SZLRJ v Minister for Immigration - [2008] FMCA 942

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLRJ v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 942

MIGRATION – Review of RRT decision – where second respondent affirmed decision of delegate – where applicant claimed she was a Falun Gong practitioner – where delegate found applicant’s chance of being persecuted was remote – where Tribunal found applicant was not truthful in her claims and not a credible witness – whether applicant was notified of the issues arising in relation to the decision under review pursuant to s.425(1) Migration Act 1958 (Cth) – whether necessary to identify significance of questions put to applicant in order for compliance with s.425(1).

Migration Act 1958, ss.424A, 425

SZBEL v Minister for Immigration [2006] 228 CLR 152
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited [1994] 49 FCR 576
SZLNW v Minister for Immigration [2008] FCA 910
SZDFZ v Minister for Immigration (2008) 100 ALD 575
SZIOZ v Minister for Immigration [2007] FCA 1870
Minister for Immigration v SZJGY [2008] FCAFC 87
SZHBX v Minister for Immigration [2007] FCA 1169
Minister for Immigration & Citizenship v Applicant A125 of 2003 [2007] FCAFC 162

Applicant:

SZLRJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3626 of 2007

Judgment of:

Raphael FM

Hearing date:

1 July 2008

Date of Last Submission:

1 July 2008

Delivered at:

Sydney

Delivered on:

15 July 2008

REPRESENTATION

Counsel for the Applicant:

Mr B Adam

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00 in addition to the previous order for costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3626 of 2007

SZLRJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China. She arrived in Australia on 12 March 2007 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 19 April 2007. On 28 May 2007 a delegate of the Minister declined to grant a protection visa. On 27 June 2007 the applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision.
The applicant provided the Tribunal with a statutory declaration [CB 58 – 66] which dealt with her reaction to the delegate’s decision. I shall return to this document. On 5 September 2007 the applicant together with two witnesses attended a hearing before the Tribunal. On 12 September 2007 the Tribunal wrote to the applicant, care of her migration agent, inviting her to comment on certain information in writing pursuant to s.424A Migration Act 1958 (the “Act”). On 12 September 2007 a response in the form of a statutory declaration [CB 99 – 105] was provided to the Tribunal.

On 12 October 2007 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 25 October 2007.
The applicant’s history, which formed the basis for her claiming that she was a person to whom Australia owed protection obligations, was that she was the sister of a Falun Gong activist who had obtained protection in Australia. Because of the activities of her brother, including his returning to China to obtain the release of his wife, another Falun Gong activist, the applicant claimed that she was placed under observation by the PSB and in particular by the 610 office.

In October 2005 the applicant first arrived in Australia upon a visitor’s visa. She had not been a Falun Gong practitioner at that time and when she requested leave to visit Australia she was interviewed by three police from the 610 office [CB 26]:
“Those police told me that the PRC authorities wanted to give a friendly “signal” to my brother and sister-in-law making them to understand that the PRC authorities had treated their families such as me “fairly” and “nicely” even if they had been involved in the anti-Communist movement in the overseas.”
The applicant spent about three months in Australia and during that time she was introduced to the Falun Gong movement [CB 27]:
“I have also studied carefully the famous book, which is named as Nine Commentaries on the Communist Party and which has made me understand more deeply why my brother and my sister-in-law as well as many of Falun Gong practitioners, had never given up their activities even if they had been subjected to persecution by the PRC authorities.”
In January 2006 the applicant returned to China. Shortly after her arrival she was questioned again by police from the 610 office who she said knew a lot about her activities in Australia, including where she had practiced or studied Falun Gong. The applicant claims that she managed to persuade the police that she was only acting in accordance with their instructions, but notwithstanding this she was continually questioned and closely monitored for a further period.
In about April 2006 the applicant found that she was being less closely observed, and says that having learnt from her sister-in-law how to break through the internet block of the PRC authorities by using “free-gate” software, she contacted friends and taught them how to download the software and read from overseas websites such as the “Epoch-times”. The applicant also claimed that she secretly brought a DVD of the “Nine Commentaries on the Communist Party” with her on her return to China. In June 2006, through a reliable friend, she had 3,000 copies of the DVD made. She distributed them to universities in Shanghai, to residential areas in Shanghai and to some government agencies [CB 29]:
“All of these were organised by me and completed by some of reliable friends. What I intended to do was to make more and more people to know the true face of the Chinese Communist party.”
In January 2007 the applicant noticed that people in the residential area around her home were being encouraged to report Falun Gong practitioners to the police. In March 2007 a female Falun Gong leader was kidnapped and detained by the 610 office, the applicant was urged to leave China immediately. She already had obtained a visa and she utilised it to travel into Australia. On 16 March 2007 the police raided her home in Shanghai with an arrest warrant and search permit.

The applicant claimed that she had destroyed all documents but notwithstanding this her husband had been questioned by the 610 office three times and was required to report to the police the moment he received any news of her.
When the applicant attended before the Tribunal she was questioned upon a number of matters, but the only one which is relevant for the purposes of these reasons is her claim to have distributed the DVDs concerning the “Nine Commentaries”. This is a matter that was raised in her original statutory declaration in the following manner [CB 29]:
“Secondly, I secretly brought one DVD of Nine Commentaries on the Communist Party while I returned to China. In June 2006, I got to know a reliable friend who was able to assist me to make more copies for the DVD; and then, I asked him to make about 3,000 copies of the DVD in total for me. Those copies were divided into three parts. The first part was sent to some universities in Shanghai; and the second part was sent to residential areas in Shanghai; and the third party was sent to some government agencies. All of these were organised by me and completed by some of reliable friends. What I intended to do was to make more and more people to know the true face of the Chinese Communist Party.”
In the delegate’s decision record at [CB 40] the applicant’s claims for protection are set out including:
· “When she was in Australia during 2005 she obtained the DVD of Nine Commentaries on the Communist Party which she secretly brought back with her to China. A reliable friend helped her to make 3,000 copies of the DVD.”
The delegate’s decision deals with independent country information concerning Falun Gong and then moves on to the question of obtaining a passport and exiting China. The delegate concluded that independent country information seemed to indicate that it was unlikely that she was of adverse interest to the authorities, having obtained the passport and visa. The delegate also considered the applicant’s involvement in Falun Gong in Australia and whether this would result in a real chance of persecution should she return to China in the near future.

Its consideration [CB 48] does not include the statement concerning the distribution of the DVDs. The delegate concluded that based upon the information before the Department, the applicant did not appear to be a high profile Falun Gong practitioner and that, as non-core members were unlikely to be considered adversely by the authorities, it thought that the chances of her being persecuted were remote. A fair reading of the delegate’s decision would indicate that the claim about the DVDs was not a dispositive issue.
Notwithstanding the irrelevance of the DVD claim to the delegate’s decision, when the applicant applied to the Tribunal she provided it with a further statutory declaration in which she again refers to the purchase and distribution of the “Nine Commentaries” [CB 63].
The applicant provided the court with a copy of the transcript of the hearing before the Tribunal member. At [T10] the Tribunal commences to discuss with the applicant the copying and distribution of the “Nine Commentaries” DVDs.
“T:You claim in that in June 2006 you had 3,000 copies of a DVD on the Nine Commentaries on the Communist Party. How much did this cost you?
A:I asked for my friend help so firstly I gave the friend one thousand and later I gave the friend two thousand.
T:Is that RMB Yuan or are you talking about actual copies, I don’t understand?
A:RMB.
T:So that’s RMB Yuan?
A:Yes.
T:So you are saying they cost one Yuan each, is that right?
A:Yeah. Couldn’t be calculated in that way and the friend was responsible for purchase and also production and also included the use of machine.
T:What was stated in this publication?
A:Nine comments about CCP.
T:Tell me about it, what was in it?
A:I’d like to explain first what is Nine Comments about CCP.
T:I want you to tell me what was on nine comments?
A:Is nine points and just to comment the evil nature of CCP.
T:So tell me what are the nine comments?
A:I cannot recite all of them.
T:Give me some of them?
A:Yes. I can tell you some rough information about the content of the nine comments and the first point was is related to theory and they talk something about the evil nature of the CCP.
T:Go on?
A:And CCP obtained the power through the means of violence and fear and threatening. They, the CCP replace human, the nature of the human beings with the nature of the putty.
T:Anything else?
A:Basically I can remember those.
T:Sorry?
A:Basically that is what I remember.
T:I am going to put to you some information and then a question so if you can just bear with me while I put that information to you?
You claim that after you returned from Australia in January 2006 you were closely monitored by the 610 office of the local police. The police came to your home, your neighbours were questioned and you were to report to the police once a week. You claim that you were closely monitored by the police and did not have freedom during this period so were unable to undertake any further activities other than secretly practicing Falun Gong at home, but the police eventually eased up their monitoring of you.”
There is no further reference in the transcript to the DVDs in China although there is reference to the applicant distributing the DVDs in Australia when she handed up to the Tribunal a booklet about the “Nine Commentaries”.
After the Tribunal hearing it sent the applicant a s.424A letter which included the following:
·    “You also claim that you secretly bought a DVD on the “Nine Commentaries on the Communist Party” and arranged for 3,000 copies of it to be made which you distributed to some Shanghai universities, residential areas of Shanghai, and some government agencies in about equal numbers in order to make more and more people aware of the true face of the Chinese Communist Party. You claim that in January 2007 a neighbourhood committee posted public notices around your home encouraging local residents to report Falun Gong practitioners and offering an RMD 3000 Yuan reward and after this you had more trouble with the police and were questioned and threatened by them. … However and not withstanding these claims you claim that you then left China for Australia for a second time on 11 March 2007 without claiming that you had any difficulty whatsoever.
·    Subject to any comments you may make, the fact that you were allowed to leave China without any difficulty on 11 March 2007 may indicate that you were not of any interest to the PRC authorities for any convention related reason including because of your suspected involvement with Falun Gong; your copying and distributing a DVD on the Nine Commentaries on the Communist Party or your claimed association with the Falun Gong leader who was arrested in November 2006 some five months before you left China.
·    This may also go to the matter of the truthfulness of your claims and your credibility.” [CB 94-95]
The applicant’s response by way of a further statutory declaration [CB 99-105]:
“The fact that my sister-in-law Ms. Ying Li, who has been imprisoned by the PRC authorities for two years due to her involvement in Falun Gong movement, has successfully been saved and successfully left China, made me even stronger and stronger. So, I not only dared to return to China but also was actively involved Falun Gong movement and the activities to distribute anti-Communist promotion materials such as “Nine Commentaries on the Communist Party”.”
In its reasons for decision the Tribunal accurately rehearses the discussion found on the transcript between it and the applicant concerning the distribution of the DVD [CB 122]. In the section entitled “Findings and Reasons” the Tribunal deals with this issue in the following manner [CB 133-134]:
“She also claims she secretly bought a DVD on the “Nine Commentaries on the Communist Party” and asked a reliable friend to make about 3,000 copies of it, which she then sent to some Shanghai universities, some residential areas of Shanghai, and some government agencies in about equal numbers in order to make more and more people aware of the true face of the Chinese Communist Party, and thereby encouraged people to leave the CCP. However, and while the applicant has provided a number of statutory declarations and photographs as evidence to support her claims about her being a Falun Gong practitioner and other activities in Australia since lodging her protection visa application, thereby indicating she fully understands the importance of providing such supporting evidence and documentation, she provides absolutely no evidence to support these claims. While it is generally the case that applicants who are otherwise credible and plausible should, unless there are good reason otherwise, be given the benefit of the doubt, it is not the case the evidence of an applicant should be believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. The Tribunal is not required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451. The mere fact that a person claims fear of persecution for a particular Convention reason does not establish either the genuineness of the asserted fear or that it is well-founded or that it is for the reasons claimed. It is for the Tribunal to be satisfied that all of the statutory elements are made out (Guo’s case at 596). Further, when questioned about these issues at the hearing, the applicant was very vague about, for example, the copying of the DVD and what was involved including what this cost her, and from this the Tribunal has not been able to satisfy itself that she was in fact involved in copying and distributing this CD, and the Tribunal does not accept this claim. Moreover, the applicant showed absolutely no knowledge of what the “Nine Commentaries on the Communist Party” is about, giving extremely general, vague, and shallow answers in response to a number of questions that were put to her at the hearing about this matter, even though at the end of the hearing she produced and then provided to the Tribunal a 116 page “Epoch Times” Exclusive Report on them. The Tribunal is satisfied that if the applicant had been so involved in accessing the Internet and actively encouraging other people in China to do so in order to access material such as the “Nine Commentaries on the Communist Party” at great personal risk to herself, and indeed, was so committed to this cause that she claims she had gone to the considerable effort and expense to arrange for some 3,0000 copies of a DVD on it to be copied and distributed around Shanghai, then she would have been comprehensively informed about the “Nine Commentaries on the Communist Party” that she was promoting and would have been able to speak at some considerable length and in detail at the hearing about the content, thrust and substance of them, let alone to convincingly demonstrate that she had a strong personal commitment to them and what they stood for. However, the Tribunal finds that she was not only totally uninformed about the contents and significance of the “Nine Commentaries on the Communist Party”, but also she did not reveal any understanding, sympathy, or feel for the issues involved and the polemics of the arguments enshrined in the commentaries: something the Tribunal does not accept would be the case for a person who claims she wants to overthrow the Communist dictatorship and, to this end, has been so actively involved in anti-Communist government activities in China and to have been willing to take considerable risks through, for example, breaking through the internet block and arranging for distribution of 3,000 copies of the DVD to spread the “Nine Commentaries on the Communist Party”. It follows that come given all the above, the Tribunal does not accept the applicant’s claims that she taught other people how to break through the Internet block in order to access material she was unfamiliar with; for the same reason, it does not accept that she would have arranged for 3,000 copies of a DVD about the “Nine Commentaries on the Communist Party” to be made and distributed in the manner she claims; and, in view of these findings, that she would have encouraged people to leave the CCP. It also follows that the Tribunal is satisfied that the applicant has not been truthful in her claims and is not a credible witness.”
In her Amended Application filed in the court on 24 June 2008 the applicant claimed that the Tribunal failed to comply with s.425 of the Act in that:
“a)The applicant’s level of knowledge of the contents and significance of the publication entitled the “Nine Commentaries on the Communist Party” arose as an issue in relation to the decision by the Tribunal (“the issue”).
b)The issue was not consider dispositive by the delegate, and;
c)The Tribunal took no step to identify the issue as relevant to the decision under review;”
The applicant relied on what fell from the High Court in SZBEL v Minister for Immigration [2006] 228 CLR 152 and, in particular, the following three pieces of dicta. First, the approval of the words of the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited [1994] 49 FCR 576 at 590-1:
“It is a fundamental principle that where the rules of procedural fairness apply to a decision making process the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.” [emphasis added in applicant’s submissions]
In SZBEL at [35]:
The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considers dispositive are “the issues arising in relation to the decision under review”.
And SZBEL at [47]:
“… where … there are 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.” [emphasis in the original]

The applicant also sought support from the decision of Cowdroy J in SZLNW v Minister for Immigration [2008] FCA 910 where his Honour, relying on SZBEL and in particular the second of the three extracts above found that SZBEL did apply. In order to see whether the same could be said in the instant case it is necessary to look at the facts which were considered by the High Court in SZBEL and by Cowdroy J in SZLNW.
In SZBEL the delegate’s decision turned upon the delegate’s view as to the applicant’s commitment to Christianity. In coming to a position where the delegate was not satisfied of that commitment, the delegate did not discuss two matters of concern raised by the applicant in his statutory declaration accompanying his application. These were, firstly, the applicant’s fear arising out of having had discussions with friends of home about churches that he had visited in South America and South Africa. The second matter was that the applicant had said that the captain had known about rumours that were circulating in his home town and indicated that he would be reported once the ship returned to Iran, but in the meantime would be allowed to work on the ship supervised. The third matter raised by the applicant in SZBEL related to him being allowed off the ship for medical treatment. This matter was considered by the delegate who felt that his decision to return to the vessel was not consistent with having a well-founded fear. When the applicant gave evidence before the Tribunal he was particularly concerned to establish his commitment to Christianity and called witnesses for that purpose. He was questioned by the Tribunal about the meeting in his home town with friends and he repeated the statements that he had made in his original statutory declaration.

He also provided an explanation as to how the captain had learned of what had occurred in his home town. In its findings and reasons the Tribunal considered that the applicant’s statements were implausible and explained its reasons which the court considered:
“Represented in itself a praiseworthy method of fulfilling the duty to give reasons.”
The High Court considered that the Tribunal had failed to accord the applicant procedural fairness because:
“[42] He was not on notice that his account of how his ship’s captain came to know of his interest in Christianity and his account of the captain’s reaction to that knowledge were issues arising in relation to the decision under review.
[43] The delegate had not based his decision on either of these aspects of the matter. Nothing in the delegate's reasons for decision indicated that these aspects of his account were in issue. And the Tribunal did not identify these aspects of his account as important issues. The Tribunal did not challenge what the appellant said. It did not say anything to him that would have revealed to him that these were live issues. Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment. Nothing the Tribunal said or did added to the issues that arose on the review.”
In SZLNW the applicant made a claim that he might be targeted by persons that he had arrested during his SLA service in Lebanon.

The Tribunal dismissed those claims on that basis that:
“He claims they will now seek revenge. However, the applicant could not name or identify those persons and the Tribunal finds that the risk is remote that persons arrested by the applicant over 20 years ago will now or in the reasonably foreseeable future seek to harm [him].”
The transcript of the hearing shows that the applicant was questioned by the Tribunal about this fear, but no questions were put to him as to the names of the persons he arrested or whether he remembered them. The Tribunal also wrote the applicant a letter inviting him to comment on certain matters but the letter did not mention the concern that the Tribunal had that the applicant had not identified the persons he had arrested. At [40] his Honour opined:
“The Tribunal letter addressed the appellant’s claims relating to his fear of persecution including his claim that he feared persecution from individuals whom he had arrested, and invited the appellant to comment on such claims generally. It was necessary for the Tribunal to put directly to the appellant that one of its concerns was his inability to identify the persons who might harm him if the Tribunal was going to make a factual finding adverse to the appellant on that issue. Since the Tribunal had not specifically asked for the identity of the relevant persons at the hearing and had not requested details of such in the Tribunal letter, the appellant was not placed on notice that unless he provided such detail, the Tribunal might make an adverse finding against him.”
It seems to me, with respect to the Tribunal, that SZLNW is a very clear case of the vice identified in SZBEL. If the applicant had been asked he may have well been able to identify the individuals and thus allay the Tribunal’s fears.
It is to be noted that the “issues” are not to be defined too narrowly, but the distinction between “adverse conclusions” and “mental processes” may be an elusive one. A perusal of other recent cases before the Federal Court in which SZBEL has been applied has elucidated the following. In SZDFZ v Minister for Immigration (2008) 100 ALD 575 (“SZDFZ”), Flick J said:
“[10] “Considerable care”, however, needs to be exercised in effecting a dichotomy between an “adverse conclusion … which would not obviously be open on the known material” and “mental processes”: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; 231 ALR 592; 93 ALD 300; [2006] HCA 63 at [29]. Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ there referred to the argument then being advanced seeking to advance such a dichotomy and then applying that dichotomy to the facts before the Court. Their Honours observed:
[31] Stated in this way, the argument seeks to elucidate the content of the requirements of procedural fairness by setting up a dichotomy. There are two reasons to exercise considerable care in approaching the problem in that way. First, it is far from clear that the two categories that are identified (conclusions not obviously open on the known material, and mental processes of decision-making) encompass all possible kinds of case that may fall for consideration. Secondly, there is a very real risk that focusing upon these two categories will distract attention from the fundamental principles that are engaged.”
In SZDFZ, the delegate concluded that the appellant may have been a supporter of a political party, but that he did not have a real chance of persecution upon return to Bangladesh. The second Tribunal did not accept that the appellant was still a member of the political party (though the first Tribunal did), and concluded that the appellant had lost interest in politics. Unlike the present case, Flick J found that there was nothing in the transcript that indicated that the appellant could not proceed upon the basis that he was a person with a long record of political activities and a person who remained politically active (SZDFZ at [29]). His Honour observed at [22]:
“How those issues were to be resolved – and what conclusions were to be reached – were all matters entrusted to the tribunal as reconstituted to resolve. If the reconstituted tribunal proposed or envisaged revisiting one or other of the issues previously resolved in favour of the appellant such a course would attract the obligation imposed by s.425(1).” [emphasis added]
That was not the case here as the delegate did not make a positive finding about the applicant’s claims regarding the DVDs or the Nine Commentaries.
In SZIOZ v Minister for Immigration [2007] FCA 1870 (“SZIOZ”) the delegate had concluded that at the most, the appellant was a practitioner of Falun Gong only and had no profile in China, and then found that the appellant did not have a well-founded fear of persecution. The dispositive issue in the Tribunal’s decision was the claim that the appellant was a Falun Gong practitioner (SZIOZ at [57]). Besanko J found that this amounted to a breach of s.425 and continued:
“[59] … It must be said that there may be circumstances where it will not be easy for the Tribunal to determine when the applicant for review should be given notice of an issue by reason of the provisions of s 425(1) of the Act. Those circumstances may arise if, on one view, the issue may be seen as but a part of a larger or more general issue which is clearly in dispute and which is not caught by the notice requirement in s 425(1). The difficulties will be exacerbated if (as happened in this case) the applicant for review makes considerable changes to his or her story after the delegate’s decision and before the Tribunal hearing. I have given anxious consideration to the question whether the applicant’s alleged practice of Falun Gong in China, albeit in a way that did not attract the attention of the authorities, was but part of a larger or more general issue which was clearly in dispute. I have decided that it was not because, absent any other relevant circumstances, the question is to be determined by reference to the reasons of the delegate and she drew a distinction between the two matters. This approach is consistent with that taken by the High Court in SZBEL.”
It is to be noted that although there are similarities between SZIOZ and the present case in that in both cases the delegate accepted to some degree that the applicants were Falun Gong practitioners, the dispositive issue in SZIOZ was that the Tribunal decided the appellant was not a Falun Gong practitioner. That was not the case here. See also Minister for Immigration v SZJGY [2008] FCAFC 87 (“SZJGY”) where the Federal Magistrate concluded that the delegate’s decision record did not put the respondent on notice that an issue arose as to the credibility of his entire account. At the Tribunal hearing, the Tribunal found that all of the applicant’s claims were rejected, but the Federal Magistrate found that “the hearing raised only, at best, a very limited number of inconsistencies in his evidence, and only one possibly implausible aspect of his claims” (SZJGY at [10]), and on that basis found that the Tribunal had breached s.425. A Full Court of the Federal Court allowed the Minister’s appeal and held that in this case, the elements of the respondent’s claim did not provide independent bases for the claims made, as was the case in SZBEL. The Tribunal’s refusal to accept his account of the initial elements in this chain of causation was a sufficient reason not to explore later elements. (SZJGY at [12]).
As Edmonds J said in SZHBX v Minister for Immigration [2007] FCA 1169 at [14]:
“The Tribunal has a duty to consider the claim as it is presented to it on the basis of all the available evidence. The Tribunal does not have a duty to inform an applicant that because the evidence on which he or she now relies is different from the evidence before the delegate, the Tribunal may make different factual findings. ”
In the instant case the applicant was questioned about her knowledge of the “Nine Commentaries”. She was not forthcoming. The Tribunal gave her an opportunity to expand. Eventually she came to a point where she remembered nothing more. If the Tribunal had said to her at that stage:
“I consider your failure to remember anything more about the content of the “Nine Commentaries” indicates that you do not have the knowledge of the DVD that you have claimed here today and in your previous statutory declarations”,
what could the applicant have said? She could not have provided more information about the “Nine Commentaries” because she had already said that she did not know any more. If the Tribunal had said to the applicant:
“I do not think your answers reveal any understanding, sympathy or feel for the issues involved and the polemics of the argument enshrined in the “Commentaries””,
would it have been doing any more than identifying the significance of the question that it had put to the applicant or the ultimate matter or issue to which those questions go? This is not what is required by SZBEL because it is an attempt to import the requirements of s.424A(1) into s.425: Minister for Immigration & Citizenship v Applicant A125 of 2003 [2007] FCAFC 162.
SZBEL is also a case about procedural fairness. That is why the court proceeds from a consideration of Alphaone and Attorney-General of NSW v Quin (1990) 170 CLR 1. Importing those views into the instant case, one can see that the conclusion arrived at by the Tribunal, that a person who knows so little about a piece of propaganda is unlikely to have risked life and limb to distribute it, was one that was open on the known material. Why else would the Tribunal ask an applicant about the content of a document other than to form a view as to whether the applicant really did with it what she claimed?
24. Although I accept that the argument is not without difficulty I tend to the view that what the applicant is asking for is for the Tribunal to have given her a “running commentary” upon what it thought about the evidence that was being given. This is something that the Tribunal is not required to do: SZBEL at [48].
In these circumstances I am unable to provide the applicant with the review she seeks. I dismiss the application. I order the applicant to pay the first respondent’s costs which I assess in the sum of $5,000.00 in addition to the previous order for costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: