SZIXP v Minister for Immigration - [2007] FMCA 1671

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIXP v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1671

MIGRATION – Refugee – application for adjournment – Falun Gong practitioner – adjournment refused – legal representation – no denial of procedural fairness or natural justice – no entitlement to legal representation at Tribunal hearing – definition of refugee explained to applicant – Tribunal applied correct test – no apprehension of bias or actual bias – Tribunal’s questions were not ‘unfair’ – Tribunal raised issues with applicant – no s.424A error – no jurisdictional error – application dismissed.

Migration Act 1958, ss.422B, 425, 65, 36(2), 427(6), 424A(3)(a), 424A(1), 424(3)(b),

SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702
Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs and Anor [2006] FCAFC 62
Mahzar v Minister for Immigration and Multicultural Affairs [2002] FCA 1759
Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507
Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 24; (2004) 207 ALR 12
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162
SJSB v Minister for Immigration and Multicultural Affairs [2006] FCAFC 225
SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63
Appellant WABZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 30
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425
NAEH of 2002 v Minister for Immigration and Indigenous Affairs [2002] FCA 927
Simjanovski v La Trobe University [2004] VSC 180
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627
Re Minister for Immigration and Multicultural Affairs; Ex Parte S20/2002 (2003) 198 ALR 59
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

Applicant:

SZIXP

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1613 of 2006

Judgment of:

Nicholls FM

Hearing date:

4 April 2007

Date of Last Submission:

27 March 2007

Delivered at:

Sydney

Delivered on:

11 October 2007

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Mr J Mitchell

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The application made on 7 June 2006 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1613 of 2006

SZIXP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed on 7 June 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 26 April 2006 and handed down on 16 May 2006 which affirmed the decision of a delegate of the respondent Minister made on 20 December 2005 to refuse a protection visa to the applicant.

Application for an Adjournment

At the first Court date in this matter before a Registrar of this Court on 6 July 2006, the matter was set down for hearing on 4 April 2007. By way of separate application filed on 12 March 2007, the applicant sought an adjournment of the hearing until “late in 2007”.
By way of affidavit made on 8 February 2007, and filed on 12 March 2007 with her application for an adjournment, the applicant explained the reason for seeking an adjournment was that she “need to get a lawyer to represent me”. This was further explained in the applicant’s documentation as “an adjournment until the end of the year”. The application and accompanying affidavit were supported by material at Annexure “A”, which variously went to the issue of attempts made to obtain free legal assistance, attempts made to otherwise ascertain the costs of legal assistance, and details of the applicant’s bank statements as at December 2006 and January 2007.
On 4 April 2007, I dealt with this application. The application for an adjournment was refused. On that date, the applicant appeared in person and was assisted by an interpreter in the Mandarin language. Mr J Mitchell of Counsel appeared for the first respondent, and opposed the application for the adjournment. Also read into evidence that day was the affidavit of Hayley Anne Blackman, a solicitor in the employ of the first respondent made on 28 March 2007, with annexures.
The applicant explained that she was seeking the adjournment at the hearing before the Court to obtain “professional legal advice” and to obtain the services of a “professional lawyer” to represent her at the hearing. The applicant submitted that she needed an amount of $10,000 to obtain the services of a lawyer, that she had received free legal advice (presumably through the Court’s Legal Advice Scheme) but that this service did not extend to her being represented at the hearing before the Court. She submitted that she did have some money, that she could save $150 per week and if the Court could allow her a further “half a year”, that she could save up to $4,000, and that she could borrow “some amount from a friend”.
Mr Mitchell opposed the application on the following grounds:
1)With reference to the annexures to the affidavit of Ms Blackman, the applicant had been referred to a lawyer on the panel of the Federal Court’s Legal Advice Scheme and relevant documents (subsequently filed in Court as the Court Book (“CB”)) were sent to that lawyer, as were tapes of the hearing before the Tribunal (see Annexure “C” to the affidavit of Ms Blackman and Annexure “D” – In this regard I also note advice on the Court’s file dated 30 August 2006 from the relevant lawyer on the panel that advice had been prepared and given to the applicant on 29 August 2006).
2)That the Court should take note of what was said in SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 (“SZHTI”) per Gyles J at [3]-[4]:
“3 The first paragraph of the affidavit in support of the application is:
‘I was not given access to free legal advice which is commonly available to applicants through the NSW Legal Advice Scheme. I was denied natural justice at the Federal Magistrates Court.’
4 That contention was put to the learned Federal Magistrate and, in my opinion there is no doubt about the correctness of the view he expressed that there is no right to free legal advice and that the fact that an adjournment was not granted to access free legal advice was not a denial of natural justice.”
3)Further, that this should be read to also include legal representation at the hearing before the Court.
4)The applicant already had a considerable period of time to obtain legal representation. The application to the Court was made on 7 June 2006.
5)The applicant’s only evidence, presented by way of affidavit and annexures to the affidavit to the Court, was that it would cost her $10,000 for a lawyer to appear on her behalf, and that separately, if given six months she would be able to save $4,000 and be able to borrow a further amount from a friend. With reference to the closing balance of her bank account in December 2006, that is, an amount of $215 (and as at January 2007 the closing balance was $93) Mr Mitchell submitted that there was nothing in the applicant’s evidence, nor for that matter, in her submissions made to the Court to support her claim that she would be able to save the amounts that she claimed that she would need in the time period that she sought for the adjournment.
I accepted the submissions made by Mr Mitchell. In particular, I note that the Tribunal decision was handed down in May 2006, and the application to the Court for review of that decision was made on 7 June 2006. I take into account that since that time the applicant has made some efforts to obtain legal advice and in particular, legal advice from the Legal Aid Commission of New South Wales, and the Pro Bono Scheme of the New South Wales Bar Association. While these attempts to obtain “free legal advice” appear to have been unsuccessful, the applicant nonetheless was successful in obtaining advice through the Federal Court’s Legal Advice Scheme and she was given such advice on 29 August 2006. I was satisfied therefore, that there was a period of over eight months during which there was a reasonable opportunity for the applicant to obtain free legal advice and indeed the applicant did obtain such legal advice on one occasion. Noting of course what was said by His Honour Gyles J in SZHTI that there is no right to free legal advice in any event.
The second and related issue was whether there had been a reasonable opportunity for the applicant to arrange legal representation to assist her at the hearing before the Court, as distinct from legal advice. Again, I noted the length of time available to obtain legal representation for this purpose, and I note the efforts that the applicant has taken in this regard. Plainly, this is not a situation where the applicant has done nothing to seek to obtain legal representation. It is clear that she has made a number of inquiries in this regard. But the issue is that even if I were minded to grant the adjournment, I would need to be satisfied that the basis on which the applicant says that she is able to pay for the legal representation has some foundation.
The applicant has variously put before the Court two amounts: $10,000 and $4,000, as being the relevant amounts that she would need to raise to be able to arrange for legal representation. Her explanation for the two amounts that she gave to the Court in submissions, was that she was of the view that she would be able to save $4,000 in the time for which she was seeking an adjournment (until the end of the year), and that she would be able to borrow the remainder from a friend.
But on the material that the applicant has put before the Court and in light of what the applicant herself has said, I am not satisfied that there is any reasonable prospect of her achieving her goal in this regard. I note in particular the applicant’s bank statements which she has provided to the Court by way of annexure to her affidavit, which show as at January 2007, an amount of $93. Nor has the applicant put before the Court any evidence of her employment (other than her statements before the Court that she is able to obtain work on the basis of “cash in hand”) such that the Court could be satisfied that there could be some basis for her assertion that she could in fact save $4,000 in the time that she is asking for. Nor indeed, has the applicant put before the Court anything, let alone anything by way of evidence, to support her assertion that she can borrow the remainder of the money from a friend. There is nothing even by way of submission or assertion as to the identity, capacity or willingness of this friend to provide such financial assistance.
In all therefore, the applicant has had a reasonable opportunity to obtain free legal advice. She did obtain such advice through the Court’s Legal Advice Scheme. Other avenues of such advice were unsuccessfully explored by her: the Legal Aid Commission and the Pro Bono Scheme of the NSW Bar Association and the Law Society of NSW. Further, I am satisfied that the applicant has had more than a reasonable opportunity to arrange for legal representation at the hearing before the Court. There is nothing on what is before the Court to show that the applicant has the capacity to obtain and save the funds which she herself says are necessary following her enquiries, even at the lesser amount of $4,000 to pay for any such legal representation, if the applicant were given the opportunity of an adjourned hearing to the end of this year. In light of this, therefore, I cannot see that there would be any useful purpose in delaying the hearing of this matter beyond today. I accepted Mr Mitchell’s submissions, and for the above reasons refused the request for an adjournment.

Further Material

I should just note that notwithstanding what is set out above, at the conclusion of the hearing I did provide an opportunity to the applicant to provide to the Court any evidence relating to the hearing before the Tribunal, and gave her the opportunity to make any further written submissions. A similar opportunity was provided to the first respondent. The applicant did subsequently provide a transcript of the Tribunal hearing, annexed to the affidavit of David Alan James Dunworth of 26 April 2007 and filed on that date. I also have before me the applicant’s written submissions of 27 April 2007 and the Minister’s supplementary written submissions.

Applicant’s Grounds

The applicant’s grounds by way of her application of 7 June 2006:
“1. The decision maker failed to stick to procedural fairness and did not provide enough time for the applicant to finish her statement.
2. The Tribunal did not provide a list of questions to be asked as it does to some other applicants in the same situation.
3. The Tribunal member did not give the applicant a natural justice. The member made the decision based on the applicant being pretty and clever lady, as the member described in the hearing.
4. The member interrupted the applicant’s comments in the hearing.
5. Had the member acted differently in the hearing, the finding could have been different.” [Errors in original]
The applicant’s complaints about the Tribunal hearing were further particularised in her outline of written submissions and drew from the transcript (“T”) of the Tribunal hearing which she subsequently provided to the Court.

Applicant’s Claims to Protection

The applicant is a citizen of the People's Republic of China who arrived in Australia on 11 September 2005 and lodged an application for a protection visa on 17 October 2005. Her claims to protection arise out of her claimed involvement with Falun Gong and particularly her mother’s involvement with that movement. She claimed that she had been arrested, detained and ill-treated by the Chinese authorities and further claimed that her mother had also been detained because of her involvement in the practice of Falun Gong in China. She claimed if she were to return to China, that she would be persecuted by the authorities.
The applicant’s claims were set out in her application for a protection visa made to the first respondent’s Department (CB 1 to CB 26), in attached supporting documents (CB 27 to CB 30), and in an attached statement (CB 31). The application to the Tribunal is reproduced at CB 45 to CB 48. The applicant appeared before the Tribunal on 2 March 2006 and gave evidence. The Tribunal’s account of what occurred is set out in its decision record (CB 84.6 to CB 89.5). The applicant also provided further documents to the Tribunal which are reproduced at CB 54 to CB 57, CB 60 to CB 67 and CB 70 to CB 75.

Tribunal’s Findings

The Tribunal’s “Findings and Reasons” are set out in its decision record (CB 80 to CB 90.4). The applicant was unsuccessful before the Tribunal because the Tribunal did not find the applicant to be credible in “some key aspects of her claims” (CB 90.9). The Tribunal gave examples of the “inconsistencies, contradictions and implausibilities” that led to its conclusion that the applicant was “not a reliable witness in relation to certain aspects of her claims” (CB 90.10).
These were:
1)The applicant had produced a document to the Tribunal dated 4 June 2005 which by its nature indicated that the (Chinese) Public Security Bureau was interested in the applicant, and that it had ordered that she be placed in custody and sent to a detention centre. The Tribunal compared this to evidence the applicant gave to it at the hearing, where she had produced her passport for examination, and confirmed that she had departed China at a date after the date of the document. She told the Tribunal that she had not experienced any difficulties in leaving China. This led the Tribunal to find that the applicant’s ability to depart China unhindered by the authorities, and using a passport in her own name, supported a finding that she was not of adverse interest to the Chinese authorities as had been indicated in the document of 4 June 2005.
2)The applicant’s explanations as to why her, and her mother’s house had not been searched at the time of the mother’s arrest were implausible, and found the applicant’s “additional explanation that this was because they were not active members of Falun Gong” was “unconvincing”. Based on this, it did not accept the applicant’s mother had been arrested and detained as claimed.
3)It did not accept that the applicant was involved in the preparation and forwarding of a letter in May 2005, to the President of China regarding Falun Gong practitioners. The Tribunal did not accept that the applicant was arrested, questioned, and deprived of food or water as she had complained.
4)Although the applicant had arrived in Australia in September 2005, she did not contact other Falun Gong practitioners until January 2006. The Tribunal did not accept that she was a genuine and sincere Falun Gong practitioner as in the Tribunal’s experience, as such practitioners approached the Falun Dafa organisation “almost immediately after arriving in Australia”. The Tribunal found the applicant’s explanations as to why she had not done so “implausible”.
5)Based on the applicant’s evidence provided at the hearing, the Tribunal did not accept that the applicant was of adverse interest to the police in China as she had claimed.
6)In relation to documents and photographs provided to the Tribunal, the Tribunal found:
“However, given the credibility problems with the evidence of the Applicant, I cannot give any weight to the statements or images provided in these documents. In light of the fundamental lack of credibility within the Applicant’s evidence I am not satisfied that the statements or images relating to the Applicant’s material claims in the documents are true.” (CB 93.6).
In all therefore, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Refugees Convention reason on her return to China and accordingly affirmed the decision under review.

Before the Court

In all, the Court has before it for the applicant:
1)The grounds as set out in the application of 7 June 2006.
2)The transcript of the Tribunal hearing provided by the applicant (I note that references in that transcript to “magistrate” should be references to the “Tribunal member” and read the transcript in that light).
3)The applicant’s outline of written submissions.
The respondent has filed written submissions and supplementary submissions.

Procedural Fairness

The grounds in the application assert that the applicant was denied procedural fairness or natural justice (when read in conjunction with particulars in her written submissions). I agree with submissions made by Mr Mitchell that a claim to a denial of procedural fairness at general law is not sustainable in circumstances where s.422B of the Act applies and this is applicable to this case (Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61, SZCIJ v Minister for Immigration and Multicultural Affairs and Anor [2006] FCAFC 62). To the extent therefore that the applicant’s grounds make reference to “procedural fairness” and “natural justice”, and seek to invoke obligations at general law in this context (given the absence of any reference to Division 4 of Part 7 of the Act or any part of that division), then such complaints need to be seen in the context that s.422B of the Act provides that what is set out in Division 4 of Part 7 of the Act is the exhaustive statement of the relevant procedural fairness code.

The applicant’s complaints as set out in the grounds of the application, and particularised by way of her written submissions, derive largely from what the applicant says occurred at the Tribunal hearing that led to a denial of procedural fairness to her.
I therefore considered the applicant’s complaints in the context of whether the Tribunal met its procedural fairness obligations pursuant to s.425 of the Act. In this regard, the applicant was invited to a hearing before the Tribunal on 2 March 2006, and gave evidence to the Tribunal on that date. The applicant has provided to the Court, by way of the affidavit of Mr Dunworth, a transcript of that hearing. I note generally that, in light of the applicant’s complaints, the Tribunal is obliged to provide the applicant with an opportunity to present her case and that the hearing invitation “must not be a hollow shell or an empty gesture” (Mahzar v Minister for Immigration and Multicultural Affairs [2002] FCA 1759 at [31]). This requires the applicant to have had the opportunity to put all her claims to the Tribunal and that she would not have been discouraged by the Tribunal from presenting her evidence on determinative issues nor misled by the Tribunal.
I note further that in relation to the level of interpretation provided at a hearing (as in this case, an interpreter in the Mandarin language was provided) that the relevant standards as set out in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 and Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1 were complied with.
To some extent, the applicant’s complaints arise out of a misunderstanding as to the nature of the proceedings before the Tribunal. The applicant complains (item: 1 in the written submissions) that the Tribunal member “acted as both a prosecutor and a judge/jury she was very inquisitorial in her manner, she was not like an arbitrator or a judge. I believe I was denied natural justice.” That the Tribunal member is described as being inquisitorial in manner is of course the very manner in which the Tribunal is required to operate. See Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 24; (2004) 207 ALR 12 at [9]:
“The inquisitorial obligation: Nevertheless, the Tribunal is not a body engaged in purely adversarial proceedings. It operates according to inquisitorial procedures[81]. This feature of the Tribunal’s operation casts obligations upon it that are different from, and in some respects more onerous than, those applicable to more traditional bodies acting according to the more passive decision-making virtues of adversarial trial”
See also SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 at [8]:
“The procedure is administrative and inquisitorial”
Further, as is well established, the Tribunal is obliged by the relevant statutory regime (s.65 and s.36(2) of the Act) to reach a requisite level of satisfaction that the applicant in effect, meets the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention such that in those circumstances the protection visa must be granted. If the Tribunal cannot reach such a level of satisfaction then the visa must not be granted (SJSB v Minister for Immigration and Multicultural Affairs [2006] FCAFC 225.
Having read the transcript of the hearing before the Tribunal, I can only agree with Mr Mitchell that the transcript does not reveal any failure on the part of the Tribunal to accord the applicant procedural fairness and does not show that the applicant was denied natural justice. In my view, the Tribunal’s questioning is distinguished (from many other transcripts often seen before this Court in matters of this type) by the short and clear questioning which was plainly designed to elicit relevant matters in a “chronological” order (see T8.9). The Tribunal put certain issues to the applicant for comment which ultimately were determinative in the decision against the applicant (SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 (“SZBEL”) at [35]) (see T25.3 to T28.7)). At the conclusion of the hearing the applicant was specifically asked whether there was anything further she wanted to add (T28.8), and the applicant replied in the negative, but made reference to documents which the Tribunal had given the applicant further time to provide. The Tribunal hearing was held on 2 March 2006 (CB 84.7) and the applicant was given until 31 March 2006 (CB 89.4 and T29.8). The applicant indeed provided further documents received by the Tribunal on 6 April 2006. The Tribunal made reference to these documents in its decision record (CB 89.6), and specifically had regard to the material in its consideration and reasoning (CB 93.5).

Specific Complaints about the Tribunal Hearing – Applicant’s Written Submissions

Specifically, in relation to each of the complaints that the applicant makes in written submissions in relation to the transcript of the hearing before the Tribunal. [Item numbers below correspond to the item numbers in the applicant’s written submissions.] :
1)The applicant complains that she did not have a lawyer to act for her at the Tribunal hearing. There is no such entitlement (see s.427(6) of the Act [see also Appellant WABZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 30 (“Appellant WABZ”) at [63] to [66] where the relevant authorities were cited, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 at [78] per Kenny J, Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19 at [44] per Drummond J]. However, in Appellant WABZ at [67], a Full Federal Court (per French and Lee JJ) referred to there being no entitlement, but that this “did not exclude the rules of procedural fairness”. I note that this was a matter decided by the Tribunal before the introduction of s.422B of the Act (see Appellant WABZ at [2]). But even in this context, there is nothing, either by way of the transcript or other material before the Court, to show that the applicant sought to have such legal representation to assist her at the hearing before the Tribunal, let alone that there was a specific practitioner available who refused appearance as was the situation in Appellant WABZ. Further, as was already set out above, the procedure before the Tribunal is inquisitorial in nature and there is no denial of natural justice in circumstances (without anything further) where the Tribunal simply proceeds in this fashion.
2)The applicant’s complaint that she was not “properly told the meaning of refugee in the Australian context” is not made out. In my view the Tribunal (see T2.1 to T2.7) explained the meaning in an appropriately simple fashion. In any event, the applicant was asked whether she had (T1.9) previously “read the meaning of refugee” and responded that she had and made no attempt to tell the Tribunal that she required further clarification. Nor, in terms of the applicant’s repeating the complaint of wanting a lawyer (presumably in this context so that the lawyer could explain the meaning of refugee to her), is there anything to show that she sought any adjournment of the hearing before the Tribunal in order to engage the services of a lawyer. I note also that the application for a review was made on 16 January 2006 and the hearing before the Tribunal took place on 2 March 2006. Nor is there anything to show that any complaint in this regard was made to the Tribunal following the hearing up until the time of the Tribunal handing down its decision on 16 May 2006. Ultimately, whether the applicant understands what is meant by the term “refugee” in the Australian context” or not, what is important in terms of fairness is that she was given the opportunity to put forward what she said had occurred to her, and to her mother, and what she feared would happen to her if she were to return to China. This opportunity was provided to her. Her assertion in the written submissions that she and her family had suffered greatly at the hands of the Chinese authorities because of their Falun Gong beliefs and that she would suffer further on return was put to the Tribunal. Simply, the Tribunal did not believe her claims. Her complaint that she was not given the opportunity to “clarify the meaning of what a refugee means” is contradicted by what appears at T2.7 where the applicant was asked whether she understood the Tribunal’s explanation and she answered in the affirmative. Nor is there anything before the Court to show that the Tribunal should have, or could have, apprehended that this answer was given because she was “scared”.
3)The Tribunal’s reference to the “real chance” test is stated in unexceptional terms. I can discern no error in what the Tribunal has said to the applicant.
4)The applicant complains that the Tribunal’s mind was “possibly” decided before the hearing. There is nothing in the transcript of the Tribunal’s hearing (nor arising from any of the other material before the Court now) to show that the Tribunal was biased (See Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507, Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431). Nor that an apprehension of bias could be seen in the sense that a well informed lay observer could reasonably apprehend that the Tribunal did not bring an open mind to the proceedings (Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425). The Tribunal was entitled to question the applicant on relevant issues and to obtain explanations and clarification when the applicant’s answers lacked sufficient detail or were inconsistent (see for example at T17.4).
5)The applicant complains that she was confused about the questions asked by the Tribunal at T4.8 to T5.5 and that the Tribunal was trying to “ambush” her. There is nothing in this part of the transcript, nor for that matter in any part of the transcript, to support the applicant’s complaint that the Tribunal was seeking to “push” the applicant into certain answers and was seeking to “ambush” her. As Mr Mitchell submits, the testing and probing of the applicant’s evidence by the Tribunal does not support a finding that the applicant was being overborne or intimidated, nor for that matter, that the Tribunal was predisposed towards a result other than a result to be reached on the evaluation of the material before it.
6)With reference to what is set out at T6.5, the applicant complains that the Tribunal did not “follow up with questions in regard the persecution my mother suffered”. However, that is precisely what the Tribunal did do (see T8.5 and following).
7)The applicant complains that the interpreter was not allowed to use “a pad and write things down”. It is not clear from the transcript (see T10.8) whether the exchange reported was directed to the interpreter or the applicant. Even if the Tribunal’s comment was directed at the interpreter, given the short and direct questions employed by the Tribunal, I cannot see that the applicant’s complaint that the interpreter needed to write the questions down (relying only on this comment by the Tribunal), nor indeed the applicant’s answers, can sustain a complaint that the applicant was denied the opportunity of fairly putting her evidence to the Tribunal.
8)The applicant complains that she was not given the opportunity to speak to “the evidence” that she had already supplied. In context, this appears to be (at T12.5) a reference to a photo that she had provided to the Tribunal. The transcript shows that the applicant raised the issue of the photograph. But there is nothing to show that there was more that she wanted to say about it, nor did she so indicate to the Tribunal. The Tribunal had asked the applicant whether she had any “Falun Gong material”. The applicant replied that she submitted a photo and certificates relating to her and her mother’s custody. If there was more to be said then I cannot see that she was denied the opportunity of putting it. Nor does the applicant assert now what more she wanted to say about this evidence. Further, even if the applicant is now seeking to say that the Tribunal did not question her about the Falun Dafa Association information that she appears to have downloaded from the internet, and provided to the Tribunal (see CB 66 to CB 67), then the opportunity for the applicant to have made whatever comment she wanted, either on the evidence or otherwise, was also provided by the Tribunal towards the conclusion of the hearing (see T28.7):
“Magistrate [Member]: Is there anything else you want to add about your fears of persecution?
Magistrate [Member]: Apart from what you have already said”
Interpreter [Applicant]: No I think I will send you the documents first…I think you will have a better understanding when you receive those documents”
9)The applicant complains that from T15 onwards, the Tribunal acted unfairly by asking her questions to which she did not know the answers and that she could not speak to nor explain the workings of the Chinese authorities. The applicant had put certain matters to the Tribunal relating to the claim that her mother had been arrested. The Tribunal sought further detail (“did they search your home?”). The Tribunal sought an explanation of the applicant’s evidence that their house had not been searched because she and her mother were not seen to be “active members of Falun Gong”. In my view, it was perfectly reasonable of the Tribunal to then ask why the applicant’s mother was detained for three years if they were not perceived to be “active” Falun Gong practitioners. (Indeed the applicant’s claim was also that her mother had practiced with other friends at her home (T1.9) and that she was perceived to have “influenced the order of the society” (T10.8)). In my view, a plain reading of the transcript (see also the Tribunal’s account of what occurred at the hearing at CB 86.4) reveals that the Tribunal was testing the evidence given by the applicant, a course which in the circumstances it was perfectly entitled to pursue. Given the applicant’s answers, it was open to the Tribunal to find that her explanations were implausible (see CB 91.7).
10)The applicant complains that at T18.8 onwards, she was “totally confused” by the Tribunal’s questioning, and that this was unfair as the Tribunal gave no explanation or clarification for its questions. Plainly, what the Tribunal was seeking to do by its questioning in this part of the hearing (see T18.4), was to obtain an explanation from the applicant in relation to something which the applicant herself had put in her statement attached to the protection visa application (see CB 31.8):
“However the little hope caused me being investigated by the leader of our company, the police of our area, and officials of 610 office.”
It is disingenuous of the applicant now (or whoever may have assisted her with the drafting of her written submissions) to claim that she was confused, when plainly all that the Tribunal was seeking to do was to obtain an explanation from her of her own statement. A statement which it must be said, even in the most charitable light in which it can be viewed, was difficult to comprehend and to discern sensible meaning.
11)The applicant complains that the Tribunal “was wrongly verballing me she was creating answers that I never gave in the first place”. This was with reference to what appears at T28. The Tribunal was seeking to clarify with the applicant a statement that she indeed had made earlier (see T19.1 and T19.3) that she had been investigated by the leader of her company, and that there had been a lot of people practising Falun Gong in her company. What follows up until about T21.3 reveals that the Tribunal sought clarification as to whether the applicant had in fact ever performed Falun Gong exercises at work. The applicant ultimately confirmed that she had not done so. She explained that she had only been spoken to by the company leader after he in turn had been spoken to by her neighbourhood committee. Far from creating answers that she never gave in the first place, the Tribunal was seeking to clarify somewhat confusing evidence given initially by the applicant. The Tribunal, by way of the transcript, appears to have accepted this explanation. In any event, no adverse finding was made by the Tribunal based on the applicant having said that she had done Falun Gong exercises at work.
12)The applicant complains that the Tribunal did not answer her “important question in regard my mother’s detention” (sic). With reference to T21.9, the applicant’s complaint appears to be that the Tribunal did not answer her question as to whether she was required to submit documents relating to her mother’s detention in China. Plainly, the Tribunal did subsequently explore the issue of the applicant’s claim that she had documents relating to her mother’s detention (T22.2), and that she had asked her mother to send these documents to her. Given that the Tribunal gave the applicant a period following the hearing to submit any documents in support of her claims, I cannot see that the Tribunal acted unfairly in this regard.
13)The applicant complains (T25.1) that it was a denial of natural justice that the Tribunal did not allow her more time to get documents “to prove my case”. The Tribunal initially did refuse the applicant’s complaint for more time to submit further documents (T25.2) on the basis that it had formed the view that she had “lots of time to get documents and it seems to me you’ve done nothing about it”. Ultimately, however, the Tribunal did provide the applicant with such an opportunity, and indeed the applicant exercised that opportunity and did provide further documents which the Tribunal took into account, even in circumstances where the documents were received six days after the deadline set by the Tribunal (CB 89.7).
14)The applicant complains that from about T25.3, the Tribunal’s concerns were “not clearly and fairly put” to her and that “in retrospect possibly it was not clearly translated to and from” her. First, I should note that I cannot see on what has been put before the Court that there has been any failure by the Tribunal to accord the applicant procedural fairness in the sense of failing to raise at the hearing issues that were determinative in its finding against the applicant (see SZBEL). The Tribunal plainly raised concerns with the applicant that went to the determinative issue in affirming the decision under review, namely that the Tribunal found the applicant’s explanations for certain events implausible and unconvincing and that she was not of any interest to the Chinese authorities. Second, the evidence provided by the applicant by way of the transcript does not reveal any errors or difficulties with the translation. Had the applicant wished to support any such assertion (and I note it has only been put in her submissions as a “possibility”), she would have needed to put before the Court evidence from a suitably qualified interpreter (after listening to the tape of the hearing as to what she said to the interpreter in Mandarin and how this was translated into English, and as to how the Tribunal’s statements and questions in English were translated in to Mandarin to her). She has not done so. This Court can only proceed on the evidence provided to it, which on its face, reveals no such difficulty.
15)It is not clear as to what exactly the applicant complains of when she claims at T26 the questions and answers “do not logically follow”. If the applicant did have difficulty in understanding the questions, she made no attempt to tell the Tribunal at the time. Nor indeed was there any attempt to advise the Tribunal of any such difficulties in the time available to her following the hearing, and before the handing down of the decision. This was in circumstances where the applicant did provide further documentation to the Tribunal and presumably could have taken the opportunity to make any such claim at that time. Nor can I see that there was any failure in logic in the Tribunal’s line of questioning. Plainly, questions about why the authorities would seek to persecute the applicant and concerns the Tribunal had formed with certain aspects of the applicant’s evidence were relevant issues to be raised at this hearing. Indeed had they not been asked, the applicant may have had cause to complain.
16)The applicant also complains that she was denied food and water for three days, and that this was “torture” (see T27.1). If the applicant’s complaint now is that the Tribunal should have accepted her evidence that she had been tortured by way of being denied food and water, and that this should have formed a basis for being satisfied that she had been subject to harm and persecution, then in circumstances where the Tribunal found that it did not accept that she had been arrested, questioned and deprived of food or water as claimed (see CB 92.3), a finding that was open to it on the material before it, then the applicant’s complaint now does not rise above a request for impermissible merits review.
17)The applicant complains that she was not given sufficient time to “prepare further documents”. First it needs to be noted that the applicant was given 29 days from the date of the hearing to submit the further documentation that she wanted to give to the Tribunal. Notwithstanding that this material was received six days after the deadline, the Tribunal plainly considered this material. This complaint must also be seen in a context that the application for a protection visa was made in October 2005, a period of some four months prior to the hearing, during such time, as the Tribunal noted, the applicant could have arranged documents to support her claims to a protection visa. Nor does the applicant now assert what further documents she was denied the opportunity of providing to the Tribunal.

The grounds in the application before the Court also revise the complaint that the Tribunal did not provide enough time for the applicant to “finish her statement”. This complaint must be seen in light of what has already been said above. It is not supported in any event by the transcript of the hearing. The applicant was given ample opportunity to respond to the Tribunal’s questions.
That the Tribunal did not provide a list of questions to be asked at the hearing does not reveal jurisdictional error on its part. There is no such obligation on the Tribunal to do so. Nor was the applicant given any such expectation, or misled by the Tribunal that this is what would occur in the conduct of the consideration of her application for review. The Tribunal’s letters of 16 January 2006 explaining the process of the review (CB 49 to CB 50), and the Tribunal’s letter of invitation to the hearing (CB 52 to CB 53), provide no such expectation.
At ground 3, the applicant also complains that the Tribunal made its decision on the basis she is a “pretty and clever lady” (as the Tribunal member was said to have described her as during the hearing). First, there is nothing in the transcript to show that the Tribunal made any statement that the applicant was “pretty” or used the word “clever” in this way. Second:
1)The Tribunal did describe the applicant as “an intelligent woman” (see T27.10). This was clearly in context of the Tribunal’s concern with the applicant’s statement that she could not find the Falun Dafa organisation when she arrived in Sydney. The Tribunal noted that she had a degree in engineering, and had been a manager in her company. It was in this context that the statement about the applicant being an “intelligent woman” was put. That is, in the context of the Tribunal’s disbelief that a person with the education and intellect of the applicant claimed that she could not find the Falun Dafa organisation after arriving in Sydney.
2)At T29.9, the Tribunal described the applicant as a “smart, intelligent woman”. Again, this was plainly in context of the applicant’s claims that she wanted more time to obtain documents in support of her claims. The Tribunal’s comment was made in circumstances where it had felt that someone with the applicant’s capacities already had “a lot of time” to have obtained documents that she claimed would support her application.
In rejecting the applicant’s complaint in this regard, I also note that the Tribunal’s decision to reject the applicant’s claims to fear persecution were based on the implausibility of her claims, the unconvincing nature of her explanations, and the Tribunal’s finding that she was not of any adverse interest to the Chinese authorities given that she left China without any difficulty. The reason for the Tribunal’s rejection of the applicant’s claims was not that she was an “intelligent woman” or even as the applicant claims “pretty and clever”, but that the Tribunal was unconvinced with the applicant’s evidence.

Further Consideration

Nor does the transcript of the hearing support the applicant’s complaint at ground 4 of the application that the Tribunal “interrupted” her “comments in the hearing”. Further, the applicant’s contention at ground 5 that had the “member acted differently in the hearing, the finding could have been different”, would only succeed as part of a ground of review if the Tribunal failed in its obligations to act fairly and without bias. It did not do so.
In all therefore, the applicant’s complaints about a denial of procedural fairness, and bias on the part of the Tribunal as it is said to arise from, and as demonstrated by, the transcript of the hearing provided by her is not made out. The applicant was given the opportunity to appear before the Tribunal and present her case. She was given the additional opportunity within a reasonable period (noting the length of time already available to her to provide any further documentation). The Tribunal raised with her issues of concern that were determinative in its decision to affirm the delegate’s decision. I cannot see anything arising from the transcript of the hearing to show that the Tribunal failed in its statutory duty nor for that matter, that the Tribunal denied the applicant procedural fairness at general law.
Further, there was nothing in the transcript to show that the various assertions made by the applicant that she did not understand or was confused as to the Tribunal’s questioning can be made out. The applicant did answer the Tribunal’s questions and I accept Mr Mitchell’s submissions that the brevity of her responses are explained in circumstances where the applicant was being confronted with the implausibility of her claims and that it was clearly difficult for her to resolve the credibility concerns that the Tribunal raised.
Given that the applicant did appear unrepresented before the Court I did raise a number of issues with Mr Mitchell for consideration. These were the subject of subsequent written submissions by him.
In its account of what occurred at the hearing the Tribunal stated:
“I mentioned to the applicant that it was the Tribunal’s experience that sincere and genuine Falun Gong practitioners were heavily supported by the Falun Dafa organisation in Australia” (CB 88.3, and see also T24 and T27).
The Tribunal also relied on knowledge regarding the difficulties faced by persons of adverse interest to the authorities in China seeking to leave by official channels (CB 88.6 and T26). The question was whether there was any error in the Tribunal seeking to rely on its experiences and knowledge from previous cases with which it had dealt.
I agree with submissions made by Mr Mitchell that the Tribunal was under no obligation to disregard its relevant personal experience or knowledge in relation to either the Falun Dafa organisation in Australia, or knowledge regarding the difficulties faced by Chinese citizens in leaving China in certain circumstances (see NAEH of 2002 v Minister for Immigration and Indigenous Affairs [2002] FCA 927 at [13]). I also note reliance by the Minister on Simjanovski v La Trobe University [2004] VSC 180 at [28]-[30].
Both of these matters were raised with the applicant at the Tribunal hearing as part of its “concerns” with the applicant’s claims and evidence. This was consistent with the Tribunal’s obligation to raise with the applicant additional issues to those identified by the original decision maker to the extent that they were determinative against the applicant (see SZBEL at [35]). Further, to the extent it could be said that such information was information that was the reason, or a part of the reason for the decision under review, then such information which was not specifically about the applicant or another person falls within the exception contained in s.424A(3)(a) of the Act from the obligations set out in s424A(1) of the Act (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264, QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92). The applicant’s answers to questions arising from this information of course was information given by the applicant herself to the Tribunal such that it fell within the exception contained in s.424A(3)(b) from the obligation in s.424A(1) in that they were given to the Tribunal for the purposes of her application for review. Notwithstanding that the Tribunal’s questions may, in the case of the independent country information referred to at CB 88.6, have been information already referred to in the delegate’s decision (see CB 43.3) (SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35]).
I also considered whether the Tribunal’s consideration of the applicant’s photographs and documents which were provided to the Tribunal in support of her claims was infected by error (see CB 93.3 to CB 93.7). In particular, I considered the Tribunal’s statement:
“…I am not satisfied that the statements or images relating to the applicant’s material claims in the documents are true” (at CB 93.7).
I agree with Mr Mitchell that the Tribunal did not make a finding that the applicant’s evidence provided in corroboration of her claims were fabrications or that the photos and documents were not authentic. I agree that the Tribunal’s lack of satisfaction as to whether the statements or images were “true” resulted from:
“given the degree of credibility problems with the evidence of the applicant I cannot give any weight to the statements or images provided in these documents” (at CB 93.6).
In this regard, I note as Mr Mitchell submits, the relevance of Re Minister for Immigration and Multicultural Affairs; Ex Parte S20/2002 (2003) 198 ALR 59 at [12] per Gleeson CJ:
“It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the witness”
It is clear that the Tribunal did not give any weight to the statements in the documents or the images in the photographs because of the “degree of credibility problems” with the applicant’s evidence. This also does not reveal error on the part of the Tribunal.
The Tribunal found, amongst other things, that the applicant’s mother’s claimed arrest by the authorities in China:
“occurred during a time when authorities were clamping down on Falun Gong practitioners in a very severe and harsh manner” (CB 91.7)
The issue for consideration is the information or the basis for the Tribunal’s finding that the mother’s alleged arrest occurred during such a time, and in such a manner, and in relation to the mother’s arrest having occurred during a time of the authorities clamping down on Falun Gong practitioners in a severe and harsh manner.
I agree with submissions made by Mr Mitchell that this finding was derived from the Tribunal’s understanding of the applicant’s own evidence provided at the hearing:
1)Generally see T15 to T16.
2)In particular at T16:
“Applicant (speaks in Mandarin).
Interpreter: And also from 1999 since the Chinese Government had started a crackdown Falung Gong we had to hide all the materials we couldn’t let the materials exposed openly.”
3)The applicant’s claims of what occurred to her mother, whom she claimed was an active Falun Gong practitioner (T8.5 to T11.7).
4)See also the Tribunal’s account of what occurred at the hearing (CB 86.4). The Tribunal’s findings in relation to the mother’s arrest having occurred during a time of the authorities clamping down on Falun Gong practitioners in a severe and harsh manner clearly arose from the applicant’s evidence given at the hearing and its appraisal of this information. Such information is excepted by reason of s.424A(3)(b) of the Act from the obligation in s.424A(1) of the Act. The Tribunal’s appraisals are not information for the purposes of that section (see SZBYR at [18] and the reference to VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477).
In all therefore, I cannot discern jurisdictional error in the Tribunal’s decision, either as it arises from the grounds, the complaints put forward by the applicant or otherwise. The application is therefore dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: Dawnie Lam

Date: 11 October 2007