SZHPF v Minister for Immigration
[2007] FMCA 835
•1 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHPF v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 835 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91R, 91X, 424A , 483A |
| Kalala v Minister for Immigration (2001) 114 FCR 212 Minister for Immigration v Singh (1997) 72 FCR 288 Rajaratnam v Minister for Immigration (2000) 62 ALD 73 SAAP v Minister for Immigration (2005) ALR 162 SAAS v Minister for Immigration (2002) 124 FCR 182 SZDJQ & Anor v Minister for Immigration [2005] FMCA 415 SZGDB v Minister for Immigration [2006] FCA 431 VAAB v Minister for Immigration [2005] FCAFC 117 VAF v Minister (2004) 206 ALR 471 |
| Applicant: | SZHPF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3342 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 19 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 1 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser on a direct access basis |
| Counsel for the First Respondent: | Mr M Wigney |
| Solicitors for the First Respondent: | Ms T Quinn of DLA Phillips Fox |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 15 November 2005 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 |
SYG3342 of 2005
| SZHPF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
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) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 15 November 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 12 October 2005 and handed down on 13 November 2005, affirming a decision of the delegate of the first respondent made on 20 January 2000, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZHPF”.
A Court Book ("CB") prepared by the first respondent’s solicitors was filed on 23 December 2005. I have marked it Exhibit "A" and it was read into evidence.
Background
The Tribunal decision of Ms A Younes, reference NO5/51601, provides the following background information. The applicant, who claims to be a citizen of the People's Republic of China (“the PRC”), arrived in Australia on 30 December 1998. On 20 December 1999, she lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 20 January 2000, a delegate of the Minister refused to grant the applicant a protection visa. The applicant was notified of that decision on 20 January 2000 and subsequently on 4 June 2005. On 30 June 2005, the applicant applied to the Tribunal for review of the delegate's decision.(CB 94)
In support of the Tribunal application, a migration adviser provided submissions claiming that the applicant feared persecution based on her Falun Gong practice. Due her fears, the applicant did not return to the PRC in 2000 to attend her mother's funeral. In 2000, the Chinese police went to the applicant's home on two occasions to check her whereabouts. The applicant was also divorced and would have no accommodation in the PRC if she was to return.(CB 97)
At the Tribunal hearing of 5 October 2005, the applicant provided an untitled document of that date. The comments of the letter were interpreted to the Tribunal and contained the following claims:
a)she had lodged an application for a protection visa in September 1999 which was refused in mid-2000 but as her then adviser did not inform her of the outcome, she did not seek a review. She did not know that she had been unlawful in Australia until she the notification in mid-2005 of the delegate's decision;
b)she and her mother started practising Falun Gong in the southern district of Shanghai. Her health improved. Her influence "made many people join";
c)after arriving in Australia she saw many people practising Falun Gong. She sent to her mother three photographs in order to show her that adherence to Falun Gong were all over the world. In April 1999 the police went to her mother's house looking for the applicant. They confiscated the photographs and threatened her mother that if the applicant practised overseas, then "whole family would be in big trouble";
d)the police came again half a year later asking about the applicant. They forced her mother to attend brainwashing classes and persecuted her. As a result, her mother's "heart disease attacked her to death on 9 August 2002". Her mother had advised the family that the applicant should not return to the PRC;
e)persecution of Falun Gong practitioners will continue in the PRC. There are Chinese spies in Australia;
f)something "strange" happened to her this year. In early June 2005 she went to the Chinese consulate in Sydney to apply for a "valid travel document". Subsequently, she received phone calls and when she answered them there was no response. An officer from her brother's counsel went to her brother's house in the PRC asking if the applicant had returned. Now she only practises Falun Gong at home;
g)she has lived in Australia "in such heavy mental burden and fears". She cannot return to the PRC.(CB 97-98)
Tribunal’s findings and reasons
A summary of the Tribunal's reasons was contained in the respondent's written submissions prepared by Mr D Godwin of counsel and I adopt paragraphs 6 to 11 of those submissions.
6. The RRT concluded that the applicant was not a credible witness. The Tribunal concluded that the applicant was fabricating her claims in the course of the hearing. The Tribunal found that the applicant's explanation for not lodging her application for protection until September 1999 was unconvincing. The Tribunal found that the "brainwashing of her mother" claim and the "nuisance calls" claim were substantially new claims not raised prior to the hearing. The Tribunal concluded that these claims were fabricated (CB106-107).
7. The Tribunal was of the view that the applicant's level of knowledge of Falun Gong was not that which would be excepted of a practitioner since 1993 (CB107).
8.The Tribunal was of the opinion that her evidence that she was constantly worried about being found out as not being lawful in Australia was inconsistent with her assertions that she did not know her application for a visa was rejected until she received a letter in June 2005 (CB 108).
9.The Tribunal reasoned that the applicant did not attend her mother's funeral in China because she was unlawfully in Australia. It thus rejected as a fabrication her claim that she did not attend the funeral because of a fear of persecution in The PRC (CB108).
10.On the basis of the above credibility findings, the Tribunal concluded that neither the applicant nor her mother had been involved in Falun Gong activities in China (CB108).
11. The Tribunal concluded that the applicant's Falun Gong activities in Australia were not in good faith and the applicant had engaged in those activities for the purpose of strengthening her claim for protection (CB109).
Application for review of the Tribunal’s decision
On 15 November 2005, the applicant filed an application for review under s.39B of the Judiciary Act. At the commencement of the hearing on 19 February 2007, Mr Zipser, for the applicant, sought leave to file an amended application. As there was no objection from the first respondent, leave was granted. The amended application contains the following grounds:
1. If a basis of the Tribunal's decision was that the applicant did not have a genuine fear of persecution, the Tribunal fell into jurisdictional error in making this finding.
2. The Tribunal was "not satisfied that the applicant is a credible witness". One reason for this finding was that "the Tribunal was not persuaded by the applicant's … claim that her mother was taken to brainwashing classes in August 1999". The Tribunal fell into jurisdictional error in the manner in which it dealt with the applicant's evidence concerning brainwashing classes which her mother was forced to attend in 1999.
3. The Tribunal fell into jurisdictional error by applying s.91R(3) of the Migration Act.
4. The Tribunal failed to consider whether the applicant would practise Falun Gong on her return to China, and if so, whether she might be persecuted.
Submissions and reasons
Mr Zipser has labelled the applicant's first ground the "genuine fear issue". His written submissions state that the applicant arrived in Australia in December 1998.(CB 94.1) In July 1999, the Chinese authorities cracked down and banned Falun Gong.(CB 98.7) In September 1999, the applicant lodged an application for a protection visa.(CB 94.1) The Tribunal was concerned about the three-month delay because of:
a)the crackdown on Falun Gong in July 1999; and
b)the lodging of a protection visa application in September 1999.
Although the applicant gave an explanation for the delay, the Tribunal was "not persuaded by the applicant's explanation"(CB 106.7) and found that it was “satisfied that the three-month delay in lodging the protection visa application indicates that the applicant did not have a genuine fear of persecution”.(CB 107.2) Mr Zipser submits that the real question is whether the Tribunal’s finding that "the applicant did not have a genuine fear of persecution" was determinative of the protection visa application. Mr Zipser contends that it was not for two reasons.
Mr Zipser submits that the relevant question for the Tribunal was whether the applicant satisfied the criteria for a protection visa at the time of the Tribunal decision (October 2005) rather than at the time the applicant lodged his protection visa application (September 1999): Minister for Immigration v Singh (1997) 72 FCR 288. In situations where many events have taken place between the two dates, as in this matter, it would probably be an error by the Tribunal if it does not intend to find that the applicant does not have a genuine fear of persecution, as it did in this case in relation to October 2005.Mr Zipser contends that the better interpretation is that the Tribunal did not find that the applicant did not have a genuine fear of persecution at the time of her protection visa application in September 1999.The Tribunal summarised its findings as:
In summary, there is no Convention-related reason as to why this applicant could not return to China. On the basis of the evidence as a whole, the Tribunal does not accept that the applicant had suffered any Convention-related harm, nor does the Tribunal accept that there is a real chance of this happening to the applicant in the reasonable foreseeable future.
Therefore, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.(CB 110.7)
Mr Zipser then referred to SZDJQ & Anor v Minister for Immigration [2005] FMCA 415 at [29] per Barnes FM:
Reading the Tribunal decision as a whole and having regard to the time that had elapsed and the evidence before the Tribunal as to the developments in India after the applicant left the country, this is not a case in which it is implicit in the Tribunal's reasons for decision that it made the finding that the applicant did not have a well-founded fear at the time of the decision. Hence, it is necessary to consider the grounds raised by the applicant. In passing, I note that it is also contended that various other bases for the Tribunal's decision were not impinged, including the finding in relation to the applicant's claimed fear of a central government, but as this was only one aspect of the claimed fear the absence of error in this part of the decision is not determinative.
A similar issue arose in SZDJQ where the parties contested the Tribunal finding that the applicant did not have a genuine fear of persecution. An issue arose about whether the Tribunal intended to say that the applicant did not have a genuine fear for persecution at the time of the Tribunal decision. In SZDJQ, it was found that at the time the applicant departed his home country, he did not have a genuine fear of persecution. Federal Magistrate Barnes found that the Tribunal did not intend to find that the applicant did not have a genuine fear of persecution at the time of the decision. Mr Zipser acknowledges that although her Honour’s findings are not binding on me, the approach is sensible and proper.
Mr Zipser contends that in this matter, six years has passed since the applicant lodged her protection visa application. The Tribunal found that she actively participated in Falun Gong activities in Australia. Mr Zipser also submits that it is relevant that the Tribunal did not find that the applicant did not have a genuine fear of persecution.
Mr Wigney, for the first respondent, acknowledges that this ground is contingent upon a finding of "no subjective fear" as a basis for the Tribunal's decision. Ms Zipser submits that this Tribunal finding relates to the date of the visa application and not the date of the Tribunal decision.It is submitted that the Tribunal essentially found that the applicant has never been a bona fide Falun Gong practitioner, either in Australia or in China. While the Tribunal did not rely upon the applicant’s delay as being one of the reasons for concluding that she was not a bona fide practitioner, and it did note that she would not have had a subjective fear at the time she lodged her protection visa application, this was only a part of its overall reasoning concerning the applicant's bona fides. Mr Wigney submits that no misunderstanding by the Tribunal about when the applicant's subjective fear has to be assessed is thereby demonstrated.
Mr Wigney referred to the Tribunal decision under the heading ‘Definition of “Refugee”’:
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country (or countries) of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence.
Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.(CB 96.3)
And the following passage further on in the decision:
In summary, there is no Convention-related reason as to why this applicant could not return to China. On the basis of the evidence as a whole, the Tribunal does not accept that the applicant has suffered any Convention-related harm, nor does the Tribunal accept that there is a real chance of this happening to the applicant in the reasonably foreseeable future.
Therefore, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.(CB 110.7)
Mr Wigney submits that the Tribunal did clearly state the law and the relevant matters for it to consider. In summary, there is no Convention-related reason why this applicant could not return to China.(CB 110.7) The Tribunal indicated that it did not accept any of the applicant’s claims, concluded that she was never a Falun Gong practitioner in China or Australia, and there was no basis for a fear of persecution if she returned to China in the reasonably foreseeable future.
I am satisfied that this analysis provided by Mr Wigney is correct.
Mr Zipser relies on one reason for the adverse credibility finding – being the applicant’s failure to explain her delay in making the visa application until September 1999. I agree with Mr Wigney that a fair reading of the Tribunal decision makes plain that the delay was just one of the reasons why the applicant’s claim was rejected. The reasoning does not suggest that the Tribunal was assessing the applicant’s entire application as at September 1999. The first ground of review cannot be sustained.
In respect of the second ground referred to by Mr Zipser as the “brainwashing classes issue”, he submits that the Tribunal was "not satisfied that the applicant is a credible witness".(CB 106.3) The first of its reasons in support of this finding was:
the Tribunal is not persuaded by the applicant's explanations, particularly given her claim that her mother was taken to “brainwashing” classes in August 1999, a new claim which was not mentioned in the document provided in support of the application for review.(CB 106.7)
Mr Zipser submits that the applicant has two complaints about these findings.
First, the “document provided in support of the application for review” was prepared by Mr David Guo of CTS Migration Services, a migration agent representing the applicant.(CB 72-73) The Tribunal found that because Mr Guo had failed to state in his letter to it that the applicant's mother was taken to brainwashing classes in August 1999, the applicant had fabricated that claim.(CB 106.6)
Mr Zipser submits that the information in the letter was not information "that the applicant gave for the purposes of the application" within the meaning of s.424A(3)(b). Hence, the Tribunal should have complied with s.424A(1) and its failure to do so gave rise to jurisdictional error: SAAP v Minister for Immigration (2005) ALR 162.
Mr Zipser did accept that an applicant’s agent has actual authority to send a document to the Tribunal on behalf of the applicant. However, Mr Zipser submits that the agent does not stand in the shoes of the applicant simply by writing out the applicant’s claims for them. Therefore, if the applicant had written a statement or statutory declaration and the agent had forwarded that to the Tribunal, it would become information given for the purposes of the application, notwithstanding the fact it was sent by the agent. Mr Zipser argues that in this case, the letter was written not by the applicant but by the agent. The Tribunal formed the view that its contents were a complete statement of the applicant’s claims. Therefore anything raised at a latter time is to be considered a recent invention.
The second limb of Mr Zipser's argument is that the following issues arise on a fair reading of the Tribunal decision:
a)The Tribunal believed that during its hearing the applicant fabricated the story that her mother was taken to brainwashing classes in August 1999 to explain her delay in lodging her protection visa application. Hence, the Tribunal referred to "a new claim" (CB106.7) and found that "the applicant had been fabricating claims" (CB107.2). Yet, during its hearing the applicant provided the Tribunal with a document which she claimed showed that her "mother was forced to attend a study class organised by the government to wash brain".(CB 85.2-85.4)
b)The Tribunal overlooked the part of the document referred to above.
c)The Tribunal's error was important to its reasoning process.
d)Hence, it can be said that the Tribunal failed to consider a document which was, arguably, of critical importance to the applicant’s claim.
Mr Zipser submits that during the course of the hearing the applicant provided information. However, the Tribunal was not persuaded by her explanations, particularly given her claim that her mother was taken to brainwashing classes in August 1999.(CB 106.6)Mr Zipser argues that the applicant did provide the Tribunal with a statement at the commencement of the hearing on 5 October 2005 and was questioned about it.(CB 84-87) The statement contains the following:
After that they sorted to persecute my mother, forced her to attend the study class organised by the Government to “wash brain” and forbidding her to practice Fulan Gong.(CB 85.2)
Unfortunately she was found by the Council and forced to attend the “wash brain” class.(CB 85.3)
Mr Zipser acknowledged that no dates were provided for these events, however, it is significant that the applicant went to the Tribunal hearing with the prepared statement. It was agreed that during the hearing, she merely repeated with a little more detail the contents of the statement. In VAAD v Minister for Immigration [2005] FCAFC 117 at [77], Hill, Sundberg and Stone JJ said:
These comments make clear that whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the documents. In this case the Tribunal failed to consider a document, the UNP letter, which was not a new particular to the first applicant but arguably of crucial importance to the claim of all the applicants. This is not a situation of the kind to which Mason J referred to in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 at 40, where the factor was so "insignificant that failure to take it into account could not have materially affected the decision". The failure to do so led the Tribunal into error and that error had an adverse affect on the Tribunal's assessment of the first applicant's credibility. The Tribunal failed to have regard to material evidence and, as the Tribunal's own comments show, that the initial error was not corrected by the Tribunal's subsequent consideration of the UNP letter and the UNP translation. On the contrary, the initial error tainted the latter consideration of this evidence and compounded the Tribunal's error. The Tribunal's conclusion that the UNP letter was fabricated was greatly influenced by the Tribunal's mistake in thinking that the UNP letter had not been provided to the delegate or been sent to the Tribunal only after the Tribunal's letter of 5 September 2001, the s 424A letter. The fact that, as originally provided, the UNP letter was in Singhalese language and no translation was provided does not alter the fact that the Tribunal erred. Nor does it detract from the significance of the Tribunal's error; see X v Minister for Immigration & Multicultural Affairs [2002] FCAFC 3 at [52]-[53].
Mr Zipser submits that, in the circumstances, the Tribunal fell into jurisdictional error.
Mr Wigney submits that second ground of the amended application must be rejected. That the applicant’s agent was acting on the applicant's behalf in providing the information, is clearly stated in the application.(CB 69) The applicant had signed a declaration that the information supplied with the form was complete and correct.(CB 71) Mr Wigney also submits that the claim that the Tribunal "overlooked" the information concerning the mother's brainwashing in the applicant's written statement given to the Tribunal at its hearing, must be rejected for two reasons. First, the Tribunal expressly referred to this portion of the statement in its reasons.(CB 98, 108) Secondly, the fact that the information was in a written statement does not change the fact that the claim was new – it was still being made for the first time at the Tribunal hearing.
The first respondent's primary submission in relation to the claimed breach of s.424A is that the migration agent’s letter falls within s.424A(3)(b). Therefore, the question of whether s.424A(1) applies in a situation where the Tribunal takes into account the fact that a particular matter was omitted from a document provided to the Department, does not arise. Mr Wigney submits that even if the letter does not fall within s.424A(3)(b), there is still no breach of s.424A(1) because it contains no reference to the applicant's explanation for delay, which was not information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. This omission in the adviser's letter was not information or knowledge used by the Tribunal, but was simply part of the Tribunal's subjective appraisal or thought process: VAF v Minister for Immigration (2004) 206 ALR 471 at 447.
Mr Wigney referred to SZGDB v Minister for Immigration [2006] FCA 431 at [25] where Rares J noted conflicting views in the Federal Court about whether VAF provides a rule of general application that lack of detail or specificity in evidence or conclusions reached by the Tribunal, can never amount to information for the purposes of s.424A. Mr Wigney distinguished SZGDB and SZECF from this case because of differing facts and circumstances.
Mr Wigney submits that in this case, the most one can say is that the omission from the adviser's letter led the Tribunal to not be persuaded by the applicant's explanation about delay. The unexplained delay was, in turn, one of the reasons for doubting the credibility of the applicant's claims. This is a far cry from SZECF, where "the very form and content of a statement (including what was not said) was central to the rejection of virtually all the evidence of the appellant": SZECF at [29].Mr Wigney also distinguished SZECF from the facts and circumstances in SZGDB, where Rares J found the Tribunal sought to use the way in which the applicant formulated his or her claim originally as part of the reason for rejecting the claim": SZGDB at [28]. The situation in SZGDB was further complicated because the Tribunal reached an erroneous view about that applicant’s original claim: at [30].
In respect of the first limb of the second ground, Mr Zipser’s argument is unsupported by evidence about the role of the agent. The applicant has recently arrived in Australia with little or no knowledge of English or the procedures to follow in making a protection visa application. Consequently, the applicant was totally dependant on a migration agent to explain and prepare her documents. To a certain extent, the agent must stand in the shoes of the applicant to make the application. In the absence of detailed evidence and cross-examination, it is not possible to argue that the agent breached his obligations to the applicant. The applicant did declare on her Tribunal application form that the information supplied was complete and correct in every detail.(CB 71) I accept the submission of Mr Wigney that the authorities relied upon by Mr Zipser must be distinguished on the facts. The applicant’s statement which is the subject of the claim was executed by her on the day of the Tribunal hearing. The information the subject of SZGDB and SZECF was information that was in existence many months before but overlooked by those Tribunals. I am satisfied that neither limb of the second ground can be sustained.
In respect of the third ground, which has been identified as the s.91R(3) issue, Mr Zipser referred to that provision of the Act:
(3)For the purpose of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
Section 91R(1) recognises that a person can do an act or engage in conduct for more than one reason or purpose. Mr Zipser submits that the proper construction of s.91R(3) is as follows:
a)where a person engages in conduct for a single purpose to strengthen their claim to be a refugee, s.91R(3) is satisfied and the Minister must disregard the conduct;
b)where a person engages in conduct for more than one purpose, even if one of the purposes is to strengthen their claim to be a refugee, the precondition for s.91R is not satisfied and the Minister is not permitted to disregard the conduct engaged in by the person.
This construction of s.91R(3)(b) is supported by the fact that s.91R(3)(b) contains the term "the purpose" rather than "a purpose". Mr Zipser submits that if I agreed with the construction, a question arises whether the Tribunal then applied it. If not, the Tribunal fell into jurisdictional error.
Mr Zipser submits that the Tribunal accepted that "the applicant knew various factual matters relating to Falun Gong" (CB107.7) and "accepts as being plausible that the applicant has been involved in Falun Gong activities in Australia" (CB 109.6). The Tribunal then found:
(T)he Tribunal is satisfied that any Falun Gong activities in which the applicant has engaged in Australia were not in good faith and that she had engaged in those activities for the purpose of strengthening her claim for a protection visa. Accordingly, pursuant to Section 91R(3) of the Act, the Tribunal disregards those activities.(CB 109.7)
The Tribunal did not expressly acknowledge the construction of s.91R(3) as at [30] - [31] above. Even if the applicant was motivated in part to strengthen her refugee claim, she also had an interest or belief in Falun Gong. In circumstances where there is evidence that an applicant was motivated by multiple purposes, a Tribunal's failure to address this suggests that it overlooked the matter: Kalala v Minister for Immigration (2001) 114 FCR 212 at [23]; Rajaratnam v Minister for Immigration (2000) 62 ALD 73 at [45].
Mr Zipser referred also to SAAS v Minister for Immigration (2002) 124 FCR 182 at [52]-[57] per Mansfield J about the construction of s.91R(3). In that case, the Tribunal found that the applicant had sought religious conversion in Australia for the sole purpose of creating a sur place refugee claim: at [52]. Such a finding distinguishes SAAS from the present case, where the Tribunal made no such finding. Mr Zipser submits that on this basis, the Tribunal fell into jurisdictional error.
Mr Wigney submits in respect of the third ground that the Tribunal's conclusion was that the applicant's Falun Gong practice in Australia was not in good faith but engaged in for the purpose of strengthening her claim for a protection visa. The applicant had clearly not satisfied the Tribunal otherwise. Mr Wigney submits that the construction issue raised by Mr Zipser did not arise because the Tribunal clearly found that the applicant had engaged in the relevant activities in Australia for "the purpose" – that is, the sole purpose – of strengthening her claim for a protection visa.(CB 89.7) Mr Wigney also submits that SAAS is not an authority for the construction of 91R(3) because, as with this case, the question of construction did not arise. Like in this case, the Tribunal in SAAS found that the applicant's activities were for the sole purpose of furthering her protection visa claims. The fact that the Tribunal in this case, unlike in SAAS, did not use the word "sole", is immaterial. As Mansfield J said in SAAS at [55], the Tribunal's reasons are not to be construed with an eye keenly attuned to the perception of error.
I agree with the submissions made by Mr Wigney. The third ground cannot be sustained.
In respect of the fourth ground, identified as the "future Falun Gong practice issue", Mr Zipser submits that the Tribunal accepted that "the applicant knew various factual matters relating to Falun Gong" (CB 107.7) and "accepted as being plausible that the applicant had been involved in Falun Gong activities in Australia".(CB 109.6) Therefore, the question is whether the applicant would continue to practice Falun Gong if required to return to the PRC. Contrary to the Tribunal’s findings, Mr Zipser submits that:
a)the mere fact that a person had not engaged in Falun Gong activities "in good faith" does not mean that the person does not have a genuine interest in Falun Gong or would not want to continue practising Falun Gong;
b)the mere fact that a person has engaged in Falun Gong activities for the purpose of strengthening her claim for a protection visa does not mean that the person does not have a genuine interest in Falun Gong or would not want to continue practising Falun Gong;
c)hence, the Tribunal failed to consider whether the applicant would continue to practice Falun Gong if required to return to the PRC.
The Tribunal failed to consider a necessary question in determining whether the applicant had a well-founded fear of persecution. Hence, the Tribunal fell into jurisdictional error.
Mr Wigney submits in respect of the fourth ground that the applicant's case was that she feared returning to the PRC because she feared persecution arising from her desire to practice Falun Gong. The Tribunal’s conclusion that she had never been a Falun Gong practitioner in the PRC and that her Falun Gong activities in Australia fell under s.91R(3), undermined the entire basis of the applicant's claim. This, together with the Tribunal's conclusion that there was no Convention-related reason why she could not return to the PRC, necessarily meant that it did not accept that she wanted to practise Falun Gong upon her return.(CB 110)
I am satisfied that the Tribunal considered and concluded that the applicant had not practiced Falun Gong in the PRC and her activities in Australia fell within s.91R(3). I agree with Mr Wigney that the Tribunal did not err in its finding.
Conclusion
I am satisfied that none of the grounds of review contained in the amended application filed at the commencement of the hearing of this matter can be sustained. Consequently the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 1 June 2007
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