SZLYW v Minister for Immigration

[2008] FMCA 705

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLYW v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 705

MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) Visa – credibility – merits review not function of judicial review – applicant must make out own case – whether breach of s.424A of the Act – whether procedural fairness – whether proper consideration of claims – whether applicant’s evidence properly considered – weight.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 422B, 424, 424A, 424AA, 425, 430, 474, 476

SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
WAEE v Minister for Immigration & Indigenous Affairs (2003) [2003] FCAFC 184
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464

Applicant: SZLYW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 303 of 2008

Judgment of: Orchiston FM

Hearing date: 21 May 2008

Date of Last Submission: 21 May 2008

Delivered at: Sydney

Delivered on: 30 May 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application filed on 11 February 2008 is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,000 payable within four (4) months of the date of these Orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 303 of 2008

SZLYW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 15 January 2008 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a protection visa to the applicant.

Background

1. The applicant was born on 9 September 1968.  He claims to be a national of China and of Falun Gong faith.  He arrived in Australia on 20 May 2007 on a Chinese passport issued in his own name.

2. The applicant lodged an application for a protection visa on 28 June 2007 on the basis that he was detained, beaten, tortured and sent to a mental hospital for his practice of Falun Gong.  He claims that he cannot return to China as he will face further persecution.

3. On 27 August 2007 the delegate refused to grant the applicant’s protection visa on the basis that he was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).

4. On 2 October 2007 the applicant applied to the Tribunal for review of the delegate’s decision.

Legislative framework

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

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

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

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

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

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

The Tribunal proceedings

1. On 23 October 2007, the Tribunal sent a letter to the applicant inviting him to appear before it on 26 November 2007 to give oral evidence and present arguments.

2. The applicant was invited to attend a second Tribunal hearing on 5 December 2007 to give him additional time to respond to or comment on the issues and information put to him by the Tribunal in the course of the first hearing (Court Book (CB) 100).

The Tribunal’s findings and reasons (CB 101-105)

1. I accept that the First Respondent accurately summarises the Tribunal's Findings and Reasons as follows :

Falun Gong practice

The Tribunal found that the applicant had only a rudimentary and rote knowledge of Falun Gong and that he did not hold a genuine belief in, or commitment to, Falun Gong.

Falun Gong activities

The Tribunal found the applicant’s explanation as to why he became involved in the dangerous and illegal activity of distributing Falun Gong pamphlets only weeks after becoming a practitioner, to be unconvincing and implausible. The Tribunal was not satisfied that the applicant was arrested and detained as claimed or for the reasons claimed.

Arrest and detention and incidents of past harm

The Tribunal found the applicant’s explanation and evidence of his arrest and detention to be unconvincing and implausible. It was not satisfied that the applicant was arrested and detained for the reasons claimed or for any other reason. The applicant’s account of his detention in a mental institution was vague and generalised. The Tribunal was not satisfied that he was ever institutionalised, or if he was, that he was institutionalised for the reasons claimed.

Political Opinion

The Tribunal found the applicant’s anti-government comments were vague and generalised in nature. It was not satisfied the applicant ever engaged in anti-government activity.

Travel to Malaysia

The Tribunal was not satisfied by the applicant’s response as to why he did not take the opportunity to flee China when he received a visitor's visa to travel to Malaysia.

Activities in Australia

The Tribunal accepted that the applicant participated in Falun Gong activities in Australia but formed the view that the applicant engaged in those activities in order to strengthen his claim for refugee status. Such conduct was disregarded as required by s.91R(3) of the Act.

Future harm

As the Tribunal found that the applicant was not a Falun Gong practitioner, the Tribunal also found that the applicant would not practise Falun Gong or disseminate Falun Gong material were he to return to China, either now, or in the reasonably foreseeable future.

Credibility

For the reasons set out above the Tribunal did not accept the applicant as a witness of truth.

1. Accordingly, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution in relation to his actual or imputed religion, political opinion or membership of a particular social group.

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

The proceedings before this Court

1. The applicant filed the application in this Court on 11 February 2008 setting out 2 grounds of review of the Tribunal’s decision.

2. The applicant appeared in person before the Court on 21 May 2008 with the assistance of a Mandarin interpreter.  Ms Griffin appeared for the first respondent.

3. The grounds of application were translated for the applicant prior to his being invited to say anything he wished to on each, and generally.

Grounds of application

1. The grounds of the application are:

   (1)I don’t think I received a fair hearing.

   (2)My evidence was not taken into account.

Ground 1 of the application.

1. In his oral submissions, the applicant pointed to his involvement in the pro-democratic movement and his provision of photographs in support of his claims that he was a Falun Gong practitioner in Australia. He further stated that he had many other pictures which were not submitted to the Tribunal.

2. He submitted that the Tribunal’s finding, that his involvement in Falun Gong in Australia was for the purpose of strengthening his refugee status, was not fair.  He further maintained that its finding, that he was not truthful and that his account was vague, was also unfair.

3. The applicant provided no further particulars to support this ground of review.

4. The Tribunal, under the heading “Falun Gong Practice” (CB102), specifically considered the applicant’s claims that he had been a Falun Gong practitioner since 2000.  In its Findings and Reasons (CB 101-105), the Tribunal made clear and well articulated findings as to the applicant’s practice and activities in this regard, both in China and in Australia.

5. I consider that it was open to the Tribunal on all the evidence and material before it to find that the applicant was not a genuine and committed Falun Gong practitioner on the basis that one would expect “a more fulsome knowledge of the practice for which they are purportedly prepared to risk persecution than the rudimentary and rote responses that the Applicant provided at hearing.”

6. In regard to the applicant’s claims that he was arrested and detained twice in February 2002 due to his Falun Gong activities, I consider that it was open to the Tribunal on the evidence before it to reject the applicant’s explanation as “unconvincing and implausible” concerning why he would become involved in such a dangerous and illegal activity as distributing Falun Gong pamphlets.

7. I further accept that it was open to the Tribunal to reject the applicant’s claims that he was detained in a mental institution for his Falun Gong activities on the basis that his claims in this regard were “vague and generalised” (CB 102-103).

8. Similarly, I am satisfied that the Tribunal carefully considered the applicant’s claims regarding the corruption in the Chinese government and other generalised claims (about China not having justice and being totalitarian), on the basis that they were “vague and generalised in nature” (CB103).

9. In regard to the applicant’s submission concerning his Falun Gong activities in Australia, the Tribunal accepted that the applicant had engaged in such activities and indeed that he may well have given the impression to fellow practitioners that he was a committed practitioner. The Tribunal clearly considered the supporting statements from fellow practitioners and the photographs of the applicant at various demonstrations.  It specifically noted that “it is not claimed that these photographs have also been published.”

10. In the absence of any “further evidence and lack of relevant detail” as found by the Tribunal, I consider that it was open to the Tribunal to find that the applicant’s participation at Falun Gong rallies in Australia would not be of “adverse interest to the Chinese authorities”, in particular given country information which supported such a finding, namely that “ordinary followers may be lectured to by Chinese authorities and urged to renounce their ways but nothing more”.

11. The Tribunal therefore gave clearly articulated reasons for disregarding the applicant’s Falun Gong practice in Australia pursuant to s.91R(3) of the Act on the basis that it was engaged in merely to strengthen the applicant’s claims for refugee status. Again, I consider that such a finding was open to the Tribunal on the evidence and material before it.

12. To the extent that ground 1 asserts that the Tribunal failed to provide procedural fairness by not providing the applicant with a s.424A letter, the applicant was not entitled to common law procedural fairness in this regard: s.422B of the Act.

13. Subsection 424A(3), however, provides certain statutory exceptions to the Tribunal’s obligation under s.424A, each of which applies in the present case, namely, that the Tribunal was not required to provide country information to the applicant: ss.(3)(a); nor “information that the applicant gave for the purpose of the application for review” at the Tribunal hearing: ss.(3)(b); nor “that the applicant gave during the process that led to the decision that is under review [namely to the delegate] other than such information that was provided orally by the applicant to the Department”: ss.(3)(ba).

14. The further statutory exception under s.424A(2A), which incorporates s.424AA of the Act, also applies in this case, given that the Tribunal provided to the applicant, at the Tribunal hearing itself, clear particulars of the information upon which it would, subject to his response, make an adverse finding against him, in circumstances where the Tribunal ensured “as far [was] reasonably practicable” that the applicant understood the relevance of that information to the review and the consequences of it being relied upon; and orally invited the applicant to respond to or comment on that information; and advised him that he may seek additional time to do so; and if so, that it would adjourn the review if it considered that he “reasonably need[ed] additional time, before the Tribunal [made] its decision” (CB100).

15. In any event, it is also clear that a proper construction of the word “information” in the context of s.424A and hence what information must be given to an applicant for comment, does not extend to the Tribunal’s subjective thought processes or appraisals of the evidence before it, including its disbelief of an applicant’s evidence: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18]:

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

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

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

16. Equally at the forefront of the Tribunal’s thought processes and appraisals of the evidence in the present case, was the credibility of the applicant’s evidence. I consider therefore that the Tribunal was not obliged to notify the applicant pursuant to s.424A(1) of its concerns about his credibility.

17. For the above reasons, I detect no breach of s.424A of the Act and am satisfied that the applicant was accorded procedural fairness in this regard in compliance with the statutory regime.

18. Similarly, I am satisfied that the Tribunal complied with its statutory obligations under s.425(1) of the Act. The Tribunal at the first hearing identified and put to the applicant the determinative issues in this case, in particular the plausibility of his claims and gave him the opportunity to give evidence and make submissions thereon in accordance with the principles in: SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 at [33]–[48]. In addition, before reaching its conclusions, the Tribunal provided the applicant with a further opportunity at the second hearing to address those identified issues.

19. The procedure adopted by the Tribunal clearly confirms that the applicant was given sufficient opportunity to present his case.  Beyond this, as observed in SZBEL at [47]-[48], procedural fairness does not require the Tribunal to disclose its mental processes and subjective appraisals, including its disbelief of an applicant’s claims and his lack of credibility, in reaching its decision.

20. The procedural fairness requirements in Part 7 Division 4 deal in this regard only with the process of decision-making, not the merits of the decision.  As relevantly stated in SZBEL at [25]:

    what is required by procedural fairness is a fair hearing, not a fair outcome….. It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.

21. Merely because the applicant disagrees with the Tribunal’s adverse finding of credibility does not amount to an error of law. The Tribunal’s finding in this regard is a finding of fact par excellence and not open to review by this Court: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). It is not the function of this Court to engage in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]). Moreover, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 560 [137].

22. Accordingly, I detect no breach of s.425(1) and s.424A of the Act in this case. I am satisfied that the applicant was accorded procedural fairness by the Tribunal in accordance with the statutory framework of the natural justice hearing rule under the Act.

23. In conclusion, I consider that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of, and set out a detailed and closely reasoned analysis of, the applicant's claims; explored those claims with him at the two hearings; identified the determinative issues and gave him sufficient opportunity to give evidence and make submissions on those issues at the hearings; and closely noted the applicant's responses.  The Tribunal further had regard to independent country evidence; and then made findings based on all the evidence and material before it.

1. I consider that its findings of fact, in particular as to the applicant’s adverse credibility, were open to it on the evidence and material before it; that it provided well-articulated and detailed reasons for rejecting the applicant’s claims; that it applied the correct law to those findings; and reached its conclusion that the applicant was not a person to whom Australia has protection obligations, based on those findings.  In these circumstances, I am satisfied that the Tribunal complied with the statutory regime in the making of its decision and performed the task required of it in accordance with law.

2. The applicant also asserts in his oral submissions that he had “more evidence” that was not provided to the Tribunal. 

3. It is well settled that although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of an individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the decision-maker to establish the relevant facts. 

4. The Tribunal is not required to make the applicant’s case for him: SZBEL at [40]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:

   In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.

5. As also observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:

   It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.

6. The Tribunal is not required to accept uncritically any and all allegations made by the applicant: Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 at 451.

7. Furthermore, whilst the Tribunal has the power under s.424(2) to “get any information that it considers relevant” and to “invite a person to give additional information”, these powers are permissive not prescriptive: Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20].

   In conclusion, s.65 of the Act requires the Tribunal to be satisfied that the applicant meets the criteria for the grant of the protection visa.  It is for the applicant to put materials before the Tribunal to satisfy it that he meets the criteria, rather than for the Tribunal to prove that the applicant is not a refugee. 

8. If the applicant, as here, choses not to provide certain material, and further choses not to do so at the second hearing, even after being granted an adjournment, it remains a matter for him.  I thus detect no procedural fairness on this basis.

9. Accordingly, Ground 1 of the application is rejected.

Ground 2 of the application.

1. In his oral submissions, the applicant submits that his evidence was not taken into account in regard to the following matters:

   ·photograph (CB 65)

   ·The applicant asserts that he is the person holding up the banner at this protest at the time of the APEC summit, and that if the authorities see this internet article which was also published in the newspapers, including the Sydney Morning Herald, “this will have an affect on me.”

   ·top photograph (CB 68)

   The applicant similarly asserts that the picture depicts him holding up the banner on the same day in Hyde Park, which he says will provide “potential threats to my life” if he were to return to China, which he says, is contrary to the Tribunal’s finding that he would not face any harmful persecution in that event.

   In regard to each of the above photographs, the applicant asserts that the Tribunal did not ask him about any details of these pictures nor did it ask him anything about his distribution of Falun Gong materials in China Town and at the train station. He asserts therefore that the Tribunal’s finding that he would not face any threats if he were to return to China was made in a “very irresponsible and rushed manner.”

   ·Release certificate from detention centre, Dandong City (CB 83)

   ·The applicant submits that the Tribunal failed to ask him any questions or ask him for any further documentation regarding his detention, nor did it ask what the document itself was about and did not ask the interpreter to translate it.  Simply put, he says that the Tribunal did not consider this document.

   ·Receipt from mental hospital (CB 62)

   ·The applicant asserts that this document was not translated for the Tribunal.  He claims that it is the receipt he obtained for his involuntary hospitalisation.

   ·Photographs in a news article (English version) published on the internet on 6 September 2007 (CB 63)

   The Applicant asserts that the bottom photograph, (depicting a person in a cage alongside which he says he is standing during the APEC Summit demonstration), is the same as the more extensive photograph at CB 67, where the Applicant claims to be standing next to the cage, dressed in a Chinese police uniform.  This photograph (at CB 67), he says, was taken by his friend.

   The applicant points to the fact that the news article published in the Sydney Morning Herald is in the public domain and that if the Chinese authorities see this article “they will bring threats to my life” which he submits the Tribunal failed to consider.

   The applicant concedes that he is not depicted in the photograph, but maintains that many journalists were taking photographs on the day and that there may be other photographs which may have been published in other newspapers of which he is not aware.

   ·three photographs (CB 69)

   The applicant asserts that the Tribunal did not even ask where these pictures were taken and what was happening at the time.

   He maintains that the top two photographs depict him distributing material in China Town which he undertook as a voluntary job with the Falun Gong organisation.  He submits that these photographs “very possibly were taken by Chinese secret police.  This is the hidden danger for me” and points to the potential risk therefore if he were to return to China.  Again, he claims that the Tribunal did not give careful consideration to this photographic material and did not ask for details about the photos.

   ·bottom photograph (CB 68)

   The applicant states that this picture is the same as the top photograph at CB 63.

   He claims that the Tribunal failed to take into consideration this photograph which he says was taken when he was participating in a student demonstration and that the Tribunal did not ask at what place the picture was taken, when, and what was happening.

   ·photographs (CB 32-33)

   The applicant claims that these photographs were taken when he attended “the first practice site”, but that the Tribunal asked no questions nor raised any issue in this regard.

   ·bottom photograph (CB 34).

   ·The applicant asserts that the photograph was taken whilst he was distributing Falun Gong material at Cabramatta railway station, and that, again, the Tribunal did not ask where, or when the photograph was taken and hence failed to give the material “good consideration.”

   ·bottom photograph (CB 70)

   The applicant states that the photograph depicts when he moved into Anzac Square, Campsie.  He submits that the Tribunal failed to ask him where the photograph was taken and failed to give careful consideration to it in assessing his claims as to his participation in many Falun Gong activities in which he is still involved to date.  He maintains that it was “impossible for me to provide all the evidence” and that the “member was not fair to me as all I did was prepare for my case solely”.

2. In conclusion, in regard to the photographic evidence, the applicant submits that the Tribunal failed to consider his evidence thoroughly.

3. Having considered the applicant’s submissions on these matters, I note firstly that the applicant has not provided the transcript of the two Tribunal hearings to this Court to identify what exchanges, if any, took place with the Tribunal on each of these items of documentary evidence. 

4. Secondly, as stated under ground 1 above, I am satisfied that the applicant was given sufficient opportunity at two Tribunal hearings to present his evidence and make submissions in relation to the material produced by him, in particular, where an adjournment was granted specifically to provide him with more time to address the issues identified by the Tribunal at the first hearing. 

5. Thirdly, it is for the applicant to make out his own case, including the translation of documents provided by him (and see further under ground 1 above).

6. Fourthly, whilst the Tribunal did not specifically refer to each item of evidence individually in its Findings and Reasons, I do not consider that it was required to make separate findings on each of them.  Highly pertinent in this regard are the observations of the Full Federal Court in WAEE v Minister for Immigration & Indigenous Affairs (2003) [2003] FCAFC 184 at [46]:

   It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reason.  It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA; (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason …

   … The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons.  But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.  It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.  Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

7. Applying the above reasoning to the present case, the Tribunal sufficiently identified in its decision the relevant evidence, but it was not obliged to make specific findings on each item of evidence presented to it, nor was it required to comment on each item individually in its Findings and Reasons, where, as here, the photographic evidence was subsumed in findings of greater generality, namely, that the Tribunal did not believe that the applicant was genuine in his involvement in “his activities in Australia”. 

8. Similarly, the Release certificate from the detention centre and the receipt from the mental hospital were subsumed in findings of greater generality that the Tribunal did not believe that the applicant had been either detained or institutionalised, as claimed.

9. In any event, the Tribunal’s failure to refer to each of the photographs independently, is not to say that it did not advert to, nor consider them.  Rather, the Tribunal states generally in this regard that:

   The applicant told the Tribunal that he had attended several Falun Gong activities in Sydney and had some witness statements and pictures to verify this. The Tribunal told the applicant that it would consider the evidence provided and again put to the applicant the provisions of S.91R(3) of the Act. The Tribunal told the applicant that evidence of participation does not necessarily mean evidence of a genuine belief and commitment to Falun Gong. The Tribunal put to the applicant that such participation may simply reflect a commitment to find evidence to support a protection claim (CB 100).

10. The Tribunal specifically noted that it accepted that there were photographs of the applicant at various demonstrations, however, it further noted that the applicant had “not claimed that these photographs had been published” before reaching its conclusion that:

    In the absence of any further evidence and lack of relevant detail, the Tribunal does not accept that the appearance of the Applicant at Falun Gong rallies, will be of adverse interest to the Chinese authorities. Furthermore, the country information above indicates that, even if he comes to the attention of the authorities because of his Falun Gong activities in Australia, ordinary followers may be lectured to by Chinese authorities and urged to renounce their ways but nothing more. Having regard to the Tribunal’s finding that the Applicant does not have any genuine commitment to Falun Gong, the Tribunal does not accept that this conduct would constitute “serious harm” amounting to persecution.

11. In regard to the Release certificate from the detention centre, the Tribunal specifically referred to it (CB 100) at the second Tribunal hearing in the context that the applicant had told the Tribunal that:

    the reason he was released on detention was because he was bailed out and he provided the Tribunal with a release certificate from a named detention centre.

12. It was in this context that the Tribunal put to the applicant that:

    To be bailed implied that there was a court process in play and the Applicant was asked if he had been formally charged with anything or appeared in Court and he claimed that he had not. The Tribunal put to the Applicant that it might not accept that the document he produced was proof of the facts contained in it as it did not appear consistent with his previous claims.

13. In these circumstances I am satisfied that although the Tribunal did not specifically refer to the Release certificate in its Findings and Reasons, it is nonetheless evident that the Tribunal considered this document in the context of his claims to have been arrested and detained on this occasion (CB 102) and in reaching its finding that it was not satisfied that the applicant was arrested and detained as claimed or for the reasons claimed.

14. In regard to the claimed discharge receipt from a mental hospital, although the Tribunal did not expressly refer to it in the Claims and Evidence, nonetheless it referred to the applicant’s claimed detention in a mental hospital and that “he was there for about 8 days and was released when he paid $2,000 Yuan”. I consider that this reference provides a clear indication that the Tribunal considered the alleged detention in the context of his evidence that he was required to pay for the hospitalisation.

15. The Tribunal also gave the applicant an opportunity to provide further evidence on this matter given that it put to the applicant that his account of incarceration in a mental hospital was “implausible as there did not appear to be a reasonable explanation as to why he was incarcerated” (CB 101).

16. I am satisfied therefore that the Tribunal considered the alleged receipt, and that its failure to specifically refer to it, per se, does not detract from the Tribunal’s findings that it was not satisfied that he had ever been institutionalised for the reasons claimed.

17. For the reasons stated above, I am satisfied that a fair reading of the Tribunal decision demonstrates that it considered each of the above documentary items of evidence before reaching the conclusion that the applicant did not have a well founded fear of persecution for a Convention reason.  As stated by the Tribunal (CB 104), it considered “the claims and issues individually and cumulatively, and based on the evidence currently before it” reached its conclusion in the matter. 

18. What weight the Tribunal gave to each of these documentary items of evidence was ultimately a matter for it, and not open to review by this Court. As observed by the Federal Court in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]:

    The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.

19. Accordingly, for the reasons stated above, Ground 2 of the application is rejected.

Conclusion

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

2. The application before this Court is dismissed.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Orchiston FM

Associate:  Duncan Maconachie

Date:  30 May 2008