SZJVI v Minister for Immigration
[2008] FMCA 133
•12 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJVI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 133 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZJVI”. |
| Migration Act 1958 (Cth), ss.91R, 91X, 422B, 425 |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Elias v Commissioner of Taxation [2002] FCA 845 Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 168 CLR 24 MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 MZXGK v Minister for Immigration & Anor [2006] FMCA 1469 NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 NADH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 NBIO v Minister for Immigration & Multicultural Affairs [2006] FCA 1300 NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195 Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S20/2002 (2003) 77 ALJR 1165 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 Re Ruddock; ex parte Applicant S154/2002 (2003) 201 ALR 437 SHJB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 303 Singh v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1113 SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478 SZATG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 215 ALR 358 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 SZEEO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 546 SZILQ v Minister for Immigration & Citizenship [2007] FCA 942 VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104 VWFP & VWFO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 231 Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 1599 WAHP v Minister for Immigration & Multicultural Affairs [2004] FCAFC 87 WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 WALT v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCAFC 2 |
| Applicant: | SZJVI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3676 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 14 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Gibian |
| Solicitors for the Applicant: | Ms M Byers |
| Counsel for the Respondents: | Mr G T Johnson |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application filed on 11 December 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3676 of 2006
| SZJVI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant is a citizen of the People’s Republic of China and was born in Tianjin in 1962. She states that she underwent 12 years of education until 1981.
The applicant arrived in Australia on 24 January 2005. She claims that prior to coming to Australia, she lived in Tianjin for ten years. The applicant applied for a Protection (Class XA) visa on 6 July 2006. A delegate of the first respondent refused to grant the visa on 1 August 2006 (reference no. 060737039) and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) to review the delegate’s decision. The Tribunal affirmed the delegate’s decision and so the applicant applied to the Federal Magistrates Court for judicial review of the Tribunal decision, which is the application before this Court.
The applicant claims that she was introduced to Falun Gong by one of her customers while working as a self-employed retailer. She claims she practiced Falun Gong between 1997 and 1999 until it was outlawed by the Chinese government.
At the Tribunal hearing, the applicant claimed that she owned a shop with her husband in China selling electrical goods until it was demolished for redevelopment. She said that her husband and son lived together in China and that she spoke to them once a week. However, upon further questioning, the applicant stated that she and her husband were divorced in 2003 but still referred to her son and husband as family.
The applicant asserted that Falun Gong practitioners were detained and punished in China. She feared persecution if she were to return to China because her photograph was on the internet and there were spies in Australia.
The applicant claimed that she had practiced Falun Gong for eight years and read the handbook many times. However, upon questioning the Tribunal found that she had not reached a high level of understanding nor did she know why the Chinese authorities wished to eradicate Falun Gong.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. This document was read into evidence.
The affidavit of Michaela Byers, solicitor, was sworn on 31 January 2007 and filed in these proceedings. Annexed to the affidavit and marked “A” is a copy of the transcription from the Tribunal hearing.
The original application filed on 11 December 2006 contains four grounds of review. An amended application was filed on 8 May 2007 which contained five grounds of review. On the date of the hearing, Mr Gibian, for the applicant, sought leave to raise an additional ground other than those in the amended application. Leave was granted to Mr Gibian as no objection was raised by Mr Johnson for the respondents. As all of the submissions have been addressed, ground one in the original numbering in the amended application will be treated as not being pressed and the numbering of the following grounds will be maintained.
Consideration
Ground one
This ground was not pressed.
Ground two
2. The Tribunal acted without and in excess of jurisdiction by ignoring relevant material and relying upon irrelevant material and thereby failing to assess the applicant’s claims.
Particulars
(a) It was one of the applicant’s claims that the applicant had a well-founded fear of persecution by having participated in demonstrations and rallies in Australia and by reason of photographs of the applicant having been published on a website and in a newspaper.
(b) The Tribunal assessed the applicant’s claim by reference to outdated country information contained in DFAT Country Information Report No 396/00 – Update on Falun Gong (Falun Dafa), 17 July 2000 - CISNET CX 43498 that suggested that, if they come to the attention of authorities, ordinary followers may be lectured to by Chinese authorities and urged to renounce their ways.
(c) The Tribunal failed to have regard to recent country information (Chang Maria Hsia 2004, Falun Gong: The End of Days, New Haven, Conn. Yale University Press and US Department of State’s International Religious Freedom Report: China (includes Tibet, Hong Kon and Macau), 8 November 2005) that suggested that no distinction is drawn between the treatment of Falun Gong leaders and followers.
Mr Gibian referred to the following passage in the Tribunal decision under “Country information on Falun Gong and Chinese Government persecution”:
Some reports on the treatment of Falun Gong practitioners note that PRC Authorities are less interested in individual members practising alone than those actively propagating Falun Gong as a “core” member. (CB 122.1)
That is followed by an extract from a Department of Foreign Affairs and Trade (DFAT) report dated July 2000 which contains that information. This is then followed reference to a 2005 DFAT report which confirms that the 2000 report is still valid. Mr Gibian contends, however, that the Tribunal also referred to other recent reports and did not distinguish between the treatment of leaders and followers of Falun Gong. In particular, that the Tribunal specifically referred to a book by Maria Chang, Falun Gong: The End of Days and the US Department of State International Religious Freedom Report 2005, which made no distinction between leaders and ordinary members.
Mr Gibbian then highlighted two pieces of country information that the Tribunal had before it. First, the US Department of State International Religious Freedom Report (CB 215) notes that according to Falun Gong practitioners in the United States:
…since 1990 more than 100,000 practitioners have been detained fo9 engaging in Falun Gong practices, admitting that they adhere to teachings of Falun Gong, or refusing to criticise the organisation of its founder. The organisation reports that its members have been subject to excessive force, abuse, detention, and torture, and that some of its members, including children, have died in custody… Some foreign observers estimate that at least half of the 250,000 officially recorded inmates in the country’s re-education – through –labour camps are Falun Gong adherents. Falun Gong places the number even higher. (CB 220)
As the report indicates, an excess of 100,000 persons in detention by way of re-education-through-labour camps is in itself inconsistent with a view that imprisonment is a matter which is reserved for Falun Gong leaders. Mr Gibian contends that to the extent that a differentiation is drawn between core leaders and mere belief is a matter of degree of punishment, not the existence or otherwise of punishment. Imprisonment on multiple occasions is a consequence of belief in Falun Gong. The way that the Tribunal dealt with country information in its reasoning was with the utmost brevity (CB 124).
Mr Gibian submits that the Tribunal accepted that the applicant had appeared on a Falun Gong website and newspaper depicting her participation in a Falun Gong rally:
The country information above indicates that, even if she comes to the attention of the authorities, ordinary followers may be lectured by Chinese authorities and urged to announce their ways. (CB 124.4)
That being the extent of what the Tribunal considered could be the censure imposed on an ordinary follower of Falun Gong.
Mr Gibian argues that the Tribunal relied entirely upon one country information source that was before it and ignored other country information referred to at [11]. This material indicates that ordinary Falun Gong followers may be punished in re-education-through-labour camps.
Mr Gibian acknowledges that the role of the Tribunal to assess and consider the country information it has available to it and may prefer one source over another. However, it is required, in exercising its function of assessing whether the applicant has a well-founded fear of persecution, to consider relevant information which is before it. Mr Gibian argues that there could be no more relevant material which shows that followers of Falun Gong could be subject to sanctions including periods of imprisonment. The Tribunal merely selected one piece of country information while ignoring others which did not fit its approach.
Mr Gibian referred to MZXGK v Minister for Immigration & Anor [2006] FMCA 1469 per McInnis FM which concerns a citizen of Burma. The Tribunal in that case was required to consider whether a citizen identified as being associated with pro-democratic activities in Australia would be persecuted on return to Burma. Country information indicated that Burmese authorities paid considerable interest to overseas dissident activities. Amnesty International also reported cases of citizens who had engaged in peaceful political activities abroad who were tortured, detained or even executed when they returned to Burma. In that decision, His Honour found that the Tribunal did not consider that country information but rather relied solely upon an earlier piece of country information which stated that persons involved in pro-democratic activities outside of Burma were unlikely to come to the attention of the authorities on their return.
Mr Johnson submits that it cannot be said that the Tribunal in this case did not consider certain evidence simply because it did not refer to it in its reasons: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [65]per McHugh J; Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 at [82] per Gauldron J.
In response to the argument that the Tribunal’s relied on irrelevant material contained in outdated country information while ignoring relevant material contained in recent reports, Mr Johnson referred to SZANK v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCA 1478 at [16] per Hely J:
…it was a matter for the RRT to decide what weight should be given to ‘country information’ as part of its fact finding function. The question of the accuracy of country information, and its relevance to a person in the position of the appellant, is one for the RRT, not the Court. In NAHI v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Mr Johnson submits that it is not just the weight but the very relevance of the information which is a matter for the Tribunal.
In VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104 at [26], Beaumont, Weinberg and Crennan JJ said:
…there were numerous cases that held that a Tribunal does not commit jurisdictional error when it prefers one body of country information over another. See for example NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13].
Mr Johnson submits that these decisions do not show that a Tribunal has to expressly refer to that other country information before it picks out and relies upon that which it does find persuasive.
Mr Johnson submits that Mr Gibian’s distinction between relevant and irrelevant material refers only to evidence which he says were put aside but should have been given greater weight. Mr Johnson submits that a relevant consideration is no more or less an integer that the legislation requires to be taken into account, as opposed to something which is merely “part of a competing body of evidence before the Tribunal”: Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at [78]-[79] per Allsop J with whom Heerey J agreed (referring to Minister for Aboriginal Affairs v Peko-Wallsend (1986) 168 CLR 24). Mr Johnson submits that the distinction between relevant consideration and evidence to bolster a claim is considered in VQAB v Minister for Immigration & Multicultural & Indigenous Affairs at [25]. Similarly, an irrelevant consideration is an integer that is prohibited from consideration by legislation: Elias v Commissioner of Taxation [2002] FCA 845 at [63] per Hely J.
Mr Johnson further submits that a distinction between relevant and irrelevant material should not be blurred. In MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 at [26], Black CJ, Sundberg and Bennett JJ stated:
26 In Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 Allsop J said that Minister for Immigration and Multicultural and Indigenous Affairs vYusuf (2001) 206 CLR 231:
"does not stand for the proposition that a relevant consideration has not been taken into account and the decision-maker thereby has failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed. ‘Relevant’ for this purpose means that the decision-maker is bound by the statute or by law to take this into account."
This passage was approved by Cooper and Finkelstein JJ in Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [29].
See also Singh v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1113 per Jacobsen J at [23]-[35] and [39]-[41].
In oral submissions, Mr Johnson continued with MZWBW at [27]:
27 In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46] a Full Court said:
"It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.... Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact ... and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason."
It is submitted that MZWBW at [26]-[27] simply states that the Tribunal is not obliged to refer to evidence against its findings. Mr Johnson gives the example of this being different from an applicant claiming persecution because of race and political opinion and the Tribunal considers one claim and ignores the other. Mr Johnson argues that Mr Gibian’s submission to the effect that the Tribunal, before it could rely upon country information that it did, it had to refer to and deal with the Maria Chang article and the US Department of State International Religious Freedom Report (2005).
I am satisfied that the Tribunal has identified the country information it considered to form the view that Chinese authorities are less interested in individual members practicing Falun Gong alone as opposed to core members. The manner in which the Tribunal then dealt with this information is in accordance with the authorities. I accept the submissions of Mr Johnson and I am satisfied that no jurisdictional error has occurred in the Tribunal’s treatment of the information before it. I believe that ground two cannot be sustained.
Ground three
3. The Tribunal acted without and in excess of jurisdiction in failing to accord procedural fairness to the applicant and/or failing to comply with s.425(1) of the Migration Act 1958 by failing to give the applicant the opportunity to attend a hearing and give evidence and present arguments relating to the issues arising in relation to the decision under review.
Particulars
(a) The Tribunal failed to identify that an issue arising in relation to the decision under review was that the applicant’s participation in Falun Gong activities may have been simply to give the impression of commitment to Falun Gong and that statements made by fellow practitioners provided by the applicant did not establish that the applicant has a commitment to Falun Gong.
(b) The Tribunal failed to identify that an issue arising in relation to the decision under review was whether the applicant’s activities in Australia were done to strengthen her claim for refugee status.
Mr Gibian in his written submissions acknowledges that s.422B of the Migration Act 1958 (Cth) (“the Act”) applies in this matter but contends that the Tribunal failed to comply with s.425(1) of the Act as it did not identify to the applicant any issue critical to its decision or advise of any adverse conclusion: Commissioner for Australian Capital Territory v Alphaone Pty Ltd (1994) FCR 576 at [591]-[592] and SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63. It is submitted that jurisdictional error would have occurred if the Tribunal failed to comply with s.425(1) in accordance with the reasoning in SZBEL notwithstanding the operation of s.422B: SZILQ v Minister for Immigration & Citizenship [2007] FCA 942 at [35].
Mr Gibian submits that the delegate of the first respondent was not satisfied that the applicant had a well-founded fear of persecution for the following reasons:
a)The applicant provided no information or evidence, including that from any organisation in Australia, to substantiate a claim that she was a genuine Falun Gong practitioner or would be perceived as such.
b)There was no evidence to indicate that the applicant is known or recognised as a Falun Gong practitioner by the authorities in China or Chinese authorities in Australia (CB 47-48).
Mr Gibian submits that the Tribunal made two determinations that were not causally open to it regarding the delegate’s decision, and did not identify those matters dealt with in its determination as issues arising in the review:
a)The applicant’s participation in Falun Gong activities in Australia may have been simply to give the impression of a commitment to Falun Gong. The statements of Falun Gong practitioners did not establish that the applicant had a commitment to Falun Gong. The delegate’s decision was based upon an alleged failure by the applicant to provide letters of support or other evidence from organisations in Australia (CB 47-48). The applicant submits that she did as much as could reasonably be expected to satisfy that this:
i)by providing statements from five fellow practitioners who had observed her practicing Falun Gong and confirming that she was a genuine follower (CB 76-81);
ii)three witnesses attended her Tribunal hearing (transcript, p.1);
iii)the Tribunal did not suggest that a witness could have been fooled and did not suggest to the witness that they may have been fooled (transcript, pp.2-35).
This denied the applicant the opportunity to give evidence and make submissions about this matter.
b)The Tribunal did not identify to the applicant that an issue which arose was whether her Falun Gong activities in Australia were done to strengthen her claim for refugee status. While the Tribunal is not required to draw s.91R(3) of the Act to the applicant’s attention (SZILQ v Minister for Immigration & Citizenship [2007] FCA 942 at [31]), Mr Gibian argues that she should be afforded the opportunity to give evidence and make submissions on that central question.
Mr Gibian argues that a Tribunal’s failure to identify to the applicant other issues that must be addressed, if the issues were not obvious, gave rise to a failure to comply with s.425 of the Act. The issue outlined above at [28(b)] was not raised with any of the witnesses and it was possible that they were not in a position to judge or gauge the genuineness of the applicant’s commitment to Falun Gong.
Mr Gibian argues that the Tribunal concluded that the applicant had fooled all of her witnesses into believing that she had a genuine commitment to Falun Gong. That was not brought to her attention as an issue arising in relation to its decision. Mr Gibian submits that it was incumbent upon the Tribunal to identify this. There may have been matters that the applicant could have raised in response.
Mr Johnson submits that the Tribunal was obliged to disregard the applicant’s activities in Australia unless she engaged in that conduct otherwise than for the purpose of strengthening her claim to be a refugee: s.91R(3) of the Act.
Mr Johnson submits that the following questions were put to the applicant during the hearing:
TM: So knowing all of that, why when you came to Australia did you decide that you would put your life at risk and start practicing Falun Gong not only publicly but outside the Chinese consulate, why did you do that?
Applicant: I believe there’s nothing wrong with Falun Gong, they teach people to be kind and improve their moral standard.
TM: So you believe in that it is sufficiently strong that you are prepared to engage in activities to risk your life?
Applicant: Because I think it is good, Falun Gong is good.
TM: And you believe in that sufficiently strong to participate in activities that put your life at risk and potentially the lives of your family?
Applicant: It is my belief. I would never give up my belief.
TM: So why did you decide that you would engage in activities to put your life at risk in Australia, but you wouldn’t practice publicly in China? (transcript, p.15)
Mr Johnson contends that the fact that the Tribunal raised the issue of motivation distinguishes this case from both SZBEL and SZILQ. In SZILQ, Buchanan J found that the motivation of the applicant was not presented as evidence at the Tribunal hearing:
[31]…The RRT was not obliged to draw it to the appellant’s attention or to warn him that it would disregard material about his conduct in Australia if he did not satisfy the RRT that the reason for the conduct was genuine.
[32] …The question of the appellant’s motivation was obviously an issue in the case because, although he evidently wished his claimed practice of Christianity in Australia to be taken into account, s 91R(3) required his conduct in Australia to be disregarded unless he satisfied the RRT about his motivation. The opportunity to give evidence and present arguments at an oral hearing was not afforded in the present case in relation to that issue…
[33] …it seems to me, in any event, to be an essential premise of s 91R(3) that an applicant have a proper opportunity to satisfy the RRT (or other person to whom the statutory instruction is directed) that the conduct in Australia which is said to be relevant was not engaged in just for the purpose of strengthening a claim to be a refugee. The present is not a case where it could be said that the appellant had said all he wanted to say, or had foregone an opportunity to put further material…
His Honour referred to two other issues not relevant to the present case. However, unlike SZILQ, the issue of motivation was raised in this case and there is no suggestion that the applicant wished to put more before the Tribunal but was denied.
Mr Johnson submits that this is a case for the application of the general rule that the Tribunal is not required to elaborate upon an applicant’s case that is not proffered: Re Ruddock; ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57]; SZBEL at [48]. Both these authorities indicate that the Tribunal generally does not have to give a running commentary on the adequacy of what an applicant puts forward.
Mr Johnson submits that Applicant S154/2002 and SZBEL were similar to the approach taken in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592 where the Full Court suggested that a decision maker would be required “to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made”, or ought to advise of any adverse conclusion “which would not obviously be open on the known material”. Mr Johnson submits with respect to this matter that not only was the issue one which arose directly from the statute itself (being part of the nature of the decision to be made), but the motivation for the applicant’s conduct in Australia was raised with her at the hearing (referred to at [30] above).
Mr Johnson refers to a decision in Applicant S154/2002 at [57]-[58] which emphasises that the Tribunal does not have the obligation of a cross examiner in adversarial proceedings.
[57] Accordingly, the rule in Browne v Dunn has no application to proceedings in the Tribunal. Those proceedings are not adversarial, but inquisitorial; the Tribunal is not in the position of a contradictor of the case being advanced by the applicant. The Tribunal Member conducting the inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair. The Tribunal Member has no "client", and has no "case" to put against the applicant. Cross-examiners must not only comply with Browne v Dunn by putting their client's cases to the witnesses; if they want to be as sure as possible of success, they have to damage the testimony of the witnesses by means which are sometimes confrontational and aggressive, namely means of a kind which an inquisitorial Tribunal Member could not employ without running a risk of bias being inferred. Here, on the other hand, it was for the prosecutrix to advance whatever evidence or argument she wished to advance, and for the Tribunal to decide whether her claim had been made out; it was not part of the function of the Tribunal to seek to damage the credibility of the prosecutrix's story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation.
[58] It would have been erroneous for the Tribunal to have represented at the hearing that a particular piece of evidence or argument had been accepted and then to have rejected it in the decision in circumstances where, but for the representation, the prosecutrix could have mended her hand. It would also have been erroneous for the Tribunal to have relied on a particular conclusion about the material before it which was not open on the material. But it was not erroneous for the Tribunal not to have pressed the prosecutrix more than it did about the rape claim. A cross-examiner in a notional criminal case in which the Crown was charging a man with rape might, if that cross-examiner wanted to be as sure of success as possible, have had to have adopted a much more detailed and forceful style of questioning than the Tribunal Member did here. But in proceedings of the type which he was conducting, the Tribunal Member was not obliged to go further than he did. In particular he was not obliged to go even further than a cross-examiner endeavouring to comply with the rule in Browne v Dunn would have to do, and seek a detailed amplification of the prosecutrix's account of the rape including the fullest and most minute particulars she could remember, together with an explanation of her failure to give that account on every earlier occasion when that account might conceivably have been given. The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on. [Citations omitted, emphasis added]
This is similar to SZBEL at [47] where the limitation to the obligation of the Tribunal member when conducting its hearing was considered:
[47] First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
I am satisfied that the authorities clearly support the contention that the Tribunal did not have to warn the applicant about the consequences of s.91R(3) directly. Given that the Tribunal did raise the question of the applicant’s motivation in pursuing the practice of Falun Gong in Australia in the manner which she did, it was not required to do anything more. I believe this was clearly put to the applicant during the hearing which is reproduced at [30] above. I agree with submission made by Mr Johnson that the questioning does not have to be any more direct than it already was. If the questioning was any more direct, it could be inherently leading and possibly give the impression of pre-judgment in the mind of the applicant. By asking the applicant “Why are you doing this?”, the Tribunal was also asking why the applicant put her life at risk by publicly participating in the practice of Falun Gong outside the Chinese consulate in Sydney.
In respect of Mr Gibian’s submission that the applicant’s witnesses should have been asked whether they could have been fooled about her involvement in Falun Gong, I believe this misunderstands the role of the Tribunal and the authorities in Applicant S154/2002 and SZBEL. The Tribunal does not cross-examine the applicant’s witnesses. The role of the Tribunal with respect to s.91R(3) of the Act is to disregard evidence of activities in Australia unless it is satisfied by the applicant and her witnesses that the activities are not for the purpose of enhancing the claim for protection. It is not obliged to collect information or extract evidence from witnesses to disregard the activities. The only requirement is to listen to what is put before it. I am satisfied that ground three cannot be sustained.
Ground four
The Tribunal acted without and in excess of jurisdiction because it made findings that were unsupported by any probative material, or in the alternative, were irrational, illogical and not based on findings of fact supported by logical grounds and failed to have regard to relevant considerations.
Particulars
(a) The Tribunal speculated without basis in any probative evidence as to the level of understanding and knowledge that would be possessed by a Falun Gong practitioner who had been practising continuously for 7 years, in particular by positing that a person should be aware of why they are being persecuted.
(b) In assessing whether the applicant had the level of understanding and knowledge that would been possessed by a Falun Gong practitioner who had been practicing continuously for 7 years, the Tribunal failed to have regard to the fact that the applicant had been forced to practice in private when in China.
(c) There was no rational or logical basis for the Tribunal’s finding that the statements made by a number of fellow Falun Gong practitioners attesting to the genuineness of the applicant’s commitment to Falun Gong could have been induced by conduct of the applicant to give the false impression of being a committed practitioner.
Mr Gibian submits that the Tribunal made findings unsupported by any probative evidence and engaged in a reasoning process that was irrational, illogical and not based on findings of fact supported by logical grounds.
Mr Gibian acknowledges that there is an ongoing debate as to whether illogicality or irrationality is a ground of review and refers to authorities where this has been considered:
·Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [8]-[9] per Gleeson CJ, at [34]-[37] per McHugh and Gummow JJ and at [127]-[128] and [138] per Kirby J.
·Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [145].
·Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [38] per Gummow and Hayne JJ (with whom Gleeson CJ agreed).
This approach has been followed in the Full Federal Court in the following matters:
·SHJB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 303 at [32].
·NADH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 at [136] per Allsop J (with whom Moore and Tamberlin JJ agreed)
·WAHP v Minister for Immigration & Multicultural Affairs [2004] FCAFC 87 at [7]-[8] per Lee J.
Mr Gibian acknowledges that there are decisions that suggest that simple want of logic may not give rise to an error of law:
·NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [29]-[30]
·NBIO v Minister for Immigration & Multicultural Affairs [2006] FCA 1300 at [47]
·VWFP & VWFO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 231 at [76]-[79]
Mr Gibian drew the Court’s attention to what he says is an apparent inconsistency between the Full Federal Court decisions and the High Court in S20/2002 and SGLB. However, he submits that this Court is bound by what the Full Federal Court has said about the application of S20/2002 and SGLB. NACB at [22]-[30] considered the principles in S20/2002 and Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59. Similarly, NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 at [25] also considered these principles. Justice Tamberlin in SZEEO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 546 at [14]-[17] expressly considered SGLB and S20/2002. His Honour in that case rejected an argument in similar terms to Mr Gibian’s argument here. A special leave application to the High Court in respect of SZEEO was refused.
Mr Gibian submits that the Tribunal made a number of findings that were unsupported by probative evidence and revealed illogical and irrational reasoning:
a)The Tribunal speculated on the necessary level of knowledge of an adherent to Falun Gong without any evidentiary foundation. For example, that it was essential that a Falun Gong practitioner would know the reasons for the Chinese government banning or persecuting Falun Gong (CB 123; transcript pp.18-19)
b)It decided the applicant’s religious adherence based upon the applicant’s practice and religious knowledge.
c)In assessing sufficiency of the applicant’s practice and religious knowledge, the Tribunal failed to take into account that she was forced to practice in private and denied access to teaching and instructions.
Mr Gibian submits that the Tribunal’s finding that the applicant had no genuine commitment to Falun Gong was made without a straight forward basis.
Mr Gibian also acknowledges that there is no general credibility finding rejecting all of the applicant’s evidence. The only aspect of her evidence which was said to be unsatisfactory was in relation to her reasons for travelling to Australia and activities since in Australia. It is submitted that what the Tribunal did, without any demonstrated evidentiary basis, was to establish an arbitrary standard as to the level of knowledge a Falun Gong practitioner would have. Mr Gibian argues that there is no basis in asserting that a person with a genuine commitment should also know why Chinese authorities crack down on Falun Gong.
The other complaint by Mr Gibian is that a Falun Gong practitioner with the history of the applicant, who has been practicing in secret in China, and who has only practiced with a group in Australia for a relatively short period, is not able to have particular knowledge about the teachings and practice of Falun Gong. The standard directed by the Tribunal was:
The applicant’s understanding and knowledge of Falun Gong is not what would have been expected of a practitioner whose claims to have practised continuously for seven years and to have read the book many times. (CB 123)
Mr Gibian argues that the Tribunal did not have a basis for the standard it set: Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 1599 per Gray J.
Mr Johnson submits that it is not evident in the Tribunal’s findings whether illogicality alone can amount to jurisdictional error. the Tribunal addressed the adequacy and level of the applicant’s knowledge of Falun Gong:
The applicant’s understanding and knowledge of Falun Gong was not what would have been expected of a practitioner who claims to have been practising continuously for seven years and to have read the book many times. As discussed above, Falun Gong is far more than a series of exercises which claim to be beneficial to the body. Falun Gong promotes apocalyptic and Salvationist teachings as well as a particular cosmology. Master Lee also encourages followers to deliberately confront the Chinese government. The Tribunal expects an applicant to know sufficient information about that which they are purportedly prepared to risk their life for, to be able to describe it without constant prompting from the Tribunal in a three hour hearing. However, none of these or other aspects of Falun Gong that don’t involve the exercises were mentioned by the applicant or discussed in any level of detail. (CB 123)
Mr Johnson also referred the Court to WALT v Minister for Immigration & Citizenship [2007] FCAFC 2 where the applicant claimed to have converted to Christianity. Justices Mansfield, Jacobson and Siopis stated at [28]:
[28] In Wang at 552, [16], Gray J pointed out that it is not appropriate for the Tribunal to take on the role of arbiter of doctrine with respect to any religion. So much may be accepted. Degrees of understanding and commitment of those practising any particular faith will vary. To ascribe to all who are, or claim to be, adherents to a particular religion a required minimum standard of practice or a required and consistent minimum understanding of its tenets may be erroneous.
Mr Johnson submits that the Tribunal did not ascribe a minimum standard of practice but was conducting a broader evaluation than that. The question then becomes whether a broader evaluation is permissible.
WALT then continues at [29]-[30]:
[29] But it does not follow that the questioning of a person, even a person as young as 11, who claims to have in effect given up his family and community connections for having espoused a particular religion, about that person’s beliefs on matters which that particular religion teaches or its tenets, means that the Tribunal is necessarily becoming the arbiter of the doctrine of that religion.
[30] We agree with the learned primary judge, that the Tribunal did no more than that. It did not set a level of knowledge of, and commitment to, Christianity which the appellant was required to meet to satisfy it that he had converted to Christianity. It merely explored the level of his knowledge and understanding, and his commitment. Clearly, the appellant had virtually no knowledge or understanding of Christianity either at the time of his “conversion”, or at the time of the Tribunal’s hearing. Nor had the appellant practised his claimed new religion in any way which he identified. The way the Tribunal approached this issue does not reveal any lack of sensitivity to the possible cultural differences which may inform the practice of a particular religion in a particular country: cf Mashayekhi v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 381 per Merkel J at 384–385, [11]–[15].
Mr Johnson submits that the Court considered the content of that applicant’s knowledge and found that it is permissible to do so.
WALT continues at [32]:
[32] The Tribunal, as its reasons indicate, took a range of factors into account in rejecting the appellant’s claim that he had converted to Christianity at age 11. In addition to his knowledge of Christianity at that time and subsequently, and the evidence that he had not practised Christianity in any identifiable way, it considered his explanation for his claimed conversion, the way in which he said he came to be converted, the fact that he had not consulted his family or others about his plans or developing beliefs, and that he was vague in his account of seeking protection from the authorities and appeared to change his evidence when questioned on such matters. They were all relevant matters for the Tribunal to consider.
Mr Johnson submits that these were all matters which the Tribunal in that case could consider if it chose to. WALT states that a Tribunal can consider an applicant’s knowledge of the belief system which relates to their claim. Difficulty only arises if one attempts to propose a fixed test.
Mr Johnson submits in this case that there was no fixed test. The Tribunal’s comment was on deficiencies in the applicant’s knowledge and it made the normative finding based on her evidence. Mr Johnson argues that the Tribunal was able to find, as it did, that the applicant’s knowledge of Falun Gong was a relevant consideration. In doing so, the Tribunal did not make the error as referred to in WALT by requiring a minimum standard of practice or understanding.
Mr Johnson submits that although Mr Gibian acknowledges a line of authority (including NACB) indicating that illogicality will not itself show jurisdictional error, he has failed to show how it precludes this Court from coming to a contrary conclusion. This is found in VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 at [17]-[18] per Kiefel, Marshall and Downes JJ:
[17] Although not too much can be drawn from the High Court’s refusal of special leave, we note that in NACB the special leave point was said to be:
whether judicial review of an administrative decision is available where the requisite satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds.
On 14 September 2004 the Court refused special leave, for the reason that there were insufficient prospects of success.
[18] We are not convinced that the analysis in NACB is erroneous: see Transurban City Link v Allan (1999) 95 FCR 553 at [26] to [31]. Accordingly we agree that the current state of the law is that want of logic in the reasons of the RRT is not an available ground of review. This point was confirmed by a Full Court in NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52, where NACB was referred to with approval at [25]. See also W404/01A of 2002 v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCAFC 255 at [35].
As set out at [44] above, I believe this Court is bound by what the Full Federal Court has said in this line of authority.
I am satisfied that there is no irrationality or illogicality in the Tribunal’s reasons. I am also satisfied that there was no material relied upon by the Tribunal which was not “probative”. To the extent that the Tribunal relied upon country information, the relevance of that material and the weight given to it is a factual matter to be determined by the Tribunal. Similarly, a determination of the applicant’s credibility is a matter for the Tribunal: Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. I accept the submission that the Tribunal was not required to accept the applicant’s statements when there was no evidence to the contrary: SZATG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 215 ALR 358 at [36] per Heeley J; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].
Ground five
The Tribunal acted without and in excess of jurisdiction by misconstruing section 91R(3) of the Migration Act 1958 and thereby failing to consider the applicant’s claims
Particulars
(a) It was one of the applicant’s claims that the applicant had a well-founded fear of persecution by reason of photographs of the applicant having been published on a website and in a newspaper.
(b) The Tribunal expressly accepted that there was no evidence to suggest that the applicant was complicit in the publishing of the photograph on the website and in the newspaper.
(c) The Tribunal erred in finding that it was required to disregard the appearance of the photographs on the website and in the newspaper by section 91R(3) because the fact of the publication was not “conduct engaged in” by the person making the application for the visa.
Mr Gibian contends that s.91R(3) places an onus on the applicant to demonstrate that her conduct in Australia was engaged in for reason other than strengthening her claim to be a refugee. The onus of proof is of the civil standard: NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195 at [89] per Gyles, Stone and Young JJ:
[89] Section 91R places the onus of proof on the appellant to establish that her activities in Australia were engaged in for reasons other than for the purpose of strengthening her refugee claims. The onus of proof is to the civil standard; but it is borne by the applicant: NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1536 at [26] per Wilcox J.
The thrust of Mr Gibian’s argument is that s.91R(3) applies only to “conduct engaged in” by the person making the visa application. It does not permit or require the Tribunal to disregard conduct by other persons. The appearance of photographs of the applicant in a website and newspaper was not conduct of the applicant and cannot be disregarded for the purposes of determining whether the applicant had a well-founded fear of persecution for a Convention reason.
I believe that Mr Johnson correctly argues that s.91R(3) of the Act was not applied to the mere appearance of a photograph in a newspaper or on a website which may well have been placed there by someone else. It is submitted that s.91R(3) was applied to the activities or conduct of the applicant who was being photographed (i.e. participation in the demonstration). The Tribunal gave separate reasons, not dependent on s.91R(3), for not accepting that publication gives rise to a well-founded fear of persecution.
The Tribunal’s finding was that:
The applicant’s activities in Australia were done to strengthen the claim for refugee status and she has no real commitment at all to Falun Gong. As the Tribunal is not satisfied that the applicant’s conduct was otherwise than for the purpose of strengthening her claim to be a refugee under the Refugee Convention, it must disregard her conduct in Australia as required by s.91R(3) of the Act. (CB 124.5)
Mr Johnson submits that the separate reasoning was that any attention that the applicant encountered as a result of the publication would not be the harm so serious as to amount to persecution. Further that “the applicant’s activities in Australia” to which the Tribunal applied s.91R(3) refers to her participation in Falun Gong activities rather than to the publication of photographs of those activities.
I am satisfied that the Tribunal did not apply s.91R(3) to the publication of the applicant’s image in the newspaper or on the internet. The Tribunal only applied s.91R(3) to participation in Falun Gong activities in Australia. I agree with Mr Johnson that it does not matter that the applicant’s images might have been placed there by someone else. I am satisfied that the Tribunal has made it sufficiently clear that the applicant’s participation in Falun Gong activities in Australia was to strengthen her claim to be a refugee and accordingly the Tribunal could not consider that. The publication of the applicant’s image on the internet was not dealt with by reference to s.91R(3).
The Tribunal made a finding based on the country information that the most likely result if Chinese authorities became aware of these activities was that the applicant would be lectured and urged to denounce her ways. As the Tribunal found that the applicant does not have a genuine commitment to Falun Gong, the Tribunal did not accept that publication of her photographs would constitute serious harm on her return to China. Any harm that she would face would not be so serious as to amount to persecution. I am satisfied that ground five cannot be sustained and should be dismissed.
Ground six
The Tribunal acted without and in excess of jurisdiction by failing to have regard to and failing to consider relevant corroborative material.
Particulars
(a) The applicant claimed to have practiced Falun Gong in China from 1997 until arriving in Australia in 2005 and provided a corroborating statement by her neighbour in China (CB p31).
(b) The Tribunal found that it “does not accept that the applicant was ever a Falun Gong practitioner in China” (CB p 124).
(c) In making that finding, the Tribunal failed to have regard to and failed to consider the corroborating statement of the applicant’s neighbour (CB p31) and thereby committed jurisdictional error.
Mr Gibian submits that this ground claims a failure of the Tribunal to have regard to corroborative evidence. The Tribunal finding that the applicant was never a Falun Gong practitioner in China was not made clear in its reasons. Mr Gibian submits that in the statement attached the applicant’s original application and the evidence given at the Tribunal hearing, the applicant indicated that she practiced Falun Gong in China from 1997, albeit that from 1999 she did so privately because of the crackdown by Chinese authorities. The Tribunal did not have regard to a corroborating statement provided by the applicant in relation to activities in China. The statement was from her neighbour in China which said that they both practiced Falun Gong in 1997. Reference to the statement was absent from the Tribunal’s reasons. Mr Gibian argues that the absence indicates that the Tribunal did not consider that statement and gave it no weight in its consideration.
Mr Gibian submits that the only reference to the applicant’s practice in China and the neighbour was in the following passage:
She claims that one of her customers in China introduced her to Falun Gong in 1997 and she began to practice regularly with a neighbour at a park near her home. (CB 115.5)
Mr Gibian submits that if the Tribunal had considered the corroborative statement, it is then open to it to reject it. However, the statement must be considered.
Mr Gibian relies on WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at [26]-[27] per Lee and Moore JJ:
[26] The Tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this court, stating that the documents “do not overcome the problems I have with the applicant’s evidence”.
[27] Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S 20/2002 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]).
Mr Gibian submits that WAIJ was a case where there was material which was considered but not incorporated in the Tribunal’s reasons.
Mr Johnson submits that there is no finding that the applicant did not practice Falun Gong in China. What the Tribunal did say was that:
The applicant does not claim to have been persecuted in China for her Falun Gong activities, or for any Convention related or any other reason. She does not claim to have fled persecution in China but came to Australia as a tourist for a short holiday. (CB 123.3)
Mr Johnson argues that is not a finding that the applicant did not practice Falun Gong in China, although the Tribunal did note the claim that she practiced privately and with the neighbour. The Tribunal says:
In a statement attached to her original protection visa application, the applicant claims she was a self-employed retailer in areas until she arrived in Australia in 2005. She claims that one of her customers in China introduced her to Falun Gong in 1997 and she began to practice regularly with her neighbour at a park near her home. She claims that after the Chinese government outlawed Falun Gong in July 1999 she stopped practiced in public. (CB115.5)
Mr Johnson contends that this is consistent with what the applicant put in her protection visa application:
In the middle of 1997 one of my customer name Guygang ZHANG introduced Falun Gong to me. Later I began to practice Falun Gong together with my neighbour Dazheng YAO. We practicde at a park near my home with thousands of members. In July 1999, Falun Gong was regarded as an evil region by the Chinese authorities, I then stopped practicing in public.(CB 27.3)
Mr Johnson submits that if the applicant’s above statement is regarded as a claim, as opposed to mere evidence of a claim, it was not dealt with further because she did not claim to be at risk for what she had done in China. Her claim was that she was at risk because of what she had done after reaching Australia. It is submitted that the fact that the Tribunal did not refer to this statement does not mean that it was not considered. It is a matter of credibility which is for the Tribunal to decide par excellence, see Durairajasingham at [65]:
[It is] not necessary for the Tribunal to give a line by line reputation of the evidence for the applicant either generally or in those respect where there is evidence that is contrary to findings of material facts made by the Tribunal.
The Tribunal is obliged to refer to the evidence in support of its findings. It is not required to refer to any other evidence on which the findings are not based: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30.
Mr Johnson argues that WAIJ is distinguishable from this case. He refers to WAIJ at [27]:
However, it will not be open to the Tribunal to state that it is necessary for it to consider material corroborative of an applicant’s claim merely because it considers it unlikely that the events described by the applicant occurred.
Mr Johnson contends that this did not occur in this Tribunal decision. The Tribunal did not say it did not have to consider Ms Yao’s statement, or that it was unlikely that she practiced Falun Gong with Ms Yao in China as claimed. Mr Johnson argues that the circumstances in this matter are totally different to the one in WAIJ. Mr Johnson argues that, at best, the evidence of Ms Yao was evidence in support of a claim but not a separate claim.
I acknowledge that the sixth ground was presented to the Court orally at the commencement of the hearing and not committed to writing until after the hearing had concluded. I heard submissions from both parties on this ground. I note that the applicant is not claiming that the Tribunal did not make a positive statement, indicating that it did not consider the statement because it was not satisfied that the events occurred. Rather the claim is that there is nothing in the reasons about the statement. I believe that Mr Gibian’s argument is that the error is of the kind referred to in WAIJ. This would require Mr Gibian to demonstrate not only that the neighbour’s statement was not referred to, but that this was because the Tribunal was not satisfied in respect of the applicant’s primary claim supported by the corroborative evidence.
If the applicant’s primary claim were not accepted, then there is no requirement to refer to the neighbour’s statement. This approach is supported by Durairajasingham at [65] and Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 per French, Sackville and Hely JJ at [46]-[47]:
[46] It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
I am satisfied that it is the latter situation which exists in the Tribunal decision before this Court and, in the circumstances, ground six cannot be sustained and should be dismissed.
Conclusion
I am satisfied that none of the grounds contained in the amended application can be sustained and that the application should be dismissed.
The applicant to pay the first respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 12 February 2008
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