB 118):
“Member:Could you tell, if you know, when did Li Hongzhi and his family seek asylum in New York in America?
Interpreter:    (Mandarin)
Applicant:(Mandarin)
Interpreter:     (Mandarin)
Applicant:(Mandarin)
Interpreter:    Okay to be frankly, to be honest, I don’t know much about this because I only started practising Falungong in 2001.
If you don’t know basic things and certain things about a very important person in Falungong, I might raise some doubts in mind about you have been a practitioner.
Interpreter:    (Mandarin)
Member:Genuine Falungong practitioners know all of about Li Hognzhi, they know a lot about Zhuan Falun, they have very good understanding of his work.”
4)T 11 (see also CB 113 to CB 114, and CB 118):
“Member:They also have good understanding of the history of certain events, of certain significant events.
Interpreter:    (Mandarin)
Member:Do you know when Li Hongzhi stopped teaching Falungong?
Interpreter:    (Mandarin)
Applicant:(Mandarin)
Interpreter:    You mean stop? Li Hongzhi never stopped.
Member:He stopped teaching Falungong.
Interpreter:    (Mandarin)
Applicant:(Mandarin)
Interpreter:    Li Hongzhi never stopped teaching Falungong.
Member:Well, independent country information indicates to me that he did, at some point he did.
Interpreter:    (Mandarin)
Member:Because the authorities in Hangzhou took action to stop the spread of Falungong.
Interpreter:    (Mandarin), Hangzhou?
Member:Yes, Hangzhou/
Interpreter:    (Mandarin)
Applicant:(Mandarin)
Interpreter:    Can I say something now?
Member:Yes.
Interpreter:    (Mandarin)
Applicant:(Mandarin)
Interpreter:    Yes, it maybe stopped, but Falun is eternal, we never as practitioner never stop practising.
Member:That doesn’t answer my question, [applicant].
Interpreter:    (Mandarin)
Member:I asked you – when did Li Hognzhi stop teaching Falungong.
Interpreter:    (Mandarin)
Applicant:(Mandarin)
Interpreter:    Teacher Li Hongzhi never, has never stopped teaching Falungong.
Member:In China he had to at some point.
Interpreter:    (Mandarin)
Member:Independent country information indicates to me that in 1995, at some point in 1995 Li Hongzhi stopped teaching Falungong, the authorities in Hangzhou took action to stop the spread of Falungong.

The Tribunal affirmed the decision under review because of the adverse view that it took of the applicant’s credibility. As set out above, this included its finding that the applicant’s “knowledge of a number of facts relating to Falun Gong is incommensurate with her claims that she has been a practitioner since 2001” (CB 117.8).
Its conclusion, based on “the evidentiary concerns”, was that it had “serious doubts about the veracity of the applicant’s claims and her credibility generally” (CB 119.4).
First, I note what was said by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) at [18], and the endorsement of the majority of the Full Federal Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 47; [2004] FCAFC 123 at 476-477.
The Tribunal’s adverse view, therefore, of its appraisal of the applicant’s evidence involving the reference to Li Hongzhi, was not “information” for the purposes of s.424A(1) of the Act such as to enliven the obligation set out in that section.
Second, the first respondent relies on the Full Federal Court (per Tamberlin, Gyles and Stone JJ) in SZHXF for the proposition that reference to information about a religion or some “movement” for the purpose of testing an applicant’s level of knowledge about that religion, and the applicant’s credibility, does not engage s.424A(1). Information about leading figures in a religion therefore does not come within s.424A(3)(a) because it is not “information” “about another person” within the meaning of s.424A(3)(a) of the Act.
In SZHXF the Full Court had before it a Bangladeshi citizen who claimed to be of the Ahmadi faith (see SZHXF at [2]). The Tribunal’s decision included references to the relevant Ahmadi organisation and one of its leaders (“the Ameer”) (see SZHXF at [3]). Its decision turned on the question as to whrther the applicant was “a genuine Ahmadi” (SZHXF at [4]).
For the purposes of the case currently before the Court I note (and will apply) what was relevantly said in SZHXF at [15] and [16] about the nature of such information for the purposes of s.424A(1):
“15The second matter to be considered relates to the Tribunal’s mode of assessing of the genuineness of the first respondent’s case, namely, by testing his familiarity with the Ahmadi faith and how it differs from the Muslim faith. The material gathered from this questioning process, such as information about figures of religious significance to the Ahmadi, is not, of itself, the reason or part of the reason for affirming the Minister’s decision that a protection visa should not be granted. Rather, it is a body of material used by the Tribunal as part of its evaluation exercise to weigh and consider the first respondent’s claim that he is an Ahmadi and is therefore subject to persecution in Bangladesh.
16In this case, the material relating to the Ahmadi faith was used by the Tribunal in a process of reasoning which allowed it to reach a conclusion that the first respondent’s beliefs were not genuine. This conclusion was formed pursuant to reasoning which assumed that knowledge of important aspects of the Ahmadi faith is indicative of the authenticity of a person’s assertions that he or she is a genuine Ahmadi. By way of example, where a question arises as to whether a person is a Christian, it may be relevant for the Tribunal to ask him or her questions about biblical incidents and teachings, and it would not be necessary for the Tribunal to produce to that person, as ‘information’ under s 424A of the Act, a copy of the Bible itself. Material which sets out basic religious beliefs is not information which is directed to a determination of an application. Rather, it is a tool which may be used to test and evaluate the credibility of evidence furnished to the Tribunal by an applicant or any other source.”
I agree with the first respondent that the references to and about Li Hongzhi and his work (books) do not enliven s.424A(1) of the Act. In itself, it was not “information” relied on by the Tribunal “for affirming the decision that is under review”. None of the material of, and about, Li Hongzhi stood in contradiction to the applicant’s evidence. As the first respondent submits, in its own terms this material did not undermine, reject or deny the applicant’s claims. (See SZICU v Minister for Immigration and Citizenship (2008) 100 ALD 1.)
Other than in response to the Tribunal’s questions as to when Li Hongzhi stopped teaching Falun Gong the Tribunal did not compare the applicant’s evidence to any other material or information. It was the applicant’s own answers, her failure to adequately or satisfactorily provide clear or relevant answers, that led to the Tribunal forming its adverse view as to her credibility, which was the reason for affirming the decision under review.
But even with the one area of answers dealing with when Li Hongzhi stopped teaching Falun Gong, the applicant’s answer was compared to independent country information. It was the adverse comparison, not the material itself, which formed part of the reason for affirming the decision under review.
In applying what was relevantly said in SZHXF, the Tribunal in the current case tested the applicant’s familiarity with Falun Gong principles, its history and development. The “material gathered from this questioning process is not of itself, the reason or a part of the reason for affirming the delegate’s decision that a protection visa should not be granted” (SZHXF at [15]).
The reference to Li Hongzhi was part of a body of material used by the Tribunal as part of its evaluation exercise as to whether the applicant was a Falun Gong practitioner and therefore subject to persecution in China.
The material relating to the history of Falun Gong was used by the Tribunal in reaching its view that the applicant was not a Falun Gong practitioner. The Tribunal reasoned that a genuine Falun Gong practitioner would know about such history, principles and literature of Falun Gong, particularly as in the applicant’s case she claimed to have been a practitioner for some time (see CB 117.8).
I agree therefore with the first respondent that no obligation pursuant to s.424A(1) was enlivened.
Given this, it is not really necessary to further consider the matter as set out in SZHXF at [22], and to apply it to this case:
“Finally, in our view, references by the Tribunal to religious figures prominent in the Ahmadi faith, such as Mirza Ghulam Admad, Jesus Christ and the prophet Muhammad, is not "information" within the meaning of s 424A(3)(a) of the Act. The references to these figures and any material about how they are perceived by the Ahmadi faith is not, in substance, information about those figures themselves. Rather, it is information about how others perceive such people, and the role that such a perception plays in the lives of those who hold it. Such oblique and tangential references to religious leaders is not, in our view, to be described as information about another person within the meaning of s 424A(3)(a).”
In any event, the reference by the Tribunal to Li Hongzhi, the “founder” of Falun Gong, is comparable to the references to religious figures prominent in the Ahmadi faith (as relevant in SZHXF).
In my view, the Tribunal’s questions about Li Hongzhi, the “information” involved and provided in such questions, were not in substance questions about Li Hongzhi, the person, but rather part of the religious beliefs and tenets of the faith (equating for these purposes, the belief and practice of Falun Gong with what could normally be regarded as a religious faith).
When the founder of a religion was said to have written the book central to the faith, when he stopped teaching, and matters of this type go far beyond being about “another person” within the meaning of s.424A(3)(a) of the Act. The references to the most prominent figure in Falun Gong in my view fall within the reasoning of SZHXF at [22]. Plainly, the “information” about the “Founder” of Falun Gong was put to the applicant, amongst other matters, to test the credibility of her claim to be a Falun Gong practitioner. A test which in the Tribunal’s view she failed. This therefore, also, would not assist the applicant.
The applicant also complains that the independent country information should have been provided to her prior to the hearing so that she could comment in writing, or orally, during the hearing. Even putting to one side whether the “information” is in any event caught by s.424A(3)(a) or s.424A(3)(b) or is “information” for the purposes of s.424A(1) (see SZBYR at [17]-[18]), this is a case to which s.422B applies, making the provisions of Division 4 of Part 7 of the Act (as they were prior to 29 June 2007 – preceding the introduction of Migration Amendment (Review Provisions) Act 2007 (Cth)).
In this context, the obligation set out in s.424A(1) of the Act does not require the Tribunal to provide any such information prior to a hearing (see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162; [2005] HCA 24 (“SAAP”) at [71], [154] and [202]. See also SZBYR at [13] to the effect that the proposition drawn from SAAP that the “temporal effect of section 424A” was not limited to the pre-hearing stage and that that proposition did not determine the outcome in SZBYR to the extent that what was said in SZBYR at [19] may suggest a position contrary to that proposition.).
The short answer however to the applicant’s complaint is that given that the information to which she refers was either not “information” for the purposes of s.424A(1), or was excluded from that obligation by virtue of s.424A(3)(a) or (b), then as the Tribunal’s obligation pursuant to s.424A(1) is to give only such information as is enlivened by that section, then there is no obligation to provide such material (to which the applicant refers) before the hearing, or for that matter after the hearing.
To the extent that there is an implication in the applicant’s complaint that the Tribunal’s adverse views of her evidence were derived, in part, from comparisons with country information, and that those adverse views should have been put to the applicant pursuant to s.424A for comment, then such adverse views are plainly not “information” for the purposes of s.424A. Nor are the perceived inconsistencies in the applicant’s own evidence (see SZBYR at [18] and the reference to VAF).
The applicant also complains (at paragraphs 7 to 11 of the amended application) that the Tribunal breached its obligation pursuant to s.424A(1) in its consideration of information “obtained from material that I had provided to the Department of Immigration and evidence I provided to the Tribunal”.
Again, the Tribunal’s adverse views of inconsistencies in the applicant’s evidence, including evidence provided to the previously constituted Tribunal, plainly falls within what was said by the High Court in SZBYR at [18]. The Tribunal’s adverse views of her evidence are not “information” for the purposes of s.424A(1) of the Act.
Further, to the extent that the Tribunal made reference to the applicant’s evidence provided to the earlier constituted Tribunal, the Tribunal was entitled to have regard to this evidence. (See SZEPZ v Minister for Immigration and Multicultural Affairs (2006) FCR 291; [2006] FCAFC 107 at [39]:
“… An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.”)
For the purposes of s.424A(1) of the Act this was information given for the purposes of the review and falls within the exception contained in s.424A(3)(b) (see SAAP at [50], per McHugh J (citations omitted):
“The obligation on the Tribunal to give the invitation and to invite comment on the information is expressed in broad and general terms. The obligation does not apply to information that the applicant gives, regardless of when that information is given (see s 424A(3)(b)). It applies to information received by the Tribunal from sources other than the applicant.”)
The applicant also complains that the Tribunal breached its obligation in relation to s.424A(1) in relation to its consideration of information obtained from material that she provided to the first respondent’s Department. In this regard, the applicant refers to SAAP. She probably also infers a reference to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 and Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27; [2001] FCA 919. (See generally paragraphs 7 to 10 of the amended application, and paragraph 10 in particular: “from material … provided as part of my application”.)
In SZBYR the High Court more recently dealt with the operation of s.424A, and the issue of what constitutes “information” for the purposes of that section (see generally [15] to [22]).
With reference to what was said in SZBYR, particularly at [17] and [18], in the current case, it is clear that the Tribunal formed an adverse view of the applicant’s credibility based on evidence that she herself gave to the Tribunal. The inconsistencies in her evidence, and the Tribunal’s view that her knowledge of relevant facts relating to Falun Gong was “incommensurate” with claims that she had been a practitioner since 2001, were the reasons for affirming the decision under review.
In any event the “information” in the material provided to the first respondent’s Department did not “contain in their terms a rejection, denial or undermining of the [applicant’s] claims to be [a person] to whom Australia owed protection obligations” (SZBYR at [17]).
Further, some mere reference to the applicant’s protection visa application in its decision record does not in itself constitute the reason, or part of the reason, for affirming the decision that was under review. Plainly, in this case where the Tribunal made reference to what was stated in the application for a protection visa (CB 112.3) (that is, setting out her claims to protection), it cannot be said that such information was the reason, or part of the reason, for affirming the decision under review such that s.424A(1) is enlivened (see SZBYR at [17]). (See also SZEZI v Minister for Immigration and Multicultural Affairs [2005] FCA 1195, SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78, SZCIC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1194, SZIDH v Minister for Immigration and Citizenship [2007] FCA 369.)

Consideration: Country Information

At paragraph 4 of the amended application, the applicant also complains that the Tribunal cited, and relied on only particular country information. When read with paragraph 2 in her outline of submissions (both versions), the complaint appears to be that the Tribunal only considered evidence which was not in favour of the applicant, and did not consider the evidence which was in her favour (see further below).
The answer to the applicant’s complaint is that the choice of country information, and the weight to be given to that information, is a matter for the Tribunal itself as part of its function as the finder of fact (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11], VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91 and SZDLR Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 773).
Further, in paragraph 5 of her amended application, and also in both written and oral submissions before the Court, the applicant complains that the Tribunal did not consider independent country information which was in her favour. The applicant sets out extracts from relevant documents which she says were “in her favour”.
Unfortunately for the applicant, she has not put any evidence before the Court, nor is it indicated from any of the material before the Court, that the applicant sought to put such reports before the Tribunal in support of her claims. Nor that she asked the Tribunal to refer to these reports (see further below).
In these circumstances, I cannot see that there was any obligation on the Tribunal to have had regard to these reports. Plainly, there was opportunity for the applicant to have submitted these reports or to have made reference to them before the Tribunal. Noting that the applicant did give the Tribunal documents some two and a half weeks after the hearing, which the Tribunal did take into account (CB 115.6 and CB 119.7), there is nothing in this material to show that the applicant made any reference to the independent country information reports which she now says the Tribunal should have considered.
Nor can I see any obligation, in the circumstances, for the Tribunal to have exercised the discretionary powers available to it to have sought further information in this regard (ss.424 and 427).
Ultimately, it is for the applicant to have put her case, such that the Tribunal could be satisfied that a protection visa should be granted (ss.65 and 36(2) of the Act).
In any event, any plain reading of this information which the applicant sets out at paragraph 5 (the three dot points) of the amended application would not have assisted the applicant in the circumstances of her case.
The information deals with the Chinese Government’s persecution of Falun Gong practitioners. The applicant appears to not understand that the Tribunal found that her claims to be a Falun Gong practitioner were not creditworthy. The information would only have been of assistance to the applicant if she had been found to be genuine in her claims to be a Falun Gong practitioner, in which circumstance this information could go to the issue of persecutory harm.
The applicant’s general complaint (made before the Court orally and in writing) of not being treated fairly as it relates to this issue is not supported by the transcript of the Tribunal hearing, which the applicant has provided to the Court.
The transcript makes no reference to her seeking from the Tribunal its consideration of any such independent country information, despite opportunity. See, for example, T 24 to T 25:
“Member:I don’t have any further questions for you.
Applicant:Is there anything else you would like to say?
Interpreter: No, I have no more to say. Thank you very much for your time, thank you!”

Consideration: Absence of Natural Justice/Procedural Fairness

By way of both written and oral submissions, the applicant also complains that there was an absence of natural justice in the way the Tribunal dealt with her and her application:
“4)The member of the Tribunal who conducted the hearing for me showed a ‘bias’ and ‘inimical’ attitude on me. She always interrupted my answer. Before I finished answer for one question, She interrupted me and jumped to the next one. I don't believe that the Tribunal conducted a justice hearing for me.”
Dealing first with the factual complaint made by the applicant that the Tribunal was “always” interrupting her answers, I cannot see on any plain reading of the transcript of the Tribunal hearing that such a complaint can be made out.
There is one point at a particular part of the hearing that indicates that the applicant may have been interrupted, but this does not appear to have been by the Tribunal member. At T 15.8:
“Interpreter: Okay, she did not finish the whole thing, I stopped her, sorry. It could be my fault.
Member:That’s all right.
Interpreter: She says that less than one week, they made our family to write down that kind of acknowledgement or guarantee to guarantee that we will not study, do it again. And I was detained for 15 days.”

First, I should note that the applicant confirmed for the Tribunal that she did not have any difficulties in understanding the interpreter (See T 1.10).
In any event, it would appear that this particular incident arose out of the applicant’s inability to refrain from interrupting the interpreter and her failure to allow the interpreter sufficient time to translate her responses to the Tribunal.
For example, see at T 4:
“Member:[Applicant], please wait for the interpreter to finish speaking before you start speaking, thank you.
Interpreter:      (Mandarin)
Member:Do not interrupt the interpreter under any circumstances, please.
Interpreter:      (Mandarin)
Member:Because I need to be able to follow exactly what she is saying.
Interpreter:      (Mandarin)
Member:You don’t let her finish what she is saying, I don't understand what you are saying.
Interpreter:      (Mandarin)
Member:I am also going to say to you that when I ask you a question, could you please listen very carefully and try to answer it in a specific manner if you can.”
The applicant’s inability to provide an opportunity for the interpreter to translate, and the long answers that she provided, contributed to this issue. This can also be seen at T 6.5:
“Interpreter:     Sorry I have to stop. Because in that statement there are somehow correct, but some of them are, quite a lot of information were skipped, omitted, which was like questions, which year I started, I started on 2nd November, who you practised together with etc and also when I was detained, I was in the detention for 15 days, and I was forced to study, these information were all skipped.
Member:[Applicant], this is a very long answer, and I have great difficulties following a big answer like that and I am sure the interpreter has the same difficulties.
Interpreter:      (Mandarin)
Applicant:(Mandarin)
Interpreter:      Sorry.
Member:I am going to remind you again, could you please respond in short segments?
Interpreter:      (Mandarin)
Member:At end of the hearing, I will give you a further opportunity to illustrate or to say what you want to say.
Interpreter:      (Mandarin)
Member:I also want to let you know that if I get despite me telling you to give answers in short segments, if I keep getting you stories that may work against you.
Interpreter:      (Mandarin)
Member:Because it might indicate that you have been in-directive, that is you don’t really want to answer the question as asked.”
Again at T 8.10 to T 9, the applicant seemed to interrupt the interpreter:
“Interpreter: Okay, something about to absorb energy from now to the states, from universe …
Member:Please wait.
Member:Sorry, please repeat. Something to absorb?”
Then, further at T 15 .8:
“Interpreter: Okay, she did not finish the whole thing, I stopped her, sorry. It could be my fault.
Member:That’s all right
Interpreter: She says that less than one week, they make our family to write down that kind of acknowledgement or guarantee to guarantee that we will not study, do it again. And I was detained 15 days.”
Further, at T 16.10 to T 17:
“Member:[Applicant], please respond to this question directly. Interpreter, did you get what she said?
Interpreter: Just want to wait she finish what she wants say. Okay.
Interpreter: Excuse me. She said: when the police got me, he just roughly very roughly pushed me into the van ...”
Then also at T 19.8:
“Interpreter:     Sorry Member, can I just say, I think she said less than one week and I corrected it was because I stopped her at half way, so maybe from me, a mistake from me, so less that one week.
Member:But she clearly said less than one week.
Interpreter:      Yes, less than one week, I stopped her she’s been too long
Member:Yeah?
Interpreter:      I stopped her right at that.
Member:What did she say afterwards?”
I cannot see that the applicant’s complaint that the Tribunal “interrupted” her answers can be made out at the factual level.
Plainly, the applicant, despite warnings, continued to give long answers in such a fashion that the interpreter was unable to keep up. Far from showing that before the applicant finished an answer to one question the Tribunal interrupted and “jumped to the next one”, what the transcript shows is that on each occasion when the interpreter was unable to keep up with the applicant’s answers, the Tribunal stopped and made efforts to allow the applicant to provide a complete answer.
Nor can I see that the difficulties of the interpreter in keeping up with the applicant can be said to be such that an adequate level of interpretation was not provided to the applicant (see Mahzar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188, Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472, Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230, Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507).
The applicant did not appear to have any difficulty in understanding the interpreter. Nor does it appear that the interpreter had any difficulty in actually understanding the applicant. The difficulty was that the applicant, despite warnings, continued to speak in such a fashion that the interpreter was unable to keep up. But this did not, in my view amount to any failure to provide the applicant a fair hearing, given the efforts taken by the Tribunal to address this issue at points where it arose during the course of the hearing.
At the hearing before the Court, the applicant also complained that the interpreter used an “electronic dictionary”. The submission was that in light of this the applicant could not be sure if the interpretation was correct at all.
First, there is nothing before the Court to show that the interpreter used any such device. But even it she did this does not mean that the level of interpretation provided was not adequate within the standard required by the relevant authorities. In fact, it could be said that the use of any such device would enhance the level of interpretation.
In any event, the applicant’s complaint is unsupported by any evidence and is not apparent on the material before the Court. I note that the interpreter provided by the Tribunal was a “level 3 NAATI” accredited interpreter (see CB 92) in the Mandarin language. In all, this complaint does not assist the applicant.
The applicant also complained at the hearing before the Court that the Tribunal treated her unfairly at the hearing and undertook and displayed an “inimical” attitude towards her. I cannot see that this complaint is made out on what is before the Court now. Beyond the complaint relating to the alleged interruption, the applicant does not say how the Tribunal member displayed an inimical attitude.
To the extent that this seeks to convey that the Tribunal member revealed some pre-held adverse view of her evidence, either by tendency or effect, then this is not evident on any plain reading of the transcript.
Plainly, there were points during the hearing when the Tribunal put to the applicant that it had difficulties with the applicant’s responses, in the sense that there were inconsistencies or deficiencies in her answers. It was appropriate (indeed in terms of a fair hearing pursuant to s.425 of the Act, particularly with reference to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63) for the Tribunal to sufficiently indicate to the applicant matters or concerns, that went to the determinative issue in the review. In this case, these were matters going to the applicant’s credibility of what she said had happened to her, and her claimed Falun Gong practice. I cannot see that the Tribunal, in putting such matters to the applicant at the hearing as went to this issue, displayed an “inimical” attitude towards the applicant.
Further, to the extent that this complaint implies that the Tribunal displayed an unfriendly, or hostile, attitude and was biased, then this complaint also is not made out on any plain reading of the transcript.
To the contrary, in particular, I note the Tribunal’s attempt to engage in some repartee with the applicant such that was conducive to creating a positive or pleasant environment, further rather than a hostile or unfriendly one. For example, see T 22.2:
“Interpreter:     Food. I try to …
Applicant:(Mandarin)
Interpreter:      Working in the restaurant to do the dumpling you know, bun.
Member:Lovely buns.
Applicant:(Mandarin)
Interpreter:      If I have chance, I’ll give you some.
Member:No, you don’t need to bring me anything. I do like Chinese food. I go to Yumcha all the time because my daughter loves it as well, I can assure you.
Interpreter:      (Mandarin)
Member:There are some great Chinese restaurants around here, and the Chinatown of course …”
This is hardly an example of the Tribunal displaying an unfriendly or hostile attitude.
Ultimately, however, despite opportunity, the applicant made no complaint whatsoever, either during the course of the hearing, at its end, nor indeed subsequently in writing, as to any complaints that she had regarding the Tribunal. If anything, at T 24.9:
“Member:I don’t have any further questions for you, [Applicant]. Is there anything else you would like to say?
Interpreter: (Mandarin)
Applicant:(Mandarin)
Interpreter: No, I have no more to say. Thank you very much for your time, thank you!
Member:That’s all right, you are welcome, and I want to wish you all the best, [Applicant].”
Nor can I see that the applicant’s complaint that the Tribunal member “always looked at the clock” when asking a question can assist her. There is no evidence before the Court that the Tribunal member engaged in this practice.
I understand the inference here to be that either the Tribunal member was biased (had predetermined the outcome) or failed to give the applicant a fair hearing as this practice somehow prevented the applicant from properly giving her evidence.
The hearing lasted one and a half hours (see CB 92 and T 1 and T 25). Importantly, there is nothing in the transcript to show that the applicant was denied a fair opportunity to put her claims and give her evidence at the hearing. I note in particular the extract from the transcript set out at [99] above. The applicant was given the opportunity to say anything further that she wished.
There is nothing in the transcript of the Tribunal’s hearing, nor otherwise in the material before the Court to show that the Tribunal was biased towards to applicant such that the Tribunal did not bring an open mind to the proceedings, nor that an ordinary lay observer would reasonably apprehend that there was bias on the part of the Tribunal (Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28, Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 at [43]-[44], Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102).
In all, the applicant was given the opportunity by the Tribunal to put forward her claims, and evidence in support of the claims at the hearing. I cannot see (noting again that this is a case to which s.422B applies) that there was any breach of natural justice or procedural fairness by the Tribunal as claimed by the applicant. The applicant’s complaints in relation to s.424A are not made out. In relation to s.425, plainly the applicant would have been on notice that her credibility was an issue in relation to her claim to be a Falun Gong practitioner (see CB 40.5). Further, the transcript of the hearing provided by the applicant herself to the Court shows that the Tribunal addressed the substratum of facts that went to the issue of the adverse credibility finding, which, ultimately, was the determinative issue in the Tribunal’s affirming the decision of the delegate.
I cannot see that there was any breach of the relevant procedural fairness requirements or that the claim was not considered fairly. That the applicant now asserts that she would be persecuted on return to China is, in light of all the circumstances, a request to reagitate her protection claims before this Court, and a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).

Conclusion

In all, I cannot see jurisdictional error as it is said to arise in the complaints made by the applicant now, nor otherwise, on the material that is before the Court. For the applicant to succeed such error, at least, would need to be found. This application is therefore dismissed.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: A Douglas-Baker

Date: 31 July 2008

CORRECTIONS

Order (2) – delete “$3,800” insert “$6,950”.