SZLXK v Minister for Immigration

[2008] FMCA 974

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLXK v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 974

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZLXK”.

Migration Act 1958 (Cth), ss.91X, 424AA, 424A, 425

Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8
Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387
Australian Broadcasting Tribunal v Bond [1990] HCA 33
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94
NABE v Minister for Immigration & Indigenous Affairs (No 2) (2004) 144 FCR 1
NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76
Paramanamthan v Minister for Immigration & Multicultural Affairs [1998] FCA 1693
Re Minister for Immigration & Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30
Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190
SZCJD v Minister for Immigration [2006] FCA 609
SZEJF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 724
SZHFC v Minister for Immigration & Multicultural Affairs [2006] FCA 1359

Applicant: SZLXK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 157 of 2008

Judgment of: Lloyd-Jones FM

Hearing date: 2 June 2008

Delivered at: Sydney

Delivered on: 18 July 2008

REPRESENTATION

Applicant: The applicant appeared in person assisted by a Mandarin interpreter

Counsel for the Respondents: Mr B O’Brien (solicitor)

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application filed on 21 January 2008 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 157 of 2008

SZLXK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. The applicant in these proceedings is from Beijing, the People’s Republic of China.  He claims to be an elite Wu Shu athlete and coach, who has been participating in the sport since 1980.  The applicant claims to have travelled to Kuwait, Korea and Poland to represent China in Wu Shu competitions.

2. The applicant resided in a building housing athletes and coaches from 1988 to 1999.  In that time, he witnessed one of the female Wu Shu athletes die from performance enhancing medication administered to the athletes in the building.  The applicant wrote to the Beijing Sports Committee exposing the death and was approached by the Head of the Beijing Institute.  He was told to retract what he wrote. 

3. In 1998, the applicant was invited to coach Wu Shu in Poland.  He asked permission from the Beijing Institute but this was refused.  As he was still suspended and was still being asked to write a retraction letter, he resigned from the Institute and left for Poland.

4. In Poland, the applicant claims he made statements about steroid use by Chinese athletes, particularly gymnasts and one member of the Chinese Judo team.  When he returned to China he was interrogated by the Public Security Bureau (PSB) about what he did in Poland.  He was asked to report to them frequently and could not get a government job. 

5. The applicant states that the Chinese government is very sensitive to criticism about the use of drugs in sports, especially leading up to the Olympic Games in Beijing in 2008.  He claims that if he were to return to China, he would be detained because of the risk that he may go public about Chinese athletes and drugs. 

6. The applicant arrived in Australia on 23 June 2003 on a transit visa.  He did not contact the Department of Immigration after his arrival and it was only after his detention that he knew he could apply for asylum in Australia.  The applicant applied for a Protection (Class XA) visa on 13 September 2007.  A delegate of the Minister refused the visa application and the applicant was notified of this on 12 October 2007.  The applicant sought review of the delegate’s decision by the Refugee Review Tribunal on 16 October 2007 (reference 071795740) and it is this decision which is the subject of judicial review before this Court.

7. At the first Court date, the applicant indicated to the Court that he wished to participate in the scheme that gives unrepresented applicants in refugee matters an opportunity to receive independent legal advice on the prospects of success of his appeal.  The applicant was allocated a panel advisor and the Court file indicates that advice was received.

8. At the first Court date, orders were also made granting the applicant leave to file an amended application giving complete particulars of each ground of review relied upon by 17 March 2008.  The applicant was also required to a short written outline of submissions and a list of authorities fourteen days prior to the final hearing.  The matter was set down for final hearing on 1 April 2008 at 2.15pm.  On that date, correspondence was received from the applicant’s panel advisor indicating that he had difficulty locating the applicant who had been released from immigration detention shortly before the advisor was allocated to the applicant.  Correspondence had been forwarded to the detention centre on the mistaken understanding that the applicant would receive it, however the applicant did not respond because of his release on 14 February 2008.  In mid-March 2008, the applicant contacted the panel advisor at his chambers and made arrangements for a conference.  The conference was held on 27 March 2008 and the applicant was advised that he should obtain a transcript of the Tribunal proceedings and seek legal representation. 

9. The panel advisor also advised the applicant to seek an adjournment at the hearing on 1 April 2008 so that these steps could be undertaken.  This information was set out in a letter addressed to the Court.  Attached to that letter is a document entitled “Additional grounds for application to the Federal Magistrates Court of Australia”.  This contains grounds five to eleven which are fully particularised and are in addition to the grounds of the original application.  This document which was prepared by the panel advisor has been submitted by the applicant on a number of occasions.  The advisor’s letter also attaches a document headed “Amended Application” which includes information on the conditions of the applicant’s release from detention.  This document was subsequently filed on 26 May 2008 with the heading “Additional grounds” deleted and replaced with “Submissions”.  This document was not served on the respondents’ solicitors. 

10. At the hearing on 1 April 2008, the applicant sought an adjournment based on the documents prepared by the panel advisor.  As there was no objection from the respondents other than the question of costs, the adjournment was granted and the hearing rescheduled to 2 June 2008.

11. A convenient summary of the Tribunal’s findings is contained in the written submissions prepared by the first respondent’s solicitors and I rely on paragraphs eight to ten of those submissions for the purposes of this judgment:

    8.  The RRT found that the applicant’s knowledge of doping in sport resulting from his former elite status as a Wu Shu athlete and coach did not give rise to a ground of persecution.  Accordingly, the RRT rejected the applicant’s claims that, due to this knowledge, Chinese authorities would perceive the applicant as having an anti-government political opinion.

    8.1 The RRT accepted that the applicant was an elite level Wu Shu athlete and coach who undertook coaching invitations from Poland.  However, the RRT held that the applicant’s return to China on three occasions after travelling to Fiji was highly inconsistent with his claims that he had come to the adverse attention of authorities and feared further harassment.  The RRT also found it implausible that the applicant would not have taken steps to seek protection in Fiji if the events claimed took place, rejecting the applicant’s explanations that, due to the coup, he sought a more stable country.

    8.2 The RRT found that the applicant’s failure to apply for protection until he was detained as an unlawful non-citizen, four years after his arrival in Australia, was inconsistent with his claims of fearing persecution.  In doing so, the RRT rejected the applicant’s explanations for this delay.

    8.3 The RRT held that the applicant was not a witness of truth.

    8.4 The RRT expressed doubts over the genuineness of the Beijing Talent Archives Administration Service Centre (BTAASC) notice submitted by the applicant, finding it implausible that the issue of this notice shortly before the Department’s decision on his application established that the applicant had come to the adverse attention of Chinese authorities.

    8.5 The RRT also relied on country information that evidenced China’s anti-doping measures to support its conclusion that the applicant would not be perceived as anti-government because of his knowledge of doping.

    9.  The RRT found that the applicant’s baptism and participation in Christian activities in Australia was undertaken in order to strengthen his protection visa claims and applied section 91R(3) to this conduct.  Accordingly, the RRT did not accept that the applicant was a genuine Christian or that he would practice Christianity upon his return to China.  The RRT based these findings on the fact that there was no evidence that the applicant practiced as a Christian prior to his detention in Villawood, and its rejection of the applicant’s explanation for his recent conversion.

    10.  The RRT did not accept that the applicant’s unlawful status and his application for a protection visa in Australia would cause the applicant to be perceived by authorities as having damaged China’s reputation.  It did not accept that the applicant’s application for a protection visa would give rise to a well-founded fear of persecution.

Consideration

Ground one

1.  The RRT failed to ask relevant questions about why I returned to China and this resulted in a wrong decision about my knowledge of protection visas.

1. This ground of review is not particularised and does not appear to have regard to the express terms of the Tribunal decision.  The information recorded in the decision is contrary to the assertion that the Tribunal failed to ask the applicant relevant questions about why he returned to China several times since his original departure for Poland.  The applicant appeared at a Tribunal hearing on 20 November 2007 and provided a detailed history to the member of his travel from China.  The applicant’s written submissions provided to the Tribunal also explain his travels (CB 263, 269).  There was no obligation for the Tribunal to uncritically accept the applicant’s explanation for his travels to China during this period. 

2. The Migration Act 1958 (Cth) (“the Act”) does not specify any particular form of questioning of an applicant by the Tribunal, provided it complies with its statutory obligation to invite the applicant to give evidence on issues arising in the review: s.425(1) of the Act. In SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63, Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ stated at [36]-[38]:

   [36] It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.

   [37] That this is the consequence of the statutory scheme can be illustrated by taking a simple example. Suppose (as was the case here) the delegate concludes that the applicant for a protection visa is a national of a particular country (here, Iran). Absent any warning to the contrary from the Tribunal, there would be no issue in the Tribunal about nationality that could be described as an issue arising in relation to the decision under review. If the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant's nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425(1); the applicant would not have been accorded procedural fairness.

   [38] When it is said, in the present matter, that the appellant was not put on notice by the Tribunal that his account of certain events would be rejected as "implausible", and that this conclusion was "not obviously … open on the known material", the focus of the contention must fall upon what was "obviously … open" in the Tribunal's review. That can be identified only by having regard to "the issues arising in relation to the decision under review". It is those issues which will determine whether rejection of critical aspects of an applicant's account of events was "obviously … open on the known material".

3. In the matter before this Court, the Tribunal clearly indicated to the applicant its concern that his continued return to China did not appear consistent with a person who claimed to fear persecution in that country.  This is clearly set out in the Tribunal’s decision under the sub-heading “Claims and Evidence” as part of the issues discussed during the hearing of 20 November 2007:

   The reason he travelled to Fiji was his worry that the authorities would continue to pursue him in relation to his knowledge of the athlete’s death and drug taking in sport.  The Tribunal indicated that his return to China three times after his departure for Fiji did not appear consistent with the person who feared harm from the authorities.  He stated that he had returned to China; the political situation was unstable in Fiji because of the coup, and he wanted to go to another country.  He asked a friend of his to get a US visa, but had to apply at the US embassy in China.  The Tribunal reiterated that his return to China three times was an issue of concern as it was not consistent with a person who feared being persecuted.  The applicant explained further that apart from going back to apply for a US visa, he had to go back to help his brother who was very sick; he was the only person who could take his brother for traditional treatment as his sister was in South Africa.  He went back although he was afraid he would experience problems. (CB 267)

4. The proceedings of the Tribunal are inquisitorial in nature and it is sometimes necessary to test the evidence presented.  The need to ensure that the person affected by the decision is accorded procedural fairness requires that he be plainly confronted with the matters which bear adversely on his credit or bring his account into question.  Clearly, the Tribunal was concerned that a person claiming protection in Australia to avoid returning to a regime where he would be persecuted would return there three times of his own accord.  I am satisfied that the Tribunal pursued this issue in an appropriate manner and that the applicant’s complaint cannot be sustained.

Ground two

2. The RRT erred when it found claims by me as a Sports Coach with inside knowledge of doping practice in China, would not result in serious harm to me if I returned to China.

1. This ground is not particularised and does not refer to the Tribunal’s decision.  The Tribunal did not accept that the applicant would suffer harm on return to China which it clearly stated:

   The Tribunal does not accept that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future if he returns to China on account of his actual or imputed political opinion or any other Convention reason arising from his involvement in Wu Shu, or possible knowledge of all views of doping in sport in China. (CB 277.9)

2. Nor did the Tribunal accept that the applicant would engage in anti-government activities if he returned to China.  This was expressed as follows:

   The Tribunal does not accept that the applicant will be perceived to be anti government if he returns to China because of knowledge he may have of doping in sport, or views against doping he may hold.  The Tribunal also does not accept that the applicant would engage in activities if he returns to China as a result of his knowledge or views that will be perceived as anti-government.  This is particularly so given the country information indicates China has taken active measures against doping in sport since the late 1990’s and that public reporting of these measures (and their results) is widespread.  Information also indicates that China has promoted its stance against doping even more strongly in the context of hosting the 2008 Olympics, and the Tribunal thus does not accept that any risk arises from the applicant as a result of the lead up to the 2008 Olympics. (CB 277.8)

3. Having made these findings, there was no occasion for the Tribunal to consider whether harm to the applicant would be of such a degree as to establish “serious harm” under the Act. I am satisfied that this claim cannot be sustained and should be dismissed.

Ground three

3.  The RRT erred when it found implausible the fact that I would be asked the same questions over and over again as a means of harassment during years of interrogation.

1. Again this is an un-particularised claim and appears to refer to an issue that the Tribunal put to the applicant during the hearing rather than an aspect of the Tribunal’s “Findings and Reasons”.  The relevant passage in the “Claims and Evidence” states:

   The Tribunal asked the applicant why he thought this would place him in danger.  He stated that when he returned to China the authorities asked him what he did in Poland, who he associated with and what he said.  He said he was with friends; he was asked whether he said anything he should not have said, for example what sports teams, and he told them he did not say anything.  The authorities did not give any reasons why they kept asking him to report to them.  He had to go whenever they required, and he had to report on his “thinking”.  The Tribunal stated that it appeared unusual that the authorities did not even explain why they required him to report; he stated he did not know why, and just thought that if he did not say anything about the drug scandals it should not be a problem.  He had to report once per week to once per fortnight.  The questions were always the same, or similar, ie, did you say anything about sports teams while he was in Poland.  This occurred throughout the period from the end of June 1999 until January 2002 when he left for Fiji. 

   The Tribunal stated it seemed implausible that the authorities would ask the same question over two and a half years without giving any explanation regarding their submissions.  He stated that this was a means of putting pressure on him, as well as his family, as they would contact the family, sometimes in the middle of the night.  The PSB would also visit randomly, whilst the neighbourhood committee to talk to him. (CB265.2)

1. Importantly, the Tribunal placed no reliance on this concern in its findings and rejected the applicant’s claim to have been interrogated.  A finding about the inherent implausibility of a claim is a factual matter to be determined by the Tribunal.  To the extent that an error of fact is alleged, it is well-established that this is not sufficient to constitute jurisdictional error: MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 at [28]; Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 at [31]; NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76 at [37]. This ground cannot be sustained and should be rejected.

Ground four

4.  The RRT failed to consider whether I would be able to subsist in China following my refusal to withdraw my claims of doping as the cause of the death of a young sportswoman.

1. In respect of the fourth ground, the applicant did not claim that he would suffer serious economic harm amounting to persecution.  The Tribunal found the following in its “Findings and Reasons” about the circumstances of the alleged death of the sportswoman and the subsequent consequences:

   Given the findings above, the Tribunal does not accept that the applicant experienced problems with the head of the Wu Shu Institute in Beijing because of information he obtained or events he became aware of relating to the administration of drugs to athletes.  The Tribunal does not accept that the applicant wrote a letter of protest in relation to the death of a female athlete in late 1997, and does not accept that the applicant was pressured to write a retraction to such a letter.  The Tribunal does not accept that the applicant was suspended from his position as Wu Shu coach for these reasons.  The Tribunal does not accept that he became unemployed for reasons of his claimed knowledge of drug taking in sport and the death of the female Wu Shu athlete.  The Tribunal accepts that the applicant may have resigned from his position as coach of the female Wu Shu team in order to take up the coaching assignment in Poland, but does not accept that he did so as a result of adverse actions taken by the institute arising from his knowledge of doping in sport. (CB 276.7)

2. This is a finding of fact made by the Tribunal on the information before it.  The reasons for the finding are clearly articulated and appear to be logical and drawn from the material before the Tribunal.  I am satisfied that this ground cannot be sustained and should be rejected.

Ground five

5. Statuory Test – not “reasonably foreseeable future”

The Tribunal applied an incorrect test as to whether the applicant is a refugee, namely, whether there is a real chance the applicant will suffer serious harm in the reasonably foreseeable future (277).

1. This is the first ground drafted by the applicant’s panel advisor.  The ground contends that the error in relation to the “real chance” test is that the Tribunal failed to apply the test correctly, in particular that the requirement of a “real chance”, although not clearly pleaded, is one that is not remote, insubstantial or a far fetched possibility.  Instead the Tribunal was required to make a decision of a higher certainty.  The Tribunal correctly referred to the test for well-founded fear in the introduction to its decision.  It is well-established that it follows from this test that such fear is not well-founded if it is based on mere assumption or speculation.  To properly apply the test, the Tribunal would be obliged to assess the circumstances in China in the reasonably foreseeable future: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13].

2. In the absence of particulars or any submission on this issue, I have formed the view that the Tribunal did not err by misapplying the real chance test and that it based its findings on material before it and that the findings were open to it: Australian Broadcasting Tribunal v Bond [1990] HCA 33. I am also satisfied that a finding of this nature was not perverse: Re Minister for Immigration & Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30 at [9]. Having engaged in an assessment of the probabilities of future persecution and made findings on that question, the Tribunal was not required to do anything further: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 575-577 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. I am further satisfied that the Tribunal correctly applied the authority of Guo.  It first made findings as to what had occurred in the past and then considered and rejected the applicant’s claim of past persecution.  The Tribunal considered whether there was a real chance of an event occurring in the future based on the past events not having occurred.  This is consistent with what was said by the majority in Guo at 576:

   It is true that, in determining whether there is a real chance that an event will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that that the event or the reasons will occur in the future. 

3. In other words, the Tribunal entered into an estimation of the probability of certain events occurring in the future and, based on the estimation of probabilities, it then determined whether there was a real chance of Convention related persecution.  As this claim is nothing more than a bland statement of principle without particulars or submissions in support, I am satisfied that the ground cannot be sustained and should be rejected.

Ground six

6.  Failure to give reasons given favourable findings

The Tribunal made a number of findings favourable to the applicant:

Particulars of favourable findings

6.1 The applicant was an elite athlete who was given extensive and specialised training in Wu Shu from a young age (274).

6.2 The applicant completed at national level in China (274).

6.3 The applicant was a member of national teams that travelled overseas to compete at exhibition and competitive events in the early 1990’s (274).

6.4 The applicant was a coach at the Beijing Wu Shu Institute from approximately 1994 until 1997 (274).

6.5 The applicant undertook a Wu Shu coaching assignment in 1999 on the invitation of a Polish Wu Shu Association (274).

6.6 The applicant resigned from his position as coach of the femail Wu Shu team in order to take up a coaching assignment in Poland (276).

6.7 The applicant was registered at the BTAASC (277).

6.8 The applicant as an elite Wu Shu athlete and coach may have been aware of doping in Chinese sport (277).

6.9 The applicant may have held and continues to hold views against doping in sport (277).

6.10 There is a possibility that the applicant may be questioned on his return to china, given his lengthy absence from Chian (279).

6.11 The authorities may indeed assume or indeed obtain confirmation from the applicant that the applicant had been unlawful in Australia and even that he made a protection visa application in Australia.

Nevertheless, in the light of the above, the Tribunal did not give reasons, or sufficient reasons, as to why the Tribunal accepted the above matters, and yet as to why it did not accept the various matters set out in Ground 7 below.

1. On a fair reading of the Tribunal decision, there does not appear to be anything perverse or illogical about the Tribunal accepting any of the particulars set out in this ground.  Many items in this list complement each other, in that it would be difficult to imagine that the applicant had been accepted as a Wu Shu instructor in Kuwait, Poland and Fiji if he had not in fact been an exponent of the sport.  It is difficult to see what the Tribunal would be obliged to provide explanations for.  I do not believe that ground six raises any issue of jurisdictional error nor does it require any further comment.

Ground seven

7. Failure to give reasons re unfavourable findings – politics

The Tribunal made a number of findings unfavourable to the applicant:

7.1 The applicant’s return to China on three occasions in the period 2002-2003 is inconsistent with his claim to have a well-founded fear of being persecuted by the authorities for reason of his knowledge of doping in sport and opinions against doping in sport (275).

7.2  It is implausible that the applicant would not have taken steps to seek protection while he was in Fiji if the events he claimed had occurred and if he feared for his safety in China as a result (275).

7.3 The Tribunal does not accept that if the applicant had a well founded fear of being persecuted if he returned to China he would have returned to China to apply for a US visa (275).

7.4 The Tribunal finds the applicant was interesting in obtaining a US visa for other reasons and returned to China in April 2002 because he was advised he had to apply for one in his home country (275).

7.5 The Tribunal does not accept that the applicant returned to China even though he was afraid of being monitored by the PSB (275).

7.6 The Tribunal finds that his return in April 2002, his subsequent returns for family reasons in 2003, and his failure to seek protection during this period are not consistent with his claims to have experienced problems from the authorities leading him to fear for his safety if he returned (275-276).

7.7 The Tribunal finds that the applicant did not apply for protection in Australia until after he was detained as an unlawful non-citizen in August 2007, approximately four years after his arrival in Australia.

7.8 It is highly inconsistent with his claims that he experienced problems at the Beijing Wu Shu Institute because of his stance against drug taking in sport, that he was harassed by the PSB after his return from Poland and that he feared continued harassment by the PSB if he returned (275-276).

7.9 The Tribunal finds that this delay in seeking protection in Australia is significantly adverse to his claim of having a well founded fear of being persecuted if he returns to China on account of his knowledge of and stance against doping in sport (276).

7.10 The Tribunal finds that it is not credible, if the applicant’s claims are true, that he would not have taken steps to seek protection until he was detained in August 2007 (276).

7.11 The Tribunal does not accept the applicant’s evidence he thought the department was only concerned with catching illegal immigrants, and that he did not know about refugee laws prior to his detention, and did not have friends or relatives in Australia, reasonably explains his failure to seek protection for some four years (276).

7.12 The Tribunal does not accept the explanation that he was afraid of talking to other Chinese because of his experiences in Poland, and because he was advised many agents were ‘money swindlers’ (276).

7.13 If the applicant had received advice about the integrity of Chinese migration agents, the Tribunal does not accept that he would not have been in a position to obtain advice about seeking protection in Australia (276).

7.14 The Tribunal does not accept that his fear of Chinese spies in Australia would reasonably have prevented him from approaching the Australian Government to seek protection.

7.15 The Tribunal finds that the applicant’s failure to lodge a protection application until some four years after his arrival in Australia, and after he was detained, is highly inconsistent with his claims of having suffered problems from the authorities in China and of having well founded fear of being persecuted if he returns (276).

7.16 The Tribunal finds that the applicant is not a witness of truth (276).

7.17 The Tribunal finds that the applicant has not given a truthful account of his circumstances which led him to depart China for Fiji in 2002, and which led him to remain in Australia after he arrived here in June 2003 (276).

7.18 The Tribunal does not accept the applicant experienced problems from the head of Wu Shu Institute in Beijing because of information he obtained or events he became aware of relating to the administration of drugs to athletes.

7.19 The Tribunal does not accept that the applicant wrote a letter of protest in relation to the death of a female athlete in late 1997, and does not accept that the applicant was pressured to write a retraction of such a letter (276).

7.20 The Tribunal does not accept that the applicant was suspended from his position as Wu Shu coach for these reasons.

7.21 The Tribunal does not accept that the applicant became unemployed for the reason of his claimed knowledge of drug taking in sport and the death of a female Wu Shu athlete (276).

7.22 The Tribunal accepts that the applicant may have resigned from his position as coach of the female Wu Shu team in order to take up a coaching assignment in Poland, but does not accept that he did so as a result of adverse actions taken by the Institute arising from his knowledge of doping in sport.

7.23 The Tribunal does not accept that the applicant spoke out against doping in sports in China during his coaching assignment in Poland 1999, in any manner that drew him to the adverse attention of the Chinese authorities (276).

7.24 The Tribunal does not accept that the applicant was questioned by the authorities, including the PSB, after his return, or was required to present himself to the authorities for questioning on a regular basis until his departure for Fiji in early 2002.

7.25 The Tribunal does not accept that the applicant was monitored by the authorities, including the PSB, because of information or a suspicion that he engaged in any activities while in Poland that might have been considered to be anti Chinese government (276-277).

7.26 The Tribunal also does not accept that the authorities pressured or harassed his family, or that his family suffered any other harm from the authorities (277).

7.27 The Tribunal does not accept that the PSB or other authorities have questioned or pressured the applicant’s family about the applicant’s whereabouts since he left China (277).

7.28 The Tribunal does not accept that the applicant’s inability to obtain government employment after his return from Poland in mid 1999 was a result of his circumstances at the Beijing Wu Shu Institute or his conduct in Poland (277).

7.29 Even if the BTAASC document were genuine, the Tribunal does not accept that the issue of the notice shortly before the Department’s decision on his protection visa application establishes that the Chinese authorities are aware of the applicant’s protection visa application in Australia or that he has come to the adverse attention of the authorities as a result of making such an allegation.

7.30 The Tribunal does not accept that if the applicant’s family did pay the BTAAASC fee they were questioned about his status in Australia (277).

7.31 The Tribunal does not accept that the applicant has been or is perceived to have a political opinion that is anti government as a result of his possible knowledge of doping in sport in China, or his profile as a former elite Wu Shu athlete and coach (277).

7.32 The Tribunal does not accept that the applicant will be perceived to be anti government if he returns to China because of knowledge that he may have a doping in sport, or views against doping he may hold (277).

7.33 The Tribunal also does not accept that the applicant will engage in activities if he returns to China as a result of his knowledge or views that will be perceived as anti government (277).

The Tribunal did not give reasons, or sufficient reasons as to why it made the above findings unfavourable to the applicant.

1. Section 430 of the Act does not require the Tribunal to prepare lengthy reasons dealing with every piece of evidence. Rather it is enough that the findings deal with the substantial issues on which the case turns. However, s.430(1)(d) requires the Tribunal to refer to the evidence on which the findings on material questions of fact are based. The decision maker is not required to give reasons for rejecting each item of evidence inconsistent with the findings it makes. In Paramanamthan v Minister for Immigration & Multicultural Affairs [1998] FCA 1693, Wilcox J stated that one of the purposes of s.430 is to ensure that an unsuccessful applicant for a protection visa is told why the application has failed and that if the reason, or one of the reasons, was that the Tribunal rejected a material claim, it must say so and indicate the evidence or other material on which the adverse finding was based.

2. In SZEJF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 724 at [37]-[41], Rares J stated:

   37 It is important to recognize that the tribunal is the body created by the Parliament to conduct the review on the merits of decisions by the Minister or his or her delegate.  The role of the court in proceedings such as this is to review whether in reaching its decision, the tribunal adhered to or departed from the procedure for the conduct of the review laid down in the Act or, to the extent that s 422B and Div 4 Pt 7 of the Act do not exclude them, the principles of common law.  Nonetheless, as Brennan J observed in Kioa v West (1985) 159 CLR 550 at 662:  `[t]he distinction between method and merits is sometimes elusive.'  But, where the court is not authorized by statute to substitute its view of the merits, it must confine itself to a consideration of whether the repository of the statutory power under challenge, here the tribunal, has arrived at its decision on the merits by a procedure authorized by, and in conformity with, the enactment which conferred the power:  Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411 at 415-416 [14]-[16] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.  If the repository so acted, even if the court disagrees with the merits of the decision so reached, the court must hold that the repository has exercised lawfully the jurisdiction which it had.

   38 In exercising its function of conducting a review of a decision under s 414(1) of the Act, the tribunal cannot simply act perfunctorily.  Nor can it shut its ears or eyes so as to ignore, consciously or inadvertently, the claims made by the applicant for review (cf:  Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24]-[25] per Gummow and Callinan JJ, 406-407 [86]-[87] per Kirby J, 408 [95] per Hayne J).

   39 In arriving at what it considers to be the correct or preferable decision (Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18) at the conclusion of its review under ss 414(1) and 415 of the Act, the tribunal must give `proper, genuine and realistic consideration to the merits of the case' (Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J, Zhang v Canterbury City Council [2001] 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration v Yusuf (2001) 206 CLR 323 at 367 [138] per   Kirby J.

   40 So, in Re Minister for Immigration and Multicultural and Indigenous Affairs:  Ex parte Palme (2003) 216 CLR 212 at 223-224 [39] Gleeson CJ, Gummow and Heydon JJ referred to the inference which is open to a court exercising the function of judicially reviewing a decision of the executive government that if the decision-maker does not give any reason for his or her decision the court may be able to infer that he or she had no good reason.

   41 As Brennan CJ, Toohey, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 the reasons of an administrative decision-maker are meant to inform and are not to be scrutinized upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

1. The Tribunal’s adverse credibility finding and consequent rejection of the applicant’s claims are a matter for the Tribunal par excellence: Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67]. I am satisfied that with the Tribunal’s findings in this respect were open to it on rational grounds on the material before and no error is disclosed in its treatment of the applicant’s credibility: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547. The Tribunal detailed at length the vagueness, inconsistency and unreliability of the applicant’s evidence in a number of respects. The Tribunal’s decision, which is the only evidence before the Court in relation to the conduct of the hearing, indicates that the concerns it had in relation to aspects of the applicant’s evidence were raised during the course of the hearing. Accordingly this ground cannot be sustained.

Ground eight

8. Failure to give particulars – sections 424A and 424AA

Contrary to sections 424A and 424AA of the Migration Act 1958, the Tribunal failed to give the applicant clear particulars (either orally or in writing) in respect of information that the Tribunal considered to be the reason or part of the reason for making the following findings adverse to the applicant, and for affirming the decision under review:

Particulars pursuant to sections 424A and 424AA

8.1 The applicant’s return to China on three occasions in the period 2002-2003 is inconsistent with his claim to have a well-founded fear of being persecuted by the authorities for reason of his knowledge of doping in sport and opinions against doping in sport (275).

8.2 It is implausible that the applicant would not have taken steps to seek protection while he was in Fiji if the events he claimed had occurred and if he feared for his safety in China as a result (275).

8.3 The Tribunal does not accept that if the applicant had a well founded fear of being persecuted if he returned to China he would have returned to China to apply for a US visa (275).

8.4 The Tribunal finds the applicant was interested in obtaining a US visa for other reasons and returned to China in April 2002 because he was advised he had to apply for one in his home country (275).

8.5 The Tribunal does not accept that the applicant returned to China even though he was afraid of being monitored by the PSB (275).

8.6 The Tribunal finds that his return in April 2002, his subsequent returns for family reasons in 2003, and his failure to seek protection during this period are not consistent with his claims to have experienced problems from the authorities leading him to fear for his safety if he returned (275-276).

8.7 The Tribunal finds that the applicant did not apply for protection in Australia until after he was detained as an unlawful non-citizen in August 2007, approximately four years after his arrival in Australia.

8.8 It is highly inconsistent with his claims that he experienced problems at the Beijing Wu Shu Institute because of his stance against drug taking in sport, that he was harassed by the PSB after his return from Poland and that he feared continued harassment by the PSB if he returned (275-276).

8.9 The Tribunal finds that this delay in seeking protection in Australia is significantly adverse to his claim of having a well founded fear of being persecuted if he returns to China on account of his knowledge of and stance against doping in sport (276).

8.10 The Tribunal finds that it is not creditable, if the applicant’s claims are true, that he would not have taken steps to seek protection until he was detained in August 2007 (276).

8.11 The Tribunal does not accept the applicant’s evidence he thought the Department was only concerned with catching illegal immigrants, and that he did not know about refugee laws prior to this detention, and did not have friends or relatives in Australia, reasonably explains his failure to seek protection for some four years.

8.12 The Tribunal does not accept the explanation that he was afraid of talking to other Chinese because of his experiences in Poland, and because he was advised many agents were ‘money swindlers’ (276).

8.13 If the applicant had received advice about the integrity of Chinese migration agents, the Tribunal does not accept that he would not have been in a position to obtain advice about seeking protection in Australia (276).

8.14 The Tribunal does not accept that his fear of Chinese spies in Australia would reasonably have prevented him from approaching the Australian Government to seek protection.

8.15 The Tribunal finds that the applicant’s failure to lodge a protection application until some four years after his arrival in Australia, and after he was detained, is highly inconsistent with his claims of having suffered problems from the authorities in China, and of having a well founded fear of being persecuted if he returns (276).

8.16 The Tribunal finds that the applicant is not a witness of truth.

8.17 The Tribunal finds that the applicant has not given a truthful account of his circumstances which led him to depart China for Fiji in 2002, and which led him to remain in Australia after he arrived here in June 2003 (276).

8.18 The Tribunal does not accept the applicant experienced problems from the head of Wu Shu Institute in Beijing because of information he obtained or events he became aware of relating to the administration of drugs to athletes (276).

8.19 The Tribunal does not accept that the applicant wrote a letter of protest in relation to the death of a female athlete in late 1997, and does not accept that the applicant was pressured to write a retraction of such a letter.

8.20 The Tribunal does not accept that the applicant was suspended from his position as Wu Shu coach for these reasons (276).

8.21 The Tribunal does not accept that the applicant became unemployed for the reason of his claimed knowledge of drug taking in sport and the death of a female Wu Shu athlete (276).

8.22 The Tribunal accepts that the applicant may have resigned from his position as coach of the female Wu Shu team in order to take up a coaching assignment in Poland, but does not accept that he did so as a result of adverse actions taken by the Institute arising from his knowledge of doping in sport (276).

8.23 The Tribunal does not accept that the applicant spoke out against doping in sports in China during his coaching assignment in Poland in 1999, in any manner that drew him to the adverse attention of the Chinese authorities (276).

8.24 The Tribunal does not accept that the applicant was questioned by the authorities, including the PSB, after his return, or was required to present himself to the authorities for questioning on a regular basis until his departure for Fiji in early 2002.

8.25 The Tribunal does not accept that the applicant was monitored by the authorities, including the PSB, because of information or a suspicion that he engaged in any activities while in Poland that might have been considered to be anti-Chinese government (276-277)

8.26 The Tribunal also does not accept that the authorities pressured or harassed his family, or that his family suffered any other harm from the authorities (277).

8.27 The Tribunal does not accept that the PSB or other authorities have questioned or pressured the applicant’s family about the applicant’s whereabouts since he left China (277).

8.28 The Tribunal does not accept that the applicant’s inability to obtain government employment after his return from Poland in mid 1999 was a result of the circumstances at the Beijing Wu Shu or his conduct in Poland (277).

8.29 Even if the BTAASC document were genuine, the Tribunal does not accept that the issue of the notice shortly before the Department’s decision on his protection visa application establishes that the Chinese authorities are aware of the applicant’s protection visa application in Australia or that he has come to the adverse attention of the authorities as a result of making such an application (277).

8.30 The Tribunal does not accept that if the applicant’s family did pay the BTAASC fee they were questioned about his status in Australia (277).

8.31 The Tribunal does not accept that the applicant has been or is perceived to have a political opinion that is anti government as a result of his possible knowledge of doping in sport in China, or his profile as a former elite Wu Shu athlete and coach.

8.32 The Tribunal does not accept that the applicant will be perceived to be anti government if he returns to China because of knowledge that he may have of doping in sport, or views against doping he may hold (277).

8.33 The Tribunal also does not accept that the applicant will engage in activities if he returns to China as a result of his knowledge or views that will be perceived as anti government.

1. Section 424AA of the Act states:

   Information and invitation given orally by Tribunal while applicant appearing

   If an applicant is appearing before the Tribunal because of an invitation under section 425:

   (a)  the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)  if the Tribunal does so--the Tribunal must:

   (i)  ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii)  orally invite the applicant to comment on or respond to the information; and

   (iii)  advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv)  if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

2. This provision was introduced into the Act and became operational on 29 June 2007. Consequently it applies to this matter as the protection visa application was not filed until 13 September 2007. However, a transcript of the Tribunal hearing is not in evidence, nor is there a direct statement in the decision indicating that the applicant was asked to provide, comment or respond to information and given time to do so. The decision record does state:

   The applicant was represented in relation to the review by his registered migration agent.  The representative attended the Tribunal hearing. (CB 264.2)

3. The Tribunal application nominated Ms Beatriz Stotz of Playfair Visa and Migration Services, Level 5, 37 Bligh St, Sydney NSW, as the applicant’s representative.  All subsequent correspondence between the Tribunal and the applicant has been addressed to Ms Stotz.  Although the Court Book contains correspondence indicating that it was the applicant’s intention to replace the agent and retain new legal representation (CB 134,136), there is no evidence of this in the Court Book.  All correspondence continues to be addressed to Ms Stotz.  The “RRT hearing record” (CB 223-224) indicates that the applicant attended the hearing with Ms Stotz (as representative) and Francis Lillian Milne (a friend as an observer).  A mandarin interpreter was also present.  The Tribunal hearing was conducted on 20 November 2007 between 1.00 pm and 5.00 pm.  On 27 November 2007, Ms Stotz sent a brief letter to the Tribunal:

   I am forwarded further information for the Tribunal’s consideration.

   Please don’t hesitate to contact me [mobile number] should you require further information regarding this letter.

4. The following appears in the Tribunal decision under “Post hearing evidence”:

   On 27 November 2007 the Tribunal received further submissions from the applicant’s representative, that are summarised as follows:

   o   Information, previously supplied, supporting the claim that there were difficulties surrounding the contents of Chinese herbs and sport drug testing.

   o   Country information indicating that there was persecution of Christians in China.

   o   Country information was submitted relating to the sixth Chinese city games in Wuhan, indicating there had been doping cases uncovered during the games.  Further country information was submitted indicating that the international Wu Shu federation had signed the drug testing service agreement with the world anti doping agency in 2001.

   The representative also submitted a number of medals awarded to the applicant as a Wu Shu athlete. (CB 269-270)

5. The decision does not explain why or under what circumstances these additional submissions were made. Whether they were the result of an invitation issued under s.424AA or at the initiative of the migration agent is not apparent from the decision. Nevertheless, the post hearing submissions were accepted and considered by the Tribunal. If they were the result of a positive invitation by the Tribunal, the response of the migration agent who interpreted the conduct of the hearing as being such an invitation is unknown. Nor was there a request for further time in which to supply additional information. In the circumstances, I do not believe it is possible to make a positive finding that s.424AA was not complied with.

6. The enlivenment of s.424A(1) is subject to s.424A(3)(a) and (b) which states:

   (3)  This section does not apply to information:

   (a)  that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)  that the applicant gave for the purpose of the application for review; or

7. A substantial amount of material was supplied by the applicant and his agent:

   a)The hearing submission forwarded by Beatriz Stotz in November 2007 (CB 144-156)

   b)The applicant’s statement attached to the hearing submissions (CB 157-163)

   c)Country information in the form of press and web articles (CB 165-222)

   d)Documents tendered at the hearing (CB 225-232)

   e)Post hearing submissions (CB 233-252)

   f)Material presented orally by the applicant and by the advisor during the Tribunal hearing (CB 264-270)

   Further independent country information was referred to and summarised in the Tribunal decision (CB 270-274).

8. The substantial and significant volume of material identified in particulars 8.1 to 8.33 fall within the exemptions in s.424A(3)(a) and (b). The Tribunal did not issue an “Invitation to Comment on Information” letter pursuant to s.424A(1). It is clear that there is no obligation for the Tribunal to put to the applicant inconsistencies in his oral evidence (such as particulars 8.1, 8.6, 8.8 and 8.15) under s.424A. Insofar as such inconsistencies constitute “information” for the purposes of s.424A(1), see SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at [17]-[18]. Such material is within the exception in s.424A(3)(b), being information the applicant gave for the purposes of the application for review.

9. The issues identified in particulars 8.22, 8.23, 8.24, 8.25, 8.26, 8.27, 8.29, 8.30, 8.31, 8.32 and 8.33 were in material given at the hearing (CB 264-268). However they were originally derived from the applicant’s protection visa application (CB 23-25, 84-86) and adopted and expanded upon at the Tribunal hearing by the applicant. They plainly fall within the exemption in s.424A(3)(b): SZHFC v Minister for Immigration & Multicultural Affairs [2006] FCA 1359 at [24].

10. Justice Allsop in SZHFC at [24] and [25] considered circumstances where the Tribunal had regard to information within the protection visa application which led to questioning on that information during the hearing. His Honour expressed the view that:

    …If the Tribunal, as here, puts an earlier statement or application to the applicant and asks questions about it, it does not seem to me capable of being denied that the answers given to those questions will be information for the purposes of s 424A(3)(b). If the Tribunal then takes that information, that is, for want of a better expression, that raw information or data into account, nothing would prevent the operation of s 424A(3)(b)... In other words, if facts are given to the Tribunal in answers, they are information falling within s 424A(3)(b). That section is not limited to volunteered or unprompted information.

11. Where the applicant’s oral evidence contains the same information as was in his protection visa application, and to the extent that he gave the Tribunal “raw information”, s.424A(3)(b) applies to this information and there is no breach of s.424A(1) in respect of it. Justice Heerey in SZCJD v Minister for Immigration [2006] FCA 609 discussed s.424A(3)(b) applying to exclude the operation of s.424A(1) because details of the visa application in that case were discussed with the applicant at that Tribunal hearing. His Honour stated at [40]-[43]:

    [40] In any case, I do not accept the appellant’s argument that the Tribunal contravened s 424A(1) at the time it sent the 23 September letter. The Tribunal had not then reached a stage where it considered that the information in the protection visa application, or indeed any other information, would be a reason for affirming the refusal of the visa. It had not reached a decision to affirm (or set aside) the decision under review. All that had happened by this stage was that the Tribunal considered that the information then before it did not enable it to make a decision in favour of the appellant. The whole point of fixing a hearing, as required by s 425, was to obtain further information, and in particular information from the appellant himself, which might, or might not, result in a decision to affirm the decision under review. The Tribunal was obliged to consider information which came before it: s 424(1). Until the Tribunal has in fact considered all the material, whether from a hearing or otherwise, it could not form any view as to whether any particular information wouldtend to show the decision under review should be affirmed; or tend to show the decision under review should be set aside; or be irrelevant.

    [41] The obligation under s 424A(1) does not attach at any particular stage of the Tribunal’s internal decision-making process. In the course of that process, as the Tribunal member thinks about material which is progressively obtained and considered, some matters will emerge as significant and others will assume less significance. Their respective significance may change again. The only constraint arising from s 424A(1) is that the Tribunal cannot make a decision, that is a final, operative decision, to affirm when it possesses information which would be the reason, or part of the reason, for that decision unless it gives particulars of that information to the applicant, ensures the applicant understands why it is relevant, and invites him or her to comment.

    [42] Even if the “information” here were caught by s 424A(1), the exception in s 424A(3)(b) would apply. If the “information” is given by the applicant at the Tribunal hearing, it is excluded from the operation of subs (1), even though it might have also been provided to the Tribunal from another source. In SZEEU at [91] Moore J, with whom Weinberg J at [173] and Allsop J at [264] agreed on this issue, said:

    While it appears that the Tribunal originally came to know that the appellant entered Australia on a business visa from sources other than the appellant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal’s reasons that it discussed this fact (that the appellant had entered Australia on a business visa) with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source.

    This construction is consistent with the purpose of providing procedural fairness in Tribunal reviews (albeit in exclusively statutory form: Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61) which underlies Div 4 of Pt 7. If an applicant “gave” the “information” for the purpose of the Tribunal review application (in contrast to SAAP, where the Tribunal had obtained the information from a witness other than the applicant) that is something necessarily within the knowledge of the applicant himself. It is not unfair for the Tribunal to then make such use of the information as it thinks fit.

    [43] To conclude that an applicant “gave” information for the purpose of the Tribunal application it is not necessary that the information was initially volunteered by the applicant. Information is equally given if it comes in response to questioning by the Tribunal.

1. In the absence of a transcript of the Tribunal hearing, the Court can only rely on the Tribunal decision and the explanations contained therein as to the sources of the various information.  During the hearing the Tribunal member asked a number of questions about the circumstances of the applicant’s application.  As the applicant provided more information about his claim a number of inconsistencies and implausible claims emerged.  These issues were not known until the Tribunal hearing took place.  This development of the information – in which some elements became significant and others not – was a situation as referred to in SZCJD.  I am satisfied that this claim of jurisdictional error on the part of the Tribunal cannot be sustained.

Ground nine

9. Failure to give reasons given favourable findings – religion

The Tribunal made a number of findings favourable to the applicant:

9.1 People may turn to religion in times of distress (278).

9.2 The applicant has taken part in Christian activities in Villawood and has undertaken a baptism ceremony and Christian RECONNECT course since he was detained in Villawood (278).

9.3 The applicant may be questioned on his return to China given his lengthy absence from China (279).

9.4 The authorities may assume, or indeed obtain confirmation from him, that the applicant has been unlawful in Australia and even that he made a protection visa application in Australia (279).

9.5 There are restrictions on religious freedom in China (278).

The Tribunal did not given reasons or sufficient reasons as to why it accepted the above matters and why it did not accept the various matters set out in paragraph 10 below.

1. This ground and its particulars do not raise any jurisdictional error and appear to have been included purely as a comparison to the issues raised in ground ten.  The Tribunal member’s statements do nothing more than indicate that he accepted these issues and that they were not in dispute.  I do not believe that ground nine requires any further consideration. 

Ground ten

10. Failure to give reasons given unfavourable findings – religion

The Tribunal made a number of findings unfavourable to the applicant.

10.1 There is no evidence that the applicant practiced as a Christian prior to being detained in Villawood (278).

10.2 The Tribunal also finds that the applicant’s evidence regarding why he would not be able to practice Christianity in China, and what problems his religion would cause was very vague.

10.3 The Tribunal does not accept that the applicant is engaged in Christian activities since his detention in Villawood because he has become a genuine and committed Christian.

10.4 The Tribunal finds that the applicant was baptised and participated in Christian services and classes not because he was a genuine Christian, but in order to strengthen his protection visa claims (278).

10.5 The Tribunal does not accept that the applicant is a genuine Christian in Australia (278).

10.6 The Tribunal does not accept that the applicant will practice as a Christian in China upon his return (278).

10.7 The Tribunal does not accept that the applicant will take action in China in relation to human rights or social justice issues because of his religion that will bring him to the adverse attention of the authorities (278).

10.8 Even if the applicant were to practice Christianity on his return to China, however, the Tribunal does not accept that there is a real chance that he would suffer harm amounting to persecution as a result (278).

10.9 Millions of Chinese are able to practice their Christianity openly in registered or officially sanctioned churches (278).

The Tribunal did not give reasons or sufficient reasons as to why the Tribunal made the above findings unfavourable to the applicant.

1. This is a broad claim that the Tribunal provided an inadequate explanation for its decision.  In the case of particular 10.1 and in the absence of the Tribunal hearing transcript, the Tribunal recorded in its decision under “Evidence at the Hearing”:

   He stated after being detained in Villawood he became a Christian and had been baptised. He stated that even though there were Christians and churches in China, there was no freedom and he could not practice ones religion as freely as one would like. The Tribunal referred to country information indicating that millions of people practice Christianity openly in China, and asked why the applicants thought that his practice as a Christian would lead him to be persecuted. He stated that those people who practice openly had reported to the PSB. The Tribunal stated that country information did not indicate that those who practice openly had to report to the PSB. The applicant stated that if the church wanted to organise large activities that needed agreement with all the authorities. He stated that anything considered “political” would be opposed. The applicant asked why he practiced as a Christian would be considered “political”. He stated as a Christian he would feel obliged to do something about human rights. He said that broadly speaking, the authorities did not allow freedom. The Tribunal asked how this indicated that he would be persecuted for his religion. He stated that as a Christian he would do things that were required of a Christian and what God regarded as being just; he would therefore be regarded as anti government. When asked to elaborate he stated that for example he would speak out against the persecution of Falun Gong practitioners. The Tribunal indicated that on the basis of his vague evidence and the fact that there was no evidence of him practising as a Christian prior to his detention, the Tribunal might find that he engaged in Christian activities for the purpose of strengthening his claims. The Tribunal explained the operation of s.91R(3) of the Act, and indicated that if it found this, it would disregard his conduct in Australia relating to his Christian religion. The applicant stated that he had not become Christian for the purposes of making his protection claim. After being detained in Villawood he was under a lot of stress physically and mentally. A friend suggested that he could communicate with God to get help and support. He now felt that he could rely on the Bible for the rest of his life. He would now give his heart to God. His family did not know about his detention at Villawood, and he had no spiritual support. The only thing he could rely on was God. He could not rely on anyone before and this is why he did not have an interpreter to help him with his original form 866. If the Tribunal thought that he’d become a Christian just to strengthen his claim the Tribunal had misunderstood his situation. (CB 268)

2. The issue raised in particular 10.1 is the result of a direct question to the applicant to which he replied in the affirmative.  Further the circumstances concerning the applicant’s adoption of or participation in Christian activities were explained by him.  It does not seem necessary for the Tribunal to reproduce this material in its “Findings and Reasons” as it was already recorded in some detail in an earlier part of the decision. 

3. The issues raised in particulars 10.6, 10.7 and 10.8 are also the result of direct answers from the applicant about why he had severe reservations about the practice of Christianity in China.  Similarly, in respect of particular 10.9, the Tribunal member indicated to the applicant that the independent country information shows large numbers of people practicing Christianity in China at officially sanctioned churches.  The applicant acknowledged this but indicated that there was government interference requiring authorisation for all these meetings and activities.  I do not believe that the Tribunal needed to give a more detailed explanation for not accepting the applicant’s adoption of Christianity or the likelihood of his participation with the church on his return to China.  The remaining particulars of this ground relate to the Tribunal’s assessment of the applicant’s response.  This is strictly a merits assessment which is not subject to review by this Court.  In the circumstances I do not believe it is necessary to further consider the issues raised in ground ten.

Ground eleven

11. Failure to give particulars – religion

Contrary to section 424A and 424AA of the Migration Act 1958, the Tribunal failed to give the applicant particulars (either orally or in writing) in respect of the information that the Tribunal considered to be the reason or part of the reason for making the following findings adverse to the applicant, and for affirming the decision under review.

11.1 There is no evidence that the applicant practised as a Christian prior to being detained in Villawood (278).

11.2 The Tribunal also finds that the applicant’s evidence regarding why he would not be able to practice Christianity in China, and what problems this religion would cause was very vague (278).

11.3 The Tribunal does not accept that the applicant is engaged in Christian activities since his detention in Villawood because he has become a genuine and committed Christian (278).

11.4 The Tribunal finds that the applicant was baptised and participated in Christian services and classes no because he was a genuine Christian, but in order to strengthen his protection visa claims (278).

11.5 The Tribunal does not accept that the applicant is a genuine Christian in Australia (278).

11.6 The Tribunal does not accept that the applicant will practice as a Christian upon his return (278).

11.7 The Tribunal does not accept that the applicant will take action in China in relation to human rights or social justice issues because of his religion that will bring him to the adverse attention of the authorities (278).

11.8 Even if the applicant were to practice Christianity on his return to China, however, the Tribunal does not accept that there is a real chance that he would suffer harm amounting to persecution as a result (278).

11.9 Millions of Chinese were able to practice their Christianity openly in registered or officially sanctioned churches (278).

1. Ground eleven is in the same format as grounds seven and eight, in that all the issues identified in ground ten are repeated in ground eleven as a failure of the Tribunal to comply with s.424A and s.424AA of the Act.

2. In respect to s.424AA, this Court is faced with the same problem of not having a transcript of the Tribunal’s hearing to determine whether there was an invitation from the Tribunal member for the applicant to address issues raised orally during the hearing. However, the applicant’s migration agent, Ms Stotz, did respond in post hearing submissions by including a comprehensive range of articles addressing religious freedom in China. Without re-ventilating the arguments set out at [30]-[34], I am satisfied that the same arguments apply to ground eleven.

3. Similarly in respect of the claim of a failure to comply with s.424A, I again rely on the arguments at [35] to [40] above. Although the particulars address different facts, the principles discussed in those paragraphs are the same and I am satisfied for those reasons that the obligation under s.424A has not been enlivened and that no jurisdictional error arises.

Ground twelve

12. Social group opposed to doping in sport

The Tribunal failed to give consideration to whether the applicant was a member of a particular social group, namely sportspersons, opposed to doping in sport and whether the applicant had a well founded fear of being persecuted because of his membership of such a social group.

1. Ground twelve suggests that the applicant may have been able to establish membership of a particular social group being sportspersons opposed to doping in sport.  However no such claim was made to the Tribunal but if it had been made, the Tribunal may well have been bound to conclude that such a particular social group was not recognisable under the Convention and could not be recognised except by reference to fear of persecution.  In Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387 at [36], Gleeson CJ, Gummow and Kirby JJ stated:

   …the determination of whether a group falls within the definition of "particular social group" in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". As this Court has repeatedly emphasised, identifying accurately the "particular social group" alleged is vital for the accurate application of the applicable law to the case in hand.

2. I also note that “the Tribunal is not obliged to deal with a case not put to it or that does not clearly arise on the material before it” and that the “social group suggested in the applicant’s amended application/submissions was never put to the Tribunal”: NABE v Minister for Immigration & Indigenous Affairs (No 2) (2004) 144 FCR 1.

3. The nature of the applicant’s claims are set out in the decision under the heading “Evidence at the hearing”:

   The applicant stated that he had a national reputation in an area of sports and now he was in Australia as an unlawful person.  In China, which was highly politicised, he had become someone who had ‘stained’ the national reputation and had wasted the special training he had been given.  Also, he had taken the position which opposed China, and would suffer persecution if he returns.  The second reason he feared returning was that the authorities were very sensitive to any athlete who had taken drugs or had been involved in any drugs scandal especially because of the 2008 Olympics.  They regarded the Olympics as a political event as they can wipe out the adverse impression caused by the 1989 student protest crackdowns to a successful games and positive image to the international community.  The authorities would aim to show they are supported by all Chinese this would reinforce their hold on power.  They would thus not let anyone associated with drug scandals “off the hook”.  He faces risks if he returned.  He referred to a newspaper article indicating that a person who was gaoled in China recently was speaking in support of the Dalai Lama. (CB 264)

4. A sportsperson opposed to doping in sport does not readily fit within the definition in Applicant S as those characteristics or attributes do not necessarily distinguish that sportsperson from society at large because a person so described would not be distinguishable without additional characteristics.  In the passage above, the applicant described himself in a number of ways that may identify him to the Chinese authorities.  There is a possibility that he wasted the special training provided by the authorities, was a critic of the use of performance enhancing drugs, is identified as a whistle blower in respect of drugs in sport, or is seen as taking a position which opposes Chinese authorities.  If any one of these characteristics is the basis for the claim of belonging to a particular social group, the description is vague and not immediately identifiable.

5. The pivotal issue in this ground is whether the Tribunal failed to consider a claim that, although not expressly articulated, was squarely raised by the applicant in his evidence before the Tribunal.  This ground suggests that the Tribunal was obliged to, in effect, examine the situation of the applicant through his membership of the particular social group being sportsmen who are opposed to doping in sport.  In NABE (No 2), Black CJ, French and Selway JJ stated:

   A judgment that the Tribunal has failed to consider a claim not expressly advanced is as I have already indicated in these reasons, not likely to be made.  The claim must emerge clearly from the materials before the Tribunal.

   The Tribunal is required to deal with the case raised by the material or evidence before it.

   the Tribunal is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.

6. NABE (No.2) emphasised that caution needs to be exercised when there has not been an express statement of a particular claim made by an applicant and that it is necessary for the claim to be clearly from the material put before the Tribunal.  It is to be noted that in this case, the Tribunal had accepted the factual sub-stratum of the applicant’s claims.  However, in accepting that material, the Tribunal found that it did not give rise to any Convention nexus.  I am not satisfied that an inquisitorial Tribunal would have identified a potential claim under the Convention based on the applicant’s membership of a particular social group.  In my mind, that particular social group which the applicant is claiming in this ground is not readily distinguishable from society at large as it is not immediately apparent that he would be persecuted by the authorities for not agreeing with the use of performance enhancing drugs by athletes in his field.  The particular social group claimed in this ground would require other characteristics to enable its identification.  I am satisfied that this ground cannot be sustained.

Conclusion

1. The applicant in these proceedings is a self represented litigant who appeared with the assistance of a Mandarin interpreter.  The applicant was given the opportunity to participate in the Court sponsored panel advice scheme and was assisted in the preparation of seven grounds of review by that advisor.  These have been considered together with the grounds of the original application.  The applicant was also assisted by a migration agent in the preparation of his application and material presented to the Tribunal.  I am satisfied that no jurisdictional error is evident in the Tribunal decision and that this application should be dismissed with costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  18 July 2008