SZLZX v Minister for Immigration - [2008] FMCA 1390

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLZX v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1390

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R, 424AA

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZGDJ v Minister for Immigration and Citizenship [2008] HCASL 479
SZHFE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2006] FCA 648
SZJGV v Minister for Immigration and Citizenship and Another (2008) 247 ALR 451
SZKLK v Minister for Immigration and Citizenship [2008] FCA 1125
SZMAI v Minister for Immigration & Anor [2008] FMCA 1158

Applicant:

SZLZX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 446 of 2008

Judgment of:

Barnes FM

Hearing dates:

28 August 2008 & 25 September 2008

Delivered at:

Sydney

Delivered on:

25 September 2008

REPRESENTATION

Applicant:

In person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $4,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 446 of 2008

SZLZX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal dated 20 December 2007 and handed down on 15 January 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People's Republic of China, arrived in Australia in July 2007 and applied for a protection visa. He claimed to fear persecution as a Falun Gong practitioner in China who had been detained for a year in March 2002. He claimed that he had heard other Falun Gong practitioners had been arrested and decided to flee China as he had already been under investigation in China for practising Falun Gong and had been sent to a labour education camp once. He feared that the police would arrest him again when they found evidence of his practice of Falun Gong.
The application was refused by a delegate of the first respondent. The applicant sought review by the Tribunal. He attended a Tribunal hearing. The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision. At the Tribunal hearing the applicant submitted an untranslated document said to be a “Certificate of Release” issued by a particular “Re-education Administration Committee” which stated that the applicant was in a labour camp from March 2002 until March 2003.
The Tribunal recorded that it asked the applicant about his claims about what occurred to him in China. It also asked the applicant questions about his Falun Gong practice in Australia and recorded his response that he did not get in touch with other Falun Gong practitioners until less than two months before the hearing and that he practised every week on Sunday mornings at Campsie and studied on Wednesdays at a particular site. He did not know whether he was a member of the Falun Dafa Association of New South Wales.
The Tribunal asked the applicant about his knowledge of Falun Gong, the names of the Falun Gong exercises and to demonstrate how the fourth exercise began. It raised with him the issue of whether he was a real Falun Gong practitioner as he did not know the exercises, even though he said he had practised since 1997 and had been arrested for being a Falun Gong practitioner. The applicant described the nature of his practice of Falun Gong since 1997 and after Falun Gong was banned in 1999. He claimed that he was detained in 2002 and that after his release he was kept under surveillance.
The Tribunal outlined a number of concerns with the applicant's evidence. It put to him issues that it had about particular aspects of his evidence in relation to his activities in China and Australia, his lack of knowledge in relation to Falun Gong exercises and principles, aspects of his evidence in relation to which it found potential inconsistencies and the fact that while he had submitted a document called a “Certificate of Release” there was independent country information indicating that many documents in China were forged and that this may lead the Tribunal to find that the “Certificate of Release” was a forgery. It also raised an issue about the applicant’s ability to exit China notwithstanding his claim that he was under surveillance by the police. It recorded the applicant's responses to each of these issues. The applicant sought additional time to comment in writing on these issues and to provide further documentation. The Tribunal gave him the opportunity after the hearing to respond and to provide further documentation.
After the hearing the Tribunal received a translated submission from the applicant reiterating his claims about what had occurred in China and Australia, together with a document headed “Notice to Family or Work Unit of an Arrested Person” indicating that the applicant was to be arrested by the Bureau of Public Security on 24 August 2007 on “suspicion of organising and using an illegal cult organizations and superstitions to violate the implementation of law” but that he had fled overseas. Also provided was a copy of a document headed “Decision for Labour Re-Education” dated 20 March 2002 stating that he was sentenced to one year’s labour re-education for “illegal gathering, key member”.
In its findings and reasons the Tribunal summarised the applicant's claims, including the fact that he claimed that he had been detained in 2002 for one year and was under surveillance thereafter, that he had submitted supporting documents and that in Australia he had been practising Falun Gong and attending Falun Gong study sessions.
The Tribunal also recorded that he claimed that he had had contact with his wife after the Tribunal hearing and that she advised him that the police were threatening his family and had issued a “Notice to Family or Work Unit” of an Arrested person which indicated he would be imprisoned if he returned to China. The Tribunal recorded the applicant’s claim that he came to Australia in a tour group, but the tour group leader knew he was a Falun Gong practitioner and had taken his luggage and Falun Gong materials back to China and given them to the authorities and that thereafter the “Notice to Family Work or Unit of an Arrested Person” was issued. He claimed he would be imprisoned if he returned to China.
The Tribunal found that while the applicant was able to provide some information on Falun Gong, it was not satisfied that his “overall knowledge about generally known facts relating to Falun Gong practise” was “commensurate with his claim” that he was a Falun Gong practitioner. It did not accept he was a genuine Falun Gong practitioner having regard to his limited knowledge of Falun Gong practice. It referred to the fact that he incorrectly named the first Falun Gong exercise and was unable to name the other exercises, perform the fourth exercise or advise the principle of the second exercise. It had regard to the applicant’s explanation that he had not practised Falun Gong continually after 2003 as the authorities had kept a close eye on him, but as he claimed he had been “a practitioner since 1997, albeit intermittently since 1999 until his arrival in Australia, and practised the exercises at the Campsie practice site since September 2007” it did not accept this explanation. The Tribunal stated that it expected that any genuine Falun Gong practitioner would be able to perform the five sets of exercises. It also had regard to the limitations of the applicant's knowledge about Falun Gong (in particular in relation to the “Falun”) and to inconsistencies and vagueness in his evidence as to when he practised Falun Gong while in China, concluding that he was not a witness of truth and not a genuine Falun Gong practitioner.
The Tribunal did not accept that the applicant was a genuine Falun Gong practitioner “now or previously”. As a result it did not believe he was truthful. Hence it did not accept that he had practised Falun Gong in China, that he had been forced to move within China for being a Falun Gong practitioner, that he was detained in a labour camp for one year from March 2002 for being a Falun Gong practitioner, or that he would be placed in prison on his return to China for being a Falun Gong practitioner. The Tribunal referred to the documents the applicant had submitted during and after the hearing and the fact that it had put to him that independent country information indicated that many documents are forged. It placed “no weight on these documents as evidence of his detention, or that he would be imprisoned for being a Falun Gong practitioner on his return to China”. It also referred to information from the Department of Foreign Affairs & Trade in relation to widespread forgery of official documentation in China and stated that it placed “little evidentiary weight” on the document.
The Tribunal acknowledged that the applicant had referred to scars on his body as evidence that he was detained for being a Falun Gong practitioner. However, because it did not accept that he was a Falun Gong practitioner and detained for that reason, it did not accept that the scars were evidence that he was detained for that reason. While it acknowledged that scars could be supportive evidence of the applicant's detention, it did not accept that they were “compelling evidence of his detention for being a Falun Gong practitioner when weighed against other evidence that does not support that he is or was a Falun Gong practitioner.”
Because the Tribunal did not accept that the applicant was a Falun Gong practitioner and that he was detained for that reason, it did not accept his claims about what occurred thereafter, including that he had to report to the police or to his boss until he left China, that he was under surveillance, or that if he returned to China he would be arrested or placed into prison for being a Falun Gong practitioner. The Tribunal stated that “collectively the above matters” led it to find that the applicant was not a credible witness and was not a Falun Gong practitioner.
As the Tribunal had found that the applicant was not a genuine Falun Gong practitioner or a witness of truth, it was not satisfied that he engaged in the conduct of attending the Campsie practice site and study group other than for the sole purpose of strengthening his refugee claim. Accordingly it disregarded this conduct in assessing his claim under s.91R(3) of the Migration Act 1958 (Cth).
The Tribunal did not accept that the applicant had attracted the interest of the police or the authorities in general in China for being a Falun Gong practitioner, or that if he returned to China he would be arrested, monitored, questioned, detained or otherwise persecuted for being a Falun Gong practitioner. It did not accept there was a real chance he would be persecuted if he returned to China or that he had a well-founded fear of persecution within the meaning of the Refugees Convention. It affirmed the decision not to grant the applicant a protection visa.
The applicant sought review by application filed in this Court on 26 February 2008. The grounds in the application are that the Tribunal “didn’t properly consider [the applicant's] claims in assessing the chance of [his] persecution on [his] return to China” and that the Tribunal did not “provide [him] with an adequate opportunity to substantiate [his] claims. The applicant raised a number of other matters in submissions. In addition, I raised with the solicitor for the first respondent two issues in relation to the Tribunal decision. The hearing was adjourned so that those matters could be addressed by both the parties.
Ground one in the application is the generally expressed claim that the Tribunal did not properly consider the applicant's claims in assessing the chance of persecution. This ground is not made out. In its reasons for decision the Tribunal set out at length and addressed the applicant's claims and his evidence in support of those claims. There is nothing in the material before the Court to establish that the Tribunal misunderstood or failed to consider the applicant's claims. It is well established that a Tribunal is not required to accept uncritically any and all claims made by an applicant (See Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J.)
Insofar as the applicant takes issue with the Tribunal's adverse credibility findings, credibility findings are a matter for the Tribunal par excellence (see Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405). The Tribunal findings in that respect were open to it on the material before it for the reasons that it gave. Insofar as the applicant seeks merits review, merits review is not available in this Court.
The second ground is that the Tribunal did not provide the applicant with an adequate opportunity to substantiate his claims. This contention does not establish jurisdictional error. The applicant attended a Tribunal hearing and gave evidence to the Tribunal. The Tribunal raised with the applicant a number of issues at the hearing and in addition gave him the opportunity to provide further information and to comment in writing on the matters that it raised with him. The applicant took the opportunity to comment and the Tribunal addressed the material provided after the hearing. The Tribunal did not specify in its reasons for decision whether it took such an approach in compliance with s.424AA of the Act or otherwise, but in any event it cannot be said that the Tribunal did not provide the applicant with an adequate opportunity to substantiate his claims.
I note also that in the Tribunal hearing an untranslated document was produced by the applicant. The Tribunal had the interpreter translate the document and addressed it in its reasons for decision. The Tribunal account of what occurred in the hearing indicates a course of questioning that raised with the applicant dispositive issues in the sense considered in SZBEL v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (2006) 228 CLR 152. The Tribunal made it clear to the applicant that the veracity of his claims was in issue. It recorded that it raised with him its doubts about whether he was a Falun Gong practitioner.
In the course of oral submissions today the applicant contended that at the time of the Tribunal hearing he was experiencing some stress because of psychological trauma caused by what he had experienced in China, that his mind was muddled and that he could not recall all that had happened. There is nothing in the Tribunal reasons for decision to indicate that the applicant's ability to participate in the hearing was affected in the manner in which the applicant now claims such that he was denied the opportunity to have a fair hearing. The applicant was given an opportunity to further elaborate on his claims and make written comments after the hearing. The applicant told the Court today that as he could not recall everything at the hearing he went home and wrote down what he remembered. Presumably the result of that is the statement that he provided to the Tribunal dated 3 December 2007. The elaboration on his claims made in that statement was addressed in the Tribunal reasons for decision.
There is no suggestion in that statement or in any other evidence before the Court that the applicant raised with the Tribunal, (either at or after the time of the hearing, or indeed at any time prior to the hearing) the claim he now makes in relation to his state of mind at the time of the Tribunal hearing. His contentions in that respect do not establish that the Tribunal fell into jurisdictional error, whether by denying him procedural fairness or in any other way.
In oral submissions the applicant also reiterated aspects of his claims in contending that the Tribunal did not give proper consideration to his fear of persecution in China. He referred in particular to his claim that his family members had received an arrest warrant from the Chinese government. As set out above, the applicant made this claim in the statement that he provided to the Tribunal after the hearing. He claimed that the tour group leader with whom he came to Australia had discovered he was a Falun Gong practitioner and had returned to China, taking with him the applicant’s luggage and Falun Gong materials, that this had been reported to the local Public Security Bureau and that his wife told him that the local police had issued a “Notice to the Family of an Arrested Person.” The applicant had the opportunity to put this information before the Tribunal and did so, including the document that he claimed was that notice as well as a copy of the decision for labour re-education that had been discussed in the Tribunal hearing. The Tribunal addressed these claims.
The applicant’s concerns in this respect may be seen as a complaint that the Tribunal did not accept his credibility or accept that the documents established that he had experienced the claimed events because he was a Falun Gong practitioner. The issues that arose out of this contention and the Tribunal's treatment of the supporting documentation were addressed in submissions by the solicitor for the first respondent. One issue is whether the Tribunal rejected the applicant's supporting documents or decided to place no weight on those documents merely on the basis of independent country information which indicated that many documents were forged in China and, if so, whether this involved a jurisdictional error. This arises from the manner in which the Tribunal expressed itself in making its findings in relation to such documents.
The Tribunal recorded that it put to the applicant at the hearing that independent country information indicated that many Chinese official documents are forged. In its findings it referred to this information prior to its conclusion that it placed no weight on the documents submitted “as evidence of his detention, or that he will be imprisoned for being a Falun Gong practitioner on his return to China”.
In SZKLK v Minister for Immigration and Citizenship [2008] FCA 1125 Logan J addressed the Tribunal's consideration of supporting or corroborative documentation provided to it by the applicant in the course of considering whether a Tribunal decision was affected by apprehended bias. His Honour stated at [58] that:
Any assessment of the impact, in terms of an apprehended bias challenge, of the Tribunal’s treatment of [those documents] must be guided by the cautionary note sounded by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/20002 v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1165 at 1174, [49].
Their Honours stated in Applicant S20/2002:
[49] In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration.

In SZKLK Logan J found that the Tribunal findings concerning credibility were themselves influenced by a “comparison with inferences that the Tribunal drew from inspection” of corroborative documents relied on by the applicant in that case. (see SZKLK at [59] – [69]). However in this case, reading the Tribunal decision fairly and as a whole (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259) it is apparent that, as in Applicant S20/2002, the Tribunal was reasoning that because the applicant could not be believed it could not be satisfied with the alleged corroboration. On the basis of issues such as the applicant's limited overall knowledge about generally known facts related to Falun Gong practice, his inability to provide information or to demonstrate the knowledge to be expected of a person who had practised Falun Gong to the extent that he claimed that he had and inconsistencies in his claims about when he practised Falun Gong the Tribunal concluded not only that he was not a witness of truth, but also that he was not a genuine Falun Gong practitioner. It was on that basis that the Tribunal therefore did not accept his claims about being a past or present Falun Gong practitioner or that he had suffered the consequences that he claimed because he was a Falun Gong practitioner. Notwithstanding the presence of the documents, in light of having rejected the applicant’s credibility, the Tribunal placed no weight on those documents as evidence of his detention, or that he would be imprisoned for being a Falun Gong practitioner on his return to China. This is clear from its subsequent clarification that as it did not accept that he was a Falun Gong practitioner it did not accept that he was detained “for being a Falun Gong practitioner” or that he suffered other claimed consequences for being a Falun Gong practitioner or feared arrest and imprisonment for being a Falun Gong practitioner.
Hence as in Applicant S20/2002 it is apparent that the Tribunal was reasoning that because the applicant could not be believed for other reasons, it could not be satisfied with the alleged corroboration, taking into account the additional factor of the independent country information in relation to forgery of documents in China. In those circumstances the Tribunal's treatment of the supporting documents does not demonstrate apprehended bias in the manner considered in SZKLK or indicate that the Tribunal otherwise fell into jurisdictional error in its treatment of the applicant's claims and corroborative documentation.
Another issue raised in these proceedings was the possibility that there had been a breach by the Tribunal of s.91R(3) of the Migration Act. The Tribunal found that it was not satisfied that the applicant engaged in the conduct of attending the Campsie practice site and study group other than for the sole purpose of strengthening his refugee claim. Accordingly it disregarded this conduct in assessing his case, as required by s.91R(3).
However I have considered whether in the manner in which the Tribunal reached its conclusions that the applicant was not a Falun Gong practitioner, the Tribunal might have been said to have taken into account conduct that it was required to disregard under s.91R(3).
In that respect, the Tribunal referred to the fact that the applicant was able to provide some information on Falun Gong, but was not satisfied that his overall knowledge of facts relating to Falun Gong practice was commensurate with his claim that he was a Falun Gong practitioner. It considered his inability to identify Falun Gong exercises and other areas of lack of knowledge. It stated that he was unable to provide information on Falun Gong which the Tribunal expected a genuine practitioner would know. The Tribunal recorded that it had put to the applicant that his lack of knowledge of Falun Gong may lead it to conclude that he was not a genuine practitioner. It addressed the applicant's explanation that he had not practised Falun Gong continually after 2003, but rather intermittently. In that context it recorded that as he claimed he had been a practitioner since 1997, albeit intermittently since coming to Australia, and claimed he practised the exercises at the Campsie practice site since September 2007, it did not accept this explanation. The Tribunal stated that it expected any genuine Falun Gong practitioner would be able to perform the five sets of exercises. In other words, the Tribunal did not accept the applicant's explanation for his lack of knowledge of Falun Gong because it was of the view that a person with the experience he claimed would have had a basic level of knowledge of Falun Gong which he had not been able to demonstrate.
Section 91R(3) was considered by the Full Court of the Federal Court in SZJGV v Minister for Immigration and Citizenship and Another (2008) 247 ALR 451. As their Honours observed (at [10]), the sub-section suffers from a lack of clarity.
The Full Court held in SZJGV that s.91R(3) was not confined to conduct which may give rise to a sur place claim, but rather required a decision-maker, subject to the proviso, to disregard any conduct in Australia by an applicant in determining whether the applicant had a well-founded fear of persecution for a Convention reason. In the course of discussing s.91R(3) and previous decisions on that section (in particular decisions of the Federal Magistrates Court), their Honours accepted that s.91R(3) could only be applied once primary findings of fact were made and that if conduct had not occurred, there would be nothing to disregard, but that once s.91R(3) was engaged that precluded the decision-maker from having regard to any conduct engaged in by the applicant in Australia unless satisfied that it was engaged in otherwise than for the purpose of strengthening the applicant's claim to be a refugee.
The Full Court then considered three decisions of the Federal Magistrates Court finding that in each case the relevant Tribunal had received evidence and made findings about the respective appellant's activity or lack of activity in Australia. In each case the evidence that led to the findings in question had been called by the appellant and in each case the Tribunal had appreciated that s.91R(3) applied and that the conduct must be disregarded under that section. However their Honours found that in each case the Tribunal had had regard to the appellant's conduct by relying on that conduct as part of the reason for concluding that the appellant was not a refugee.
Their Honours indicated that the Tribunal may fall into error by having regard to conduct in Australia for a number of purposes, including for the limited purpose of assessing the credibility of a claim to have engaged in conduct in the applicant's home country and to have been persecuted for so doing, or in determining whether there was reason to believe the applicant would be persecuted by reason of his or her activities on return to his or her home country. The Full Court left open the possibility that a distinction might be drawn between conduct and the reason or reasons for which that conduct had occurred and that a Tribunal may be able to rely on the motivation for conduct for the purpose of bolstering or undermining the applicant's credibility.
The Full Court also found in SZJGV that it did not need to resolve whether s.91R(3) was enlivened only when an applicant sought to rely on his or her conduct in Australia to support a claim to be a refugee. In relation to that particular issue however, it is relevant to note an earlier decision of Jacobson J sitting as the Full Court of the Federal Court in SZHFE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2006] FCA 648, in which his Honour concluded at [30] that:
… section 91R(3) is only enlivened where an applicant seeks to rely on conduct in Australia to support a claim to have a well-founded fear of persecution.
His Honour adopted this approach in subsequent decisions. I also note that in SZGDJ v Minister for Immigration and Citizenship [2008] HCASL 479, a decision brought to my attention by the solicitor for the first respondent, Gummow and Kiefel JJ, in dismissing an application for special leave to appeal considered a Tribunal decision in relation to which at first instance the Federal Magistrates Court had applied the reasoning of Jacobson J in SZHFE that s.91R(3) did not apply unless the applicant relied upon conduct to support a claim to fear persecution. In that case the Tribunal had regard to the fact that while the applicant had claimed to be aware of the existence of an Australian support group for the Awami League he did not attend its meetings or play any role in its activities no breach of s.91R(3) was found. An appeal to the Federal Court had been dismissed by Weinberg J who observed that SZHFE had been followed in the Federal Court and had been the subject of a failed application for special leave to appeal to the High Court.
In addressing the application for special leave to appeal in SZGDJ Gummow and Kiefel JJ suggested that the applicant's reliance on SZJGV was misplaced, stating at [5]:
The Full Court of the Federal Court was there dealing only with cases where the relevant conduct was relied on by the applicants to support their claims to be refugees. In this case, the applicant did not rely on his conduct in Australia to support his application. Each of the courts below correctly relied on the statement of law set out in SZHFE. We see no reason to doubt the correctness of the decisions below.
Similarly in this case the Tribunal can be said to have relied not on the applicant's conduct in Australia, but rather on the lack of knowledge demonstrated by him in forming a view about his credibility. This was not something that the applicant put forward in support of his claims. As submitted for the first respondent, in reaching this conclusion the Tribunal was not relying on the conduct the applicant claimed to have engaged in in Australia to assess his case. Rather the Tribunal recounted the evidence the applicant gave before the Tribunal and (irrespective of whether the conduct he claimed he had engaged in had in fact occurred) gave reasons why it rejected the applicant's explanation for his lack of knowledge of Falun Gong. This does not constitute taking into account conduct that has to be disregarded under s.91R(3).
I accept the submission of the first respondent in relation to the manner in which the Tribunal rejected the applicant's explanation for his lack of knowledge on the basis of what it would have expected from someone who had engaged in Falun Gong activities to the extent the applicant claimed. This did not amount to having regard to conduct in a manner which was contrary to the requirement to disregard conduct under s.91R(3) of the Act.
The solicitor for the first respondent brought to my attention a decision of Smith FM in SZMAI v Minister for Immigration & Anor [2008] FMCA 1158. SZMAI which might in one sense be seen to have taken a broader view as to the scope of s.91R(3) (based on the decision of SZJGV). However it is not necessary for me to consider the approach in SZMAI given the decisions referred to above and my view of the manner in which the Tribunal considered the information before it in the particular circumstances of this case.
No failure to comply with s.91R(3) is established on the material before the Court.
The applicant also contended that because of the differences between the two languages, and I take that to be a reference to the differences between English and Mandarin, it may be that understanding of Falun Gong may differ. In the absence of any evidentiary basis for a claim based on language differences, this contention does not establish jurisdictional error. As I endeavoured to explain to the applicant, merits review is not available in this Court. Findings of fact are a matter for the Tribunal. Insofar as this contention might be seen as taking issue with independent country information relied on by the Tribunal, the selection and weight of items of independent country information is a matter for the Tribunal. As indicated, the applicant also raised a concern about being in a state of psychological trauma at the time of the hearing. However on the evidence before me no failure to comply with its obligations under the Act or lack of procedural fairness on the part of the Tribunal has been established. Insofar as the applicant reiterated his claim about only finding out about documents after the hearing, he had the opportunity to put such material before the Tribunal and it was considered by the Tribunal.
No jurisdictional error is established on the material before the Court on the bases contended for by the applicant or otherwise as discussed above. As no jurisdictional error has been established the application must be dismissed. I will hear submissions in relation to costs.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful and there is nothing in the circumstances of the present case to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent.

RECORDED : NOT TRANSCRIBED

I consider that an appropriate amount is $4,800.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 30 October 2008