SZIOQ v Minister for Immigration and Citizenship
[2007] FMCA 1292
•8 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIOQ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1292 |
| MIGRATION – Review of Refugee Review Tribunal decision – no s.424A error – information given by applicant’s adviser fell within s.424A(3)(b) – no jurisdictional error in Tribunal’s finding on credit – Tribunal did not place inappropriate weight on applicant’s demeanour – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.48B, 48A, 424A, 424A(3)(b). |
| SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 SZBQT v Minister for Immigration & Citizenship [2007] FCA 547 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 SAAK v Minister for Immigration and Multicultural Affairs (2002) 191 ALR 663 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 |
| Applicant: | SZIOQ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 921 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 31 July 2007 |
| Date of Last Submission: | 31 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 08 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Zipser (on a direct access basis) |
| Solicitors for the Applicant: | Nil |
| Appearance for the Respondents: | Ms S. Burnett |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 921 of 2006
| SZIOQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 28 March 2006, and amended on 31 July 2007, seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”), signed on 28 February 2006 and handed down on
9 March 2006, affirming the decision of a delegate of the respondent Minister not to grant a protection visa to the applicant.
Background
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 19 May 2001. On 14 June 2001 she lodged an application for a protection visa with the first respondent’s Department (“the first application to the Department”). On 28 June 2001, a delegate of the respondent Minister refused to grant the visa. The applicant applied to the Tribunal (“the earlier constituted Tribunal”) for review of this decision. On 23 April 2002, the earlier constituted Tribunal held that it did not have jurisdiction to review the decision.
Section 48A of the Migration Act 1958 (“the Act”) provides that an applicant who has been refused a protection visa may not make a further application for such a visa. On 15 August 2005, the respondent Minister notified the applicant, pursuant to s.48B of the Act, that the provisions of s.48A of the Act did not apply to her (see the Supplementary Court Book (“SCB”) at SCB 1). On 22 August 2005, the applicant lodged a “second” application for a protection visa (SCB 2 to SCB 27) (“the second application to the Minister’s Department”), which included a statement by the applicant at SCB 28 to SCB 29. On 13 October 2005, a delegate of the respondent Minister refused to grant the protection visa (SCB 49 to SCB 50). On 14 November 2005, the applicant applied to the Tribunal (“the Tribunal”) for review of that decision (CB 47 to CB 50). The applicant now seeks review of this decision of the Tribunal.
Refugee Claims
The applicant’s claims to protection are contained in her “first” application to the Department (CB 1 to CB 23, including a statement by the applicant reproduced at CB 24 to CB 27), in her “second” application (SCB 2 to SCB 30, including a statement by the applicant at SCB 28 to SCB 30), and in a statutory declaration of the applicant (CB 34). The applicant’s claims to protection are also contained in her application for review to the Tribunal (CB 47 to CB 50), and in a letter from the applicant’s then migration agent to the Tribunal enclosing supporting documentation (CB 60 to CB 74).
The applicant claimed to fear political and religious persecution due to her organisation of “pro democratic” activities in China and her Falun Gong practice. Further, in a claim raised at the hearing before the Tribunal, she claimed that she had provided information to Australian authorities about the person (“the snakehead”) who had organised her trip to Australia, who then threatened her family in China.
The applicant attended a hearing before the Tribunal on 8 February 2006 (CB 82). Her adviser was present. Documents in support of her claim were submitted at the hearing (including a statutory declaration from the co-ordinator of the Chatswood Falun Gong group (“Ling Con Zhang”) reproduced at CB 70 and a letter of support from Mr J. Deller, President of the Association of Falun Gong, NSW, reproduced at CB 60). The Tribunal’s account of what occurred at the hearing in its decision record is reproduced at CB 110.9 to CB 115.5.
After the hearing, on 9 February 2006, the Tribunal wrote to the applicant (pursuant to s.424A of the Act), by way of the applicant’s adviser who was also authorised to receive correspondence and invited the applicant to comment on certain information that would a reason, or part of the reason for the Tribunal’s decision (CB 83). This was that the Tribunal:
1)Had contacted Mr John Deller, President of the Association of Falun Gong of NSW, seeking clarification in relation to his letter of support submitted by the applicant; and
2)That he had stated that he believed the applicant to be a genuine practitioner. However he could not comment on how long the applicant had practised Falun Gong, but he understood from “Linda who co-ordinates the practice site at Chatswood” that the applicant was currently practising at Chatswood. He stated that he understood that “Linda” would be writing a letter in support of the applicant, that he did not know the applicant well, and that there was a language barrier, but he thought that he had met her at protest meetings outside the Chinese Consulate held on Sundays.
The Tribunal indicated that the information was relevant because it had a bearing on the weight the Tribunal would place on Mr Deller’s letter in support of the applicant (CB 83.9). On 9 February 2006, by facsimile, the applicant’s advisor wrote to the Tribunal in reply to Tribunal’s letter (CB 84 to CB 85). Also attached was a further statement from the Chatswood Falun Gong co-ordinator (CB 95).
The Tribunal’s “Findings and Reasons” are reproduced at CB 115.5 to CB 119.5. The Tribunal found:
1)It “did not find the applicant to be credible on several key aspects of her claims” and noted that at the hearing the applicant did not impress the Tribunal in her responses, giving evidence which was often “weak and convincing” (CB 116.1).
2)It did “not accept that the Applicant was involved in Falun Gong in China from 1997 until 2001 when she arrived in Australia and that she was involved with Falun Gong on her arrival in Australia until November 2005” (CB 116.2).
3)It did not accept the applicant’s claims to have been committed to Falun Gong for a nine-year period on the basis that, when asked about her commitment to Falun Gong, the applicant “sought to defer to notes to assist her to speak about Falun Gong and was hesitant, ambivalent and vague in her responses” (CB 116.4).
4)It did not accept that the applicant was detained for a period of one week as a result of her practising Falun Gong on the basis that it did not accept that she was involved with Falun Gong in China (CB 116.5).
5)It accepted that the applicant had “participated in Falun Gong practice sessions at the Chatswood practice site since November 2005” on the basis of written statements from the Chatswood Co-ordinator, Ms Zhang (CB 116.6).
6)However it did not accept that the applicant had practised Falun Gong prior to her arrival in Australia (CB 116.6).
7)It accepted that “the Applicant [had] been present at some demonstrations protesting about the Chinese Government’s treatment of Falun Gong practitioners” on the basis of photographs provided by the applicant to the Tribunal which showed the applicant positioned in front of posters (CB 117.4).
8)It did not accept that the applicant was involved in protests or demonstrations regarding Falun Gong prior to November 2005 on the basis that the photographs provided by the applicant to the Tribunal post-dated November 2005. Further, it found when it asked the applicant to recount some details of her involvement in Falun Gong demonstrations pre dating November 2005, that the applicant was “hesitant, vague and unable to provide any meaningful detail” (CB 117.5).
9)It disregarded the “Applicant’s involvement in Falun Gong demonstrations and attendances at the Chatswood practice site since November 2005” on the basis that it was “not satisfied that the Applicant has engaged in this conduct otherwise than for the purpose of strengthening her claim to be a refugee” (CB 117.6). The Tribunal made this finding on the basis that the applicant “did not impress the Tribunal at the hearing as a genuine practitioner of Falun Gong”, that the applicant’s involvement in Falun Gong in Australia coincided with her application for review of the delegate’s decision, and that the applicant had been involved in Falun Gong activities in Australia for a very limited period (some three months) but had been in Australia for some length of time (some five years) (CB 117.8).
10)In relation to “a statement from Mr Deller President, Falun Gong Association of NSW testifying to the genuineness of the Applicant’s involvement in Falun Gong” provided by the applicant, on the basis of the applicant’s own evidence and a telephone conversation with Mr Deller, “it became apparent to the Tribunal that while Mr Deller and the Applicant had sighted each other at demonstrations they have not had contact with each other in a manner or to a degree which would enable Mr Deller to make the assessment that the Applicant is genuine in her practice of Falun Gong” (CB 118.1).
11)In relation to the statement of Ms Zhang, the Chatswood Co-ordinator, and Ms Zhang’s view that the applicant was a genuine practitioner of Falun Gong, but that she had not attended the Chatswood practice site earlier than November 2005 because she was afraid, and the applicant’s suggestion that Ms Zhang had perhaps not known her name prior to November 2005 as she had been practising at the site prior to this time (CB 118.3), it was “not satisfied that Ms Zhang has had sufficient contact with the Applicant to enable her to assess the genuineness or otherwise of the Applicant’s involvement in Falun Gong” (CB 118.4).
12)Given its conclusion that the applicant had not engaged in the practice of Falun Gong in China, or in Australia prior to November 2005, then it did “not accept that the Applicant has a well founded fear of persecution for a Convention reason on her return to China” (CB 118.5).
13)It accepted that the applicant may have provided information to Australian authorities in relation to activities of “the snakehead”, and that “the snakehead” may have been investigated by the Chinese authorities, and that the applicant may fear harm from “the snakehead”. However, it did “not accept that the Applicant or her family [had] been subject to any threats” as it considered “the Applicant’s oral evidence on the claimed threats and the detention and subsequent release through bribery of the snakehead was presented in the manner of an afterthought and conjecture in response to the Tribunal questioning about the actuality of the harm she claimed to fear from the snakehead” (CB 118.7).
14)Further, it was unable to discern a Refugees Convention nexus in relation to this claim (CB 119.1).
15)
In all, the Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution on her return to China
(CB 119.1).
At the hearing before the Court, Mr B. Zipser of Counsel appeared for the applicant (on a direct access basis). Ms S. Burnett appeared for the respondent. Mr Zipser sought leave (which was subsequently granted) to file an amended application. Written submissions for the applicant (in anticipation of such leave being granted) had been filed with the Court on 27 July 2007. While the Minister had filed written submissions within the time prescribed by orders made at the first Court date in this matter, these submissions related to the grounds as asserted in the originating application. Plainly, the Minister therefore had no opportunity in the circumstances to have provided written submissions relating to the grounds now currently put before the Court. No objection was taken to the Court proceeding to hear the matter.
The grounds of the amended application are:
“1. In relation to the Tribunal’s reliance on information contained in a statutory declaration from Ling Con Zang, the Tribunal breached s 424A of the Migration Act.
2. The Tribunal fell into jurisdictional error in the manner in which it relied on the applicant’s demeanour in making an adverse credibility finding against the applicant.”
The applicant’s first ground and the complaint as set out in written submissions (see in particular paragraphs 20 to 23), relies on:
1)The applicant’s claim that shortly after arriving in Australia in 2001, she commenced and continued to practice Falun Gong at a Chatswood Falun Gong practice site.
2)In contrast, in a statutory declaration dated 20 January 2006, the co-ordinator of that site (Ling Con Zhang) stated that the applicant came to the Chatswood practice site to practice Falun Gong “from November 2005”.
3)That the Tribunal relied on the statement of Ms Zhang to reject the applicant’s claim. This was with reference to the Tribunal’s decision record (at CB 116.7):
“The Tribunal accepts that the applicant has participated in Falun Gong practice sessions at the Chatswood practice site since November 2005. The Tribunal accepts this on the basis of the written statements from the Chatswood coordinator Ms Zhang.”
In reference to this ground, the applicant’s written submissions at paragraph 25 assert as follows:
“First, the applicant’s agent gave the statement of Ms Zhang to the Tribunal. A question is whether the statement is “information…that the applicant gave for the purpose of the application within the meaning of s 424A(3)(b). The author of these submissions recollects there is case law on this point, although in the course of preparing these submissions cannot locate the case law nor recall whether the case law favours the applicant or respondent. Subject to case law being located, the applicant says that s 424A(3)(b) does not apply to the statement of Ms Zhang.”
At the hearing, Mr Zipser referred the Court to SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [50], per McHugh J, and conceded that the relevant High Court authority went against the applicant on this point.
The “written statements” referred to by the Tribunal in the extract quoted above are reproduced at CB 70, being a statutory declaration made by Ms Zhang, where amongst other things she states:
“From November 2005, [the applicant] come to our Chatswood practice site and practice Falun Gong with us…”
and another statutory declaration reproduced at CB 95 made by Ms Zhang, where amongst other things she states:
“From November 2005, [the applicant] come to our Chatswood site and practice Falun Gong with us…”
The first statutory declaration was given to the Tribunal at the commencement of the hearing. The statutory declaration was attached to a submission from the adviser (see CB 110.5 and CB 60). No distinction was made before the Court, nor was there any argument relying on, any issue of the agent, instead of the applicant, giving the statutory declaration to the Tribunal. In any event in this regard, I note the applicant’s statement (reproduced at CB 61 to CB 62) which was also attached to the adviser’s submission at CB 60, where the applicant makes specific reference to (at CB 62.3):
“Attached please find…and a letter from local leader of Falun Gong practice point...”
In any event, I take the view that if it could be said that the material was given physically by the agent and not the applicant herself, that given to the Tribunal that there is no evidence before the Court that the applicant had not authorised the adviser’s submission and the attachment of the relevant information to it, and given that there is in fact, evidence before the Court that the adviser was acting with the authority of the applicant (see the applicant’s notification to the Tribunal of the appointment of the adviser authorised to act for her - at CB 48) and further, the adviser’s continuing assertion to the Tribunal that he acted on the applicant’s behalf in lodging the additional documents (which included the relevant information - see CB 60), that for the purposes of s.424A(3)(b) of the Act, no distinction is drawn between information given by the agent and the applicant. That is, where the agent acts within the applicant’s authority in providing information, this has the effect of the applicant giving the documents to the Tribunal such that it engages s.424A(3)(b) of the Act, from the requirements of s.424A(1) of the Act (See in this regard also SZBQT v Minister for Immigration & Citizenship [2007] FCA 547 at [6] to [15]).
Similarly, in relation to the submission and attached statutory declaration made after the hearing, the information was given to the Tribunal for the purposes of the review such that the exception contained in s.424A(3)(b) of the Act, operates to alleviate the Tribunal of the obligation contained in s.424A(1) of the Act.
In light of the above, it is not necessary to consider the second issue under this ground as raised in the applicant’s written submissions as to whether the information was “information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review” (see paragraph 26 of the applicant’s written submissions).
The applicant’s second ground asserts that the Tribunal fell into jurisdictional error in the manner in which it relied on the “applicant’s demeanour” in “making an adverse credibility finding against the applicant”. Mr Zipser submitted that the Tribunal placed significant weight on the applicant’s demeanour at the hearing before it in rejecting her claims.
He referred to two parts of the Tribunal’s decision record (at CB 116.3 to CB 117.5):
1)At CB 116.3:
“The Tribunal does not accept that the applicant was involved in Falun Gong in China from 1997 until 2001 when she arrived in Australia and that she was involved with Falun Gong on her arrival in Australia until November 2005. The Tribunal does not accept this claim as the Tribunal found the applicant’s oral evidence in respect of her commitment to Falun Gong to be unconvincing. In particular, she claims to have been committed to Falun Gong for around a nine year period. Yet at the hearing when the Tribunal asked the applicant to explain her commitment to Falun Gong the applicant sought to defer to notes to assist her to speak about Falun Gong and was hesitant, ambivalent and vague in her response. The applicant did not provide to the Tribunal any meaningful, free flowing or personal detail about her commitment to Falun Gong…”
2)At CB 117.4:
“Further when the Tribunal asked her to recount some details of her involvement of Falun Gong demonstrations that pre-date November 2005 the Applicant was hesitant, vague and unable to provide any meaningful detail…”
Mr Zipser’s submission was that in light of what Kirby J (dissenting) set out Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 (“SGLB”) at [73], and what the Full Federal Court said in SAAK v Minister for Immigration and Multicultural Affairs (2002) 191 ALR 663 (“SAAK”), that the Tribunal’s reliance on what he described as the “applicant’s demeanour” at the hearing before the Tribunal, was such that the Tribunal did not exercise caution in assessing the applicant’s credit and thereby it fell into jurisdictional error on this basis.
In SGLB, Kirby J stated:
“[73] Credibility is often seen as the crucial issue in tribunal determinations of refugee status. The references in the Refugees Convention to the existence of “fear”, and to the grounds of that emotion, necessarily imply that those deciding refugee claims will have to make highly personal evaluations of the subjective feelings and motivations of applicants. As I said in Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222, “[m]any, perhaps most, claims to refugee status involve examination of the truthfulness of the factual assertions of the applicant. Many turn on the assessment of credibility”. There was some suggestion during the hearing of this appeal that inconsistent statements by asylum seekers might suggest fabrication of evidence, and might justifiably lead to negative conclusions as to credibility. While such a conclusion is sometimes justified, refugee cases involve special considerations where credibility is an issue. There is no necessary correlation between inconsistency and credibility in such cases. Many factors may explain why applicants present with the appearance of poor credibility. These include: mistrust of authority; defects in perception and memory; cultural differences; the effects of fear; the effects of physical and psychological trauma; communication and translation deficiencies; poor experience elsewhere with governmental officials; and a belief that the interests of the applicants or their children may be advanced by saying what they believe officials want to hear. The tribunal must be firmly told – if necessary by this court – that the process is one for arriving at the best possible understanding of the facts in an inherently imperfect environment. It is not to punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so.”
Mr Zipser relied on SAAK for the proposition that the Tribunal must exercise caution in assessing an applicant’s credit. He relied generally on what the Full Federal Court set out at [20] to [27], and noted in particular that the Court, at [27] said:
“In recent times research has shown that some of the traditional methods used by courts to determine creditworthiness are unreliable. For instance, it is recognised that the confident liar is no longer necessarily to be preferred over the reticent teller of truth. The demeanour of a witness has assumed less importance in the assessment of credibility.”
Further, that the Court in SAAK echoed what Kirby J set out in SGLB, particularly in relation to a “mistrust of authority” leading to an applicant not relating “a critical element of the claim at the first interview”. This was in reference to the Tribunal in that case relying on inconsistencies between different accounts given by an applicant during the course of processing applications for protection visas and for the review of primary applications. I note in particular at [33]:
“The critical factor upon which the appellant relied was the failure of the tribunal to state that it had taken a cautious approach to this assessment, and the failure to state that it had regard to the circumstances in which the interview occurred. From this omission, Mr Maxwell submitted, the court should infer that the tribunal failed to treat the assessment with the necessary caution.”
Mr Zipser submitted that he could not rely on this aspect of what was in SAAK as clearly the Tribunal in the current case had specifically turned its mind to the issue of being sensitive to the difficulties faced by asylum seekers, and the caution that needed to be adopted (CB 115.9). But his submission was that, consistent with what the Court went on to say in SAAK (at [36]), that it is the process of evaluation actually undertaken by the Tribunal that will demonstrate whether it approached the question of credit in a cautious way or otherwise.
I am not persuaded by Mr Zipser’s argument that the Tribunal, in the case currently before the Court, failed to approach its task with the relevant necessary caution.
First, it is relevant to emphasise that this Tribunal specifically reminded itself of the need to be sensitive of the difficulties faced by asylum seekers consistent with what is generally set out in SGLB in the extract quoted above. This is in marked contrast to the situation in SAAK where the Tribunal did not so remind itself. Noting of course that in that case, after looking at the process of evaluation undertaken by the Tribunal, the Court was satisfied that the Tribunal did exercise the necessary caution (SAAK at [41]).
Further, the Tribunal’s description of what Mr Zipser puts forward as the “demeanour of the applicant’s conduct” (“hesitant”, “vague”, “unable to provide meaningful detail”) were not observations made in a vacuum. In a real sense, the Tribunal was not describing such things which may be clearly open to misunderstanding on their own because of some misunderstanding of different cultural contexts. For example laughter, which may hide nervousness, an “insolent” look or a “vacant” stare.
In this context, what the Tribunal described was the quality of the applicant’s answers to questions relevant to the issues for consideration. In my view, there is a real distinction to be drawn between the Tribunal’s evaluation of the applicant’s answers and an applicant who could be described as generally “hesitant” or generally “vague”. Such an assessment and reliance by such a Tribunal may in some circumstances, fall within the concerns expressed by Kirby J in SGLB.
In the current case, it was the applicant’s answers when asked to explain her commitment to Falun Gong that were described as “hesitant” and “vague”. That the applicant was said to be “ambivalent” is clearly, in context, related to the Tribunal’s characterisation and observation of her answers to questions relating to Falun Gong, the applicant’s discussion of issues relevant to Falun Gong, and her involvement in Falun Gong activities. This distinction is particularly obvious with the Tribunal’s finding that the applicant did not provide to it any “meaningful, free flowing or personal detail about her commitment…” (CB 117.5).
In my view, an examination of the evaluation and analysis actually undertaken by the Tribunal reveals that it did approach its task in a cautious way. The Tribunal reminded itself of the need to be sensitive to difficulties faced by asylum seekers, and that it should give the benefit of doubt to those who are “generally credible”, but who are nonetheless unable to substantiate all their claims. It particularly recognised that a liberal attitude was required in matters of this kind.
In my view, it was open to the Tribunal on the material before it to find that the applicant was not credible in relation to several key aspects of her claims. The Tribunal’s findings in this regard were consistent with what McHugh J set out in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], concerning the Tribunal’s role as the “decision maker par excellence”, a role which requires it to make findings of fact, including findings as to the credit of an applicant’s evidence and claims.
That the Tribunal described the applicant’s answers and presentation to the Tribunal in part as being “hesitant” and “vague”, does not in itself in my view, in the circumstances of this case, reveal any lack of caution.
Further, the Tribunal did not disbelieve the applicant for any capricious reason, but was unconvinced on the basis of her evidence. Its description of what the applicant said as being “hesitant”, “ambivalent” and “vague” is not so much a description of her demeanour as emphasised and suggested by Mr Zipser, but is a description of what it perceived and observed to be the evidence, and representations, that she was making. The Tribunal did not rely on some facial feature, “nervous tic” or bodily gesture of the applicant, but assessed the applicant’s words and how these words were delivered. In my view, this is not, in all the circumstances of this case, an example of an incautious approach by the Tribunal.
The Tribunal’s decision was clearly based on a range of factors. It took into account and dealt with submissions and supporting documentation provided on the applicant’s behalf by her adviser. But ultimately, it was not convinced by the applicant’s account and explanations at the hearing. Mr Zipser has attempted to characterise the applicant’s reported presentation at the hearing as being one of demeanour. I do not accept this characterisation as being what occurred in this case. Nor do I accept that there was “too much” of an emphasis by the Tribunal on the applicant’s demeanour.
A plain reading of the Tribunal’s decision record as a whole reveals that it carefully set out all of the applicant’s claims, that it gave due consideration to all the submissions made on her behalf and in particular, gave consideration to documents provided in support. Further, the only account of what occurred at the hearing (that is the Tribunal’s unchallenged account contained in its decision record) reveals that it comprehensively addressed each of the relevant issues with the applicant during the course of the hearing. Determinative issues were plainly put to her.
The applicant’s reported answers, for example to questions relating to whether she could describe the beliefs of Falun Gong, plainly formed a basis for the Tribunal’s findings as to the quality of her answers. Specifically, the Tribunal raised with the applicant its reservations about her involvement in Falun Gong (see CB 112.7 to CB 113.2) and as the Tribunal reported, “most particularly the fact that her documentary evidence all related her involvement with Falun Gong after November 2005” (CB 113.3).
In all, the applicant, who with the benefit of a migration agent, put certain claims before the Tribunal, attended a hearing to further her explanations and claims, was unable to convince the Tribunal of the strength and veracity of her claims in relevant particulars. That the Tribunal described her answers and presentation at the hearing in terms of being “hesitant” and “vague”, does not in my view reveal any lack of proper caution on its part.
The grounds advanced on behalf of the applicant do not reveal jurisdictional error. Nor can I otherwise discern jurisdictional error in what the Tribunal has done. This application is dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 08 August 2007
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