SZIAT v Minister for Immigration

Case •

[2008] FMCA 44

•

30 January 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIAT v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 44
MIGRATION – Application for review of Refugee Review Tribunal decision – adverse credibility finding – Tribunal not required to examine each and every piece of evidence or factual contention underlying applicant’s claim – Tribunal properly disregarded the applicant’s conduct in Australia – no jurisdictional error – application dismissed.
Migration Act 1958 (Cth), ss.91R, 424A, 422B
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184
Minister of Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 323
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26
Applicant A169 of 2003 v The Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 8
Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407
Re Minsiter for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30
SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137; [2003] FCAFC 120
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Kalala v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 212; [2001] FCA 1594
WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134
SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231
VWAL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 266
SAAS v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 182; [2002] FCA 726
SAAF v Minister for Immigration and Multicultural Affairs [2002] FCAFC 79; [2002] FCA 343
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162; [2005] HCA 24
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Applicant: SZIAT
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 33 of 2006
Judgment of: Nicholls FM
Hearing dates: 4 October 2007, 22 October 2007
Date of last submission: 22 October  2007
Delivered at: Sydney
Delivered on: 30 January 2008

REPRESENTATION

Counsel for the Applicant: Mr B Zipser (direct access)
Solicitors for the Applicant: Nil
Counsel for the Respondents: Mr J Mitchell
Solicitors for the Respondents: Australian Government Solicitor

ORDERS

  1. The reference to the first respondent be amended to read “Minister for Immigration and Citizenship”.

  2. The application made on 4 January 2006, and amended on 4 October 2007, is dismissed.

  3. The applicant pay the first respondent’s costs set in the amount of $7,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 0033 of 2006

SZIAT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made under the Migration Act1958 (Cth) (“the Act”) on 4 January 2006, and amended on 4 October 2007, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 28 November 2005, and handed down on


    15 December 2005, which affirmed the decision of a delegate of the Minister to refuse a protection visa to the applicant.

Background

  1. The first respondent has put a bundle of relevant documents before the Court (Court Book (“CB”)) from which the following background may be discerned.

  2. The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 10 May 2005 and applied for a protection visa on 9 June 2005 (CB 1 to CB 64, with annexures). On 21 July 2005, a delegate of the first respondent refused the application for a protection visa.  On 28 July 2005, the applicant applied to the Tribunal for review of that decision.

  3. The applicant’s claims to protection are set out variously in her application for a protection visa (see CB 18 to CB 22), and in her letter to the Tribunal received by the Tribunal on 25 August 2005 (reproduced at CB 88 to CB 97) with photographs enclosed (CB 98 to CB 101).  The applicant also made submissions to the Tribunal on 10 October 2005 (CB 141 to CB 142), on 31 October 2005 (CB 143 to CB 145) and on 17 November 2005 (CB 148 to CB 178, with annexures).  The applicant also provided a number of letters and statutory declarations from a number of people, including her brother, in support of her claims (CB 102 to CB 134, CB 139 to CB 142 and CB 146 to CB 147).

  4. The applicant attended a hearing before the Tribunal and gave evidence on 23 November 2005, as did a number of witnesses who gave evidence on her behalf, including her brother (CB 179).  The Tribunal’s account of what occurred at the hearing is set out in its decision record (reproduced at CB 191.4 to CB 195.8).

The Applicant’s claims

  1. The applicant claimed to be a practitioner of Falun Gong who began practising Falun Gong in China in 1997 when she was introduced to it by her brother on a visit from Australia, where he lived.  The applicant claimed that she was a teacher in a school for adults in China and that she invited her brother to talk to her students about Falun Gong, and the freedom of religious practice in western countries (September 1999).  The applicant claimed that as a consequence she lost her position with the school.  She was then employed lecturing about fruit and vegetables throughout China.

  2. The applicant further claimed that she returned to her home town in Guangzhou province (March 2005) where she hung banners about Falun Gong in the market place, and then immediately left the area.  The applicant claimed that Falun Gong practitioners in her home town were questioned by police and that her father advised her that he had heard that the Public Security Bureau (“PSB”) suspected the applicant’s involvement in the hanging of banners in the market place by reference to her handwriting.  The applicant claimed that she had resolved to leave China and join her brother in Australia.  

  3. In Australia, the applicant claimed to have engaged in Falun Gong activities and to have participated in a number of Falun Gong gatherings.  The applicant clamed to fear “persecution”, imprisonment and brainwashing by Chinese authorities if she were to return to China.

The Tribunal

  1. The Tribunal found “that the evidence on which” the applicant had “sought to base her claim for refugee status is riddled with inconsistencies, contradictions and implausibilities …” (CB 200.4).  The Tribunal set these out under a number of headings in its decision record:

    “(1)   Practice of Falun Gong” (CB 200.4).

    “(2)   Employment in China” (CB 201.1)

    “(3)   Overseas Travel” (CB 202.1)

    “(4)   Police interest in the applicant in China” (CB 202.6)

  2. The Tribunal concluded that (at CB 203.4):

    “After careful examination of the Applicant claim for refugee status based on her being a Falun Gong practitioner in China and of interest to the authorities in China, I am satisfied that this claim is without any foundation and is a complete fabrication.”

  3. As to the applicant’s activities in Australia, the Tribunal accepted that in the four weeks following her arrival in Australia up to the lodgement of her “primary” visa application that the applicant attended some Falun Gong gatherings and it was satisfied that her “minor Falun Gong activities” were undertaken for the “sole purpose” of establishing and strengthening a claim for refugee status. It therefore disregarded this conduct pursuant to s.91R(3) of the Act (CB 203.8). The Tribunal also did not believe the applicant’s claims made in a letter dated 31 October 2005 to the Tribunal that “[the applicant] and her brother received harassing, threatening and slanderous telephone calls on the evening of 24 October 2005” (CB 203.6).

  4. In all, the Tribunal found that the applicant did not have a well-founded fear of persecution in China for a Convention related reason and therefore found that the applicant was not a person to whom Australia owed protection obligations under the Refugees Convention.  It therefore affirmed the decision under review.

Hearing before the Court

  1. At the hearing before the Court (there were two occasions), Mr B Zipser of Counsel appeared for the applicant, and Mr J Mitchell of Counsel for the first respondent.

  2. Mr Zipser sought to file an amended application at the hearing.  Leave was granted. I also had before me written submissions for the applicant and the first respondent.

The application

  1. The amended application put forward four grounds:

    “1.    The applicant made three claims which the Tribunal did not determine, giving rise to jurisdictional error. First, the applicant claimed she wished to freely practice Falun Gong but could not do so if required to return to China because she would be persecuted. Second, the applicant claimed she feared persecution because she had visited her brother who was black listed by the Chinese Consulate in Sydney (RD 19.10). Third, the applicant claimed she feared persecution as a result of the claims she made during the protection visa process (See RD 22.1).

    2. The Tribunal erred in its finding involved in s 91R(3) of the Migration Act for three reasons. First, the Tribunal failed to have regard to evidence in a number of statutory declarations, in particular that the applicant was a genuine Falun Gong practitioner, giving rise to jurisdictional error. Second, the Tribunal fell into jurisdictional error in finding that the applicant was a ‘minor’ participant in the Falun Gong activities in Australia. Third, the Tribunal failed to consider whether the applicant engaged in Falun Gong activities in Australia for more than one reason, giving rise to an error in statutory interpretation or a failure to have regard to an issue.

    3. The Tribunal failed to comply with s 424A of the Migration Act in relation to a number of findings.

    4.          The Tribunal found ‘the applicant’s claim that she was a sacked as a teacher … to be a contrived fabrication’. Separate from any failure to comply with s 44A, the Tribunal fell into jurisdictional error in making this finding. Among other reasons there is no basis or no proper basis of the Tribunal’s finding that ‘if the alleged incident had occurred in September 1999 as described … this brother would not have subsequently return several times to his home town without his visits coming to the adverse attention of authorities.”

Ground One: Failure to determine claims

  1. The applicant’s first ground is that the Tribunal, in three separate instances, failed to determine claims made by the applicant.  In submissions, Mr Zipser relied on relevant authorities for the proposition that where an applicant makes a claim, and the Tribunal does not deal with the claim in its decision, jurisdictional error thereby results (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263 (“NABE”) at [55] and [63], Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 (“Htun”) at [42], Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 (“WAEE”) at [45] and [47]).

  2. Mr Zipser particularly emphasised that in WAEE, the Court gave guidance on how a claim (a “contention”) can be made by an applicant before the Tribunal and that, notwithstanding that the Tribunal may acknowledge that such a claim or contention is made in setting out the applicant’s claims, what is required is some evidence that the Tribunal actually considered such an issue.  In WAEE the Court found (at [49]) that: “while the tribunal recounted the appellant’s claims on this issue early in its reasons, its failure to consider the evidence and the contention leads to the inescapable conclusion that it failed to address the issue”.

  3. The applicant contends that the Tribunal failed in this regard in relation to three separate claims made by her. In written submissions, Mr Zipser explained the applicant’s first complaint in this regard, as being that one of the applicant’s principle claims was that she was a genuine Falun Gong practitioner. Although she had not practised Falun Gong in China since July 1999, she wished to practise Falun Gong in public at present, and in the future, and that should she be required to return to China she feared persecution if she practised Falun Gong in public in China.

  4. In oral submissions, Mr Zipser added that the applicant also stated that she practised Falun Gong in Australia and had provided a large amount of evidence (“abundance of evidence”) in support of this claim.  In relation to this aspect, Mr Zipser submitted that the Tribunal did not find that the applicant was not a genuine Falun Gong practitioner.  It implicitly accepted that the applicant was a genuine Falun Gong practitioner and that, considering this aspect of the applicant’s claim (that is, her activities in Australia) in the context of her fear of persecution should she return to China, simply disregarded the applicant’s conduct pursuant to s.91(3).

  5. That while the Tribunal at the conclusion of its decision record (CB 203.10) found that the applicant did not have a well founded fear of suffering persecution if she were to return to China because she wanted to continue to practise Falun Gong, that this finding was “precisely the same finding” as in WAEE, in that there was no “intermediate step” between the applicant’s claims and this ultimate finding such as to show the Tribunal considered the evidence and the contention as it was required to do.  Its failure to do so leads, as in WAEE, to the conclusion that the Tribunal failed to address this issue.

  6. The applicant’s second alleged instance of a failure by the Tribunal to consider a claim or aspect of the applicant’s claim was that the Tribunal did not make findings in relation to the applicant’s claim that she feared persecution if she were to return to China because she had come to Australia to visit her brother who was “blacklisted” by the Chinese Consulate in Sydney and was of interest to the authorities in China.  Further, that there are “spies” in Australia who would report their actions in this regard to the authorities in China.  

  7. Mr Zipser referred the Court to the applicant’s statement in her protection visa application (CB 19.8) where the applicant stated that her brother was blacklisted by the Chinese Consulate and that whenever he wished to return to China he had to go to Hong Kong to obtain a visa to China.  After one occasion when he had left China the authorities ordered police to “catch him”.  Further she stated: “I am his sister and I came here for visiting him the spies must pay attention my action”.  Mr Zipser’s submission was that apart from acknowledging this claim in setting out the applicant’s claim (CB 187.9) that the Tribunal did not deal with this claim.

  8. The third instance is that the applicant claimed that she would be persecuted in China because of a fear as a result of making claims and providing information to the first respondent’s Department while she pursued her protection visa application.  Mr Zipser referred the Court to what was set out in the protection visa application (reproduced at CB 22.1):

    “I have already told so much about the practitioners were persecuted by the authority of our country. I am sure to tell you, if I go back to China, the authority of China will not protect me.  All reports from papers indicated the persecution of Falun Gong will be continuing in China.”

  9. The submission was that here again the Tribunal failed to address this claim in its reasoning.

  10. In reply, Mr Mitchell raised the following propositions in response to the applicant’s claims.  He relied on Htun (at [42]) for the proposition that the Tribunal is obliged to apply the relevant criteria for a protection visa and, in doing so, obliged to consider the applicant’s claims which are relevant to those criteria. While conceding that a failure to make findings in respect of the factual contentions that underlie claims (or even in some circumstances findings in respect of individual pieces of evidence) may indicate the Tribunal has failed to consider the applicant’s claims (as pressed by Mr Zipser in this case on the basis of what was said in WAEE), he submitted that, nonetheless, the Tribunal is not obliged to make findings in respect to such factual contentions or make findings in respect to every individual piece of evidence.  (See Minister of Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 (“Yusuf”) at [67]-[68], [73]-[74], [77] [89] and [91]. See also Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 at [24] and [95].)

  11. The general thrust of Mr Mitchell’s submission was that each of the applicant’s claimed instances of failure by the Tribunal to address claims must be seen in the context of the findings actually made by the Tribunal.  That, with reference to at least two findings made by the Tribunal which were general adverse findings as to the applicant’s credibility, these findings actually subsumed the applicant’s factual contentions complained about now.  

  12. Mr Mitchell submitted that this Court should be careful not to readily infer that in these circumstances the applicant’s claims have not been considered (Yusuf at [67]-[68], [73]-[74], [77], [89] and [91], Applicant A169 of 2003 v The Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24], WAEE at [47], and Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79]).

  13. The findings which were said to subsume the applicant’s factual contentions are at:

    (CB 200.3):

    “I accept that the Applicant is a citizen of China, however, I find that the evidence on which she has sought to base her claim for refugee status is riddled with inconsistencies, contradictions, and implausibilities, and I set these out below.”

    (CB 203.3):

    “After careful examination of the Applicant claim for refugee status based on her being a Falun Gong practitioner in China and of interest to the authorities in China, I am satisfied that this claim is without any foundation and is a complete fabrication.”

  14. Mr Mitchell submitted that the Tribunal made a very clear and “stark” finding rejecting the applicant’s credibility.  It then went through the four aspects of the applicant’s claims as they related to the situation in China and concluded that the applicant’s claim for protection, as it was based on her being a Falun Gong practitioner in China, and being of interest to the authorities in China, was without “any foundation and is a complete fabrication”.

  15. Mr Mitchell distinguished the circumstances before the Court now from what was before the Court in WAEE on the basis that the very clear rejection of the credibility of the applicant’s claims in this case was not the situation as found in WAEE.  While the Tribunal had difficulty with the applicant’s credibility in that case, it was only with respect to aspects of the applicant’s claim, and there was no such general finding by the Tribunal in WAEE, as there is with the current Tribunal.

  1. Mr Mitchell relied on relevant authorities (see for example Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67], per McHugh J) for the proposition that it is not necessary for the Tribunal to go through every piece of evidence in relation to each claim. That in the present case, the Tribunal’s adverse finding of the applicant’s credibility was so comprehensive, in that it was affected by inconsistencies, implausibilities and fabrications, to the extent that it was found to be a “complete fabrication”, that in these circumstances it was not necessary for the Tribunal to go through each and every piece of evidence, or factual contention, underlying the applicant’s claim. I understood Mr Mitchell’s submission, in this sense, to rely also on what was said in Re Minsiter for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 at [49] in that the Tribunal found the applicant’s credibility “so weakened”, that those parts of what are now put forward as claims by the applicant, which were proffered as evidence by the applicant in support of her claim to fear persecution in China, were treated by the Tribunal as being of no weight because “the well has been poisoned beyond redemption” (at [49], per McHugh and Gummow JJ).

  2. Mr Mitchell also submitted that what was said in WAEE was consistent with his submission in that (at [46]) the Court stated:

    “It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.”

  3. There was no dispute between the parties that the Tribunal was required to deal with the applicant’s claims and aspects of the applicant’s claims.  Mr Zipser submits that in at least three instances the Tribunal failed to do so.  Mr Mitchell responds, in general, that the Tribunal did deal with the applicant’s claim to fear persecution if she were to return to China based on her claims to be a Falun Gong practitioner.  In making such an adverse credibility finding, it addressed each aspect of the applicant’s claim as it related to the central claim to fear harm arising out of her status as a Falun Gong practitioner.  In these circumstances it was not required to deal with each and every piece of evidence that was before it.

  4. I agree with Mr Mitchell’s submissions in this regard.  The Tribunal dealt with each aspect of the applicant’s claim as it was said to derive from the situation, and her experiences, in China.  It looked at the situation as it related to the practice of Falun Gong in China and the applicant’s claims in this regard and found that she never practised Falun Gong in public after July 1999, and that there was no evidence to show that she came to the attention of the authorities because of her alleged practice, either before or after July 1999.

  5. The Tribunal also looked at the circumstances of her employment in China, and her claims as they derived from this, and found that her claim that she was sacked as a teacher because her brother talked to pupils about religious freedom and the practice of Falun Gong to be a: “contrived fabrication on the part of both the Applicant and her brother” (CB 201.10).

  6. It also looked at the applicant’s own evidence regarding the way in which she obtained Chinese passports and her travel in and out of China, and found that this indicated that she was: “of no concern to the authorities in China at the time of her travels and neither did she have a genuine fear of persecution in China” (CB 202.4).  Further, it was satisfied that she “did not leave China and enter Australia in May 2005 because she wished to freely practise Falun Gong” (CB 202.5).  

  7. The Tribunal also considered the interest of the authorities, in particular the police, in the applicant in China as it was said to arise from her claim that she had hung up banners in a public place.  It found the applicant’s evidence to consist of “several confused and inconsistent statements” (CB 202.9) and found that it was satisfied that “she was not of any interest at all to the police in Xinhi” (her home town), where she is said to have hung up the banners (CB 203.2).  

  8. The Tribunal, therefore, comprehensively rejected as a “complete fabrication” her claims to be a refugee because she was a Falun Gong practitioner in China, and of interest to the authorities.

  9. In relation to her claimed conduct in Australia, the Tribunal found that her Falun Gong activities (such as they were: – “minor”) were undertaken for the purpose of establishing and strengthening the claim for refugee status. As required by s.91R(3), it disregarded this conduct for the purposes of the review.

  10. Turning to each of the claimed instances put forward by Mr Zipser, he submits that the Tribunal did not reject the applicant’s claim that between July 1999 and the time she departed China she practised Falun Gong in private.  In these circumstances it should have considered whether the applicant wanted, or was likely to want, to practise Falun Gong in public if she was required to return to China, and if so whether she would be unable to practise Falun Gong in public due to a fear of persecution.

  11. I have difficulty in accepting this submission.  The Tribunal’s finding in this regard was that it comprehensively rejected that the applicant had been a Falun Gong practitioner in China (whether public or private).  It found this claim to be without foundation and a complete fabrication. In these circumstances there was no obligation, arising from this aspect of her claims, on the Tribunal to engage in any speculation or specific examination of whether the applicant was able to practise Falun Gong in public (as opposed to private) if she were to return.

  12. I do not accept the submission that the Tribunal did not reject the applicant’s claim that between July 1999 and when she departed China for Australia she practised Falun Gong in private.  Rather, what the Tribunal found was that it accepted the applicant’s evidence that: “she never practised Falun Gong in public after July 1999”: (CB 200.9).  This must also be seen in context of what the Tribunal subsequently said at (CB 202.9):

    “As I advised the Applicant at the hearing, in the light of her several confused and inconsistent statements about this matter, and in the light of her own evidence that after July 1999 she did not again practise Falun Gong in public and only practised it ‘secretly’ when she was alone at home, I find it beyond belief that seven years later she would have hung up any Falun Gong banners in broad daylight (or at any other time) in Xinhi in  March 2005).”

  13. The Tribunal was clearly emphasising that, in light of her confused and inconsistent statements, and relying on her own evidence that she did not practise Falun Gong in public, it found that there was no evidence to show that she came to the attention of the authorities, or that in these circumstances (including her own evidence) that she would have “hung up any Falun Gong banners in broad daylight” some seven years later.  

  14. In these circumstances, I do not agree that it can be inferred that the Tribunal accepted that the applicant practised Falun Gong secretly.  The Tribunal was merely referring to her own evidence to have done so, and in the circumstances, to support its finding of the implausibility of her claims (“beyond belief”).

  15. Mr Zipser also asserts that the Tribunal accepted that the applicant practised Falun Gong in public in Australia.  That there was “a mass of evidence to this effect”, and yet, in light of this, failed to consider that the applicant wanted, or was likely to want, to practise Falun Gong in public if she returned to China, and whether she would be unable to do so in any event.

  16. Mr Zipser’s argument in this regard ignores the fact that the Tribunal made a finding that her “minor” Falun Gong activities in Australia were undertaken with the purpose of strengthening her claims to refugee protection. Pursuant to s.91R(3) the Tribunal disregarded this conduct. The question that the Tribunal was required to answer was whether Australia owed protection obligations to the applicant as a refugee, based on her claims to fear persecution in China because of her practice of Falun Gong. What, in my view, is ignored in the applicant’s assertion now is that once the Tribunal found that s.91R(3) was enlivened, the Tribunal properly disregarded the applicant’s conduct in Australia in assessing her claims in light of the question that it was required to answer (see also ground 2 below). Given the relevant terms of s.91R(3), it was not permitted to do otherwise.

  17. The applicant’s second claimed instance relates to what the applicant said in her protection visa application at CB 19.8 (see [22] above).

  18. First, I agree with Mr Mitchell that the sum total of the reference to “spies” and the applicant’s brother is found at CB 19.  The reference to “spies” in the applicant’s subsequent submission of 25 August 2005 (see CB 90.8) relates to Chinese Communist spies spying on Falun Gong activities generally in Australia and do not appear focussed on the applicant or her brother specifically.

  19. Mr Mitchell’s submission was, given all that was before the Tribunal, and with reference to various relevant authorities (NABE and, in particular, SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137; [2003] FCAFC 120 (“SDAQ”) at [11], [19] and [20]) for the proposition that for the Tribunal to be obliged to consider an implicit or unarticulated claim, there must be evidence to show that the relevant aspects of the Convention are able to be satisfied by that claim.

  20. The applicant’s assertion (at CB 19.8) namely, that there are many Chinese spies in Australia who will report her to the Chinese authorities for her actions in visiting her brother, who she claims was “blacklisted” by the Chinese Consulate in Sydney, is in my view properly to be seen as part of the applicant’s claim to fear harm from the authorities in China.  I note Mr Mitchell’s reference to NABE (at [58]) that to engage the Tribunal’s obligation, a claim must “squarely” arise on the material. I note what the majority said in SDAQ (at [19]-[20]) (and with the reference in that case to what was relevantly stated in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (“Guo”)) is relevant.  I agree with Mr Mitchell that what is required is an assessment of the connection between the applicant’s fear and, at least, one of the Convention’s bases required to establish a well-founded fear of persecution.

  21. In looking at what is stated at CB 19.8, I agree with Mr Mitchell that there is nothing here to show why the applicant’s brother was “blacklisted” by the Chinese Consulate, nor why the applicant, as his sister, would receive attention from “spies” in Australia.  In short, no Convention reason is put forward and none is evident from what the applicant has said.

  22. Even more compelling, it was the brother’s own evidence before the Tribunal that he had visited China in 1999, 2001 and December 2004 (see CB 192.9).  Apart from claiming (in answer to the question as to whether he had encountered any problems with the authorities while he was in China) that he was not able to obtain a visa in Australia, and had to go via Hong Kong to obtain his visa, the brother made no other claims to have encountered any problems with the authorities while he was in China.  It should also be noted that the brother’s claimed talk at the applicant’s school was, on the brother’s own evidence, said to have taken place in September 1999 (see CB 192) yet he was able to enter, remain and depart China on at least two subsequent occasions (2001 and 2004) without difficulty (other than having to obtain his visa in Hong Kong).

  23. Given all these circumstances, I agree that there was no obligation on the Tribunal to consider what is stated at CB 19 as a separately articulated (even by inference) claim for a well-founded fear of persecution in China for a Convention reason.  No Convention connection was put forward and, ultimately, the Tribunal very clearly found that the applicant was not of interest to the authorities in China (CB 203.4).

  24. The third claimed instance relates to the facts stated by the applicant in her application for a protection visa as reproduced at CB 22.1:

    “I have already told so much about the practitioner were persecuted by the authority of our country.  I am sure to tell you, if I go back to China, the authorities of China will not protect me.  All reports from papers indicated the persecution of Falun Gong will be continuing in China.”

  25. Mr Zipser’s submission was that the applicant was expressing a concern that, as a result of the information that she was providing to the Minister’s Department, and the claims that she was making in the course of her protection visa application, that she would be persecuted in China.  I do not agree with Mr Zipser’s submission that this statement represents a claim (in essence, a “sur place” claim) that simply by making statements in her application for a protection visa that the applicant would be persecuted on return to China.

  26. First, it must be seen that what the applicant states is in answer to the question that precedes it, being (at CB 22.1):

    “Do you think the authorities of that country can and will protect you if you go back?  If not, why not?”

    What the applicant’s statement clearly means is that she has already set out in the earlier parts of the protection visa application form in answer to relevant questions  (“I have already told so much”) about Falun Gong practitioners being persecuted in China, and that as a Falun Gong practitioner, the authorities, therefore, would not protect her.

  27. Even further, in her statement the applicant also says that the “reports from papers” indicate that persecution of Falun Gong practitioners is continuing in China.  In context, this sentence seems to reinforce that the applicant was not seeking to make some “sur place” claim but seems to explain the context of the first sentence as being directed to an assertion that Falun Gong practitioners have been and continue to be persecuted in China and if she were to return (in these circumstances and given her claim to be a Falun Gong practitioner) then the authorities would not protect her.  I cannot see that the applicant made any claim as asserted now by Mr Zipser such that the Tribunal was required to deal separately with it.

Ground Two: Section 91R of the Act

  1. The applicant’s second ground asserts error on the part of the Tribunal in relation to how it dealt with s.91R of the Act. Again three reasons are given in support of this claim.

  2. The applicant’s first complaint is that there was a great deal of evidence in the form of statutory declarations from fellow Falun Gong practitioners in Australia as to the applicant’s Falun Gong activities in Australia.  This evidence, expressed as opinion, that the applicant was a genuine Falun Gong practitioner.  This corroborated the applicant’s claim in this regard.  Yet in spite of the importance of this “corroborative evidence”, the Tribunal made no reference to this evidence “anywhere in its decision”.  In oral submissions Mr Zipser explained that it was the Tribunal’s failure to consider this evidence which led it to error.

  3. Mr Zipser relied on the following authorities:

    1.Kalala v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 212; [2001] FCA 1594 at [23] for the proposition that where a Tribunal makes no reference to evidence or material in its reasons for decision, it is open to the Court to draw an inference that the Tribunal overlooked the evidence or the material.

    2.In WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74 at [26]-[27] that the Tribunal was “bound to have regard to the corroborative material” before making a finding under s.91R(3).

    3.With reference to NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 (“NAJT”) at [212] and [213] that, given the importance of the evidence in the form of the statutory declarations, the Tribunal did not actually consider what significance and weight this corroborative evidence deserved or give it any genuine consideration and that this constituted a failure to have regard to the evidence and, in this sense, jurisdictional error.

  4. First, I do not agree with Mr Zipser that the Tribunal did not have regard to the statutory declarations in the context of considering the applicant’s conduct in Australia.  First, the Tribunal acknowledged the existence of these declarations when it plainly made reference to: “statutory declarations from several persons attesting to the Applicant’s Falun Gong activities in Sydney and stating that she now cannot return to China as she would face persecution”: (CB 188.7).

  5. It further noted (at CB 190.7):

    “On 10 October 2005 the Tribunal received a further statutory declaration attesting to the Applicant’s Falun Gong activities in Sydney.”

  6. The Tribunal recorded that at the hearing that it “decided to hear oral evidence only from those who had not earlier submitted written statements to either the delegate or the Tribunal” (CB 191.6).  It noted the evidence of witnesses “1”, “2” and “3” about the applicant’s Falun Gong activities in Australia (CB 191.7 to CB 191.9).

  7. The applicant’s claim in this regard, namely, that the Tribunal did not have regard to this material, does not succeed in my view, because the Tribunal did not find that the applicant had not engaged in any Falun Gong activities while in Australia.  The applicant’s complaint would, in my view, have greater strength if the Tribunal had found that she had not engaged in any Falun Gong activity since her arrival in Australia, and to have made that finding while ignoring what was stated in the statutory declarations.  But the Tribunal did not make such a finding.  It plainly accepted that she did attend Falun Gong gatherings after her arrival (CB 203.3).

  8. While the applicant had claimed that since her arrival she had practised Falun Gong in Australia (see CB 20.4), the Tribunal’s statement, referring to her “attendance at gatherings”, plainly could only have arisen from statutory declarations that the applicant put forward in support of her claim (and a number of photographs).  To the extent that the Tribunal accepted that the applicant had attended Falun Gong gatherings, then this is consistent with the “large” body of evidence as represented in the statutory declarations that that is what the applicant did.  In this sense, I do not agree that the Tribunal failed to consider the “large” body of evidence before it as to the applicant’s activities in Australia. 

  9. The applicant’s complaint is on slightly stronger ground with its reliance on what was said in NAJT in relation to whether the Tribunal considered the significance, and weight, that the corroborative evidence deserved.  In this regard, I note, in particular, the statutory declarations reproduced at CB 108:

    “I have no doubt that [the applicant] is a true Falun Dafa practitioner from the way she talk and the way she act.”

    CB 127:

    “I know [the applicant] is the real practitioner of Falun Gong.”

  10. Mr Zipser submitted that if the Tribunal had given proper regard to the significance of this evidence, that is, that in the opinion of the declarant, the applicant was a genuine Falun Gong practitioner, that it would have led to a different outcome for the applicant.

  11. The difficulty for the applicant however is that ultimately matters of weight are, of course, for the Tribunal.  I also agree with Mr Mitchell that the evidence, particularly in the form of the opinions by the two Falun Gong practitioners was “very brief”.  In light of the view that the Tribunal took of the applicant’s own evidence, the Tribunal was entitled, in effect, to give this corroborative evidence less weight, this of course, being a matter for the Tribunal.

  1. The applicant’s evidence that she was a genuine Falun Gong practitioner in China.  This was plainly and emphatically rejected by the Tribunal on credibility grounds.  It was therefore open to the Tribunal to give little or no weight to the corroborative evidence that she was in fact a genuine Falun Gong practitioner in China, or even in Australia.  But what cannot be avoided counting against the applicant’s argument, is that the Tribunal found her conduct in Australia, albeit Falun Gong related conduct, to be conduct engaged in for no reason other than to enhance her refugee claim.  In the circumstances, this was a finding that was open to the Tribunal to make.

  2. The second example in this complaint is that the Tribunal found the applicant was: “a minor participant in (Falun Gong) activities” (at CB 203.5 and CB 203.8).  Mr Zipser submitted that there was no evidence to support the Tribunal’s finding that the applicant’s activities in Australia in relation to Falun Gong were “minor”.  That is, that she was “a minor participant in Falun Gong activities”.  That this may constitute jurisdictional error in circumstances where such a finding may be said to be a critical step leading to the Tribunal’s ultimate conclusion.  In this regard, the applicant relied on SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231 at [19], and VWAL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 266 at [23]-[25].

  3. To the extent that this complaint is addressed to the weight that the Tribunal gave to the relevant evidence, then (for the reasons already stated) such a complaint would not succeed.  But in any event, I cannot see that it was not open to the Tribunal to characterise the applicant’s activities in Australia in the way that it did.  

  4. At its highest, the evidence was that the applicant participated in Falun Gong activities, and was a “true Falun Gong practitioner” (based on one declarant’s observation (CB 108.4)) and a genuine practitioner (“real practitioner”) (at CB 127.4) (on another).  There was nothing in this corroborative evidence, nor was it really asserted by the applicant, that she took a major role in these gatherings.  For example, that she was an organiser, or a director of activities.  I understood the Tribunal’s finding that she was a “minor participant” to be consistent with the corroborative evidence that she attended, albeit on a large number of occasions, at various gatherings and participated actively in those gatherings.  Plainly, it is not open to this Court to review this evidence with a view to substituting its own finding as to whether the applicant was a “major” participant in the sense of doing something more than just attendance and participation at these gatherings.  Nor, with reference to the applicant’s written submissions (paragraph 42(c)) can I see that the Tribunal’s finding was irrational, illogical or based on findings or inferences of fact not supported by logical grounds.

  5. The applicant’s further example in support of the second ground urges a particular construction of s.91R(3), and perhaps more accurately an application of s.91R(3), which I do not accept.  This construction has two limbs.  That is, where a person engages in conduct for a “single purpose”, and this purpose is to strengthen the refugee claim then in those circumstances the operation of s.91R(3) is satisfied, and the conduct must be disregarded.  But where a person engages in conduct for more than one purpose, even in circumstances where one of the purposes is to strengthen the refugee claim, the pre-conditions for the operation of s.91R(3) are met, and the Tribunal therefore is not permitted to disregard the conduct engaged in by the applicant.  Mr Zipser relied on the use in s.91R(3)(d) of the term “the purpose” rather than “a purpose”.

  6. In my view (see for example SAAS v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 182; [2002] FCA 726 per Mansfield J), s.91R3(b) requires the applicant to satisfy the Tribunal, relevantly to this case, that she had engaged in Falun Gong conduct in Australia otherwise than for the purpose of strengthening her claim to be a refugee.  Simply on what the applicant had put to the Tribunal, the Tribunal was not so satisfied.

  7. Section 91R(3) is plainly drafted in terms of “the purpose” and not “a purpose”, as Mr Zipser submits.  But the Tribunal in the current case did not note, refer or make any finding about “a purpose”.  What it found was that the “sole purpose” of engaging in the conduct was for the purpose of enhancing the applicant’s claims for recognition as a refugee.  The Tribunal did not make any finding that this conduct was engaged in for any other purpose, or that there were at least two or more purposes for the applicant’s conduct.  The Tribunal found there was only one purpose, the “sole purpose”.  (I should just note that the use of the “sole”, while not using the language of what is contained in s.91R(3), in context, is certainly reflective of what is intended by the plain language of that section, that is “the purpose”.)  In all, therefore , this complaint is also not made out.

Ground Three: Section 424A of the Act

  1. The applicant’s third ground is that the Tribunal failed to comply with its obligations pursuant to s.424A in two ways.

  2. First, that the applicant’s brother gave information to the Tribunal that he: “made several visits from Australia to his home town in China between September 1999 and September 2004 without incident” (CB 201.4).  The complaint is that the Tribunal used this information to make findings adverse to the applicant, that is, that she was sacked as a teacher was a fabrication on her part, and a fabrication on the part of the applicant’s brother.  Further, that this was part of the evidence upon which the applicant sought to base her claim for refugee status, which was found to be riddled with inconsistencies, contradictions and implausibilities.  Mr Zipser submitted that the Tribunal used the information as “part of the reason for affirming the decision that is under review”.  

  3. Second, that the applicant gave information to the first respondent’s Department that she made nine Falun Gong banners which she hung up in public places (CB 18.9 and CB 21.5).  The Tribunal used this information again as “part of the reason for affirming the decision under review”.  The complaint is that in both circumstances, the Tribunal did not put this information to the applicant in compliance with s.424A(1) and (2).

  4. Mr Zipser relied on what was said in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162; [2005] HCA 24 (“SAAP”) and submitted that the facts in SAAP where evidence given in that case at the hearing by the daughter of the applicant was identical to the facts in the current case where evidence was given by the brother also at the hearing.  This evidence was in fact used adversely to the applicant and was not evidence given by the applicant such as to come within the exception contained in s.424A(3)(b).  Therefore, it should have been put to the applicant in writing pursuant to s.424A(1) and (2).

  5. Mr Zipser submitted that he was not pressing an argument that the Tribunal relied on, or found, an inconsistency between the applicant’s evidence and the brother’s evidence such that it would bring the issue within what the High Court said at [18] in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”).  This complaint sought to distinguish the situation as found in SZBYR at [17] where the relevant information (in that case contained in a statutory declaration) “did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations”.  In the current case, Mr Zipser submitted that this was not the case.

  6. I do not agree with Mr Zipser’s submission in this regard.  Ultimately, in SZBYR the High Court did not address the propositions established in SAAP as these were said to “not determine the outcome of” the case in SZBYR (at [13]).  But what the High Court relevantly did in SZBYR was to explain the limited operation of s.424A (at [21]).  Applying what the High Court said in SZBYR at [17], the applicant in the current case has not demonstrated that what the brother told the Tribunal (that he made several visits from Australia to his home town in China without incident) in its terms, “would be” the “reason or part of the reason for affirming the decision that is under review”.  In its terms, what the brother told the Tribunal did not contain “a rejection, denial or undermining” of the applicant’s claim “to be a person to whom Australia owed protection obligations”.  In fact to the extent that the applicant sought to draw on her relationship with her brother, in a context where the brother was said to have had difficulties in obtaining a visa from the Chinese Consulate in Sydney, and to infer therefore that she also would somehow have difficulties with Chinese authorities, the fact that the brother was able to enter and depart China on a number of occasions without incident, or coming to the adverse attention of the authorities, would go to showing that he was not of interest to the authorities, and to the extent that the applicant sought to draw on this for herself, then it would support the Tribunal’s finding that she was not a person to whom Australia owed protection obligations.

  7. Further, it should be noted that the Tribunal’s adverse appraisal of the applicant’s evidence, and her brother’s evidence in this regard, is a conclusion that the Tribunal arrived at by weighing up the evidence before it.  Its subjective appraisal of this evidence, as such, is not information for the purposes of s.424A (for example see VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (“VAF”) at 476-477, citing relevant authorities in this regard).

  8. Nor can I see that the Tribunal was obliged to put to the applicant, pursuant to s.424A the information that she gave to the first respondent’s Department that she made nine Falun Gong banners which she hung up in public places. The reason, or part of the reason, for affirming the decision under review, in this regard, was clearly an inconsistency between this claim, and subsequent claims, made by the applicant (various claims) as to the number of banners that she put up in public. The Tribunal plainly found that “in light of her several confused and inconsistent statements about this matter” (CB 202.9), it was beyond belief that seven years later she would have hung up any Falun Gong banners (CB 203.2). Therefore, it was not satisfied that she was of interest at all to the police. Again, it is the Tribunal’s disbelief that was the reason for the decision.  That is, it was a disbelief arising from inconsistencies in the applicant’s claims. (With reference to SZBYR at [18].) This complaint also does not succeed.

Ground Four – Breach of procedural fairness

  1. Mr Zipser abandoned what he called the first part of ground four.  He pressed breach of procedural fairness arising from the following extract from the Tribunal’s decision (CB 201.4):

    “I am satisfied that if the alleged incident had occurred in September 1999 as described to the Tribunal by both the Applicant and her brother, this brother would not have subsequently returned several times to his home town without his visits coming to the adverse attention of the authorities.”

  2. Mr Zipser’s submission was that it was a denial of procedural fairness that the Tribunal did not put to the applicant that it made a finding adverse to the applicant because, in part, it noted evidence given by the brother.  During submissions, Mr Zipser conceded that this is a case to which s.422B of the Act applies, and that this Court is bound by such authorities as Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61. The provisions of Division 4 of Part 7 of the Act are the exhaustive statement of the natural justice hearing in this regard. In this regard, the complaint fails for similar reasons to what is set out above. The Tribunal is not obliged to put its subjective appraisals of the evidence before it to the applicant for comment pursuant to s.424A(1). (See SZBYR, VAF and others).

  3. In terms of procedural fairness, I also note, and considered what was said by the High Court in SZBELv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”), in relation to procedural fairness and the Tribunal’s obligation to provide a fair hearing pursuant to s.425 of the Act. The Tribunal is obliged to accord the applicant procedural fairness by relevantly giving the applicant the opportunity to give evidence or make submissions at the hearing about what would be the determinative issues arising in relation to the decision under review (SZBEL at [44]), and which were not issues which arose before the delegate in the delegate’s consideration (SZBEL at [35]).

  4. In the current case, the determinative issue was clearly the Tribunal’s comprehensive rejection of the credibility of the applicant’s claims as they related to her being a Falun Gong practitioner in China and of interest to the authorities in China.  These were claims which the Tribunal found to be without foundation and a complete fabrication.

  5. The only evidence before the Court on what occurred at the hearing is contained in the Tribunal’s own account.  On this account, it is quite clear that the Tribunal raised its concerns about the credibility of the applicant’s claims and evidence with her on a number of occasions (see CB 194.1, CB 194.8, CB 195.2 and CB 195.3).  The applicant could have been in no doubt during the hearing that the Tribunal had problems with her credibility and the plausibility of her claims.  It told her so in very plain terms.

Conclusion

  1. In all therefore, the applicant’s grounds in the amended application are not made out.  The applicant has had the benefit of the assistance of Counsel in seeking to show jurisdictional error in the Tribunal’s decision.  I cannot discern such errors as they are said to arise from the grounds in the amended application. The application is therefore dismissed.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: A Douglas-Baker

Date: 30 January 2008

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Cases Citing This Decision

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SZIAT v Minister for Immigration and Citizenship [2008] FCA 766