SZEVI v Minister for Immigration

[2005] FMCA 1093

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEVI v MINISTER FOR IMMIGRATION [2005] FMCA  1093

MIGRATION – Refugee – fear of persecution for the Convention reason of religion – adverse credibility finding based on internally inconsistent and contradictory evidence – standard of the interpretation – illogical reasoning by the Tribunal – procedural unfairness – no reviewable error.

Migration Act 1958, ss.427(7), 425, 366C, 65, 36(2), 424A(1), 418(3)

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
Minister for Immigration & Multicultural & Indigenous Affairsv Jia [2001] HCA 17
Re: Refugee Review Tribunal; Ex parte H [2001] HCA 28
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] 198 ALR 59
NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC
S635/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1162
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263
Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323
VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919
SZDQL v Minister for Immigration and Multicultural Affairs [2005] FCA 796
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109
NAIH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1010

Applicant: SZEVI

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2083 of 2004

Judgment of: Nicholls FM

Hearing date: 2 August 2005

Date of Last Submission: 28 July 2005

Delivered at: Sydney

Delivered on: 29 August 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms. S Koya

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2083 of 2004

SZEVI

Applicant

And

MINISTER FOR IMMINGARION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 7 July 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 27 May 2004 and handed down on 16 June 2004 to affirm the decision of a delegate of the respondent Minister made on 20 January 2004 to refuse a protection visa to the applicant.

2. The applicant is a national of the People's Republic of China who arrived in Australia on 11 October 2003 and sought protection in Australia by applying for a protection visa. The applicant’s claims were set out in his protection visa application, and in particular in an attachment reproduced at Court Book 26 to CB 27, and in his application for review to the Tribunal at CB 54 to CB 57, and at a hearing before the Tribunal conducted on 29 April 2004. The Tribunal's report of the hearing is set out at CB 73.9 to CB 79.4. His claims are essentially that as a member of the Falun Gong movement in China he feared being investigated by the Chinese authorities and that many members of the Falun Gong had been sentenced to imprisonment. He claimed that he had been investigated by Chinese authorities and suffered “mental torment” because he was worried about his safety. For this reason he came to Australia.

3. On 18 January 2005 the respondent sought to have the matter listed by the Court registry for consideration for summary dismissal on the basis of non-compliance with previous orders of the Court that required an amended application giving full particulars to be filed. Although an amended application had been filed in accordance with orders made on 8 October 2004, in terms similar to those set out in the short minutes of order, the respondent submitted that the application was not fully particularised and the claims were unsupported by evidence. The matter was listed for a “non-compliance hearing” on 4 March 2005. The applicant appeared unrepresented with the assistance of an interpreter in the Mandarin language.  In light of the caution that must be exercised when dealing with an unrepresented litigant, particularly from a non-English speaking background, I took the view that it was appropriate in this situation to give the applicant an additional month to file and serve an affidavit containing any evidence on which he sought to rely, in particular, a transcript of the hearing before the Tribunal. The applicant claimed that he had not been given a proper opportunity to express his claims. I note that a further amended application was filed on 5 April 2005 which is supported by an affidavit affirmed on 4 April 2005 but that no transcript of the hearing was filed.

4. The applicant appeared before me unrepresented and with the assistance of an interpreter in the Mandarin language. The applicant’s claims before the Court are set out in his application filed on 7 July 2004, the amended application filed on 30 December 2004 and a further amended application filed on 5 April 2005 which is supported by an affidavit affirmed on 4 April 2005. The complaints that can be discerned from this material are:

   1)That the applicant was not given proper opportunity to put his case to the Tribunal.

   2)The Tribunal was biased.

   3)The Tribunal did not consider all the information provided during the “interview”.

   4)A complaint about the interpreter at the hearing before the Tribunal.

   5)That there was no evidence to justify the Tribunal's decision.

   6)That the Tribunal did not take into account relevant considerations and did take into account irrelevant considerations.

   7)A failure to observe Migration Act procedures.

   8)The Tribunal's decision was not based upon reasoning which provided a rational or logical foundation for its decision.

5. The Tribunal had before it the applicant's claims as set out in an attachment to his protection visa application (CB 26 to CB 27) and in his application for review to the Tribunal (CB 56). On 23 March 2004 the Tribunal wrote to the applicant and advised him that it was unable to make a decision in his in his favour on the material before it. The Tribunal invited the applicant to a hearing before the Tribunal to provide evidence and arguments in support of his claims (CB 62 to CB 61). The applicant did attend a hearing on 29 April 2004 and the Tribunal's account of the hearing is set out at CB 73.9 to CB 79.4. It is clear that the Tribunal's decision turned on the adverse view that the Tribunal formed of the applicant's credibility. The Tribunal commented in its “Findings and Reasons” at CB 82.8 that the applicant's evidence was “internally inconsistent and contradictory.” In particular the Tribunal:

   1)Did not accept that the applicant was a Falun Gong practitioner. It based this largely on the finding that at the hearing before it, the applicant demonstrated very little knowledge about the Falun Gong movement and that since arriving in Australia he had made no attempt to involve himself with other Falun Gong practitioners.

   2)That there was an inconsistency between his claims in the protection visa application, where he stated that he had to hide from officials whilst he was in Beijing, and his evidence at the hearing before the Tribunal where he stated that he had actually been detained for three days by the authorities.

   3)That the applicant at the hearing before the Tribunal gave evidence that he had been detained by local police in October 1999 but that he had not included this claim in his application.

   4)That the applicant gave evidence at the hearing before the Tribunal that he had distributed pamphlets about Falun Gong and had not mentioned this matter in his application. The Tribunal found his explanation for this failure as being implausible (CB 83 .7).

   The Tribunal found at CB 83.9 that the applicant's claims were in the circumstances (mere assertions with no substance) entirely dependent upon an acceptance of him being a credible witness. The Tribunal found that the applicant was not generally credible (CB 84.1). The Tribunal did not regard the inconsistencies and other matters in his claims as being explained in terms of any difficulty he faced as an asylum seeker. The Tribunal did not accept the applicant was credible and consequently rejected all of his claims (CB 84.2). On that basis the Tribunal was not satisfied that there would be a real chance that the applicant would be persecuted for a Convention reason if he were to return to China.

6. The applicant's claim that he was not given a proper opportunity to explain his case was unparticularised in both his original application and the first amended application. In the absence of any particulars, the Court notes that the applicant was put on notice by the Tribunal that, on the material that he had submitted it was not able to make a favourable decision on his behalf, and invited him to a hearing before the Tribunal. The Tribunal's account of the hearing is unchallenged by any other evidence (subject in some part to the affidavit of 4 April 2005 dealt with below) before the Court. A plain reading of the Tribunal's account of the hearing before it shows ample opportunity for the applicant to present his case. Further, I note that critically the Tribunal put to the applicant its adverse views of the evidence that the applicant had given. The Tribunal records in its decision record at CB 75.4 that it put to the applicant that it was clear from his evidence up to that point in the hearing that he was not a Falun Gong practitioner and discussed with him country information regarding the practice of Falun Gong. The Tribunal records that it clearly informed the applicant as to why it did not believe that he was a Falun Gong practitioner and records that the applicant was given an opportunity to respond.

7. The applicant's complaint about the difficulties at the hearing before the Tribunal may perhaps be an attempt to provide some particularity to this general complaint. In this regard the applicant makes two complaints. First, that he was very nervous at the hearing with the Tribunal and secondly that the interpreter at the hearing began to interpret while he was still talking and therefore he could not concentrate. As a result of his nervousness and the interpreter's action he claims the true meaning of what he was saying could not be understood by the Tribunal. The applicant asserts in the affidavit affirmed on 4 April 2005 that a tape of the hearing would prove “the matters” that he is alleging. However, the applicant has not put before the Court any tape of the hearing, nor any transcript of the hearing conducted by the Tribunal. I note that the applicant did access the Court's Legal Advice Scheme and he was provided advice on 25 January 2005 by Counsel on the panel of that scheme. An interpreter was present during the giving of this advice. The applicant therefore would have had the opportunity to have ascertained how to put evidence before the Court, and in this regard I note that the applicant did subsequently file affidavit material with the Court after being given a specific opportunity to do so, and with reference to the tape of the hearing before the Tribunal. The Tribunal conducted a hearing with the applicant and pursuant to s.427(7) of the Act did provide an interpreter. Beyond mere assertion the applicant has not identified any specific errors in the interpretation nor what the correct translations should have been. Other than the mere assertion he gave no examples to support his claims to cause me to intervene and listen to the tape. Nor has he provided any evidence to demonstrate that the standard of interpretation was such that it prevented him from giving evidence or that any errors made by the interpreter at the hearing were relevant and material to the conclusions of the Tribunal which were adverse to him. Nor was he able to explain how his remarks contributed to the Tribunal not being able to understand him.

8. I note that when the applicant first appeared before me on 4 March 2004 I did not agree to the respondent's application for summary dismissal and being mindful that I had before me an unrepresented applicant (albeit one who had received some legal advice) and an applicant from a non English-speaking background, that it was appropriate to provide him with a specific opportunity to file and serve any affidavit containing additional evidence including a transcript or tape of the Tribunal hearing that would go to the issues that he was now attempting to put before the Court. I did not see this as one of those situations where a Court has before it some specificity attached to a general complaint about what occurred at the hearing before the Tribunal. Providing the applicant with further time was done solely on the basis that some caution should apply to the case of an unrepresented applicant and some leeway be given to an applicant from a non English-speaking background. No such evidence to support the applicant’s mere allegation has been put before the Court despite this opportunity. Nor does the applicant's complaint in his subsequent affidavit of 4 April 2005 rise above the complaint that the Tribunal repeated again and again that it did not believe that he had been persecuted when he was in China and that he was nervous. On the material before me there is nothing to show that the Tribunal failed to comply with the statutory requirement to provide a competent interpreter or that the interpreter failed to provide a competent level of interpretation or that the conduct of the hearing somehow prevented the applicant from fully presenting his case.

9. It is a clear principle of law that the Tribunal must give an applicant a fair hearing. It is basic 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 does in fact provide a competent interpretation. Section 425 of the Act requires the Tribunal to give applicants the opportunity to appear and to give evidence. Critically, for the case before me, s.427(7) 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.”

10. 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 other than the latter, these elements could also be reflections or consequences of the paucity of an applicant’s claims.

11. 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.

1. In the case before me there is no specificity about what errors transpired, where any mistranslations or correct translations would have been. There is nothing to demonstrate the standard of interpretation or the action of the interpreter, or even that his own remarks were such that it effectively prevented him from giving any evidence or that any errors made at the hearing through the interpretation were material to the conclusions of the Tribunal which were adverse to him. On what is before me this ground does not succeed.

2. The applicant also complains that the Tribunal was biased in its decision against him. At best the applicant's complaint before me in this regard was the Tribunal did not believe the things that he said at the hearing and repeatedly told him that it did not believe that he had been persecuted when he was in China. The applicant sees this as showing bias on the part of the Tribunal. To the extent that the applicant's complaint may also be an allegation of the apprehension of bias, then the relevant authorities establish that allegations of bias carry an onus that the claim must be distinctly made out and clearly proved. Actual bias requires evidence of “prejudgement” by the decision maker in the sense that he or she is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented.” (Minister for Immigration & Multicultural & Indigenous Affairsv Jia [2001] HCA 17, [69], [71]-[72], [127]) The real question is whether the mind of the decision maker is open to persuasion. However, the applicant before me would need to present more that just the conclusion reached by the Tribunal to support this claim. In relation to the apprehension of bias relevant standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes. (Re:Refugee Review Tribunal; Ex parte H [2001] HCA 28, [27]-[32]). Beyond the complaint that the Tribunal did not believe him the applicant has not put anything before this Court to show either bias or apprehension of bias on the part of the Tribunal.

3. It will always be, as von Doussa J. stated in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [37]:

   “In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for a decision.”

   The applicant beyond mere assertion in his affidavit has put nothing before the Court to show bias on the part of the Tribunal and there is nothing before me to show that the mind of the Tribunal was not open to persuasion or that a fair-minded lay observer or properly informed lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to reviewing the decision of the respondent's delegate.

4. In relation to the applicant's complaint that the Tribunal did not consider all the information before it, there is nothing from what the applicant has put to the Court to show what information the applicant alleges was not considered. A reading of the Tribunal's decision record does not reveal any matters overlooked by the Tribunal. In all the circumstances and from what the applicant said to me at the hearing before me, it would appear that the applicant's complaint in using the word “consideration” means that the Tribunal did not accept what the applicant was saying. In the absence of anything else apparent on the material before me this ground also must fail.

5. The applicant's complaint that there was no evidence before the Tribunal to justify its decision is similarly made by a way of assertion, without any substance put forward by the applicant. In any event, in the circumstances of this case it appears that this complaint overlooks the requirement as set out in s.65 of the Migration Act that a decision maker in looking at a visa application must be satisfied that the application meets the requirements as set out elsewhere in the Act and Regulations. Relevantly, s.36(2) of the Act requires, in an application for a protection visa, that a Tribunal be satisfied of the criterion that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. In the case before me, as in all cases, the Tribunal while required to proceed with caution did not reach the requisite level of satisfaction as is required by the Act. It is well settled that in proceedings before the Tribunal it is for an applicant to advance whatever argument or evidence they wish to advance to support the claim of a well founded fear of persecution for a Convention reason and it is for the Tribunal then to decide whether that claim is made out to the requisite level of satisfaction. In the case before me the Tribunal did not accept that the applicant was credible in his claims. In this context the applicant's complaint before me now, in the absence of anything else, does not arise above the level of seeking impermissible merits review. This ground also must be rejected.

6. The applicant also complains that the Tribunal took into account irrelevant considerations and did not take into account relevant considerations. Again, no substance or other material is put in support of this claim and in the absence of any apparent particularity this ground must also fail.

7. The applicant also asserts that the Tribunal's finding that he was not a refugee was not based on any rational or logical foundation. No particulars, or argument whatsoever, are provided in support. While some members of the High Court in Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] 198 ALR 59 expressed some support for illogicality as a ground of review, the utility of illogicality is limited. In NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [29] and [30] the Full Federal Court held there is nothing in the remarks of the High Court in S20 which would warrant a departure from earlier line of decisions in the Federal Court to the effect that illogical reasoning does not in itself constitute an error of law or jurisdictional error. The Court said, at [29] and [30]:

   “[29] In our view, there is nothing in these remarks which would warrant a departure from the earlier line of decisions in this Court to the effect that illogical reasoning does not of itself constitute an error of law or jurisdictional error.  Nor does the want of logic which has been identified in the present case sound a “warning note” of the type referred to in Epeabaka (at 422) as to whether there was only a purported, and not real, exercise of power by the RRT.

   [30] Accordingly, the conclusion we have reached in the present case is that there is substance in the argument that there was a want of logic in one aspect of the reasoning of the RRT.  However, want of logic does not of itself suffice to constitute error of law, still less error of law which is jurisdictional.  There is nothing else in the material, apart from the one aspect of illogicality, to cast doubt upon the RRT’s reasoning.  Moreover, there are several bases upon which that reasoning can, in any event, be supported.  Accordingly, on the present state of the authorities, there is no reviewable error.”

   In S635/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1162 Moore, J held that notwithstanding various observations of members of the High Court about illogical reasoning, he was bound to follow NACB. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 at [53] to [54] the Court stated that:

   “[53] It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision.  This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351 to 352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact …”

   “[54] Error of law may occur within jurisdiction – S20/2002 at 72 [57] …The observations in the joint judgement in S20/2202 did not offer any clear guidance upon the circumstances in which factual error may amount to jurisdictional error for the purposes of the exercise by the High Court of its constitutional jurisdiction under s.85(v) or the exercise by this Court of its analogous statutory jurisdiction under s.39B of the Judiciary Act.  The comments did, however, indicate that, absent a question of jurisdictional fact, which in itself may be a matter of some complexity involving questions of fact and law, the circumstances in which factual error will amount to or evidence jurisdictional error is likely to be quite limited.”

   I note also that there is authority in the Full Federal Court decision of VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 [16]-[19] for the proposition that illogicality would not of itself suffice to show jurisdictional error.

   But in any event on the material before me, I can see no such illogical or unreasonable approach by the Tribunal in how it went about its task and reached its conclusions. 

8. The applicant also complains that there was a failure to follow procedures as required by the Migration Act and Regulations. Again, the applicant has provided nothing beyond mere assertion to support this claim. At the hearing before me I asked Ms. Koya, who appeared for the respondent Minister to make submissions on the issue of whether that the Tribunal's decision showed any error in the way identified by the High Court majority SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24. At three points in its decision record the Tribunal refers:

   1)At CB 83.3 to evidence at the hearing before the Tribunal being inconsistent with what he had said in his application for a protection visa to the respondent's Department, in relation to what had happened to him in Beijing in July 1999.

   2)At CB 83.5 the Tribunal records that at the hearing the applicant gave evidence that he had been detained by local police in his home town in October 1999 and that he had not included this claim in his protection visa.

   3)At CB 83.7 the Tribunal records that during his evidence at the hearing before it the applicant had stated that he had distributed pamphlets about the Falun Gong movement and had not mentioned this matter in his application. The Tribunal found his subsequent explanation as being implausible.

   The issue then is whether in reaching its decision the Tribunal relied on information that it was required to put in writing to the applicant given the affect of the decision of the Full Federal Court In Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919 ("Al Shamry") and in the context of what the High Court said in SAAP. That is, that the Tribunal should have put this material to the applicant in writing rather than putting it to him at the hearing. Ms. Koya who appeared for the respondent Minister submitted that the respondent relied on they decision of the Sackville J. in SZDQL v Minister for Immigration and Multicultural Affairs [2005] FCA 796 which was given by his Honour after the decision in SAAP where at [55] his Honour said:

   “The following propositions relevant to this issue appear to be established by the authorities:

   1.   In assessing whether information is the reason, or a part of the reason, for the RRT’s decision, the question is to be judged retrospectively, in the light of the RRT’s reasons. This is so notwithstanding that s.424A(1) addresses the matter prospectively: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 (‘Paul’), at [94] per Allsop J (with whom Heerey J agreed); VAF, at [29].

   
   2. Section 424A(1) requires identification of the reason for affirming the decision under review. In one sense, the reason is usually the RRT’s lack of satisfaction that the applicant has a well-founded fear of persecution for a Convention reason. However, some ‘unbundling’ of the immediate reason for the decision is required for the purposes of s.424A(1): Paul, at [99]; VAF, at [31].

   
   3. The fact that the RRT acknowledges in its reasons that the information has some relevance to its determination does not necessarily mean that the information forms ‘a part of the reason’ for the decision: VAF, at [30]. Nor is it ordinarily enough that the information has some ‘general adverse relevance’: Paul, at [94].

   
   4. The approach that should be taken is that set out in VAF, at [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.”

   The above passage was approved by the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158, at [51]-[54].

   
   5. If the information, considered in the context of the RRT’s reasoning process and the aggregate of its findings, is ‘relatively minor and unimportant in the scheme of things’ (VAF, at [4]), it is not likely to be a part of the reason for the decision. A useful test is whether the information was:

   “so integral to the reasoning process rejecting the [applicant’s] claim as to require as a matter of fairness that the [applicant] be told that information (cf s.424A(1)(a)) and why it was relevant to the review (cf s.424A(1)(b))’: VAF, at [41]; VUAX, at [53]-[54].”

9. It is clear on a plain reading of the Tribunal's decision record that the Tribunal saw the applicant's presentation at the hearing before it as being the critical factor in demonstrating the lack of credibility on his part. At CB 82.8 the Tribunal said that the applicant had demonstrated that he had very little knowledge about the Falun Gong movement and it gave examples. Further, at CB 83 .1 the Tribunal relied on its finding that the applicant made no attempt to involve himself with other Falun Gong practitioners upon his arrival in Australia. Again, this came from information provided by the applicant in evidence at the hearing before the Tribunal. Ms. Koya submitted that by CB 83.4, where the Tribunal begins to look at the inconsistencies between his evidence at the hearing and what was not mentioned in his application for a protection visa and in respect of one matter put in his application that was inconsistent with subsequent evidence, that by this time the Tribunal had clearly already made up its mind about the applicant's credibility. The centrality of the finding on credibility is reinforced by the Tribunal itself when it says at CB 83.9 that the applicant's claims are entirely dependent upon an acceptance of him as a credible witness. The Tribunal then continues at CB 84.1 to distinguish between the applicant's lack of credibility, and as a separate issue the inconsistencies in his various accounts. I accept Ms. Koya's submission that in the circumstances the testing of the applicant's claims at the hearing before it leads to the central conclusion by the Tribunal as to the applicant’s credibility. The examples of inconsistencies between his various accounts go to support this conclusion already formed.

10. Further, I take the view that the references by the Tribunal at CB 83.3 and the following set out above are part of the Tribunal's subjective thought process about, or its qualitative assessment of, information provided by the applicant, and put before the Tribunal, pursuant to s.418(3) of the Migration Act and that it is not information for the purposes of s.424A(1) of the Act. See Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [53] per Sackville J.; Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 at [95] per Allsop J. An impression formed by the Tribunal in respect of the material otherwise put before it pursuant to s.418(3) of the Act is not information within the meaning of s.424A(1): per Branson J. in NAIH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1010 at [4] to [9].

11. It is clear that the Tribunal looked at that the claims as presented by the applicant himself and came to the view at the hearing before it that the applicant demonstrated that he had very little knowledge about the Falun Gong movement, and that he displayed no commitment to this movement following his arrival in Australia. The Tribunal formed the view that in other respects his various claims were inconsistent and his explanations for these inconsistencies implausible. The applicant's grounds as put forward in the application before the Court are not made out, nor can I see any other error on the part of the Tribunal in the way that it has gone about its task and made its decision. Accordingly, this application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Sybilla Waring-Lambert

Date:  29 August 2005