SZJUE v Minister for Immigration

[2008] FMCA 884

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJUE v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 884

MIGRATION – Review of Refugee Tribunal decision – whether Tribunal complied with s.425 – Tribunal made adverse credibility findings in relation to the applicant – applicant seeking impermissible merits review – Tribunal put to the applicant its concerns – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424A, 425, 65, 36

ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259
Minister for Immigration and Ethnic Affairs v Guo & Anor [1997] HCA 22, (1997) 191 CLR 559
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Minister for Immigration & Citizenship v SZJGY [2008] FCAFC 87
SZGUW v Minister for Immigration & Citizenship [2008] FCA 91

Applicant: SZJUE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3552 of 2006

Judgment of: Nicholls FM

Hearing date: 17 March 2008

Date of Last Submission: 30 April 2008

Delivered at: Sydney

Delivered on: 10 July 2008

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Ms S Kantaria

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 1 December 2006, and amended on 23 October 2007, is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $9,320.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3552 of 2006

SZJUE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 1 December 2006 and amended on 23 October 2007, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 30 October 2006 and handed down on 16 November 2006, which affirmed the decision of a delegate of the respondent Minister to refuse to grant a protection visa to the applicant.

Background

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

2. The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 22 April 2006. He applied for a protection visa on 19 May 2006 (the application is reproduced at CB 1 to CB 94 with annexures.)  On 24 June 2006 a delegate of the respondent Minister refused to grant the visa (CB 98 to CB 105).

3. The applicant applied to the Tribunal for review on 25 July 2006 (CB 106 to CB 114 with annexures).

4. The applicant attended a hearing before the Tribunal on 11 September 2006 (CB 153). The Tribunal’s account of what occurred at the hearing is contained in its decision record (CB 180.9 to CB 184.8).

5. Following the hearing, by letter dated 18 September 2006, the Tribunal wrote to the applicant providing the opportunity to comment in writing on information that it said would be the reason, or part of the reason, for deciding that he was not entitled to a protection visa (CB 164 to CB 166).  The applicant responded by letter received by the Tribunal on 9 October 2006 (CB 167 to CB 170).

The applicant’s claims to protection

1. The applicant sought protection in Australia because he claimed to be a Falun Gong practitioner. The applicant’s claims were that in April 2001, he obtained a student visa, which he used to “flee to Japan safely” (CB 27.8). He claimed that in 2002, while in Japan, he was introduced to Falun Gong (CB 27.9). He returned to China to visit his family in 2004 and practiced Falun Gong (CB 28.4). During this visit, the local police came to his house to arrest him. He claimed to have been beaten and threatened, so as to “force [him] to confess.” He claimed to have been held in detention by the police for two days and was only released after his parents paid a bribe, at which time he “immediately” left for Japan (CB 28.6).

2. The applicant claimed that on 1 February 2006, he returned to visit his parents, but that on 21 February 2006 the police again searched for him at his home (while he was not there). He fled back to Japan the next day (CB 29.4). On 7 April 2006, while in Japan, he obtained a visa to travel to Australia, and on 11 April 2006, he returned to China for his “last visit fare well” with his parents. He returned being aware that it was very dangerous for him to do so (CB 29.5). He left for Australia. He now fears to return to China because of his association with Falun Gong (CB 29.6).

The Delegate’s Decision

1. The Minster’s delegate refused to grant a protection visa to the applicant (CB 98). The reasons are set out in the decision record (CB 101 to CB 105). The delegate found that the applicant had effective protection in a safe third country (CB 104.7):

   “By the applicant’s own admission, and the copies of his passport indicate that the applicant resided in Japan for a number of years and that he is the holder of a valid visa which entitles him to reside in Japan until 1 April 2007.

   Consequently I will not assess the applicant’s claims as I find that the applicant has effective protection in a safe third country and thus I find that the applicant’s fear is not well-founded.”

The Tribunal

1. The applicant applied for review by the Tribunal on 26 July 2006 (CB 106 to CB 109). The applicant attached a statement to his application (CB 110 to CB 111), in which he made reference to, amongst other things, independent country information concerning the Falun Gong movement in China, which he also attached to the application for review (CB 112 to CB 144).

2. The applicant was invited to attend a hearing before the Tribunal on 11 September 2006 (CB 107). He did attend on that day (CB 151 to CB 153), and gave evidence. The Tribunal’s account of what occurred is contained in its decision record (CB 176 to CB 190, and see in particular, CB 180.9 to CB 184.8).

3. Following the hearing the Tribunal wrote to the applicant by letter dated 18 September 2006, inviting him to comment on information which it said (subject to any comments that the applicant might make) would be the reason, or part of the reason, for deciding that he was not entitled to a protection visa (CB 164 to CB 166). The applicant responded by letter received by the Tribunal on 9 October 2006 (CB 167 to CB 170).

4. The Tribunal understood the applicant’s claims to be that he was a Falun Gong practitioner, that had lived in Japan since 2001, that he had returned to China three times in the intervening period, that he had been arrested and tortured in August 2004 (the second visit), and that he would be persecuted if he were to return to China because of his Falun Gong practice and activities (CB 187.5).

5. The Tribunal accepted that the authorities in China did sometimes persecute Falun Gong practitioners. But found (at CB 187.8) that:

   “Based on the information provided by the applicant I am not satisfied in this case that the applicant has a well founded fear of persecution for reason of any connection with Falun Gong.”

6. The Tribunal further found that, based on the applicant’s evidence (including his passport which was presented to the Tribunal at the hearing – CB 154 to CB 163), the Tribunal did not accept as “true” that the applicant was a genuine Falun Gong practitioner, did not accept that he had practised Falun Gong either in Japan, China, or Australia, and it did not accept that the applicant was persecuted, or feared persecution in China because of his Falun Gong practice or activities, and even further did not accept “as true” that he was arrested and tortured when he returned to China in 2004 (CB 188.4).

7. The Tribunal’s reason for this was (at CB 188.5):

   “The reason that the Tribunal finds against the applicant in relation to these matters is that the Tribunal does not accept that he is a witness of truth.” 

8. The Tribunal then set out in some detail (CB 188.6 to CB 190.2) the factors that led it to reach this conclusion. Ultimately, the Tribunal rejected the factual basis of the applicant’s account of what he said had occurred to him in relation to the harm feared, finding that he did not have a well-founded fear of persecution within the meaning of the Refugees Convention. It concluded that the applicant was not a person to whom Australia owed protection obligations under the Convention and, on that basis, it affirmed the decision not to grant the applicant a protection visa (CB 190).

9. Relevantly, I note that the elements in the Tribunal’s findings were that the applicant did not know basic information about Falun Gong, including that there were five Falun Gong exercises, and the fact that he was unable to draw the Falun Gong symbol or to “make even a rudimentary attempt to depict the symbol” (CB 188, and see further at CB 189). Further, the Tribunal found that in his response to its “s.424A letter”, the applicant appeared “to have resiled from his claim that he was a Falun Gong practitioner since 2002”, and in the response, he appeared to be saying that he was “only helping those (Falun Gong practitioners) to give away the news papers (sic) and pamphlets” (CB 189.3). The Tribunal found, as the applicant had previously given evidence on oath of his involvement with Falun Gong and his practice of Falun Gong, that the applicant was not a witness of truth (CB 189.4). It reasoned further, in this regard, that had he been a Falun Gong practitioner, he would have been able to name, or describe, the main Falun Gong exercises, be able to state the principles of Falun Gong, and make some attempt to draw, or describe, the Falun Gong emblem.

10. The Tribunal also found that, although the applicant said that he feared persecution if he were to return to China, it was his own evidence that he had returned to China on two occasions in 2006. The Tribunal, therefore, found that it did not accept his evidence, that he feared persecution if he were to return to China, since he had returned there “twice within three months (February and April 2006)” after “having been allegedly arrested and tortured” (CB 189.5).

11. Further, the Tribunal found that there were inconsistencies between the applicant’s evidence given at the hearing and what he said in response to its “s.424A letter” (see generally CB 189 to CB 190). 

Application to the Court

1. In his application to the Court, the applicant generally asserted (without particularity) that there was an absence of natural justice in the Tribunal’s decision and that it lacked “any foundation”.

2. The applicant subsequently filed an amended application which expanded, with particulars, the applicant’s grounds:

   “1. The Tribunal failed to act judicially and thereby failed to afford the Applicant procedural fairness in rejecting my claim to fear persecution upon refoulment [sic] by reason of information about my Falun Gong practices while in Australia being discovered by Chinese authorities.

   Particulars

   a. It was not open to the Tribunal to reject my claimed fear of persecution without urgent material supporting a conclusion that the applicant’s commitment to Falun Gong was not genuine.

   b. The Tribunal rejected my claim of fear of persecution being well-founded in circumstances where it accepted that ‘the full facts [about PSB spies in Australia] are yet to be established’

   2. The Tribunal constructively failed to exercise its jurisdiction in accordance with the Migration Act 1958 by not affording the Applicant procedural fairness and putting him on notice of critical information from master Li’s book and ‘about cultivating the heart/Mind nature’ (CB 116.8) in circumstances where it relied on such information to discredit my claim to be a Falun Gong practitioner and, correspondingly, my claim to fear persecution If returned to China.

   Particulars

   a. While acknowledging I am a recent adherent to Falun Gong the Tribunal nevertheless discredited my claim based on a disproportional interrogation of Falun Gong exercise

   b. The Tribunal found that I displayed no evidence of the knowlege [sic] and understanding of the Falun Gong five exercises

   c. The Tribunal found that I ‘was unable to explain of the nine lectures in Master Li Hongszhi’s Key points

   d. The Tribunal was satisfied I would only have a ‘remote’ chance of persecution if I returned to China based on its assessment that I have not ‘developed a genuine commitment to the practice of Falun Gong since arriving in Australia’

   3. The Tribunal constructively failed to exercise its jurisdiction in accordance with the Migration Act 1958 by not asking certain questions in the proper exercise of its jurisdiction in circumstances where:

   a. I maintained that on return to China ‘I will learn the five exercise … [and] only do Falun Gong at home’

   b. The Tribunal did not effectively make a finding about whether I would practice Falun Gong upon my return, as required.

   4. The Tribunal constructively failed to exercise its jurisdiction and to afford the Applicant natural justice in circumstances where the Tribunal did not consider all the integers of my claim.

   Particulars

   a. I claimed ‘I suffered restrictions in china because of my involvement kept sprats [sic] Falun Gong spiritual to others and If I am found to be a Falun Gong practitioner in China the penalty I will get will be even worse because of my record.

   b. The Tribunal Member failed to deal with I above claim in circumstances where during my active of Falun Gong in Japan the reason is flee to Japan to get a visa to entre [sic] Australia for my free practice of Fallon-Gong that I am not able to return to china and are unwilling to return to china because of a well-founded fear.”

[Errors in the original]

Hearing before the Court

1. At the hearing before the Court the applicant appeared without representation. He was assisted by an interpreter in the Mandarin language. Ms S Kantaria appeared for the first respondent.

2. I understood the applicant to be pressing the matters as set out in his amended application, a document which he said was drafted with the assistance of his “friend’s friend”. It was probably for this reason that the applicant was unable to assist the Court in explaining his grounds as set out in that amended application. For example, the applicant was unable to take the Court to any relevant documentation in support of the assertion in the amended application (see particular “b” of Ground One) that the Tribunal rejected his claim “in circumstances where it accepted that ‘the full facts [about PSB spies in Australia] are yet to be established’” (see further below at [33] to [34]).

3. Nonetheless, the applicant made submissions, and appeared to be reading from a prepared statement, which he said was written “together” with the “friend of a friend”. The applicant made the following submissions:

   1.The Tribunal did not consider his “case carefully”. He asserted that he was a Falun Gong practitioner, complained that the Tribunal rejected his case because it did not believe him to be so, yet he insisted he “was handing out propaganda materials of Falun Gong.” When pressed, the applicant submitted that he had stated this to the Tribunal at the hearing.

   2.The Tribunal’s decision was a “wrong judgement”. The applicant took the Court to CB 187 (“the second paragraph and the third paragraph”) and complained that the Tribunal rejected his claim to be a Falun Gong practitioner. He confirmed that he wanted the Court to “look at” the following:

   “Based on the information provided by the applicant I am not satisfied in this case that the applicant has a well founded fear of persecution for reason of any connection with Falun Gong”

   (CB 187.8).

   3.The Tribunal did not “seriously consider” the “supplementary materials” which the applicant provided to the Tribunal after the hearing.

4. Given that the applicant was unrepresented before the Court (notwithstanding that he claimed that the “friend of a friend” had legal knowledge, and notwithstanding that the applicant did access the Court’s legal advice scheme and was provided with advice by a barrister on the panel of the scheme), I did raise an additional issue for consideration:

   1.Whether the Tribunal had complied with s.425(1) of the Act in whether applicant was given an opportunity at the hearing before the Tribunal to address the determinative issue that disposed of the application for review.

   2.If the Tribunal had not complied with its obligation under s.425(1), whether it was sufficient for the Tribunal to raise the determinative issue in its “s.424A letter”, which was sent after the hearing.

5. In this regard, I gave the parties the opportunity to make further written submissions, in the case of the Minister, and written submissions, in the case of the applicant. Both parties exercised this opportunity, and written submissions were subsequently made by both parties. Leave was also granted for the first respondent to put a transcript of the Tribunal hearing before the Court (this was subsequently done by way of affidavit of Antonia Jean Clarke of 11 April 2008). The applicant had the benefit of the respondent’s submissions, and the transcript of the Tribunal hearing before making his written submissions. 

Ground One

1. Ground One in the amended application asserts that the Tribunal denied the applicant procedural fairness in rejecting his claim to fear persecution upon return to China because of his Falun Gong practices in Australia being discovered by Chinese authorities.

2. The short answer to the applicant’s complaint is that the Tribunal found that the applicant had not practised Falun Gong in Australia. This was because the Tribunal found that the applicant was not “a witness of truth” (CB 188.5). (See also: “The Tribunal does not accept as true that the applicant is a genuine Falun Gong practitioner and has practised Falun Gong in Japan, China or Australia as he claims, and/or that he knew that he cannot or will not return to China because he fears persecution there, now or in the reasonably foreseeable future, due to Falun Gong activities and practice” (CB 188.4))

3. This was a finding that was open to the Tribunal on the material before it. Such material being the applicant’s own evidence provided at the hearing (See CB 180.9 to CB 184.8 and the transcript (“T”) of the Tribunal’s hearing annexed to the affidavit of Ms Clarke. See also the applicant’s statement of 16 May 2006, which was attached to his protection visa application at CB 27 to CB 30, and the applicant’s response to the Tribunal’s “s.424A letter” of 5 October 2006, which was received by the Tribunal on 9 October 2006. See CB 167 to CB 170).

4. The Tribunal’s finding as to the lack of credit of the applicant’s evidence was a finding of fact made within jurisdiction. I note that findings of credibility are findings of fact (ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 per McHugh J at [67]).

5. Particular “a” to Ground One, in the circumstances, therefore, does not rise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259).

6. At the hearing before the Court (in relation to particular “b” of Ground One) the applicant was not able to show the Court where the Tribunal made a finding that: “the full facts [about PSB spies in Australia] are yet to be established.”

1. Particular “b” therefore fails because it bears no relevance to the Tribunal’s findings. Findings which, as set out above, were open to the Tribunal on the evidence provided by the applicant himself, and findings for which it gave cogent reasons.

2. Further, Ground One misunderstands the task set for the Tribunal by the relevant legislative regime. Section 65 and s.36(2) of the Act require the Tribunal to reach a requisite level of satisfaction, on what is before it that, in effect, the applicant meets the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention.

3. Plainly, the Tribunal was unable to reach this requisite level of satisfaction because it found the applicant not to be a “witness of truth”. In reaching such a finding, the Tribunal is not required to “disapprove” an applicant’s claims, as appears to be implied by particular “a”. It is for the applicant to put his evidence and information before the Tribunal, and for the Tribunal to reach, or not reach, a requisite level of satisfaction. The Tribunal is not required to find evidence that the applicant is not what he asserts to be, nor is the Tribunal obliged to uncritically accept an applicant’s claims. (See, relevantly, Minister for Immigration and Ethnic Affairs v Guo & Anor [1997] HCA 22, (1997) 191 CLR 559 and Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437)

Ground Two

1. Ground Two in the amended application asserts a breach of “procedural fairness” by not “putting” the applicant “on notice of critical information.” Such information is said to be information from a Falun Gong Book.

2. This is a case to which s.422B of the Act applies, making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59] to [67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]).

3. In this context, the applicant’s complaint, relevantly, appears to be that the Tribunal breached its obligations pursuant to s.424A(1) of the Act.

4. I should just note that the applicant’s complaint, again, appears to have been drafted by someone who was unable to relate the stated grounds to the applicant’s actual circumstances. The reference in Ground Two to what is said to be set out at CB 116.8 is clearly in error. That part of the Court Book is part of an Amnesty International Report (CB 112 to CB 125) being part of a bundle of documents provided by the applicant to the Tribunal. This part of the report does not make any reference (at CB 116.8) to “Master Li Hongzhi’s book”, but is concerned with the authorities “repression of Uighur culture and religion and other fundamental freedoms” in the “Autonomous Region”.

5. In any event, at the hearing before the Tribunal, the applicant gave evidence that he had read some Falun Gong books and that he had read “Master Li Hongzhi’s book”,” (T 22.10 and see also CB 184.4). The Tribunal found, amongst other things, that although the applicant stated that he had read some Falun Gong books, both in Japan and in Australia, and that he had read Falun Gong books at home in the evening while in Australia, “he was not able to answer some basic questions about Falun Gong” (CB 189.3). The applicant’s claim that the Tribunal relied on “critical information from Master Li’s book and ‘about cultivating the heart/mind nature’” does not, therefore, appear to relate to what actually happened.

6. It is clear that part of the reason that the Tribunal found the applicant not to be a truthful witness was his inability to answer basic questions about these books, which he claimed to have read (see in particular, T 23.1) It was, therefore, not the information in Master Li’s book or, indeed, any other Falun Gong book, upon which the Tribunal relied, but rather on the applicant’s inability to answer even the most basic questions about books which he had claimed to have read that formed part of the Tribunal’s rejection of the applicant’s credit. As such, the information relied on by the Tribunal was the applicant’s own evidence, which was plainly given, in these circumstances, for the purposes of the review, and falls within the exception contained in s.424A(3)(b) from the requirements and obligations of s.424A(1).

7. But even if it could be said that what was contained in one of these Falun Gong books was information relied on by the Tribunal, information about “cultivating the heart/mind nature” is plainly non-in personam information and would, in any event, have fallen within the exception contained in s.424A(3)(a) from the obligations in s.424A(1) (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92).

8. Particular “a” of Ground Two does not assist the applicant as it seeks to challenge the Tribunal’s finding that the applicant was not a witness of truth. Far from acknowledging that the applicant was “a recent adherent to Falun Gong”, the Tribunal found that the applicant was not a genuine Falun Gong practitioner. This was based on inconsistencies in the applicant’s claims as to how long he had been a Falun Gong practitioner. At first, he claimed to have practiced Falun Gong since the end of 2002 (CB 188.5), but then, in the letter in response to the Tribunal’s “s.424A letter”, appeared to: “back away from his claims to have been a Falun Gong practitioner since 2002” (CB 188.9 and CB 189.3).

9. The Tribunal reasoned that if the applicant had, in fact, been a Falun Gong practitioner at the time at which he claimed that he had been, he “would have been able to tell the Tribunal in some detail what he does to practice Falun Gong and he could not do so” (CB 189.4). I cannot see that it was not open to the Tribunal to take the view that someone who asserted to have been a Falun Gong practitioner for some time would have been able to provide some basic information about his claimed practice and belief. In any event, particular “a” does not assist the applicant because what it asserts is not reflective of what actually occurred before the Tribunal.

10. Particular “b” to Ground Two asserts that the Tribunal found that he “displayed no evidence of the knowledge and understanding the Falun Gong five exercises.”

11. At best, it can be inferred that the applicant takes issue with this finding. From a plain reading of the relevant material before the Court (the transcript of the hearing and the Tribunal’s own account of what occurred at the hearing, both of which remained unchallenged by any evidence brought to the contrary by the applicant), it was plainly open to the Tribunal to find that the applicant was unable to provide “basic information” about Falun Gong or the relevant exercises. This finding was plainly open to the Tribunal on what was before it.

12. Particular “c” of Ground Two asserts that the Tribunal found that the applicant “was unable to explain of the nine lectures in Master Li Hongzhi’s key points.”

13. Again it appears that the applicant seeks to take issue with the Tribunal’s finding. I cannot see that particular “c” reveals error on the part of the Tribunal. First, I should note what the applicant asserts was a “quote” from the Tribunal’s finding is not evident in the Tribunal’s decision record. In any event, that the applicant was unable to explain what was in “Master Li’s book” is clear, on any plain reading of the transcript of the Tribunal hearing, and does not reveal error (either in terms of any failure of procedural fairness or otherwise) on the part of the Tribunal for the same reasons set out above in relation to particular “b”.

14. Particular “d” of Ground Two does not rise above a request for impermissible merits review. It was plainly open to the Tribunal to find that the applicant did not practice Falun Gong in Australia as he had initially claimed.

15. In all, therefore, this ground does not succeed. 

Ground Three

1. I understood Ground Three in the amended application to complain that the Tribunal failed to constructively exercise its jurisdiction (in compliance with the Act) by not asking certain questions in the proper exercise of its jurisdiction, given that the applicant maintained, or claimed, that on his return to China he would learn the “five exercise[s]” (in context, this refers to the five relevant Falun Gong exercises), and that he claimed that he would only practise Falun Gong at home. The applicant’s complaint is that, in these circumstances, the Tribunal did not make a finding about whether he would practise Falun Gong upon his return to China, as it was required to do.

2. Yet again, the applicant, in his amended application, asserts matters that he does not appear to have asserted before the Tribunal. At particular “a” to Ground Three the applicant has put in quotation marks that he maintained before the Tribunal that he would “learn the five exercise … and only do Falun Gong at home”.

3. I cannot see, on the material before the Court, that the applicant made any such claim. In fact, the contrary appears to be the case. At the hearing, the applicant told the Tribunal that if he were to return to China he would “never practice Falun Gong” (see CB 184.5 and T 23.3).

   “TM: If you were to return to China would you continue to do Falun Gong?

   A: If I return to China I will never practise - I cannot.”

4. The applicant’s complaint fails at this factual level. If the applicant is seeking to now make these assertions before this Court, then this is plainly impermissible merits review.

5. Further, contrary to the applicant’s claim that the Tribunal did not make a finding about whether he would practice Falun Gong upon his return to China, the Tribunal did turn its mind to the question that it was required to answer in the proper exercise of its jurisdiction. That is, whether the applicant had a well-founded fear of persecution for a Convention reason if he were to return to China. The Tribunal found:

   “At the time of decision the Tribunal concludes that there is not a real chance that the applicant will face serious harm for the purposes of the Convention, either now or in the reasonably foreseeable future, for the reasons that he claims, if he returns to his country.” (CB 190.6)

6. The Tribunal’s finding, in this regard, was based on the evidence before it, which was that the applicant’s knowledge of Falun Gong was of such a level that it was inconsistent with the applicant’s claim to have practiced Falun Gong for the time that he said he did, and the finding that the applicant was not a genuine Falun Gong practitioner because of the Tribunal’s finding that he was not a witness of truth. It must be emphasised that this was found in circumstances where the applicant claimed that he would not practice Falun Gong if he were to return to China. In all, therefore, this ground does not succeed.

Ground Four

1. This ground in the amended application complains that the Tribunal did not consider all of the “integers” of his claim. Some of what is set out at particulars “a” and “b” to Ground 4 are (charitably described) as difficult to understand:

   1)At particular “a”, the applicant states:

   “‘I suffered restrictions in China because of my involvement kept sprats Falun Gong spiritual to others ...”

   2)At particular “b”:

   “The Tribunal member failed to deal with I above claim in circumstances where during my active of Falun Gong in Japan the reason is flee to Japan …”

2. In any event, the applicant’s claims to fear harm on return to China were set out in his written documents and in the oral evidence that he gave to the Tribunal. Plainly, the Tribunal understood that the applicant claimed (particularly in response to its “s.424A letter – CB 167) that he had been mistreated in China because of his claimed Falun Gong connection. The Tribunal dealt with this claim and found that the applicant’s claims were inconsistent in this regard (as well as in other aspects). The Tribunal ultimately concluded that the applicant “had ‘changed his story’”, did not accept his evidence that he was a Falun Gong practitioner, and did not accept his evidence that he feared persecution if he returned to China, both for this reason, and other reasons in relation to other inconsistencies in aspects of the applicant’s claims.

3. I cannot see that the Tribunal failed to consider any integer of the applicant’s claims in the way that the applicant seeks to assert in his particulars to Ground Four, nor in any other respect. This ground, therefore, does not succeed.

Procedural Fairness: Section 425 of the Act

1. As set out above, given the applicant’s unrepresented status before the Court, I raised with the parties the issue of whether the Tribunal had complied with s.425 of the Act (with SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”) in mind). Specifically, whether the applicant was given the opportunity to address the determinative issue at the hearing, being the credibility of his claims. Second, if the Tribunal had not complied with its obligations, whether it was sufficient of the Tribunal to have raised this issue in its “s.424A letter sent subsequent to the hearing.

2. I note, in particular, what was said by the High Court in SZBEL in considering the scope of s.425(1) of the Act and the Tribunal’s procedural fairness obligations in that regard (particularly at [33] to [35] and [40]). Section 425 requires the Tribunal to invite an applicant “to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

3. In SZBEL at [35] the High Court said:

   “The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are ‘the issues arising in relation to the decision under review’.”

4. I note what was said by the Full Federal Court in Minister for Immigration & Citizenship v SZJGY [2008] FCAFC 87 (“SZJGY”) at [11]:

   “While we agree with his Honour’s comment about contradictory evidence in relation to one claim not leading inevitably to a rejection of all of an applicant’s claims, we do not accept his Honour’s conclusion in relation to the Respondent’s claims. In our view, this case is an example of the situation to which the High Court referred in the comment from SZBEL quoted by his Honour. The general principle relied on by his Honour is applicable where elements of an applicant’s claim provide independent bases for the claims made, as was the case in SZBEL. However where, as here, an applicant gives a chronological account of his experiences and the later elements of the account are a function of earlier events, the credibility of the later events must depend on whether or not the Tribunal accepts the earlier account. According to the Respondent his initial refusal to pay fines led to his harassment by the police and to his imprisonment. His continued refusal led to the disruption of his trucking business which led him to engage in political opposition to the police corruption. This led to further threats and harassment and eventually to him fleeing China. It is this chain of experiences on which his claim to have a well-founded fear of persecution is based.”

5. I note also, as submitted by the first respondent, what is said in SZGUW v Minister for Immigration & Citizenship [2008] FCA 91 (“SZGUW”) at [37] per Jacobson J:

   “It seems to me that the effect of the High Court’s explanation of the statutory scheme is that the issues to which s 425 refers are particular factual aspects of an applicant’s claim in respect of which the Tribunal is not persuaded when it extends to an applicant an invitation to attend the hearing: SZBEL at [34] – [40].”

6. The first respondent’s submissions are that following the delegate’s decision, the entirety of the applicant’s account was in issue, as the delegate could not make any advantageous findings on any of the factual aspects of the claims that were advanced by the applicant. In any event, the first respondent submits that at the Tribunal hearing on 11 September 2008, the Tribunal identified and questioned the applicant about various issues which went to the factual aspects of his claims, and that those factual matters about which the Tribunal was not persuaded, and upon which it relied to make its findings, were brought to the applicant’s attention at the hearing. Given this, the first respondent submitted that the second question raised by the Court in this matter is not enlivened.

7. The applicant’s written submissions are not helpful on this issue. The applicant seeks to explain his inconsistent answers at the Tribunal hearing by stating now that he was “confused”, that he had “nerves, stress out”, and was “very disappointed” in the oral evidence that he had given because “at that time his mind was empty”. I should note that this repeats one of the assertions made in the applicant’s response to the Tribunal’s “s.424A letter” (CB 167.5: “I was very nervous, trauma and panicked on that day”).

8. Any plain reading of the transcript of the hearing before the Tribunal reveals that the applicant’s complaints in this regard are not supported by anything contained in that transcript. Further, the Tribunal plainly notified the applicant that if he had difficulties (in either understanding the interpreter –see T 1.7) or if he did not understand the Tribunal’s questions (T 2.7) that the applicant should let the Tribunal know. Importantly, at the end of the hearing, the Tribunal asked the applicant if there was anything else that he wanted to say (T 24.7) and the applicant replied “no”. Plainly, the applicant did not voice any concerns to the Tribunal of any difficulties in participating in the hearing.

9. Beyond assertion, however, the applicant has put no evidence before the Court to show that he was denied a fair opportunity to put his evidence before the Tribunal at the hearing. The transcript reveals nothing to support the applicant’s claims. A plain reading of it does, in fact, contradict it.

10. Further, the applicant’s submissions in part misunderstand the nature of the opportunity provided to him by the Court. The opportunity was to address the issue of whether a fair hearing had been conducted pursuant to s.425 (in the context of SZBEL). The applicant seems to misunderstand when he says:

    “…the end of the Federal Court hearing he was appreciated indeed, that the Federal Court Magistrate gave him the opportunity to reconsider the applicant P.V. Claims, and write further submission of his claims. The applicant so great full and appreciated indeed with this matter.”

[Errors in the original]

1. Unfortunately for the applicant, what is therefore contained, for the most part, in his submissions relates to the merits of his refugee claims and, to a large part, seeks to put before the Court independent country information relevant to those claims. None of this assists the applicant on the issue under consideration. Even where the applicant, at the penultimate unnumbered page in his submissions, makes reference to SZBEL at [47], it is for the purpose of asserting the genuineness of his claims. None of this assists the applicant now.

2. The Minister’s delegate did not assess the applicant’s claims, but disposed of the application for a protection visa on the basis that the applicant had protection in a third country (at CB 104.7):

   “Consequently I will not assess the applicant’s claims as I find that the applicant has effective protection in a third country and thus I find that the applicant’s fear is not well-founded.”

1. In these circumstances, I have some difficulty in accepting the first respondent’s submissions that, following the delegate’s decision, the entirety of the applicant’s account was in issue, such as to put the applicant on the notice of the issues that were dispositive in the review, notwithstanding that the delegate did not, as was submitted, make any advantageous findings on any of the factual aspects of the claims.

2. Nonetheless, bearing in mind the authorities referred to above (SZBEL, SZJGY, and SZGUW) I am satisfied that the Tribunal at the hearing on 11 September 2008 identified and questioned the applicant about the factual aspects of his claims, and that it sufficiently indicated (with particular reference to SZBEL at [47]) those factual matters in relation to his claims, by which it had some concerns, and in respect of which it was not ultimately persuaded, and relied upon to make findings that were ultimately adverse to the applicant.

3. The transcript of the Tribunal hearing relevantly reveals the following:

   1.At T 5.3 the applicant confirmed that the information that he had provided in his protection visa application, and the attached statement was correct. The Tribunal subsequently pointed out an inconsistency between one instance of the evidence given at the hearing with what had been put in his protection visa application, at T 8.7:

   “TM: Right so when did you begin university?

   A: In April 2004.

   TM: Right because you said 2005 before.”

   There were a number of other such inconsistencies that were also brought to the applicant’s attention (at T 9.3, T 9.5 and T 9.7).

   2.At T 16.9, when previously giving evidence in relation to his claims that he had been detained and mistreated by the authorities, and while on a visit to his home in August 2004, the Tribunal noted that the applicant stayed in China for eleven days after he was released from detention and noted:

   “TM: Well why would you have stayed those days when you were so scared and you were panicking?”

   3.At T 18.6 the Tribunal pointed out the inconsistency between the applicant’s evidence given at the hearing and the statement provided in support of his protection visa application:

   “TM: In the statement to the Tribunal you said the police used the electric to punish my body.

   A: He said electrical wire.

   TM: Alright so after your release from detention did you continue to stay at your parent’s home?

   A: Yes.

   TM: Alright in the statement to the Department you didn't mention the electric wire.

   A: I did.

   TM: You said that when you were in detention through some connection you asked your parents to pay money for your release.

   A: Yes.

   TM: But you said to me that you weren’t allowed to speak to anybody when you were in detention except for the police officers.”

   4.The Tribunal indicated a further inconsistency between his statement annexed to the protection visa application and the evidence he gave to the Tribunal at T 19.6:

   “TM: Alright and you then stayed with your parents after you returned from the hospital. Is that right?

   A: Yes.

   TM: You weren’t concerned that the police might come back and rearrest you?

   A: Because I did not leave any oral evidence to them. And besides  we paid to them 30,000 Yuan.

   TM: Okay, in your statement to the Department you said I got released and immediately and fled to Japan.

   A: I reckon those few days is immediately.

   TM: Right, you didn’t tell the Department that you were released and went to the hospital?

   A. I don’t think that is important. Mainly I was so scared to the hospital I just get my body checked.

   TM: You said that the police warned you that they will not leave you in peace until the end of your life?

   A: Yes.

   TM: And yet you stayed in China for another 10 or 11 days.

   A: Yes.

   TM: So you didn’t really leave China immediately did you?”

   5.The Tribunal pointed out discrepancies in his evidence given at the hearing (at T 18.8):

   “TM: You said that when you were in detention through some connection you asked your parents to pay money for your release.

   A: Yes.

   TM: But you said to me that you weren’t allowed to speak to anybody when you were in detention except for the police officers.”

   6.The Tribunal also closely questioned the applicant about his knowledge of Falun Gong (see T 21 and T 22, and see, in particular, the applicant’s various answers where he claimed to not know of the relevant exercises, was not able to tell the Tribunal what Falun Gong meant to him, his inability to tell the Tribunal relevant information about the Falun Gong book that he claimed to have read, and his failure to draw the Falun Gong emblem – see T 23).

   7.The Tribunal also questioned the applicant about his practice of Falun Gong in Australia (see T 22.5, where the applicant confirmed that he did not belong to any Falun Gong Association in Australia. Earlier at T 21.7, he confirmed that he did not practise Falun Gong in Australia).

   8.Ultimately, the applicant was questioned as to whether he would continue to practise Falun Gong if we were to return to China and the applicant answered: “If I return to China I will never practice - I cannot” (T 23.3).

4. The Tribunal’s account of what occurred at the hearing before it does not reveal any departure from what is out in the transcript in any material particular. The Tribunal, in particular, noted all matters relevant to its ultimate consideration of the applicant’s claims of those occasions at the hearing where the Tribunal asked questions of the applicant that would indicate to him its concerns with what he was saying (see in particular, CB 183.2 CB 183.5, CB 183.7, CB 183.8 to CB 184.1, and CB 184.5).

5. In these circumstances, I agree with the first respondent’s submissions that the Tribunal did comply with its obligations pursuant to s.425, and that during, and immediately following, the hearing, the applicant would have been aware of the issues that were of concern to the Tribunal. That is, the inconsistency in his claims, being both inconsistencies between his oral evidence and his written claims, and inconsistencies between his claims and the level of knowledge that would normally be expected of someone who claimed to have been a Falun Gong practitioner for the number of years as the applicant had initially claimed.

6. Bearing in mind what was said in SZBEL at [47], the Tribunal’s statements and questions during the hearing did, in my view, sufficiently indicate to the applicant that the relevant factual matters that he had raised in support of his application were in issue.

7. Given this, it is not necessary to consider the second question posed at the hearing before the Court.

8. In all, I cannot discern jurisdictional error. For the applicant to succeed before the Court, I would, at least, have to discern such error. For this reason, the application is dismissed.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  10 July 2008