SZLFZ v Minister for Immigration
[2008] FMCA 192
•28 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLFZ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 192 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of China claiming fear of persecution for reason of being a Falun Gong practitioner – sexuality – Buddhism – whether the Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – sur place claim – whether Tribunal failed to make a bona fide attempt to exercise its decision-making power – whether Tribunal failed to comply with Migration Act 1958 s.425 by failing to give the applicant a fair hearing – credibility – whether the Tribunal misapplied Migration Act 1958 s.91R(3) – no reviewable error. |
| Migration Act 1958 (Cth) ss.36, 91R, 424A, 425, 474 |
| Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 SZIQD v Minister for Immigration & Anor [2006] FMCA 1467 followed |
| Applicant: | SZLFZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2658 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 November 2007 |
| Date of Last Submission: | 28 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Adam |
| Solicitors for the Applicant: | Kah Lawyers |
| Counsel for the Respondent: | Mr Cleary |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2658 of 2007
| SZLFZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, a citizen of China, asks the Court to set aside a decision of the Refugee Review Tribunal made on 15th August 2007. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
The Applicant seeks the following orders:
a)An order to quash the decision of the Second Respondent (the Refugee Review Tribunal);
b)An order to prohibit the First Respondent (the Minister for Immigration and Citizenship) from putting the Tribunal’s decision into effect; and
c)An order to the Tribunal to reconsider and re-decide the application according to law.
The Applicant relies on the following grounds (in summary):
i)Failure to comply with s.424A(1) of the Migration Act 1958 (Cth);
ii)Failed to either make a bona fide attempt to exercise its decision-making power or failed to afford the applicant a fair hearing under s.425 of the Migration Act or failed to take into account a relevant consideration; and
iii)Taking into account an irrelevant consideration.
The First Respondent has filed a Response denying that there is any jurisdictional error in the Tribunal’s decision.
Background
The background to this matter is more complicated than most. The Applicant first came to Australia on 21st May 2000 on a subclass 560 (Student) visa. She subsequently held a subclass 573 (Student) visa that was granted on 6th April 2002 and was to be valid until 15th March 2006. This visa was cancelled on 25th September 2003. An application for revocation was received on 22nd March 2005.
The Applicant applied for a Skilled Independent Migrant visa on 22nd September 2005. Her application was refused on 16th October 2005, so she appealed to the Administrative Appeals Tribunal. She then applied for a Subclass 572 Student Further Stay on-shore visa but the application was refused on 25th September 2006. The Applicant applied to the Migration Review Tribunal for review of that decision but withdrew that application.
The Tribunal noted the files of the Department as stating that contact was lost with the Applicant on 14th October 2006. The Tribunal noted:
No further contact was had until the applicant presented to the Sydney office of the Department on 23 January 2007. She was taken into detention the same day.[1]
[1] Court Book 375
The Applicant applied for a Protection (Class XA) visa on 9th February 2007. She claimed that she feared to return to the People’s Republic of China because of her practice of Falun Gong. A delegate of the Minister refused the application for a visa on 22nd February 2007.
On 26th February 2007 the Applicant applied to the Refugee Review Tribunal for review of the delegate’s decision.
Application for Review by the Refugee Review Tribunal
On 14th March 2007 the Tribunal wrote to the Applicant’s migration agent, the Applicant’s authorised recipient for correspondence, inviting the Applicant to attend a hearing on 22nd March 2007. The Applicant replied on 16th March 2007, requesting an extension of time.[2]
[2] A copy of her letter appears at pages 192 and 193 of the Court Book.
The Tribunal declined to postpone the hearing date but informed the Applicant that time would be allowed to make further submissions after the hearing. After a further request for a postponement of the hearing due to the unavailability of the Applicant’s adviser, the Tribunal agreed to postpone the hearing until 16th April 2007.
On 13th April 2007 the Applicant’s migration agent forwarded a written submission to the Tribunal. In the statement, the Applicant made the claim that she was a long-term practitioner of Falun Gong and contended that China had a poor human rights record in relation to Falun Gong practitioners. The Applicant claimed that her aunt, who had been detained by the Chinese authorities because she was a Falun Gong practitioner, died whilst she was in custody. Further, the Applicant claimed that her mother, also a Falun Gong practitioner, was detained in a re-education camp for seven months.
The Applicant signed a statutory declaration in which she claimed that she was of lesbian orientation. She said in her declaration, however:
I know it is difficult for homosexual people to live in China, but I do not think that I will be persecuted by the Chinese authorities because of my sexual orientation.[3]
[3] Court Book 221
The Applicant went on in her declaration to describe her history as a Falun Gong practitioner. She stated that her parents were arrested as part of the crackdown on Falun Gong in 1999. The Applicant described how her mother was later taken into detention in December 2002. She remained in detention until July 2003 and was beaten during her detention.
In her statutory declaration, the Applicant stated that she first arrived in Australia in 2000. She returned to China on 13th November 2000 and stayed until 1 February 2001. She claimed that the second time she went to China was on 6th December 2001. She returned to Australia on 3rd February 2002.
The Applicant claimed that her last visit to China was between 13th January and 8th February 2006. She claimed that she went to see her mother, who was very sick as a result of her earlier detention.
The Applicant claimed in her statutory declaration she was detained by the Department of Immigration when she went to their office on 23rd January 2007 and taken to Villawood Detention Centre. She claimed never to have been notified of the decision to refuse her application for a Skilled Independent Migrant visa until 12th February 2007, after she had been detained.
The Applicant said in her statutory declaration:
I am afraid to return to China because I am a Falun Gong practitioner. Falun Gong practitioners are imprisoned without charges and tortured…If I return and live there, I believe that my Falun Gong practices would become known to the Chinese authorities and they will persecute me.[4]
[4] Court Book at 228
The Applicant also supplied to the Tribunal a statutory declaration by another person attesting to the fact that the Applicant is a Falun Gong practitioner.
The Applicant also supplied to the Tribunal extracts of a report relating to Falun Gong taken from “Country Reports on Human rights Practices – 2006” from the US Department of State.
The Applicant attended the hearing on 16th April 2007 accompanied by a friend. She provided to the Tribunal her passport and a statutory declaration from a Chinese student attesting to her character and her being a Falun Gong practitioner. The Applicant gave evidence to the Tribunal.
After the hearing, on 19th April 2007, the Applicant’s migration adviser forwarded another statutory declaration to the Tribunal. The woman who wrote the declaration mentioned that since 2006 the NSW Falun Dafa Association had stopped writing support letters for individuals supporting their protection visa applications.
On 8th May 2007 the Tribunal wrote to the Applicant’s migration adviser. The letter was headed “Invitation to Comment on Information”. The letter told the Applicant that the Tribunal had information that would, subject to any comments that she made, be the reason, or part of the reason, for deciding that she was not entitled to a protection visa.
The letter then drew the Applicant’s attention to various items of information, including:
a)Material from the Department’s files relating to her previous visa applications; and
b)Material from the Applicant’s oral evidence given at the Tribunal hearing.
The letter told the Applicant why the Tribunal considered those various pieces of information to be relevant, particularly as the information may lead the Tribunal to find that she was not a genuine or regular practitioner of Falun Gong and her claims had been made only for the purposes of obtaining a protection visa.[5]
[5] See Court Book at 280-282
The letter invited the Applicant to comment on the information in writing by 15th May 2007. It is clearly a letter intended to comply with the requirements of s.424A of the Migration Act.
At the request of the Applicant’s migration adviser, the Tribunal extended the time for providing comments until 12th June 2007.
The Tribunal wrote to the Applicant’s migration adviser on 15th May 2007 in another letter intended to comply with s.424A of the Migration Act. The letter referred to the decision of the Administrative Appeals Tribunal relating to her application for review of the decision to refuse her application for a Skilled Independent visa on character grounds. The letter drew the Applicant’s attention to a discrepancy between her evidence to the AAT and her evidence to the Tribunal.
The letter explained that the information was significant because the Applicant’s evidence to the AAT was said to be the opposite of her evidence to the Tribunal. The Tribunal told the applicant:
This information is significant as you have stated to the AAT that Ji Tong did not threaten to expose you as a Falun Gong practitioner; however elsewhere in your application for protection and in the Tribunal review, you have stated the opposite. This may lead the Tribunal to doubt your credibility and to form the view that you are not a genuine practitioner of Falun gong and that these claims have only been made for the purpose of obtaining a protection visa.[6]
[6] Court Book 292-293
The Tribunal’s letter invited the Applicant to comment on the information in writing by 22nd May 2007.
The Applicant wrote to the Tribunal by means of a letter dated 14th May 2007. This letter was written in answer to the Tribunal’s s.424A letter of 8th May 2007 and contained the Applicant’s comments on the information in that letter. A number of other documents were attached to the Applicant’s reply, including statutory declarations and letters from several people
The Applicant’s migration adviser wrote to the Tribunal on 22nd May 2007. That letter contained a submission in reply to the Tribunal’s section 424A letter of 8th May.
The Tribunal wrote to the Applicant’s migration adviser on 10th July 2007, inviting the Applicant to attend a further hearing on 19th July 2007. The migration adviser forwarded a completed Response to Hearing Invitation to the Tribunal on 17th July, indicating that the Applicant wished to attend and give evidence.
On 18th July 2007, the Applicant’s migration adviser forwarded a statement in the form of a statutory declaration to the Tribunal. The declaration was made by the Applicant.
The Applicant attended the hearing on 19th July, accompanied by her migration adviser and several friends. She produced a statement in support from a Chinese friend currently attending University in Australia. The Applicant gave evidence at the hearing with the assistance of an interpreter. Three other witnesses gave evidence in support of the Applicant.
At the hearing, the Tribunal asked the Applicant about her adherence to Falun Gong. The Applicant spoke about the Falun Gong exercises and demonstrated the fifth exercise, “Strengthening the Magic Power”. The Applicant also stated some Falun Gong verses.
The Tribunal asked the applicant about the implications of her lesbian sexuality if she returned to China. The Applicant told the Tribunal that the situation would be “quite serious” and there was a lot of discrimination against homosexuals in China.
After the hearing, on 5th August 2007, another person wrote to the Tribunal and provided a statutory declaration in support of the Applicant.
The Tribunal signed its decision on 15th August 2007 and handed the decision down that day. A copy of the Tribunal Decision Record appears on pages 372 to 401 of the Court Book.
The Refugee Review Tribunal Decision
The Tribunal set out the Applicant’s claims and evidence, and her history, in some detail.[7] The Tribunal also considered independent country information about:
a)Falun Gong;
b)Labour Camps in Jinan;[8] and
c)Lesbians in China
[7] Court Book 375-392
[8] Where the Applicant had claimed her mother had been detained.
The Tribunal accepted that the Applicant was a citizen of China and was outside her country of nationality. The Tribunal noted that the Applicant had made her claim for protection on 2 grounds:
a)Her practice of Falun Gong; and
b)Her lesbianism.
The Tribunal dealt with the Applicant’s various claims under these headings:
i)The Applicant’s claims in regard to Buddhism.
ii)The Applicant’s claims to be a practitioner of Falun Gong.
iii)The ability of Applicant and her family to travel in and out of China.
iv)The Applicant’s reasons for coming to Australia.
v)The Applicant’s sexuality.
As to the Applicant’s claims in regard to Buddhism, the Tribunal noted that the Applicant had claimed in regard to an adverse character test on the Departmental file for her application for an Independent Skilled Migrant visa that her religion was Buddhism. The woman who the Applicant claimed was her ex-girlfriend with whom she had lived for several years had given written evidence that the Applicant was a devout Buddhist who attended temple regularly. The Applicant, however, told the Tribunal that this was not the case and that the ex-partner saw Falun Gong as similar to Buddhism. She also claimed that her ex-partner was a committed Christian and it was difficult for them to communicate about their personal faith.[9]
[9] Court Book 397
The Tribunal found this argument implausible. The Tribunal also noted that it was not until the Applicant lodged an application for a protection visa that she made claims of being a Falun Gong practitioner. The Tribunal gave no weight to the evidence of a witness at the second hearing or the written statement of an acquaintance that the Applicant was not a Falun Gong practitioner. The Tribunal gave this reason:
However because of the Tribunal’s finding in regard to the applicant’s credibility it gives no weight to the evidence of this friend. For the same reason the Tribunal does not give weight to the written statement of an acquaintance of the applicant…[10]
[10] Court Book 397
The Tribunal then turned its attention to the Applicant’s claims to be a practitioner of Falun Gong. The Tribunal noted that the Applicant had claimed that all her family were Falun Gong practitioners and she had begun practising when she was 14.
The Tribunal expressed doubts about the Applicant’s credibility, based on inconsistencies in her absence. The Applicant had called witnesses to give evidence that the Applicant had practised Falun Gong with them while they were in the detention centre. The Tribunal gave little weight to this evidence, saying:
Because of the Tribunal’s doubts about the credibility of the applicant and the fact that the majority of the evidence she has provided has been obtained from witnesses she has known only since she was detained, the Tribunal gives little weight to this information.[11]
[11] Court Book 398
The Tribunal considered the Applicant’s evidence that she had returned to China on three occasions without hindrance by the Chinese authorities. The Applicant claimed that this was because she had not been detected as a Falun Gong practitioner.
The Applicant’s father had travelled to Australia on two occasions and her mother had visited Australia for three months in 2002. This occurred not withstanding the fact that the parents had both been detained by the authorities, the mother having been detained twice.
The Tribunal considered Independent Country Information about China’s Entry and Exit Law and other relevant matters and came to this conclusion:
The Tribunal is of the view that if her parents were of interest to the authorities and had been apprehended it is unlikely they would be able to travel legally in and out of China with such ease. The fact that the applicant and her family have been able to travel in and out of China on several occasions since 2000, when the applicant first came to Australia, suggests that her family are not of interest to the Chinese authorities and that the applicant has not come to the adverse attention of the authorities. This casts doubt on the applicant’s claims that she is at risk of persecution and serious harm if she returns to Australia.[12]
[12] Court Book 399
The Tribunal turned to the Applicant’s reasons for coming to Australia and reached this conclusion:
The Tribunal notes submissions that many people leave China for fear of persecution and may migrate on visas other than Protection visas. The applicant made it clear that she had always intended to migrate to Australia, she had hoped on the basis of her skills, and that she would seek to sponsor her parents. The Tribunal is of the view that the applicant intends to migrate to Australia and that her inability to obtain another visa has lead[13] her to lodge her claim for Protection.[14]
[13] sic
[14] Court Book 400
The Tribunal referred to s.91R(3) of the Migration Act and accepted that the Applicant had a knowledge of Falun Gong and had engaged in the practice of Falun Gong since she had been detained. The Tribunal accepted that the witnesses who claimed to know or have practised Falun Gong with the Applicant might have believed her to be a Falun Gong practitioner, but stated:
…on the basis of the Tribunal’s doubts about her credibility, it is not satisfied that she practised Falun Gong otherwise than for the purpose of strengthening her claims to be a refugee.[15]
[15] Court Book 400
Finally, the Tribunal considered the Applicant’s claims about her sexuality. The Tribunal noted the country evidence to the effect that while homosexuals in China still face social pressure and some discrimination, the pressure and discrimination were not to the same extent as previously. The Tribunal accepted that the Applicant is a lesbian and her family were unaware of this fact, but did not believe that there was a real chance that she would be persecuted for reasons of her sexuality if she were to return to China.
In summary, the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason if she returned to the People’s Republic of China. Accordingly, the Tribunal found that she did not satisfy the criteria in s.36(2)(a) or s.36(2)(b) of the Migration Act for the grant of a protection visa and affirmed the decision not to grant a Protection (Class XA) visa to the Applicant.
Application for Judicial Review
The Applicant was represented at the hearing by Mr Adam of counsel, who submitted that the Tribunal had failed to comply with the requirements of s.424A of the Migration Act. He submitted that the Tribunal put certain information to the Applicant and the Applicant was invited to comment on adverse inferences said to arise from that information in the Tribunal’s letter of 8th May 2007.
Mr Adam submitted that in the Tribunal’s reasons for decision, the Tribunal referred to s.91R(3) and “gave little weight to evidence of the Applicant’s practice of Falun Gong whilst in Australia”.[16] In fact, the Tribunal gave no weight to the evidence, because it disregarded the evidence.
[16] Applicant’s Written Outline of Submissions [17]; Court Book 400.
Counsel for the Applicant submitted that, in its letters purporting to comply with section 424A, the Tribunal did not draw to the Applicant’s attention that the information would be used for a section 91R(3) purpose:
Instead, by linking the issue of the applicant’s public practice of Falun Gong in Australia with her credulity[17], the Tribunal invited the applicant to believe that evidence of her public practice would be relevant to her credibility.[18]
[17] sic – presumably the word should be “credibility”
[18] Applicant’s Written Submissions [18]
The submission is that the prejudice this represented to the Applicant was that she was left unaware of the true nature of the case she was expected to answer. Had the applicant known that any sur place evidence was liable to be disregarded, she would have been able to focus her efforts on uncovering evidence of her early practice prior to coming to Australia.
What was not put to the Applicant was that her denial of a public practice of Falun Gong whilst in Australia was implicitly probative of her not being a genuine Falun Gong practitioner before coming to Australia. Mr Adam submitted that this information should have been the subject of a section 424A letter, to the effect that the Applicant had previously given evidence denying a public practice of Falun Gong whilst in Australia and that this was adverse to the proposition that the Applicant had previously been a Falun Gong practitioner in China. The Tribunal had not ensured that the Applicant understood why the information was relevant to the review.
Failure to Exercise Jurisdiction
The Applicant submits that the Tribunal either failed to make a bona fide attempt to exercise its decision-making power or failed to afford the Applicant a fair hearing under s.425 of the Migration Act when it disregarded third party evidence about the Applicant’s practice of Falun Gong. The Applicant submits that the Tribunal failed to consider the evidence when it sought to satisfy itself that the conduct engaged in by the Applicant was not engaged in other wise than for the purpose of strengthening her refugee claim.
Mr Adam submitted that the Tribunal’s refusal to consider the evidence of the Applicant’s witnesses on the basis of its own initial finding in relation to her credibility shows an illogical circularity.
The Applicant’s lesbianism
Counsel for the Applicant submitted that, whilst the toleration of difference in respect of homosexual behaviour may be more advanced in large cities within China, there was no reason to suppose that the same toleration extended to regional or rural communities.
The ability to enter and exit China
The Applicant submits that the Tribunal took into account an irrelevant consideration when it considered the five categories of persons who were denied approval to leave China[19] as none of them was relevant to the Applicant’s situation.
[19] Court Book 399
Buddhism
The Applicant also submits that the Tribunal fell into error when it took into account the irrelevant consideration that attending a Buddhist temple was inconsistent with the practice of Falun Gong. The Applicant’s practice of Falun Gong evolved in secret and, in any event, Falun Gong has no theological hard lines. As a result, individual practice of Falun Gong can be somewhat idiosyncratic.
The Applicant’s reason for coming to Australia
Mr Adam submitted that the Tribunal fell into error when it took into account that the Applicant’s initial application was for a Skilled Independent Migrant visa. As the Tribunal’s task was to determine the Applicant’s entitlement for protection under the Refugees Convention, the Applicant’s suitability for another visa or her failure to pass a character test were irrelevant.
Counsel for the First Respondent, Mr Cleary submitted that the Tribunal did not breach any of its obligations under s.425 of the Migration Act. He pointed out that the Tribunal had found that the Applicant was not a credible witness. He also submitted that the Tribunal had considered the evidence given by the Applicant’s witnesses at the second hearing, but had given that evidence little weight because of the adverse findings it had made about the Applicant’s credibility.
Mr Cleary submitted that there was no obligation under s.424A of the Migration Act was enlivened because the information from the Applicant’s three witnesses was information provided to the Tribunal by the Applicant herself.
It was also submitted on behalf of the Minister that the Tribunal’s decision not to give weight to the evidence of the Applicant’s witnesses based on the Tribunal’s view that the Applicant lacked credibility is consistent with the authority of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002.[20]
[20] (2003) 198 ALR 59; [2003] HCA 30 at [12] and [49]
Conclusions
Dealing with the Applicant’s submissions in order, I am not satisfied that the Tribunal failed to comply with the requirements of s.424A of the Migration Act. The Tribunal wrote to the Applicant on two occasions after the first Tribunal hearing, on 8th and 15th May, putting information to the Applicant and seeking the Applicant’s comments.
There was no obligation on the Tribunal to put to the Applicant that the information, or her comments, would be used for any s.91R(3) purpose. It is well established that s.91R(3) is not “information” for the purposes of s.424A, nor is the reasoning process adopted by the Tribunal in relation to the application of s.91R(3) (see SZIQD v Minister for Immigration & Anor[21]).
[21] [2006] FMCA 1467 at (30)
I am not satisfied that the Tribunal misapplied the provisions of s.91R(3) of the Act. The Tribunal’s obligations under s.91R(3) are clear:
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
It is clear that it is for the Applicant to satisfy the Tribunal that she engaged in the practice of Falun Gong in Australia otherwise than for the purpose of strengthening her claim to be a refugee. Unless the Applicant satisfies the Tribunal of this fact, the Tribunal is obliged to disregard that evidence.
In this case, the Tribunal was not satisfied that the Applicant’s conduct was not engaged other than for the purpose of strengthening he claim to be a refugee, and so for that, and other reasons, invited the Applicant back for a further hearing. This hearing took place on 19th July 2007 and the Applicant gave evidence. She also called witnesses to give evidence on her behalf. The Tribunal, from the Decision Record, made it clear to the Applicant that s.91R(3) was an issue:
At the second hearing the applicant was advised that the Tribunal must also consider whether her activities in Australia have been undertaken in order to strengthen her claim to be a refugee, as set out in s.91R(3) of the Act.[22]
[22] Court Book at 387
I am satisfied that the Tribunal made it clear to the Applicant what the issue was and gave her an opportunity to establish that her practice of Falun Gong in Australia was engaged other than for the purpose of strengthening her claim for refugee status.
Failure to exercise jurisdiction
It was open to the Tribunal to give little weight to the evidence of the Applicants’ witnesses at the second hearing because of the Tribunal’s adverse view of the Applicant’s credibility (Applicant S20/2002). It is also relevant that the Tribunal found that the majority of the evidence provided by the Applicant had been obtained from witnesses who had known her only since she had been in detention.
There is no breach of the Tribunal’s obligation to provide a fair hearing under s.425 of the Migration Act.
The Applicant’s lesbianism
The Applicant’s challenge to the Tribunal’s finding about the discrimination against homosexuals in China amounts to an invitation to the Court to conduct merits review. In any event, the Applicant had submitted a statutory declaration to the Tribunal in support of her application in which she said:
I know it is difficult for homosexual people to live in China, but I do not think that I will be persecuted by the Chinese authorities because of my sexual orientation.[23]
[23] Court Book 221
The Tribunal did not fall into any jurisdictional error when dealing with the Applicant’s sexual orientation.
The ability to enter and exit China
The Applicant claims that the Tribunal took into account an irrelevant consideration when it referred to groups of people who would not be given approval to leave China under China’s Entry and Exit Law. This claim is no more than a challenge to a conclusion reached by the Tribunal after consideration of Independent Country Information. There is no jurisdictional error.
Buddhism
The Applicant’s challenge to the Tribunal’s finding about the her claims about her beliefs is a challenge a factual finding by the Tribunal. There was evidence before the Tribunal open which it was open to the Tribunal that it did. There is no jurisdictional error.
The Applicant’s reason for coming to Australia
Counsel for the Applicant submitted that the Tribunal took into account an irrelevant consideration about the Applicant’s original application was for a visa other than a protection visa. The Tribunal is not required to consider an application for a protection visa in a vacuum. It is open to the Tribunal to consider the Applicant’s history when determining the Applicant’s credibility in making a claim for refugee status.
There is no jurisdictional error.
As the Applicant has not demonstrated any jurisdictional error, the Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act. It is therefore final and conclusive and not subject to orders in the nature of certiorari, prohibition or mandamus.
The application will be dismissed with costs.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 20 February 2008
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