SZLIF v Minister for Immigration

[2008] FMCA 57

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLIF Vv MINISTER FOR IMMIGRATION & ANORAND CITIZENSHIP [2007] FMCA 2008] FMCA 57

MIGRATION – rReview of decision of Refugee Review Tribunal – whether Refugee Review Tribunal decision affected by jurisdictional error – facct finding not a function of judicial review – credibility – no breach of s.424A or s.425(1) of the Act.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958, (Cth) s.5(1), s.36(2), s.65(1), s.91R, s.91S, s.424, s.424A(1), s.424A(3)(b), s.425(1), Migration Act

Re Minister for Immigration and & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407

Minister for Immigration & Ethnic AffairsIEA v Wu Shan Liang (1996) 185 CLR 259

Kopalapillai v Minister for Immigration & and Multicultural Affairs (1998) 86 FCR 547
Attorney-General (NSW) v Quin (1990) 170 CLR
Abebe v Commonwealth of Australia (1998) 197 CLR 510

NAHI v Minister for Immigration & Multicultural & Indigenous IAffairs [2004] FCAFC 10
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, (2003)195 ALR 24 referred to
SZBYR v Minister for Immigration & and Citizenship [2007] HCA 26 (13 June 2007)
VAF v Minister for Immigration & and Multicultural & and Indigenous Affairs (2004) 206 ALR 47 [CITATION TO BE INSERTED] referred to
SZBEL v Minister for Immigration and& Multicultural Affairs (2006) 228 CLR 152; [2006] HCA 63

Applicant: SZLIF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2848 of 2007

Judgment of: OrRcChisHIStonTON FM

Hearing date: 14 DECEMBER December 2007

Date of last submission: 14 DECEMBER December 2007

Delivered at: Sydney

Delivered on: 24 January 2008

REPRESENTATION

Applicant appeared in person

Solicitors for the Respondent: Sparke Helmore

ORDERS

(1)The application filed on 14 September 2007 is dismissed.Orders Style

(a)Orders-abc Style

(i)Orders-123 Style

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2848 of 2007

SZLIF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

1.This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 10 August 2007 and notified to the applicant by letter dated 10 August 2007 which affirmed the decision of the delegate of the respondent Minister (“‘the delegate”) to refuse to grant a protection visa to the applicant.

Background

2.The applicant was born on 2 February 1967 and was aged 18 years at the time of thehis application for a protection visa.

3.The applicant claims to be a single person who is a national of China, of Han ethnicity, and of Buddhist faith.

4.The applicant arrived in Australia on 10 November 2005 on a PRC National passport issued in his own name, holding a School sector-Student (sub class TU-571) visa, which was valid until 15 March 2008. 2008. On 20 February 2006, the applicant was granted a new School sector-student visa valid until 30 August 2006. On 30 August 2006 the applicant was granted a bridging visa WE-050 valid until 8 September 2006, on departure grounds or to lodge a review. The applicant did not choose either option.  The applicant was an unlawful non-citizen from 9 September 2006 until 2 April 2007 held at the Villawood Immigration Detention Centre.

5.The applicant lodged an application for a protection visa on 19 April 2007 on the basis that he will be detained or seriously ill-treated or discriminated against by the Chinese authorities if he were to return to China because of his involvement with the practices of Falun Gong (Court Book (CB) 28).

6..  His application for a bridging visa WE-050 of 19 April 2007 was refused on 23 April 2007.and that he will be detained or seriously ill- treated or discriminated against by the Chinese authorities if he were to return to China because of his involvement with and practices of Falun Gong (Court Book (CB) 28).

7.On 26 April 2007 the delegate refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).

8.On 26 April 2007 the applicant applied to the Tribunal for review of the delegate’s decision (CB 51). 

Legislative framework

9.Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.

10.Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

11.Australia has protection obligations to a refugee on Australian territory.

12.Article 1A(2) of the Convention relevantly defines a refugee as a person who:

“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

13.Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceedings

14.On 10 May 2007, pursuant to s.425(1) of the Act, the Tribunal sent a letter to the applicant inviting him to appear before it to give oral evidence and present arguments (CB 56-57).

15.On 14 June 2007 the applicant’s authorised agent provided further written submissions to the Tribunal (CB 60-63), in response to the delegate’s decision record of 26 April 2007, and setting out country information about the treatment of Falun Gong practitioners in China. The agent submitted that the applicant feared persecution for reasons of religion and membership of a particular social group, which related primarily to his own, not his mother’s, involvement in Falun Gong.

1.On 15 June 2007 the applicant appeared before the Tribunal to give evidence and present arguments, with the assistance of a Mandarin interpreter.

16.

The applicant’s claims and evidence (CB 78-82) 

The applicant’s claims and evidence (CB 78-82)

protection Protection visa application (CB 78-79)

1.The Tribunal summarised the applicant’s In summary, the applicant claims in his claims in the protection visa applicationapplication that (at CB 78--79).  It further summarised:

1.Until he came to Australia in 2005, he lived at the same address in Fuqing, Fujian.

·      From the age of seven he lived with his maternal grandmother. His mother lived about a 30 minute drive away. His father often worked away from home. He sometimes stayed with his parents at New Year.

·      His mother started practicing Falun Gong in 1998 or 1999.  She was arrested in 2000.  He and his older brother and grandmother were questioned as well at that time. His mother remained in detention for 6 months.

·      When his mother was released he lived with her for two weeks.  His mother was pale and suffering from lack of nutrition.  His mother did not tell him very much about what happened in detention or about her commitment to Falun Gong.

·His mother lost her job.  His mother was often asked to go to the police station to be questioned.  His older brother and grandmother were also questioned.

·In 2001 his siblings and he were sent to a boarding school, which was about a 40 minute walk from his home.  He sometimes went home on the weekends.  After he finished Middle School; he studied in Fuzhou, so he was away from home some of the time.

·In November 2005 he was sent by his parents to study in Australia.  He was only 16 years of age at the time.  He had difficulty adjusting to the school and felt under pressure.  He did not do well academically.

·He lodged an application for his father to come and help him.  He also lodged an application for his mother to come to Australia but her application was refused.

·On 30/08/2006 his student visa was cancelled.  He started smoking and spending time with people in similar situation, until he was detained.

·He was introduced to Falun Gong by a person called Lin Hui Ing.  He heard about Falun Gong before but did not know much about it.  He practiced with a group every day.  He learned the 5 Falun Gong exercises and about Falun Gong philosophy.

He states: “Even though I have only practiced for a short time, I have changed a lot.  I have quit smoking cigarettes and I have a better temperament.  I believe FG is very good and I do not know why the government has banned Falun Gong.” (sic)

1.He  the applicant’salso statesclaims at the : “I will not give up Falun Gong which is now essential to me.  If I am returned to China and they find out I will be persecuted.  The rest of my family will be implicated, especially because of my mother’s record.” (sic)

17.Tribunal hearing (CB 79-82), including that:

In summary, the applicant told the Tribunal (CB 79-82) that:

·the applicanthe is a Chinese citizen (subsequently confirmed)

·his parents, and older and younger brothers, live in Fujian province in China

·he came to Australia in November 2005 at the age of 16

·prior to coming to Australia he went to boarding school in China for four years

·he came to Australia because his father was working at a different place and rarely returned home. and that h  His mother was practising Falun Gong and that she was arrested.

18.In response to questioning from the Tribunal about the timing and circumstances of his mother’s arrest, (given that the applicant had previously said that the arrest had occurred about the time he came to Australia in 2005, but at the Tribunal hearing he said that the event occurred in 1999), he said that:

·his mother’s arrest was before he came to Australia but not right before

·his mother was arrested and detained in 1999 for about 6 months

·he could not remember any details about being questioned by the police because he was very young at the time (about 10 years old) and scared, but indicated that the family was questioned about 10ten times about Falun Gong

·he had not seen his mother practising Falaun Gong and did not know whether she had actually practised Falun Gong

·he had told police that to his knowledge, his mother did not practice Falun Gong

·he was last questioned by police in 2000 and in 2001 before he went to boarding school in China.

19.The applicant also told the Tribunal that:

·from November 2005 to August 2006 he studied English at a language school until his student visa was cancelled in August 2006 because he did not have an 80% attendance rate.

20.The Tribunal asked the applicant various questions concerning his knowledge and practice of Falun Gong (CB 81)

21.The applicant also told the Tribunal that:

·he was worried that persons from his home town already sent back to China might say that he practised Falun Gong or had taken photos of him practising Falun Gong in Villawood

·his mother’s practice of Falun Gong could also make him more of a target because if he returned he would practise with his mother and they would be arrested and detained.

The Tribunal’ss s findings and reasons

22.The Tribunal did not accept that the applicant was a genuine Falun Gong practitioner as claimed. The Tribunal therefore found that the applicant was not a witness of credit. Accordingly, the Tribunal did not accept the applicant had attended Falun Gong practice sessions in detention as claimed. The Tribunal further found that the applicant had not come to the adverse attention of the Chinese authorities due to his practice of Falun Gong. The Tribunal further did not accept that the applicant’s mother is or ever was a Falun Gong practitioner or a suspected Falun Gong practitioner. The Tribunal therefore did not accept that the applicant’s mother had been arrested, or that the applicant had been questioned in relation to his mother’s practice..

23.For these reasons, Tthe Tribunal therefore found there was not a real chance the applicant would suffer serious harm offrom his own practice of Falun Gong or from his mother’s practisce or perceived practice of Falun Gong. The Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution if he were to return to China for reasons of being a Falun Gong practitioner, a member of a particular social group, or for any other cConvention reason, now or in the foreseeable future.

The present proceedings before this Court.

24.The applicant filed the an application in this Court on 14 September 2007 setting out two grounds for review of the Tribunal’s decision. The applicant filed no further documents pursuant to the Orders made on 25 September 2007 which gave directions by consent tofor the further filing of documents by the parties.

25.The applicant appeared in person before this Court on 14 December 2007 with the assistance of a Mandarin interpreter.  Ms Johnson appeared for the first respondent.

26.The Court invited the applicant to say anything he wished to in regard to each ground and generally.  Each of the grounds was translated for the applicant, prior to his being invited to say anything on each.

Grounds of application

27.The grounds of the application are:

i)That the second respondent, ie the Refugee Review Tribunal refused to take into account the fact the applicant was a real risk of persecution if return to his country of origin namely the Peoples Republic of China (PRC), owing to belonging to the particular social group of Falun Gong practitioners.

ii)That the second respondent failed to effectively take into account his oral evidence given at the Tribunal and failed to take into account that his mother practises Falun Gong and that he is at risk of being detained because of his family’s actions and his own beliefs and practisce, there is a real risk of persecution if the applicant is returned to China.

Ground 1.

28.I am satisfied that the Tribunal carefully considered whether the applicant was in fact a Falun Gong practitioner and hence a member of this particular social group. Merely because the Tribunal came to a contrary view to the applicant’s claim, does not establish jurisdictional error on the part of the Tribunal. So long as the Tribunal’s findings were open to it, on the evidence before it, no error of law can be demonstrated.

29. In reaching its conclusion, the Tribunal had before it, the Department’s file relating to the applicant, which included the applicant’s protection visa application; a statement of claims in the form of a statutory declaration dated 23 April 2007; the delegate’s decision record; the Tribunal’s file containing further written submissions by the applicant’s authorised recipient in response to the delegate’s decision; relevant independent country information, as well as oral evidence and argument presented by the applicant. 

30.I consider that the Tribunal’s reasons for finding that the applicant was not a genuine Falun Gong practitioner were carefully considered and articulated by it. (CB 84-85). In this regard, I accept that the first respondent accurately summarises these Tribunal’s reasons (in its outline of submissions), as follows:

Specifically, the Tribunal

a)a)        did not accept that the applicant was a genuine practitioner as he failed to refer to the core teaching of Falun Gong movement, Zhaun Falun, when listing important events in the history of Falun Gong : CB 84.6:

b)did not consider it plausible that a genuine Falun Gong practitioner would not be able to speak about the fundamental principles of Falun Gong: CB 84.9:

c)did not accept that a genuine practitioner would not have made attempts to obtain and read a copy of Zhaun Falun, the primary scripture for the Falun Gong movement: CB 85.3:

d)did not accept that someone who was committed to Falun Gong, particularly someone who was in detention where an opportunity to practice was offered everyday, would ‘sometimes skip a whole week’ and not practice at all: CB 85.5:

e)did not accept that he had attended Falun Gong practice sessions in detention and accordingly,… did not accept that the applicant would have come to the adverse attention of the PRC authorities: CB 85.8:

f)on the basis of the applicant’s inconsistent, implausible and not credible evidence, did not accept that the applicant’s mother was ever a Falun Gong practitioner: CB 86.03; and

g)for these reasons, the Tribunal concluded that there was not a real chance that the applicant would suffer serious harm as a result of his own practice of Falun Gong or his mother’s practisce or perceived practice of Falun Gong. The Tribunal was not satisfied that the applicant had a well founded fear of persecution if he returned to China now or in the reasonably foreseeable future: CB 86.4.”

31.It is evident from the above reasons, that the Tribunal rejected the applicant’s claims after considering all the evidence, including the independent evidence in reaching its conclusions concerning the applicant’s lack of credibility. It cannot therefore be said that the Tribunal refused to take into account the matters set out in ground 1 (namely, the applicant’s claims that he belonged to a particular social group of Falun Gong practitioners and was thereby at risk of persecution if he were to return to China), in reaching its conclusions. 

32.I am satisfied therefore that the Tribunal’s assessment of the evidence, including its adverse findings as to credibility, were open to it on the evidence and that it performed the task required of it in accordance with law. The Tribunal’s conclusions that the applicant was not a witness of credit were findings of fact par excellence:;

“If the primary decision maker has stated that he or she does not believe a particular witness, no detailed  reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.” (Re Minister for Immigration and & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67]).

Equally, in the present case the Tribunal dealt with the implausibility of certain of the applicant’s claims referred to above.

33.I am satisfied that the applicant is, in effect, inviting the Court to undertake a review of the merits of the Tribunal decision.  It is no part of the function of this Court to engage in fact finding concerning the merits of an applicant’s case: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272]; NAHI v MIMIA [2004] FCAFC at [10]Kopalapillai v Minister for Immigration and & Multicultural Affairs (1998) 86 FCR 547 at [558]..

34.Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law. Furthermore, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1998) 197 CLR 510 at 560 [137]

1.Simply put, this Court cannot review the merits of the Tribunal’s decision: As observed by the Full Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC at [10]: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at [558]:

35.

In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal. [INSERT Quote no 1 from Fact finding here]“….it is not open to the applicant to seek a review of the merits of the decision of the RRT. Parliament has determined that ordinarily the RRT is to be the final arbiter on the merits for applications for protection visas. As Brennan J said in Attorney-General (NSW) v Quin (1990) 170 CLR at 35-36:

‘The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in doing so the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error.  The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.’”

1.Overall, I am satisfied that the Tribunal made clear and well reasoned findings on each integer of the applicant’s claims in reaching its conclusion that the applicant was not a person to whom Australia has protection obligations.

36.

Section 424A of the Act

37.I also note that no letter pursuant to Sections. 424A(1) of the Act was sent to the applicant in this case. Section 424A(1) requires the Tribunal to give an applicant “particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”, to explain why that information is relevant to the review, and to  and iinvitinge the applicant to comment on any adverse finding which may be made by it. Whilst the applicant has not directly raised this issue, the Court has nonetheless considered whether there has been any breach of this statutory requirement in the present circumstances where no letter pursuant to s.424A(1) of the Act was sent to the applicant.

38.Ms Johnson submits that there has been no breach in regard to any discrete obligation arising pursuant to s.424A in this case. She submits that there was no “information” that enlivened the Tribunal’s obligation under the section on the basis that the evidence given by the applicant on these matters falls within the statutory exception under s.424A(3)(b), being information which the applicant “gave for the purposes of the application”.

39.In any event, I do not consider that a proper construction of the word “information” in s.424A(1)(a)this context, extends to the Tribunal’s failure to believe the applicant’s evidence on these matters, based on its finding of inherent inconsistencies therein. The observation by the High Court in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18] is particularly apposite on this point:

… Iif the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para(a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration & Multicultural & Indigenous Affairs that the word “information”

does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.

If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process.  However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.  The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

40.For these reasons, I am satisfied therefore that there has been no breach of s.424A of the Act in this case.

he applicant’s oral submissionsTt

41.The applicant submitted to the Court in relation to ground 1 that:

Because of the persecution, … due to my mother practise Falun Gong, my elder brother was involved at some degree, therefore he went to United Kingdom  … and at the moment my mother tried to get her document organised to go to United Kingdom as well.

42.The brother’s alleged change of location and the mother’s alleged present attempted change of location to the United Kingdom, were not relevant matters raised before the Tribunal and hence cannot properly be reviewed by this Court. Otherwise, the matters concerning the applicant’s claims of persecution should he return to China, have already been dealt with above, and under ground 2 below. To reiterate, they seek merits review which is not the function of this Court.

1.

43.Accordingly, for the reasons stated above, Ground 1. of the application is rejected.

Ground 2.

44.A fair reading of the Tribunal’s decision discloses that the Tribunal carefully considered the applicant’s oral evidence in relation to his mother’s claimed practice of Falun Gong (CB 80). Merely because the Tribunal did not believe the applicant on these matters, given the implausibility of these claims, and hence did not accept that the applicant’s mother was ever a Falun Gong practitioner, nor that she was ever arrested by the authorities, nor that the applicant himself had ever been questioned by the police in regard to his mother’s alleged Falun Gong practices (CB 85- 86), given the implausibility of these claims, does not establish jurisdictional error on its part.

45.As stated in regard to ground 1. above, the Tribunal’s conclusions that the applicant was not a witness of credit and did not consider the applicant’s claims concerning his mother to be plausible, were findings of fact par excellence and open to it on the evidence. It is not for this Court to review the merits of the Tribunal’s decision, nor is it the task of this Court to substitute an alternate finding on the merits of an applicant’s case. Again, as with ground 1., the applicant is effectively seeking to challenge the Tribunal’s factual findings and to invite the Court to undertake impermissible merits review.

Section 425 of the Act

46.The Court has also considered whether, the applicant was given the opportunity at the Tribunal hearing, pursuant to s.425(1) of the Act to give evidence and present arguments relating to “the issues in relation to the decision under review”, in particular, the in light of the matters raised in SZBEL v Minister for Immigration & Multicultural Affairs (2006) 228 CLR 152; [2006] HCA 63 at [33]-[48]..

1.In this regard, I am satisfied that the applicant would clearly have been put on notice fromby the delegate’s decision record that the credibility of his claims, (concerning in particular his involvement in, knowledge and the extent of his practice of Falun Gong; whether his profile would have been of any interest to the Chinese authorities; and whether he had the support of the Falun Gong Association in Australia (CB 46-47)), wasas in issue in determining his application for a protection visa.  For instance, the delegate noted that:

47.

1.I am The applicant’s claims of his involvement as a Falun Gong practitioner are vague and lacking in specific details. 

1.The applicant has provided neither verifiable details nor substantiation of his claimed activities in relation to Falun Gong, such as when did he start practising, where and how often he practised, how did he obtain the knowledge of Falun Gong, what did he practice, and what the Falun Gong means to him.  The applicant has provided no documentary or material evidence to suggest that he is a genuine Falun Gong practitioner.  The absence of verifiable detail leads me to believe that the applicant’s situation is not as claimed……There is no objective evidence to indicate that the applicant is a genuine, committed Falun Gong practitioner.  I am not satisfied the applicant holds a profile that would attract adverse attention from the authorities if he were to return to PRC … based on the limited information submitted and in the absence of the verifiable evidence I cannot be satisfied that the applicant is a genuine Falun Gong practitioner and more importantly that the applicant’s profile would be of any interest to the Chinese authorities.” (CB 46) 

1.The applicant has not provided any credible evidence to confirm that he is a genuine and committed Falun Gong practitioner.  He has not provided any evidence that he has the support of the Falun Gong Association in Australia.  I cannot be satisfied, on the basis of the limited information provided by the applicant, that any practice of Falun Gong which he may now be involved has been commenced other than for the purpose of attempting to establish and/or strengthen his refugee claims. (CB 47).  

48.Ffurther satisfied that the applicant was equally put on notice by the delegate’s decision record that the credibility of his claims in relation to, in regard to the applicant’s claims concerning his mother’s involvement with Falun Gong, and her alleged detention and on-going checks by police, (CB 48-49), was in issue the Tribunal noted that:in determining his application.

1.     The applicant’s recount is vague, lacks in detail and is unsubstantiated by any evidence … I am not satisfied, due to the applicant not living permanently with his parents and particularly with his mother, that his recount of his mother’s involvement in Falun Gong movement, her detention and ongoing persecution is as accurate, and as truthful as claimed.  The lack of specific detail surrounding the circumstances of the applicant’s mother’s association with Falun Gong, leads me to be not satisfied that the event are as claimed … In the absence of verifiable evidence to the contrary, I conclude that the applicant’s mother has not experienced any harm or mistreatment of sufficient gravity as to amount to persecution.  This also indicates that the applicant’s fear of him being persecuted on account of his mother’s claimed involvement with Falun Gong is not well founded.

1.Having considered all these matters cumulatively, I am of the opinion that the applicant’s claims have been fabricated….I am not satisfied that the applicant is a committed Falun Gong practitioner and particularly not one to attract the adverse attention of the Chinese authorities…..I find that his fear of Convention based persecutory harm in China is neither genuine nor well founded (CB 48-49).

49.Whilst the applicant did not provide the Court with the transcript from the Tribunal’s hearing, it is apparent from its decision record that the Tribunal clearly identified to the applicant that his credibility on these issues was important in its determination of his claims.  In this regard, the Tribunal put a number of matters to the applicant and asked him a number of questions about his own knowledge of, and his and his mother’s practice of Falun Gong (CB 80-82).  It further put to the applicant a number of inconsistencies in his claims on these matters concerning the year in which his mother was arrested; and the extent of time devoted by him to the practice of Falun Gong; and the number of Falun Gong exercises he had learnt: (see heading: Inconsistencies in the Tribunal’s decision (CB 82)).

50.I am satisfied therefore that, on the basis of the material before the Court, that the applicant was given the opportunity to demonstrate his knowledge of Falun Gong and to address and respond to inconsistencies in the issues identified by the Tribunal in regard to the applicant’s claims. 

51.I accept that the applicant would have been clearly on notice that the credibility of his claims to be a Falun Gong practitioner and of his mother’s practice of Falun Gong, were determinative issues before the Tribunal.  I accept the submissions by Ms Johnson on these matters.

1.I further accept that the Tribunal gave the applicant a sufficient opportunity to give evidence, and to make submissions, about these determinative issues arising in relation to the review: (SZBEL at [44]). I am therefore satisfied that there has been no breach of s.425(1) of the Act in this case.

52.     I also accept that the applicant would have been clearly on notice that the credibility of his claims to be a Falun Gong practitioner and of his mother’s practice of Falun Gong, were determinative issues before the Tribunal.  I accept the submissions by Ms Johnson on these matters. 

I further accept that the Tribunal gave the applicant a sufficient opportunity to give evidence, or make submissions, about the determinative issues arising in relation to the review: (SZBEL at [44]).

53.Accordingly, I am satisfied that there has been no breach of s.425(1) of the Act.Accordingly, for the reasons stated above, Ground 2 of the application is rejected.

1.For these reasons, Ground 2 of the application is rejected. For these reasons, gGround twround o2of the application  must failis rejected. ]

TThe applicant’s oral submissions in reply

1.Before this Court, the applicant submitted in regard to ground 1.:

Because of the persecution, … due to my mother practice Falun Gong, my elder brother was involved at some degree, therefore he went to United Kingdom  … and at the moment my mother tried to get her document organised to go to United Kingdom as well.

54.The applicant declined to say anything further in regard to ground 2 or generally.  In response to the submissions of the first respondent, the applicant stated that:

I am a vulnerable person.  If I did return, I would be persecuted.  Although there are some inconsistencies, that was because I was nervous before the hearing.

55.I again note in this context that the Court has not been provided with a transcript of the Tribunal hearing.  Accordingly, it is in no position to comment on the applicant’s claim that inconsistencies in his claims were caused by his nervousness at the Tribunal hearing. The issue of the applicant’s claims of persecution should he return to China, have previously been dealt with under grounds 1 and 2 of the application. 

:

Conclusion

56.The Court finds that Tthe Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. not affected by jurisdictional error and is therefore a privative clause decision.  Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.

57.The application before this Court is dismissed.

1.[Issues of costs to be canvassed].

I certify that the preceding twenty fofifty- seven ur (2457) paragraphs are a true copy of the reasons for judgment of Orchiston FM

Associate:   Christine Cargill

Date:  24 January 2008