SZIFT v Minister for Immigration

Case •

[2007] FMCA 1462

•

3 September 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIFT v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1462
MIGRATION – Review of decision of Refugee Review Tribunal – the principle of “non-refoulement” does not arise as the applicant is not a refugee – no evidence of bias – no evidence of bad faith on the part of the Tribunal – findings as to credibility are a matter for the Tribunal – no evidence that the applicant had any difficulty with the interpreter before the Tribunal – no failure pursuant to s.424A – no jurisdictional error – application dismissed.
Migration Act 1958, ss.476, 424A, 425
SZIFS v Minister for Immigration and Multicultural Affairs [2006] FCA 1574
SZIBZ v Minister for Immigration and Multicultural Affairs [2006] FCA 1025
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex Parte Durairajasingham [2000] HCA 1
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Applicant: SZIFT
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 306 of 2006
Judgment of: Nicholls FM
Hearing date: 23 August 2007
Date of Last Submission: 23 August 2007
Delivered at: Sydney
Delivered on: 3 September 2007

REPRESENTATION

Counsel for the Applicant: Nil
Solicitors for the Applicant: Nil
Appearance for the Respondents: Mr P Reynolds
Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

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

  2. The application made to this Court on 31 January 2006 is dismissed.

  3. The applicant pay the first respondent’s costs set in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 306 of 2006

SZIFT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application filed in this Court on 31 January 2006 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal), signed on 14 December 2005 and handed down on 5 January 2006, affirming the decision of the delegate of the respondent Minister to refuse to grant a protection visa to the applicant.

Background

  1. The applicant is a national of the People’s Republic of China who arrived in Australia on 28 February 2005 and applied for a protection visa on 8 March 2005.  (The application for a protection visa is reproduced in the Court Book (“CB”) at CB 1 to CB 36.)  On 11 June 2005, a delegate of the respondent Minister refused the application.  On 6 July 2005 (CB 52 to CB 54), the applicant applied to the Tribunal for review of the delegate’s decision.

Applicant’s claims to protection

  1. The applicant gave evidence before the Tribunal on 16 November 2005.  (The Tribunal’s account of what occurred at the hearing is contained in its decision record reproduced at CB 86.9 to CB 90.8.)  The applicant claimed to be a Falun Gong practitioner in China from December 1997 and that Falun Gong was declared “illegal” in China.  He claimed that on 16 August 1998 he was arrested by the police, who tortured and ill-treated him, and forced him to sign a confession.  In addition, he claimed his wife and mother were questioned.  The applicant further claimed that a friend persuaded him to come to Australia, which he did on 13 February 2005.  While in Australia he received updated materials on Falun Gong, which he photographed and then distributed after his return to China on 19 February 2005.  The applicant claims that two days after returning to China, police came looking for him, so he ran away and returned to Australia.

The Tribunal’s Findings

  1. The Tribunal concluded that the applicant was “not a credible witness” and found his claims to be a Falun Gong practitioner to be “pure invention.”  This was because:

    1)At the hearing he described his practice of Falun Gong in a “very hesitant manner” (CB 93.9).

    2)His responses to questions from the Tribunal as to how he practised “truthfulness, benevolence and tolerance” were “very vague” even though such principles (according to independent information available to it) are “fundamental” to the practice of Falun Gong (CB 94.1).

    3)The applicant gave the Tribunal the impression that he was “not speaking from actual personal experience” and his responses were not due to “nervousness or a difficulty in communicating” (CB 94.3).

    4)The applicant gave the “clear impression” that there were more than five sets of exercises in Falun Gong but when the Tribunal put to the applicant that it had information to contradict the applicant’s evidence, “it appeared” that the applicant changed his evidence “when confronted with adverse information” (CB 94.5).

    5)The applicant’s claim that he was arrested in August 1998 was inconsistent with the independent evidence before the Tribunal (particularised at CB 92.4 to CB 93.7) which stated that the Chinese authorities further cracked down on the practice of Falun Gong in July 1999, ultimately banning it on 22 July 1999 and making it illegal in October 1999 (CB 94.6).

    6)That when the Tribunal put these inconsistencies to the applicant he claimed that he was nervous, had forgotten the date and found it difficult to communicate.  The Tribunal did not accept this explanation as the applicant did not appear at all nervous during the hearing and gave his evidence in “a most composed and cool manner” (CB 94.7).

    7)The applicant’s evidence as to why he first came to Australia on 19 February 2005, and why he took photographs of Falun Gong materials, “seemed rehearsed” (CB 95.4).

    8)The applicant gave as his reason for coming to Australia on 19 February 2005 that his friend had suggested the he needed a trip, and that his answer in this regard did not explain why the applicant himself “felt he needed to come to Australia having visited Singapore and Malaysia just three months earlier” (CB95.6).

  2. Given the above, the Tribunal found that the applicant did not have a well founded fear of persecution for a Convention reason (CB 95.10), and affirmed the decision under review (CB 96.2).

Application to the Court

  1. On 28 March 2006, the applicant filed an amended application which put forward the following grounds:

    “1.  The Tribunal and the primary decision maker erred in failing to recognize the principle of non-refoulment (sic) contained in Article 33 of the 1951 Convention Relating to the Status of Refugees (the Convention).

    2.  The Tribunal and the primary decision maker erred in finding that a finding of lack of bona fides must necessarily be based upon the Tribunal acting with a closed mind or proceeding on the basis that it was seeking reasons to decide against the application rather than considering on the basis of all the evidence put before it whether or not it could be satisfied of the applicant’s claims of refugee status and the Tribunal failed to consider whether any other motives could ground a finding of lake (sic) of bona fides.

    3.  The Tribunal and the primary decision maker erred in finding that the general attack on the applicant’s credit as an element of a failure to make a bona fide consideration of the application.

    4.  The Tribunal member and the primary decision maker erred in their construction of the Migration Regulation (sic) 1958 (the Act) (sic) Part 8.

    PARTICULARS

    (a)  The Tribunal and the primary decision maker failed to consider whether they had acted fairly.

    (b)  The Tribunal and the primary decision maker failed to consider whether, in the absence of a lack of a bona fide attempt to make a decision, the errors identified were sufficient to make a finding of lack of fairness.

    (c) The Tribunal and the primary decision maker failed to consider whether a decision infected by the errors identified in the judgment was a decision to which s.474 of the Act applied.”

Hearing before the Court

  1. The applicant appeared in person with the assistance of an interpreter in the Mandarin language.  Mr P Reynolds appeared for the respondent Minister.  I also have before me written submissions, filed 16 August 2007, on behalf of the Minister.

  2. Before the Court the applicant stated:

    1)He had told the Tribunal of his experiences yet the Tribunal found what he had said “made no sense.”  This was not reasonable.

    2)He was very nervous at the hearing before the Tribunal and could not remember exact “times” and details.  The Tribunal assumed he was lying, but he told the truth.  (As best as I was able to understand what was a confused and evolving submission.)

    3)That there had been a problem with the interpreter at the hearing before the Tribunal.  He claimed the interpreter had a “very strong accent”, spoke too fast and that, combined with his nervousness, he could not answer “correctly”.

    4)That given his experience in China he was afraid of government organisations.  He did not know who had appointed the interpreter.  That he had been speaking with other Falun Gong practitioners in Burwood the day before the hearing and that there were a “lot of spies” in Australia and he was warned that the interpreter was “linked with spies”.

The delegate’s decision

  1. To the extent that the amended application complains about the decision of the delegate, then the provisions of s.476 of the Migration Act 1958 (“the Act”) operate to prevent such consideration by this Court.  In any event, any defects or errors in the delegate’s decision would have been cured by the review conducted by the Tribunal and its decision.  The applicant has had a review on the merits.

Ground One – Failure to recognise the principle of non-refoulement

  1. Ground one of the amended application complains that the Tribunal erred in failing to recognise the principle of “non-refoulement.”  The principle of non-refoulement is to be found in Article 33(1) of the 1951 Convention Relating to the Status of Refugees (“the Convention”), which provides that no state will “expel or return (‘refouler’)” a refugee to his country of origin in circumstances where there would be a threat to his or her life or freedom for a Convention reason.

  2. In the case before me now, the applicant was not determined to be a refugee.  Therefore the issue of non-refoulement does not arise:  SZIFS v Minister for Immigration and Multicultural Affairs [2006] FCA 1574 at [16] and [18], SZIBZ v Minister for Immigration and Multicultural Affairs [2006] FCA 1025 at [15].

Ground Two – Lack of bona fides

  1. I agree with the Minister’s submission that ground two as stated is difficult to understand.  The applicant appears to complain that the Tribunal approached consideration of the application with a “closed mind” and proceeded on the basis “that it was seeking reasons to decide against” the applicant.  Further, that the Tribunal’s finding that the applicant was not bona fide (“a finding of a lack of bona fides”) was made in circumstances where the Tribunal did not consider any alternative “motives could ground a lake (sic) of bona fides,” presumably, on the part of the applicant.

  2. To the extent that this ground alleges bias or a “closed mind” on the part of the Tribunal, such an allegation must be clearly proved: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at 43-47 (“SBBS”).  In order that a finding of bias may be made out, there must be material before the Court to show that the Tribunal had a state of mind so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 and Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 (“SBAN”).

  3. For the applicant’s benefit in particular, I should emphasise that bias is not demonstrated simply by the Tribunal stating that on the basis of what the applicant had put to it at the hearing, and on the basis of country information available to it, it did not accept the applicant’s explanation for the inconsistencies between his evidence and the independent country information available to the Tribunal, or that it simply did not believe him.  In this regard, the Tribunal made findings of fact which were open to it on the material before it, and it gave reasons for these.

  4. What is before the Court now is that the Tribunal was not persuaded by what the applicant claimed, and found against the applicant, on the basis of his lack of credit.  I cannot see that the Tribunal brought a closed mind to its task, such that it was committed to a conclusion already formed, such as to be incapable of alteration or being persuaded differently.  As was described by McHugh J in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex Parte Durairajasingham [2000] HCA 1 (“Durairajasingham”) at [67], the Tribunal was clearly exercising its function as the decision-maker “par excellence” in the making of such findings. I cannot see, on what is before me, that the Tribunal was biased in relation to the applicant’s case. The Tribunal made factual findings which were open to it on the material before it, and, with reference to such authorities as Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at [558]–[559] no error is demonstrated in these circumstances. This complaint does not succeed.

  5. To the extent that the applicant complains that the Tribunal proceeded on the basis “that it was seeking reasons to decide against” the applicant, it can only be said that matters of fact are for the Tribunal and the Tribunal’s findings were open on the material before the Tribunal.  The Tribunal found that details of the applicant’s claims in respect of his practice of Falun Gong, and in respect of his visit to Australia in February 2005 when he met Falun Gong practitioners, “seemed rehearsed” (CB 95.4) and the applicant’s answers to the Tribunal’s questions were “delivered in an unconvincing manner” (CB 95.4).  On the basis of the material before it, including the applicant’s evidence at the hearing, the Tribunal found that the applicant was not a credible witness.  The Tribunal was entitled to make this finding.

  6. If by reference to a “lack of bona fides,” the applicant intends to allege that the Tribunal acted in bad faith, then with reference to SBBS, SBAN, and Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 (“NAOS”), an allegation of bad faith is a serious allegation which should not be made lightly and which must be proved.  In cases where the material relied upon to found such an allegation is limited to the decision record, it is rare that bad faith will be made out: SBBS at [44], per Tamberlin, Mansfield and Jacobson JJ. To allege bad faith on the part of the Tribunal is to allege some “personal fault” on the part of the Tribunal member, in the sense that there was an absence of honesty (SBBS at [43]), and to allege that the decision was made not on the basis of “considered judgment” but on the basis of “whim or fancy” (NAOS at [21], per Whitlam, Finn and Goldberg JJ). Mere errors as to fact or law, or an allegation that the Tribunal’s findings are illogical, are insufficient to demonstrate bad faith (SBBS at [45]).

  7. There is no material before the Court now, beyond the Tribunal’s decision record, to demonstrate that the Tribunal was biased or acted in bad faith in the sense that there was an absence of honesty on the part of the Tribunal, or that the Tribunal’s decision was based on “whim or fancy” rather than on “considered judgment” as to the material before it.  The Tribunal sets out at CB 90 to CB 93 the independent country information available to it, and then at CB 93 to CB 95, the evidence of the applicant and the Tribunal’s assessment of that evidence in its own right and in light of the independent country information.

  8. It may be that the applicant’s submission to the Court that he was nervous before the Tribunal was made as an example of “any other motives” which the Tribunal should have considered before finding that the applicant lacked credit.

  9. If this is the case, then the Tribunal did consider this issue (at CB 94.2):

    “It did not appear to the Tribunal that the applicant’s hesitant manner and vague responses were due to nervousness or a difficulty in communicating.”

  10. The Tribunal reported (at CB 94.7):

    “When this [inconsistencies in his evidence at the hearing and inconsistencies with country information] was put to the applicant he claimed he was very nervous, may have forgotten ‘the date’, and found it difficult to communicate and had lost his ability to speak.  The Tribunal does not accept these explanations.  The applicant did not appear in the slightest bit nervous during the hearing.  On the contrary he generally gave his evidence in a most composed and cool manner.”

  11. The applicant has put no evidence before the Court to challenge the Tribunal’s account and view of what happened at the hearing.  The Tribunal plainly considered the applicant’s claim that he was nervous and emphatically rejected it.  This complaint also does not succeed.

  12. For the remainder, the applicant’s complaint does not rise above a request for this Court to review the merits of the Tribunal’s decision, which of course, it cannot do (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272]). In all, therefore, this ground does not succeed.

Ground Three – Error in credibility finding

  1. Ground three of the application complains that the Tribunal erred in its finding that the applicant was not credible (CB 95.7).  This ground further complains that in making this finding, the Tribunal acted without making a “bona fide” consideration of the application.

  2. To the extent that this ground seeks impermissible merits review of the Tribunal’s findings in relation to credibility, this Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Findings of fact, including findings as to the credibility of an applicant and his or her claims, are for the Tribunal as the decision maker “par excellence” (Durairajasingham, per McHugh J at [67]). It was open to the Tribunal to make the findings that it did in relation to the applicant’s credibility. The Tribunal gave reasons for its adverse finding.

  3. The complaint that the adverse credibility finding was a result of a failure to give “bona fide” consideration does not succeed. (See also [17]-[18] above.)

Ground Four – Error in the construction of Part 8 of the Act

  1. As the first respondent’s submissions note, ground four, as stated appears to be misconceived, if the applicant is asserting that the Tribunal failed to apply Part 8 of the Act. This Part deals with “Judicial Review”. If what the applicant is asserting is that the Court has jurisdiction to review the Tribunal’s decision then this is not at issue. Further, if he asserts that the Court should find jurisdictional error on the basis of a lack of good faith on the part of the Tribunal then this issue has been considered above.

Complaints made at the hearing before the Court

  1. In relation to the applicant’s complaints made before the Court (see [8] above):

    1)That the Tribunal did not accept the applicant’s claims is not, on its own, a demonstration of an unreasonable approach by the Tribunal.  It found the applicant’s evidence “problematic” for very clear and cogent reasons.  It was open to the Tribunal to make the findings that it made in this regard and it is not for this Court to substitute its own findings as to the applicant’s evidence before the Tribunal. 

    2)The applicant’s claim that he was nervous before the Tribunal has already been dealt with above (see [19]–[23]).

    3)The applicant complains now that he had a problem with the interpreter at the hearing before the Tribunal and that the interpreter had such a strong accent, spoke too rapidly, and that this, combined with his nervousness, led to his not being able to answer “correctly”. In discharge of its statutory obligation pursuant to s.425 of the Act to give an applicant the opportunity to give evidence and provide argument, the Tribunal is required to provide a competent interpreter who can provide and does in fact provide a competent interpretation. Where a Tribunal provides an interpreter whose interpretation is of such standard or quality, or of such character (for example a “heavy accent”, as the applicant asserts now), to the extent that the applicant is unable to adequately give evidence, there would be a breach of the Tribunal’s statutory obligation under s.425.

    4)The difficulty for the applicant in the case before the Court now is that he has provided no evidence whatsoever of any such difficulty with the interpreter.  There is nothing in the material before the Court now to show that the applicant put anything before the Tribunal, either during the hearing or indeed in the time available after the hearing (hearing held on 16 November 2005, decision handed down 5 January 2006), to assert any problem with the interpreter at the hearing.  Nor has the applicant now, despite opportunity, put before the Court any transcript of the hearing before the Tribunal or any other evidence from any qualified interpreter to assert any difficulties with the service provided by the interpreter at the hearing before the Tribunal.  I did consider the difficulties faced by an applicant from a non-English speaking background of putting complaints of this nature before the Tribunal.  In this regard however, I note that the applicant was able to write to the Tribunal and successfully request a further hearing date when it appeared that the notice of the invitation to hearing first sent to the applicant by the Tribunal did not appear to reach him in time (CB 60 and CB 86.3 to CB 86.7).  The applicant clearly knew that if there was a problem with any procedure before the Tribunal he could write to the Tribunal and seek its attention.  Further, he would have been on notice that there was every chance that the Tribunal would take his concern seriously and address it as indeed it responded in a fair manner to his complaint that he had not received the invitation to hearing (even though the applicant’s complaint that he had not received the invitation to hearing was that the collection notice issued by Australia Post was “mixed up with one of the magazine (sic)”).  Without any evidence whatsoever, this complaint does not succeed before this Court.

    5)The applicant also complained that similarly, the applicant has brought forward no explanation, let alone any evidence, as to why he thought that the interpreter used at the hearing before the Tribunal was a “spy”, or that the interpreter was “living with spies”.  That he was told this by other Falun Gong practitioners the day before the hearing at Burwood, in the absence of any evidence put before the Court, does not assist the applicant in this complaint.  Even when viewed at its most charitable, the applicant’s complaint could possibly be that Chinese consular authorities in Australia investigate refugee claims made by their nationals present in this country.  And it may be that the applicant was concerned that the interpreter was used as part of this process.  But here again, no evidence whatsoever has been produced by this applicant to support this assertion now.  This complaint also does not assist the applicant.

Possible breach of s.424A of the Act

  1. Before the Court, the first respondent by way of submission as further explained by Mr Reynolds at the hearing, did raise the possibility of an argument that the Tribunal may have breached its obligations pursuant to s.424A of the Act in making an adverse credibility finding based on inconsistencies between the applicant’s protection visa application and his oral evidence given at the hearing before it. In its decision record, the Tribunal (at CB 94.9) made reference to the fact that:

    “When the Tribunal pointed out in his protection visa application visa application he had stated that it was in August – he simply said that that was what he should have said.  He did not state that he was nervous or had problems recalling the date or any other problems communicating.  Asked to clarify how he could have been detained in August 1998 when according to his protection visa application Falun Gong was declared illegal at the end of 1998, he answered without hesitation that the government tried to demolish Falun Gong in mid 1998 and totally banned it in late 1998.”

  2. Mr Reynolds submitted that there was no breach of s.424A of the Act given the High Court’s decision in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”):

    1)With reference to SZBYR at [17], the information in the protection visa application was not a reason or part of the reason for the Tribunal’s decision.

    2)With reference to SZBYR at [18], the inconsistencies were not “information” within the meaning of s.424A.

  3. Relevantly at [17], the High Court said:

    “…it is difficult to see why the relevant passages in the appellants’ statutory declaration would of itself be ‘information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review’.  Those portions of the 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.  Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.”

  4. At [18], the High Court said:

    “… if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting ‘information’ within the meaning of par (a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute ‘information’. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word ‘information’ [footnote omitted]:

    ‘doe not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc’.

    If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but each step in its prospective reasoning process.  However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of the evidence.  The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.”

  5. The reference to the applicant’s protection visa application in the Tribunal’s decision record as extracted above appears in its findings and reasons.  That part of the Tribunal’s analysis was initially concerned with the applicant’s statement at the hearing (CB 94.6) that the Chinese authorities attempted to crush Falun Gong in mid 1998 and that he was arrested on 16 August 1998 and that Falun Gong was banned at the end of 1998.  The Tribunal noted that this was “entirely inconsistent” with the independent evidence before the Tribunal which stated that the Chinese authorities began the crack down on Falun Gong in July 1999 and banned it on 22 July 1999, and declared it an “evil cult” and made it illegal in October 1999.  The Tribunal reports that when this was put to the applicant at the hearing he claimed nervousness and that he had forgotten the date and found it difficult to communicate and had lost his ability to speak.  The Tribunal rejected these explanations.  It noted that he had given his evidence in a most composed and cool manner, and reported that when asked at the hearing when he was detained there was no hesitation or any indication of any difficulty in recalling the date, and that he had answered that it was in “October 1998”.  The extract quoted above then follows and the Tribunal then continues with (at CB 95.2):

    “Again, he gave no indication of any difficulties which may have affected the accuracy of his evidence.  It was only when the Tribunal put to him that his evidence about when the Chinese authorities cracked down on Falun Gong, banned it and declared it illegal that he claimed that he was nervous, forgot ‘the date’ and had problems communicating.  The Tribunal thus believes that these were merely excuses he invented rather than genuine explanations for the inconsistency between his evidence and the independent information.”

  6. I accept the Minister’s submissions that the information in the protection visa application was not the reason or part of the reason for the Tribunal’s decision.  Any plain reading of the Tribunal’s analysis reveals that it was the applicant’s statement at the hearing before the Tribunal that caused it to form a negative view of his claims.  It was what the applicant had said to the Tribunal that had caused it to find his explanations to be inventions.

  7. While the Tribunal does make reference to the protection visa application it was not what was the reason or part of the reason for the Tribunal’s decision (SZBYR at [17]). In the case of extract at [33]above, the inconsistencies in any event were between what the applicant said at the hearing (s.424A(3)(b) would exclude the application of s.424A(1)) and independent country information (s.424A(3)(a)). Further, any inconsistencies noted by the Tribunal are not information within the meaning of s.424A (SZBYR at [18]).

Conclusion

  1. In all, I cannot discern jurisdictional error in the Tribunal’s decision, either in the grounds or in the complaints put forward by the applicant at the hearing.  The application is therefore dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  3 September 2007

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