SZEPJ v Minister for Immigration - [2005] FMCA 1639

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEPJ v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1639

MIGRATION – Refugee – fear of persecution based on claims to be a Falun Gong practitioner – Tribunal could not be satisfied that applicant was a Falun Gong practitioner – standard of interpretation – Tribunal’s use of the evidence given by the applicant’s witnesses – independent country information – Tribunal’s failure to consider documents – no reviewable error – privative clause decision – application dismissed.

Migration Act 1958, ss.424A, 441A, 425, 424(7), 366, 422B, 424A(3)(b), 424A(1), 424A(2), 474

Federal Magistrates Court Rules 2001, r. 21.02(2)(a)

Mazhar vMinister for Immigration and Multicultural Affairs [2000] FCA 1759
SZAAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 312
WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171
Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507
Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123
Re: The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1

Applicant:

SZEPJ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3129 of 2004

Judgment of:

Nicholls FM

Hearing date:

7 November 2005

Date of Last Submission:

1 November 2005

Delivered at:

Sydney

Delivered on:

14 November 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr. G. Kennett

Solicitors for the Respondent:

Phillips Fox

ORDERS

The Refugee Review Tribunal is joined as the second respondent in these proceedings.
The application is dismissed.
The applicant to pay the first respondent’s costs set in the fixed amount of $4250, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3129 of 2004

SZEPJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed in this Court on 20 October 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 August 2004 and handed down on
14 September 2004, to affirm the decision of a delegate of the respondent Minister made on 22 July 2003 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent to these proceedings.
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 28 May 2003. He lodged an application for a protection visa with the first respondent's Department on 11 June 2003. The applicant claimed that he was a practitioner of Falun Gong.
He claimed that he worked in a cement factory in Huangshi City, Hubei Province, but was dismissed because of his Falun Gong practice. He claimed that he began to practice Falun Gong because of the influence of a colleague Mr. Chen, in June 1998. He claimed that he and Mr. Chen established a Falun Gong training centre in the worker’s club of the cement factory and that they began to recruit other colleagues in the factory. He claimed that he and Mr. Chen were eventually arrested and detained at the Huangshi Detention Centre where they were beaten and tortured and that Mr. Chen died as a result of this. He claimed he spent a two week period in hospital. He claimed that during the period between September 1999 and December 2000 he was required to report to a local police station and that during this period he became acquainted with a Ms. Ye, whom he married in February 2001. He further claimed that in January 2001 he “began to re-start” his Falun Gong activities and distributed Falun Gong promotional material which he continued to do in association with other Falun Gong practitioners until 2002 when he decided that he had to leave China because of police suspicions of his involvement with Falun Gong. He left China for New Zealand and then came to Australia. He claimed that since leaving he has been the “target” of the police, and that his wife has been questioned. He claimed that should he return to China, he would be arrested.
The applicant's claims are set out in the application for a protection visa made to the first respondent's Department (Court Book (“CB”) 1 to CB 33) and in particular in an attached Statutory Declaration reproduced at CB 25 to CB 28. The application to the Tribunal is at CB 52 to CB 55. The applicant gave oral evidence to the Tribunal on
3 occasions: 7 January 2004, 23 February 2004 and 12 March 2004. The Tribunal also took evidence from a witness at the last hearing. The Tribunal’s account of what occurred at the hearings is at CB 96.2 to CB 104. From the material before me it appears that at some time following the third hearing the Tribunal member who had been reviewing the application became “unavailable” and the case was transferred to another Tribunal member who made the decision. While there is no actual instrument before me before me by which the reconstitution was done, presumably pursuant to s.422 of the Migration Act 1958 (“the Act”), there is sufficient evidence to show that this was done and importantly that it was communicated to the applicant and his migration adviser by letter dated 21 July 2004 (CB 84).
The Tribunal’s “Findings and Reasons” are set out at CB 107.2 to CB 111.2. The Tribunal found:
1)The applicant lacked credibility, and as a result the Tribunal could not accept the applicant’s claims. This was based on inconsistencies in his “version of events” (CB 108.1).
2)Although claiming to be a member of Falun Gong the applicant “only infrequently” associated with the Falun Gong in Australia and his reasons for not associating with Falun Gong in Australia were not convincing (CB 108.2).
3)The Tribunal did not accept that the applicant was a Falun Gong practitioner. This was based on:
a)The “poor quality of the evidence given by the applicant in his application” (CB 108.4).
b)Evidence from his witness Ms. Bai, who when she met the applicant, did not think he was a Falun gong practitioner (although she did not want to state that he was not a practitioner) based on, inter alia, the fact that he was a heavy smoker (CB 108.5)
c)The fact that the applicant has a “poor understanding” of Falun Gong and had no understanding of the books written by its founder (CB 108.9).
4)The applicant’s claimed detention in 1999, was “unconvincing”, and the Tribunal was not satisfied that he was arrested and therefore mistreated (CB 109.5).
5)Although accepting, for the purposes of making the decision, that a medical report provided by the applicant was genuine, the Tribunal found this report was not consistent with the injuries that the applicant claimed that he had sustained. Further, the report indicated that he was “beaten up” two hours before the admission to hospital. Although the Tribunal accepted that this was the case, it did not accept that he was assaulted by the PSB, or the police as claimed (CB 110.1).
6)In relation to the arrest of Mr. Chen the Tribunal found the evidence the applicant presented in this regard was “unconvincing”, and the Tribunal was “not satisfied that it occurred”. Further, the evidence presented by the applicant in this regard was inconsistent, and during the hearing he “changed his evidence” (CB 110.2).
7)In relation to the applicant’s three months stay in New Zealand prior to coming to Australia, the Tribunal did not accept the explanation given by the applicant as to why he had not applied for refugee status there. In this regard the Tribunal also found that there was “variation” in the applicant’s answers during the course of the hearing before it, and that this indicated “that the applicant was prepared to make up evidence in order to strengthen his claim for protection” (CB 111.1).
The Tribunal’s conclusion was that it was not satisfied that the applicant was a practicing member of Falun Gong, or that he was ever arrested or questioned and as a result he did not have a well founded fear of persecution for a Convention reason (CB 111.2).
In an amended application, filed in this Court on 31 January 2005, the applicant claims:
“There was an error of law in the Tribunal’s decision constituting a jurisdictional error.
There was procedural error in the Tribunal’s decision constituting an absence of natural justice.”
These grounds are particularised, and in essence the following three complaints can (though 1 and 2 are closely linked) be discerned:
1)The Tribunal’s decision was based primarily on the evidence that was provided at the hearing before it. The applicant complains that the Tribunal failed to provide him with an interpreter “who [had] sufficient knowledge about Falun Gong”. This resulted in an inability by the interpreter to clearly and accurately translate the communication between the Tribunal and the applicant.
2)That during the hearing the Tribunal based its decision on material that had been translated from Chinese to English and then, when it questioned the applicant at the hearing, from English back to Chinese. The applicant claims that the meaning has been “greatly changed somehow” and the Tribunal failed to give weight to this issue.
3)The Tribunal failed to comply with s.424A and s.441A of the Act because it relied “heavily” on independent country information and the Tribunal failed to provide the applicant with this information. Further, that the applicant was unable to “completely and clearly understand the actual meaning” of the independent country information that the Tribunal did provide.
The applicant appeared before me unrepresented with the assistance of an interpreter in the Mandarin language. Mr. G. Kennett appeared for the respondents. In addition to the complaints as outlined in the amended application, at the hearing before me the applicant stated that the reason that the Tribunal refused his application was because “they said I fail to provide any evidence from the Falun Gong Association in Australia” and further that in regard to the evidence given by Ms. Bai, (his witness) that although she failed to tell the Tribunal that the applicant was a Falun Gong practitioner, she “didn’t actually say that I was not a Falun Gong practitioner”. Further, the applicant appeared to complain about the Tribunal’s questioning of his failure to provide English translations of documents, including the medical report from the hospital that referred to injuries that the applicant had sustained. He indicated that “I didn’t know in the beginning that I needed to provide these documents” and his complaint appeared to be that the Tribunal did not accept these documents. In any event, I understood the applicant's complaints to be:
1)That the Tribunal relied on certain evidence from his witness Ms. Bai and preferred this over his demonstrated capacity to perform the Falun Gong exercises.
2)That the applicant's documents provided in support of his claims were ignored by the Tribunal.
3)That both issues above showed bias on the part of the Tribunal.
4)That his activities in Australia are quite separate from his activities in China and that the Tribunal should not have used the Australian activities to “judge” what he had done in China.
In relation to the applicant’s complaints in his amended application about what occurred at the hearings before the Tribunal, it is a clear principle of law that the Tribunal must give an applicant a fair hearing. It is a basic requirement that an applicant should have a reasonable opportunity to present his case and to meet the case against him. The Tribunal is under a statutory obligation to provide a competent interpreter who in turn provides a competent interpretation. Section 425 of the Act requires the Tribunal to give applicants before it the opportunity to appear and to give evidence. Section 427(7) of the Act specifically requires the Tribunal to consider giving a direction that communication be through an interpreter if the applicant is not proficient in English. The Tribunal will have breached its statutory obligation if it provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence. In Mazhar vMinister for Immigration and Multicultural Affairs [2000] FCA 1759 Goldberg J., after looking at relevant authorities, said at [31]:
“These passages suggest that where the applicant appears, but is not able through the conduct of the tribunal to give evidence or present arguments, albeit that the applicant has been invited by the tribunal to appear, then there will be a contravention of s.425(1). I agree with the observations of Wilcox J in Xiao above, at [30] that events subsequent to the invitation, which must remain open, are not necessarily immaterial. The invitation must not be a hollow shell or an empty gesture. If an invitation to appear is extended to an applicant, where the tribunal knows that an interpreter is required, the obligation to extend the invitation will not be satisfied if the tribunal provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence and present argument to the tribunal. If that situation arises the tribunal will not have fulfilled its obligation under s.425(1).”
Similarly under the common law, if an interpreter provided by the Tribunal has interpreted in an inadequate way there will be a breach of the common law hearing rule because the opportunity to put a case is illusory. For example, Hall J., in SZAAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 312 at [40] said:
“I am unaware of any decision which has considered the question of translation in the context of whether a wrong translation of material before the Tribunal could constitute jurisdictional error. It can be accepted that it is a fundamental rule of a fair hearing that an applicant before the Tribunal be afforded the opportunity of putting his or her case. I do not need to consider whether there would be any obligation on he part of the Tribunal to provide to an applicant, unable to speak English, an interpreter. If an interpreter provided by the Tribunal translated in a totally inadequate way the apparent opportunity to put a case is illusionary. In the present case an interpreter was in any event provided (see Migration Act s366C). The complaint is that the interpretation was so inadequate as to amount to a denial of procedural fairness.”
But not every error or problem with interpretation will amount to a denial of procedural fairness. For example, the Full Federal Court in WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171, (in referring to Justice Kenny in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 at [25] to [26] “interpretation is no mere mechanical exercise”) said at [66]:
“However the requirement is not that there be a perfect translation, it suffices that the translation is sufficiently accurate as to permit the idea or concept being translated to be communicated.”
In Perera at [45] the Court said:
“It is not every departure from the standard of interpretation that prevents an applicant for refugee status from giving evidence before the Tribunal. The departure must relate to a matter of significance for the applicant’s claim or the Tribunal’s decision.”
The lapse in interpretation needs to involve the vital interests of the applicant and not merely some collateral or extrinsic matters. In the case of Perera the Court held that the appropriate standard of interpretation before the Tribunal should include competency, precision, accuracy and impartiality on the part of the interpreter. Elements that go to incompetence, such that the applicant is prevented from effectively giving evidence, include the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made out and any evident confusion in exchanges between the Tribunal and the interpreter. Although, excluding the latter, these elements could also be reflections or consequences of the paucity of an applicant’s claims.
Further, it is not enough that the applicant simply point to problems that may have occurred at the hearing. I refer also to the Full Federal Court decision Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230, and in particular paragraph [17] of the judgement of Mansfield and Selway JJ. where their Honours set out what an applicant would need to establish to demonstrate a jurisdictional error arising from inadequate translation. In that case their Honours said that the applicant would need to establish:
a)That the standard of interpretation at the Tribunal hearing was so inadequate that the applicant was effectively prevented from giving evidence at the Tribunal; or
b)Errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.
The applicant's complaint in relation to the alleged deficiencies of communication was based on the interpreter’s lack of knowledge of Falun Gong and the Tribunal’s alleged failure to pay attention to the fact that the interpreter, during the hearing, was unable to clearly and accurately translate the conversation between the applicant and the Tribunal. Further, that the Tribunal based its knowledge about Falun Gong on text translated into English and then at the hearing this was translated from English back to Chinese for the applicant. The applicant complains that this resulted in the meaning being greatly changed “somehow”. The applicant has brought no evidence whatsoever before this Court to support the claims that he makes about what allegedly occurred, or did not occur, at the hearing the Tribunal conducted with him. In the absence of such evidence it cannot be inferred that there was any failure in the standard of interpretation due to any lack of understanding of basic concepts by the interpreter, or indeed, as Mr. Kennett submits, that the Tribunal member was insensitive to the difficulty of conversing across language barriers about ideas and concepts (NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241). Further, there is no requirement that the Tribunal should provide an interpreter who is an expert in any relevant area of the subject matter to be discussed. The level of expertise required is in the capacity of the interpreter to translate from one language into another the words used by the Tribunal, applicants and any witnesses such that there is an adequate level of interpretation to enable the giving of evidence.
It does not follow that a lack of knowledge of “Falun Gong” on its own would be sufficient, even if there was such evidence before the Court, to show that the standard of interpretation provided by the interpreter was somehow deficient in terms of allowing the provision of such evidence.

I also note relevantly that the applicant attended the first Court date in this matter on 4 November 2004 in person and was assisted by an interpreter in the Mandarin language. On that day the applicant signed short minutes of order, which subsequently became orders of the Court, that required, amongst other things, that the applicant file and serve by 27 January 2005 any affidavit containing additional evidence relied upon including a transcript of the Tribunal hearing. The applicant sought, and was given access, to a lawyer on the panel of the Court's Legal Advice Scheme and consulted with a lawyer on that panel on
13 January 2005. The applicant was then provided with legal advice on 17 January 2005. The applicant clearly therefore, had the opportunity to obtain advice as to the way in which he could have provided evidence to the Court to support the claims that he is now making. Further, it is clear that the applicant was given quiet a lengthy opportunity before the Tribunal to present his claims and that he was given the opportunity over three separate hearing occasions to present those claims. As set out above the applicant attended hearings on
7 January 2004, 23 February 2004 and 12 March 2004. The Tribunal did not hand down its decision until 14 September 2004. There is nothing before me to show that at any time the applicant made any complaint to the Tribunal about the interpreter’s lack of specialised knowledge, how this affected the communication or the Tribunal's disregard of any deficiencies in the level of interpretation. The applicant was assisted in his application to the Tribunal by a migration agent whom he had nominated to act on his behalf in relation to his case (CB 53). There is nothing in the material before me from the applicant's representative to the Tribunal to alert the Tribunal to any concerns along the lines that the applicant now claims to have. It is difficult to accept that the matters about which the applicant now complains would not have been apparent to him during the course of the three hearings that the Tribunal conducted with him, or even in the months following the third hearing until the Tribunal made its decision. It is also noteworthy that the applicant did make written submissions in relation to these complaints following the hearings with the Tribunal, see for example the submissions at CB 61 to CB 63 and the submissions sending further information to the Tribunal at CB 67 to CB 83. The applicant therefore, even if he had not had the opportunity to obtain advice from his migration agent, would have been well aware of the facility of making written submissions at any time to the Tribunal if he had had any concerns about what had occurred at the hearing before the Tribunal. The applicant's complaints in this regard are not made out.
The applicant’s third complaint in the amended application relates to a breach of s.424A and to the alleged failure by the Tribunal to provide, and ensure that he correctly understood, independent country information upon which it based its decision. The applicant did not provide any particulars or specificity in relation to what information he claims was relied on by the Tribunal and was not shown to him, beyond a reference to information regarding Falun Gong. But, in any event, the information referred to in the Tribunal's decision record is all information that would fall within the exemption provided in s.424A(3)(a) of the Act from the need to put such information to the applicant pursuant to s.424A(1): Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92. This is because that information is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member. The information in question, considered by the Tribunal at CB 105 to CB 107.3, under the heading of “Country Information”, is background about Falun Gong, and when the Falun Gong movement began to attract Chinese government attention. It does not specifically relate to the applicant. Relevantly, I note that s.422B of the Act applies to this Tribunal decision as the application to the Tribunal and the Tribunal’s decision post date the introduction of this provision to the Migration Act.
In relation to the applicant's complaints at the hearing before me:
1)In relation to the evidence given by Ms. Bai who had appeared at the Tribunal hearing as the applicant's witness, this is set out in the Tribunal's decision record at CB 102.9 to CB 104.2. Importantly, the applicant has not brought any other evidence before the Court to contradict the Tribunal's account of what occurred at the hearing in relation to evidence given by Ms. Bai on 12 March 2004. Ms Bai's evidence was reported as:
a)That she did not clearly tell the Tribunal whether she was associated with the Falun Gong Association of Australia (CB 103.2).
b)In response to the Tribunal's question as to whether she had seen the applicant do the Falun Gong exercises she replied that she has only met the applicant twice and that she saw him perform some Falun Gong movements and they were “good except where he has to fold the legs together in one of the exercises” (CB 103.6).
c)She was not sure if the applicant was a practitioner or was just learning. She thought that he had been learning but that when she first met him he was smoking heavily and had a smell of cigarettes. She thought that he had put into practice what he had read in a Falun Gong book, but that smoking is against the “teachings of the master” (CB 103.7).
d)That she was of the view that the applicant had not joined Falun Gong and that “the impression he is now giving is that he is practising” but that she was reluctant to say that she did not think that he was Falun Gong when she met him although “if people were practising Falun Gong they would not be smoking” (CB 104.2).
The applicant claimed before me that since Ms. Bai was his witness “it was not possible for her to tell lies”, but he also speculated that perhaps she did not tell the truth for a certain reason, that being that she herself was an applicant for refugee status. The Tribunal made reference to Ms. Bai’s evidence in its “Findings and Reasons” CB 108.9 to CB 109.1:
“His witness Miss Bai gave evidence that she had provided him with a copy of his Falun Gong book. She however, did not give any evidence to support his claim that he was a member of Falun Gong in China. In fact she thought he probably had not been because when she first met him he was a smoker which is against the Falun Gong creed.”
As set out above at paragraph 4 of this Judgement the Tribunal rejected the applicant's claims for a number of reasons but essentially on the basis that it had formed “a firm view” (CB 108) that the applicant lacked credibility and that his claims could not be accepted. It was clearly an issue for the Tribunal that, in this context, where the applicant's claims contained inconsistencies and were not convincing, the Tribunal found that the evidence provided by Ms. Bai, both in relation to whether the applicant was a Falun Gong practitioner in China or in Australia, did not support the applicant's claims because she could not really be sure one way or the other (CB 108.5). The applicant now claims that the Tribunal was unfair and biased against him because when it decided whether he was a Falun Gong practitioner or not, that this should be based on whether he could perform the exercises and his “real understanding of Falun Gong” and not actually based on the evidence of Ms. Bai. Clearly the Tribunal, in rejecting the applicant's claims, did not just base its decision on the evidence of Ms. Bai. The Tribunal looked at the issues of the applicant's practice of the exercises, his understanding of these practices and his understanding of the books written by the founder of Falun Gong. This is set out at CB 108.7 of the Tribunal's “Findings and Reasons”. The Tribunal made findings in this regard separate to any evidence given by Ms. Bai. In relation to his claims relating to the practice of the exercises and his understanding of Falun Gong, Ms. Bai’s evidence was not the reason that the Tribunal rejected the applicant's claims in this regard. But it was noted by the Tribunal that she “did not give any evidence to support his claim that he was a member of Falun Gong in China (CB 109.1). On what was before it, this finding was clearly open to the Tribunal to make. Further, I cannot see that the application of Ms. Bai’s evidence to the analysis of the applicant's claims, reveals reasons which are unfair, or in any way shows bias in the Tribunal's approach. The applicant has brought no evidence whatsoever to ground a complaint that the Tribunal did not bring an open mind to the assessment of the applicant's claims. It is rarely the case that bias can be made out with reference to the decision record alone, and no further evidence has been provided by the applicant in this respect (VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872).
Further, the applicant's speculation now as to whether Ms. Bai may have been lying, or that she had her own reasons for giving a particular version of events, being that she also was an applicant for a protection visa, does not reveal error on the part of the Tribunal. Ms. Bai was the applicant's witness who gave evidence at the hearing before the Tribunal at his initiative. The use of this evidence by the Tribunal in its “Findings and Reasons” was that it was seen as equivocal and clearly, in the context of the total analysis as set out in the “Findings and Reasons”, was not sufficient to overcome the very clear findings made by the Tribunal (not dependent on anything that Ms. Bai said other than as “support” to its already formed views) as to why it rejected the applicant's claims to be a Falun Gong practitioner. To the extent therefore that Ms. Bai’s evidence may contain information that, pursuant to the High Court decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, should have been put to the applicant pursuant to s.424A(2) of the Act, it is clear that the Tribunal did not rely on Ms Bai’s evidence to reject the applicant's claims, but noted that even after taking into account her evidence it was not satisfied that there was sufficient evidence of his genuine interest and knowledge of Falun Gong (CB 109.2). In this regard I note the Full Federal Court authority VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [29] to [33]:
“[29] This conclusion brings into focus the second of the s 424A(1) requirements: "Was the information the reason or a part of the reason for its decision?" We cast the matter in this fashion because we agree with the majority view in Paul’s case that, though the subsection addresses the matter prospectively (i.e. "the Tribunal considers would be the reason etc"), the question of compliance with s 424A(1)(a) is to be judged retrospectively in light of the Tribunal’s actual decision: see Paul at [94]; and cf Beaton-Wells, "Disclosure of Adverse Information to Applicants under the Migration Act 1958" (2004) 11(2) AJ Admin L 61 at 64 – 65.
[30] The information concerning the appellant’s behaviour clearly was not "the reason" for the Tribunal’s decision. But was it "a part of the reason"? As we have indicated, the Tribunal considered it to have some relevance to the determination to be made. And the Tribunal’s treatment of that information (i.e. the "significance" attributed to it) equally had a place in its reasoning process. However, it is not necessarily the case that for either or both of these reasons, the circumstances attract the obligation of s 424A(1)(a). The subsection itself requires identification of the reason for affirming the decision under review.
[31] The ultimate "reason" was that the Tribunal was not satisfied that the appellant was a person to whom Australia has protection obligations. However, as Allsop J indicated in Paul (at [99]), there needs to be "some unbundling" of that reason for s 424A purposes and that (at [100]):
"[i]n any given circumstance it may not be straightforward to identify from an expressed reasoning process whether information was the reason or a part of the reason for affirmation."
[32] There were divided views in Paul’s case as to whether the "reason" for s 424A(1) purposes was to be determined by reference to the requirements of s 430 of the Act which stipulates what is to be contained in a Tribunal’s written reasons. The majority rejected that the two sections were so tied, while acknowledging that assistance in s 424A cases may be derived from s 430. As we are not satisfied that this view is clearly wrong we intend to follow it.
[33] It commonly is the case that the detail and complexity of the case advanced by a visa applicant, and the information that is given and garnered for the purposes of considering it, results in the Tribunal being confronted with issues that may be of varying importance, relevance and centrality both to the decision to be taken and to the reasoning that in the event sustains that decision. While the reasoning process may advert to, and express views on, such issues, all will not necessarily constitute part of the reason for the Tribunal’s decision. Tribunals, no less than courts, engage in their own species of dicta often enough for reasons related to haste and pressure in composition. When a Tribunal’s reasons are to be evaluated for s 424A(1) purposes, the Court as a matter of judgment is required to isolate what were the integral parts of the reasons for the Tribunal’s decision. That task, necessarily, is an interpretative one. In some instances the differentiation of the integral and the inessential may be by no means easy – and made the more so by less than explicit indications in the reasons themselves as to what the Tribunal itself considered to be integral.”
In the case before me it is clear that the basis for the Tribunal’s decision was that it could not be satisfied that the applicant was a Falun Gong practitioner. This was based on the evidence and claims of the applicant. The evidence given by Ms. Bai was not the reason or part of the reason for the Tribunal’s decision, but rather considered by the Tribuanl to support the Tribunal’s conclusion. I am reinforced in this view by the Tribunal's specific reference at CB 108.9, to the fact that at the end of the second hearing the Tribunal afforded the applicant the opportunity and sufficient time to obtain a letter from the Falun Gong Association in Australia which would go to the issue of whether the applicant was a Falun Gong practitioner or not. It was clear that in its analysis that up to this point the Tribunal had rejected the applicant's claims in this regard, noted that he had been given opportunity to provide any further evidence, and then dealt with the evidence provided by Ms. Bai on his behalf.
The applicant also complained that the Tribunal ignored the documents that he provided in support of his claims. These documents were provided to the Tribunal under cover of letter by the applicant reproduced at CB 67 and are themselves copied at CB 68 to CB 72.
At the hearing before me, the applicant confirmed that the documents translated and reproduced at CB 76 to CB 83, were the English translation of those documents, and that these were “hospital documents” and were medical reports going to show that he had been injured. The applicant complained before me that he produced these documents in their untranslated form at the “last interview” and that the Tribunal asked him “why he didn't have the documents translated into English” given that they were important, and asked him why he presented the documents “in that way”. The applicant now complains that the Tribunal did not accept these documents because of this exchange. First, I again note that the applicant has provided no evidence whatsoever as to what he claims may have occurred at the hearings with the Tribunal. Second, even if there were such evidence to show that the Tribunal member did express some irritation at the late submission, or the untranslated nature of the documents, then as Mr. Kennett submitted to me, that is by no means necessarily an indication of the way the member who ultimately decided the case approached this issue. But in any event, the Tribunal did deal with these medical reports in its decision record, and at CB 109.7 specifically makes a reference to the fact that at the third hearing the applicant provided a medical report from the hospital of his condition when admitted to hospital. While it expressed some reservation, for example that while the applicant told the Tribunal his elbow was broken during the interrogation by the authorities the hospital report did not mention a broken elbow, nonetheless the Tribunal accepted, for the purposes of making the decision, that the document was genuine. The Tribunal found however that it did not establish that he was in hospital in the circumstances as he claimed as a result of his Falun Gong activities. The Tribunal accepted that the applicant was assaulted two hours before being admitted to the hospital, but was not satisfied that he was assaulted by the PSB or the police as he claimed, or that the treatment had anything to do with his involvement with Falun Gong (CB 110 .2). On what was before it, this finding was clearly open to the Tribunal and it is clear that the Tribunal did take into account the medical report and dealt with it in a way that was open to it on what was before it.
I can see no error in how the Tribunal approached this issue.
The applicant's third complaint at the hearing before me was that his activities in Australia are quite separate from his activities in China. The Tribunal should not have used the “Australian activities” to “judge” what he had done in China. I accept Mr. Kennett's submission made at the hearing before me, that the Tribunal needed to make findings of fact about whether the applicant had been a Falun Gong member and practitioner in the way that he claimed in China. Whether or not he was active in the movement in Australia was at least relevant evidence going to that factual question. Further, relevant to that question was whether the Falun Gong people in Australia accepted that he was a practitioner. It is clear that the Tribunal did not base its decision to reject the applicant's claims that he was an active and leading Falun Gong practitioner in China, solely on its findings that he was unable to provide evidence that he was a Falun Gong practitioner in Australia. It is quite clear that its rejection of the applicant's claims in this regard was based on a number of other bases. In the circumstances before me I can see no error however, in the Tribunal looking to see whether he could provide any evidence (amongst other evidence that it gave the opportunity to the applicant to provide) as to whether he was a Falun Gong practitioner in Australia and to at least see whether the applicant could provide such evidence which could have gone to the issue of whether he was an active Falun Gong practitioner in China. There was no legal error in the Tribunal looking at this issue and it is a matter for the Tribunal as to how much of weight should be accorded to this issue.
On what is before me, the Tribunal considered all of the applicant's claims as put by the applicant. The applicant had ample opportunity to provide evidence and argument in support of those claims, particularly over three hearing occasions. The Tribunal took into account all written submissions and documents provided by the applicant and considered the evidence provided by his witness. The Tribunal formed a clear view, in its words “a firm view”, that the applicant lacked credibility. This is of course within its proper function as the decision maker “par excellence”, where findings, including findings on credibility are for the Tribunal: (McHugh J. in Re: The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1). The Tribunal's findings were all open to it on the material before it. I can see no jurisdictional error in what the Tribunal has done. This is a privative clause decision within the meaning of s.474 of the Act. The application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: Sybilla Waring-Lambert

Date: 14 November 2005