SZHGE v Minister for Immigration
[2006] FMCA 275
•6 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHGE v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 275 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – no review or error – application dismissed. |
| Migration Act 1958 (Cth), ss.91X, 424A, 483A Judiciary Act 1903 (Cth), s.39B |
| Abebe v The Commonwealth (1999) 197 CLR 510 Yo Han Chung v University of Sydney [2002] FCA 186 Craig v The State of South Australia [1995] HCA 58 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 Kopalapillai v MIMA (1998) 86 FCR 547 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679 WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286 Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 |
| Applicant: | SZHGE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2812 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 17 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2006 |
REPRESENTATION
| Applicant: | Applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the Respondent: | Ms C Gray of Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2812 of 2005
| SZHGE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”). The application was filed in the Sydney Registry of the Federal Magistrates Court on 4 October 2005, for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on
2 September 2005, affirming the decision of the delegate of the first respondent (“the delegate”) made on 30 June 2005, refusing to grant the applicant a protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZHGE”.
The applicant has not sought to join the Tribunal as a party, however given that is an exercise of the Tribunal’s jurisdiction that is under review, I made the order at the first court date directions hearing that the Tribunal is joined as a party: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 (“SAAP”) at [43], [91], [153] and [180].
The respondent tendered and applied for the affidavit of Anthony Carter, sworn on 23 November 2005 (“the Affidavit of Mr Carter”), to be admitted into evidence. A Court Book (“CB”) prepared by the respondent’s solicitors was filed and served on 11 November 2005.
Background
The applicant, who claims to be a citizen of the Peoples Republic of China (“PRC”), arrived in Australia on 26 February 2005. The applicant was taken into immigration detention on or about 23 May 2005. On 7 June 2005 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Act. On 30 June 2005 a delegate of the Minister refused to grant a protection visa and on 7 July 2005 the applicant applied to the Tribunal for a review of the delegate’s decision (CB 88).
According to his protection visa application, the applicant was born in Liaoning Province in 1951. He travelled to Australia using a passport issued on 29 September 2002. He travelled to Malaysia in February 2004. The applicant claims that he went to Malaysia to get away from his city because the PSB (Public Security Bureau) were looking for him. He claims that when he returned to China he did not go to his city, but hid in different country areas of Guangzhou. He applied for a visa to come to Australia in October 2004 and this was granted in January 2005.
The applicant claims that it is difficult for Falun Gong members to obtain passports. He asserts that he did so through connections. The applicant states that he used an agent to obtain his visa. He states that the agent applied for the visa, using his own address and telephone number in Shenzhen and saying that it was the applicant’s address and telephone number. According to the applicant the agent impersonated him in a telephone interview with Australian Consulate staff in China. The applicant claims that he needed to do this because he was afraid of the PSB and needed to protect himself and escape (CB 90-91).
Applicant’s claims
The applicant’s claims are set out in the Tribunal decision and I adopt that section of the decision for the purposes of this judgment:
· He started to practise Falun Gong in 1995-1996. As a result of this, his work unit leader told him not to practise Falun Gong and that said that there would be trouble. However, he continued to practise.
· In August 1998 the PSB came to his work unit and detained him. He was placed in a re-education centre for six months. Sometimes he was beaten and interrogated.
· In March 1999 he was suspended from his work unit because he continued to practise Falun Gong, both in public and in private.
· In April 1999, he was detained for 15 days. He was arrested with other people while they were practising. All of the people in this detention centre were Falun Gong practitioners.
· After he was released he went home and went back to work. He was demoted and prohibited from driving.
· The PSB came to his house many times to interrogate him and his family members. He was monitored wherever he went.
· In November 2003 his work unit told him that Falun Gong had been determined by the government to be an illegal organisation. They suspended him until he left the organisation and wrote a self-criticism report admitting that he was wrong.
· He was suspended and required to report to the PSB once a week.
· He was afraid that he would be detained again.
· He went to Malaysia and then returned to China and went to another city where he was in hiding until he came to Australia.
· He fears that if he returns to China he will be detained and punished. (CB 91-92)
The applicant claimed at the Tribunal hearing that although he practised Falun Gong in the Villawood Detention Centre, he did not previously practise Falun Gong publicly in Australia as he was worried that a PRC spy might photograph him and convey this information back to China. He was hospitalised for a period of approximately 10 days with heart problems and headaches. He claims that these medical problems were the reason for inconsistency between evidence in his protection visa application and that provided to the Tribunal.
The Tribunal’s findings and reasons
A convenient summary of the Tribunal’s reasons are contained in the respondent’s written submissions prepared by Ms Gray and I adopt paragraphs 5 to 11 of those submissions:
5.On 18 July, the Tribunal by facsimile transmission to the applicant’s authorised recipient invited the applicant to give oral evidence and present submissions at a hearing on 12 August 2005: CB 49 – 50.
6.On 25 July 2005, the applicant’s authorised recipient responded to the hearing invitation and indicated that the applicant wanted to come to the scheduled hearing: CB 53.
7.On 12 August 2005, the applicant attended the scheduled hearing. On 24 August 2005, the Tribunal by facsimile transmission to the applicant’s authorised recipient invited the applicant to comment on information that may be the reason, or part of the reason for deciding the applicant was not entitled to a protection visa. That information was about inconsistencies between a statement the applicant provided to the Tribunal and information provided in the protection visa application: CB 79 – 80. The Tribunal invited the applicant to provide comments by 31 August 2005 and complied with ss.424B(2), 441A(5)(a) and 441C(5) of the Migration Act 1958 (“the Act”) and reg.4.35(2) of the Migration Regulations 1994. Relevantly, reg.4.35(2)(a) provides that if an “invitation relates to an application for review of a decision that applies to a detainee” the prescribed period for giving the information starts when the person receives the invitation and ends at the end of 7 days after the day on which the invitation is received, which in this case was 31 August 2005. Pursuant to s.441G(2) if the Tribunal gives a document to the authorised recipient, it is taken to have given the document to the applicant. On 31 August 2005, the applicant’s authorised recipient responded to that letter: CB 81 – 83.
8.On 2 September 2005, the Tribunal made its decision affirming the decision of the delegate to refuse the applicant a protection visa. The Tribunal was not required to invite the applicant to the handing down of the decision as he was in immigration detention: (s.430A(1)(b) Migration Act 1958). Accordingly, on 5 September 2005, pursuant to s.430D(2) of the Act the RRT sent by facsimile transmission to the applicant at VIDC and his authorised recipient a copy of the Tribunal decision record affirming the decision not to grant a protection visa: CB 84 - 106. The Tribunal complied with ss.441G, 441A(5) and 441C(5) of the Act.
9.The Tribunal did not accept that the applicant’s claims were credible: CB 104.3. The Tribunal found:
(i)inconsistencies between his claims in his protection visa application and his statement provided to the Tribunal: CB 104.4;
(ii)although it accepted that the applicant became ill a few days after his visa application was prepared, it found that his illness did not adequately explain the nature and extent of the inconsistencies: CB 104.6;
internal inconsistencies in his evidence given at hearing and that he shifted his evidence when challenged: CB 105.1 and 105.4;
that his propensity to change his evidence adversely affected his overall credibility: CB 105.6.
that it did not accept that changes in his evidence were due to any medical problems: CB 105.7;
that if the applicant was genuinely committed to Falun Gong he would have sought contact with other practitioners in Australia even if he was concerned about being photographed: CB 106.1; and
that the fact he returned to the PRC from Malaysia was inconsistent with his claims that he was detained, dismissed from his employment and prevented from practising his religion prior to his trip to Malaysia: CB 106.3.
10.Accordingly, the Tribunal did not accept that the applicant was a Falun Gong practitioner, detained or had other problems with the authorities. It found he only practised Falun Gong in VIDC to enhance his claims and as such s.91R(3) of the Act applied. It did not accept that he would practise Falun Gong if he returned to the PRC: CB 106.4.
11.The Tribunal rejected the applicant’s claims of harm because it found his evidence not credible, inconsistent and implausible. Those adverse credibility findings are matters of fact for the Tribunal par excellence: (Re MIMA; ex parte Durairajasingham (2000) 168ALR 407 (HCA/McHugh J) at [67]). It also rejected the applicant’s claims for protection on the basis that s.91R(3) of the Act applied. The Courts have held that a finding pursuant to s.91R(3) of the Act is a matter of fact for the Tribunal and “it is not open for the Court to substitute its view for that of the Tribunal.” (NAQS v Minister for Immigration [2002] FMCA 301 (19 November 2002) per Raphael FM at [10]).
Application for review of the Tribunal’s decision
On 4 October 2005, the applicant filed an application for review under s.39B of the Judiciary Act setting out the following grounds:
1.The Tribunal did not believe I was Fa Lun Gong practitioner in China but during the hearing the member of Tribunal didn’t ask me any question about Fa Lun Gong.
2.Tribunal think I will not practice Fa Lun Gong if I go back to C1hina. I only practice Fa Lun Gong for my application. This is the biased judgement.
3.Tribunal think I am not Fa Lun Gong practitioner because I didn’t contact with other Fa Lun Gong practitioners in Australia. after only few weeks I arrived. (Read literally - copied without amendment – errors included)
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v The State of South Australia [1995] HCA 58 per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26.
Reasons
At the first court date on 8 November 2005, the applicant indicated that he wished to participate in the Court’s “RRT Legal Advice Scheme (NSW)” and an application was tendered. As the applicant was in detention an early Court date was allocated with the final hearing set down for 19 January 2006. At that time, the applicant indicated that he had not yet seen the panel advisor, although he had been notified of the advisor’s name and that the advisor would be visiting the applicant at the detention centre. In the circumstances, I believe that the only course open was to adjourn the matter to enable the applicant to receive advice from the panel advisor and file any further documentation in accordance with the orders made on 8 November 2005. The panel advisor was subsequently contacted by the scheme’s coordinator and my chambers was informed that the advisor would attend the detention centre to fulfil that task. The applicant at the adjourned hearing advised the Court that the visit by the panel advisor had occurred.
The applicant made brief and cryptic comments from the bar table in respect of the meeting with the panel advisor. He expressed his expectation that the panel advisor would redraft his pleadings and prepare submissions for the hearing.
The role of the panel advisor was explained to the applicant. Particularly that the panel advisor has only a limited role and does not provide the services of case preparation for the hearing or the drafting of pleadings. The applicant complained of the difficulties he faced due to language and his understanding of the legal system. He confirmed that all the documentation supplied by the respondents’ solicitors have been translated to him, but he did not understand the legal system or what he was expected to do in respect of presenting his case in Court. I indicated to the applicant that I appreciate the practical difficulties with which a person in his position is confronted because he is in a strange country whose language he cannot speak and whose legal system he does not understand. However, the limited assistance that is available was provided to him. Also I had previously adjourned the final hearing in this matter to ensure that he was able to access this service, however limited it may be.
Unfortunately, the applicant has not provided any particularisation of the purported grounds of appeal, either per medium of written submission (which the applicant failed to provide in spite of an order to do so), or in oral submissions made during the hearing. The only issues that the applicant raised from the bar table was the alleged error in respect to the number of days the applicant had been in hospital at the time of his heart problem; I will return to that issue.
Where an applicant is self-represented, the Court must independently consider whether any arguable case based on the material could have been made out: Yo Han Chung v University of Sydney [2002] FCA 186. To perform this requirement I will first deal with the issues raised in the respondent’s written submissions that address the three pleaded grounds in the applicant’s original application. I will then consider the contents of the Court Book and the Tribunal decision to determine whether I can identify any other possible ground of jurisdictional error. In performing this latter task I must rely on what appears on the face of the documents, in the absence of any submission or evidence leading to the identification of the error.
The first respondent submits that the application appears to raise issues that should have been put forward to the Tribunal when reviewing the merits of the applicant’s claim, as the application challenges the fact that the Tribunal did not believe the applicant’s claims. It is submitted that the Tribunal’s credibility findings were open to it and no error is demonstrated in the conclusions: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 558 to 559; W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679 per Tamberlin and RD Nicholson JJ at [64] to [69]. The Tribunal decision turned on its finding of fact, namely that the applicant was not, as he claimed, a Falun Gong practitioner. He had never come or would come to the attention of the authorities on that basis. It is contended that given that they were the only bases upon which the applicant claimed to be a refugee and that they were rejected, the Tribunal was entitled, if not obliged, to conclude that the applicant was not a refugee and therefore did not meet any of the criterion in s.36(2) of the Act.
This Court cannot review the merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. There is no error of law, let alone a jurisdictional error in the Tribunal making a wrong finding of fact: Abebe v The Commonwealth (1999) 197 CLR 510 at [137]. I accept the first respondent’s submission that the Tribunal’s findings were open to it for the reasons it gives.
The applicant pleads that the decision of the Tribunal was biased, which is a very serious allegation against the Tribunal member and for which there is no evidence provided in support.
Actual bias can be said to exist when the Tribunal member has “a pre-existing state of mind which disables him from undertaking or renders him unwilling to undertake any or any proper evaluation of the relevant materials before him which were relevant to the decision to be made”: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 (“Jia”) at [35] and [72]. Actual bias may be said to exist when the Tribunal member is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Jia at [71] and [72].
A party alleging actual bias on a decision-maker’s part carries a heavy onus and it must be clearly proved: Jia at 531. The existence of actual bias may be inferred from facts and circumstances but caution should be exercised, in the absence of evidence of partisanship or hostility, before inferring actual bias from factual errors or faulty reasoning on the part of the RRT member: Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 at [27]; Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 at [36].
Further, a case of actual bias is seldom made out by reference solely to the reasons for decision and no inference of bias or prejudgment can be drawn from the mere fact of adverse findings in the RRT’s reasons: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286 at [3].
Apprehended bias will exist when a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, would not apprehend that the Tribunal member might not bring an impartial mind to the resolution of the question to be decided: Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 (“Ex parte H”) at [27]; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294. Examples of such apprehended bias are:
a)The applicant has been overborne or intimidated by the Tribunal: Ex parte H at [31].
b)Fact finding of the Tribunal was conducted in a manner which was:
i)substantially unreasoned;
ii)in the nature of mere assertion that lacked rational or reasoned foundation;
iii)at times plainly and ex facie wrong; and
iv)selective of material going one way: NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 (“NADH”) at [115].
A determination as to whether an administrative decision is affected by apprehended bias should be informed by the following considerations:
a)Natural justice does not require the Tribunal member’s mind to be absent of any predisposition or inclination for, or against, an argument or conclusion. All that is required is for the Tribunal member to be open to persuasion: Jia at [72] and [86].
b)Apprehended bias, in the context of an administrative decision-maker, is not attended with the strictures that apply in the case of judicial prejudgment: Jia at [179]-[187] and [244]-[245]; NADH at [19]. In NADH Allsop J (Moore and Tamberlin JJ agreeing) described this difference as follows:
“The tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The tribunal here must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.”
c)Where credibility is in issue, the Tribunal member will necessarily have to test the evidence presented – often vigorously: Ex parte H at [30]. The requirements of procedural fairness will often require that the applicant be plainly confronted with matters which bear adversely on their credit or which bring their account into question. Further, the decision-maker’s assessment of the applicant’s creditability will often depend upon the demeanour of the witness and the manner in which they give evidence:
Ex parte H at [34].d)Bias does not necessarily arise from illogical, irrational decision-making or inferences: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (“Applicant S20/2002”) at [52], [75], [99]-[101]. Further, a manifestly defective or illogical approach to the consideration of evidence, and even irrationality in the reasons for a conclusion, may create an impression of confusion, lack of care or incompetence. However such an approach, without more, does not necessarily demonstrate apprehended bias: Applicant S20/2002 at [101] and [136].
The applicant has not attempted to provide any evidence or submissions to support this serious allegation. I do not believe that the applicant understands the meaning of the term “bias” when used in the context of judicial review of an administrative decision. I believe it has been used, as commonly seen in these formulaic pleadings, to express a disagreement with the decision which is different from what the applicant either expected or desired. This ground cannot be sustained.
On 7 July 2005, the applicant filed an application with the Tribunal for review of the delegate’s decision. On 18 July 2005, the Tribunal wrote to the applicant’s migration agent, who had been nominated by the applicant to receive all correspondence in respect of his case. In that letter the Tribunal advised that it had considered the material before it in relation to his application, but was unable to make a decision in his favour on that information alone. The letter extended an invitation to the applicant to appear at a hearing of the Tribunal on 12 August 2005. That invitation was accepted by the applicant’s agent and on 9 August 2005 the agent forwarded to the Tribunal written submissions in support of his review.
After the Tribunal hearing on 11 August 2005, the agent forwarded to the Tribunal a statement by the applicant responding to issues that had been raised during the hearing. On 24 August 2005, the Tribunal wrote to the applicant’s agent raising a number of issues. The letter noted that the information set out in the statement provided to the Tribunal differed in significant respects from the information provided in the applicant’s protection visa application; and those differences were detailed. The letter noted that the inconsistencies between the two accounts were significant. The inconsistencies were not only in relation to the timetable in which particular incidents occurred, but also concerned details such as where the applicant was allegedly detained by the PSB and where he stayed while he was allegedly in hiding. The letter noted that during the hearing, the applicant confirmed not only that the information in the protection visa application was correct; but that the interpreter used by the advisor had gone through the application with the applicant prior to his signing it, confirming that the information in it was correct. The Tribunal sought explanation for these inconsistencies.
This correspondence issued by the Tribunal complied with its obligation under s.424(A) of the Act, when it wrote to the applicant through his advisor inviting comments on inconsistencies between the information in his protection visa application and information given to the Tribunal during the hearing. Ms Gray for the first respondent submits that no procedural fairness issue arises in this matter such as had occurred in SAAP or Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27.
The response from the applicant’s agent indicated that the applicant acknowledged that there were inconsistencies in the information provided. The explanation offered was that the applicant provided some of the material when he was ill — with heart problem and headaches – which required 10 days of hospitalisation. This was about the time that the applicant was completing his protection visa application. These inconsistencies were subsequently realised when the applicant was preparing the statement to be lodged with the Tribunal at the time of the Tribunal hearing.
In its “findings and reasons”, the Tribunal made the following statement:
…I accept that the applicant became ill a few days after his protection visa application was prepared. However, while the applicant asserts that he was confused and could not focus at the time the protection visa application was prepared, in my view the nature and extent of the inconsistencies is not adequately explained by the applicant becoming ill some days later. I do not accept that the explanation advanced by the applicant adequately explains the nature and extent of the inconsistencies in the accounts provide by the applicant.
If the inconsistencies between the protection visa application and the applicant’s later statements were only problems with the applicant’s evidence, I may have taken a different view on this issue. However, there are a number of other problems with the applicant’s evidence which, when considered cumulative, have led me to the conclusion that the applicant’s claims are not credible.” (CB 104)
The Tribunal member indicated that the problem was that the applicant’s evidence was internally inconsistent during the hearing and provides a number of examples. The applicant also shifted his evidence when it was challenged and the Tribunal member provides a series of examples.
The other major finding was in relation to the applicant’s credibility and the Tribunal again sets out examples of that. These include his non-practise of Falun Gong since arriving in Australia and his return to China after travelling to Malaysia in 2004. The reasons that he gave for his return to China were inconsistent when taken in the context of the claimed problem that led to his original departure.
As I indicated above, I have an obligation to independently consider whether there is an arguable case based on the material that is available to me and whether any jurisdictional error can be identified. I have undertaken that task and on the face of the documents made available in the Court Book, I have been unable to identify any jurisdictional error. Further, it is not apparent from the material available that there may exist other documents which may lead to me forming a contrary view.
Conclusion
In the absence of particularised pleadings or any submissions identifying any substantive ground, I am not satisfied that the Tribunal decision contains any jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 2 March 2006