SZMBK v Minister for Immigration and Anor (No.2)

[2009] FMCA 624

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMBK v MINISTER FOR IMMIGRATION & ANOR (No.2) [2009] FMCA 624

MIGRATION – Review of Refugee Review Tribunal decision – Tribunal’s application of s.91R(3) – findings open to the Tribunal – Tribunal had regard to applicant’s conduct in assessing credibility – no denial of procedural fairness – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R(3), 422B, 65, 36(2), 425(1), 425A(2)(a), 441A(4), 441C(4), 424A, 424A(3)(a), 424A(1), 424A(3)(b), 424A(3)(ba), 424AA, 424A(2A)
Migration Regulations Act 1994 (Cth), reg.4.35D

SZMBK v Minister for Immigration and Citizenship [2008] FCA 1101
SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
VHAP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264
QAAC v Refugee Review Tribunal [2005] FCAFC 92
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZGQK v Minister for Immigration and Citizenship [2008] FCA 1658
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241

Applicant: SZMBK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3370 of 2008

Judgment of: Nicholls FM

Hearing date: 25 June 2009

Date of Last Submission: 25 June 2009

Delivered at: Sydney

Delivered on: 3 July 2009

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Appearance for the Respondents: Ms A. Mitchelmore

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 19 December 2008 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,100.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3370 of 2008

SZMBK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 19 December 2008 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 November 2008 which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

1. The Court has before it a bundle of relevant documents (“the Court Book” – “CB”) filed by the respondent Minister. The following is relevant as background to this matter.

2. The applicant is a national of the People’s Republic of China (“China”) who arrived in Australia on 22 April 2007 (CB 15). He applied for a protection visa on 16 May 2007 (CB 1 to CB 26). This application was refused by the delegate on 9 July 2007 (CB 29 to CB 36).

3. The delegate:

   (1)Relied on “country information” to find that the applicant was not “a core leader or prominent member or organiser of Falun Gong” in China.

   (2)Relied on the applicant’s evidence that he had been detained in 2003 but continued to live and work “without interruption” until he departed for Australia in 2007 to find that the applicant was “of no interest to the Chinese authorities”.

   (3)Relied on available independent information as to “legal” departure from China to find that the applicant was not “of serious interest to the authorities”.

   (4)Also found that if the applicant continued to practise Falun Gong with his friends “privately” that “country information indicates” that he would not face ill treatment or harassment from the authorities. 

The Tribunal

1. The applicant applied for review by the Tribunal on 8 August 2007 (CB 37 to CB 40). He was assisted by a registered migration agent before the Tribunal whom he also appointed as the authorised recipient for correspondence (CB 38).

2. The applicant appeared at a hearing before the Tribunal (as differently constituted) on 10 October 2007 and gave evidence (CB 49).

   
   

   The Tribunal as previously constituted made a decision affirming the delegate’s decision. This was the subject of an application for judicial review to this Court (see SZMBK v Minister for Immigration and Citizenship [2008] FMCA 1101 per Driver FM (“SZMBK”)). The issue before the Court was whether the Tribunal had properly applied, or not applied, s. 91R(3) of the Act.

3. The Court found error in the Tribunal’s approach: “the Tribunal fell into error in its failure to apply s. 91R(3) properly or at all” (at [21]). The Court noted: “it is unfortunate that the Tribunal fell into error in attempting to be fair to the applicant by considering a possible “sur place claim” (at [20]). The matter was remitted to the Tribunal for reconsideration (CB 59 to CB 60).

4. The applicant attended a hearing before the Tribunal as constituted by the member who made the decision currently before the Court (CB 65). On 17 September 2008 prior to the hearing, the Tribunal received documents: “that he wished could be before the Tribunal”. These were a letter from “a practitioner” of Falun Gong, and a number of photos which the applicant claimed showed him attending Falun Gong activities in Australia (CB 67 to CB 71). 

5. Ultimately, the applicant’s claims before the Tribunal were that he was a Falun Gong practitioner in China who had been encouraged to take up that practice in December 2001 by a colleague. He claimed to have been part of “a group of five practitioners who have met together”.

6. The applicant further claimed that in June 2003 the group had gathered at a fellow practitioner’s home, that this had become known to a local authority (“the residential committee”) and the police had attended and searched the house and confiscated Falun Gong materials.

   
   

   The applicant claimed that he had been taken to the local police station, questioned and tortured. He was released two days later after his wife and mother had paid money. The applicant claimed that as a consequence of his detention, he had lost his employment at a local steel mill. He had then gone to Shanghai where he worked as a manager of a trading company between July 2003 and April 2007.

   
   

   The applicant’s claims were that he left China because there was no “religious freedom” and feared that if he were to return he would be put in gaol because of his Falun Gong beliefs. The applicant claimed to practise Falun Gong in Australia and to have attended Falun Gong activities since his arrival.

7. The Tribunal concluded, based on “good reasons”, that the applicant was not telling the truth about his involvement in Falun Gong in China ([60] at CB 87).

8. The Tribunal’s findings informing this conclusion were:

   (1)

   The applicant’s passport which he said was issued some eight months after he claimed to have been arrested and detained for practising Falun Gong, was issued in “his true identity”.

   
   

   The Tribunal rejected the applicant’s explanation that he did not receive the passport until some time later in 2006. It relied on information obtained from the Australian Department of Foreign Affairs and Trade (“DFAT”) that obtaining a passport illegally albeit in one’s name through bribery as the applicant claimed to have done would be possible, but it would be “highly risky and expensive”. Given that the Tribunal had before it information as to the difficulties in obtaining a passport in an applicant’s own name where an applicant had come to the attention of the authorities, it considered that this gave rise to doubt the applicant’s claim that he had been arrested and detained in June 2003 (see [60] to [62] at CB 87 to CB 88).

   (2)The Tribunal had difficulty in accepting the applicant’s evidence on a range of relevant matters, and in particular, in accepting his account of his reasons for taking up Falun Gong at a time when it had been banned by the authorities ([63] at CB 88).

   (3)It had difficulty in accepting the applicant’s evidence that he wanted to “gain a deeper understanding of Falun Gong”, and with his account of how he and his friends came to the attention of the police in June 2003 ([64] at CB 88 to CB 89).

   (4)It found that the applicant’s evidence as to whether he had to pay a fine upon his release from detention in 2003, to be inconsistent, and that this cast doubt on whether he was telling the truth about this claimed arrest (at [65] at CB 89).

   (5)It also had difficulty in accepting the applicant’s claims that he was injured when he had been detained in June 2003, and his evidence that he had received no medical treatment for what he initially claimed to be a serious injury to his spine. The Tribunal considered that this also cast doubt on whether the applicant was telling the truth about the claimed arrest in June 2003 ([66] at CB 89).

   (6)It had difficulty in believing the applicant’s evidence that he was able to practise Falun Gong in secret in Shanghai from July 2003 until April 2007, particularly, in the circumstances put forward by the applicant ([67] at CB 89).

9. Having regard to all the matters above, the Tribunal did not accept that the applicant was telling the truth about his claimed involvement in Falun Gong in China, or his claimed arrest in June 2003. The Tribunal concluded, that it could not accept that he had ever practised Falun Gong in China, or that he had been arrested, or that he had suffered the injuries that he claimed, or that he had paid money to obtain his passport. Given that it did not accept the applicant’s evidence in relation to the factual account relating to his claims, the Tribunal found that it did not accept that the applicant was ever of any interest to the authorities in China ([68] at CB 90).

10. Also it did not believe that he would be of any interest to the Chinese authorities on the basis of a claim made before the earlier constituted Tribunal that he had overstayed his visa in Australia (at [68] at CB 90). 

11. In relation to the applicant’s claimed Falun Gong activities in Australia, the Tribunal accepted, based on the applicant’s own evidence and documentary material submitted by his representative, that “he has been practising Falun Gong in Australia and that he has attended Falun Gong activities here”. However, based on its view as to the applicant’s “overall credibility”, and its rejection of his claims to have been involved in Falun Gong in China, the Tribunal was not satisfied that he had become involved in Falun Gong in Australia other than for the purpose of strengthening his claim for refugee status. It therefore, disregarded such conduct, for the purpose of considering whether the applicant had a well-founded fear of persecution, pursuant to s. 91R(3) of the Act (at [69] at CB 90).

12. Given that it found that the applicant had never practised Falun Gong in China, and that it was required to disregard the applicant’s conduct in Australia, the Tribunal did not accept that there was a real chance that the applicant would be perceived as a Falun Gong practitioner if he returned to China. It found therefore, that it could not accept that there was a real chance that the applicant would be persecuted for any Convention reason if he were to return to China “now” or in the reasonably foreseeable future ([70] at CB 69). In all therefore, the Tribunal affirmed the decision under review.

Application to the Court

1. The grounds of the application are:

   “(1)RRT said I practiced Falun Gong and attended activities is for the purpose of strengthening my claims, that’s not fair. Falun Gong is good. It cultivated my body and spirit.

   (2)Procedural Fairness has been denied. RRT failed to address me potential sur place claim that I would be exposed to a real risk of persecution in the future as I am a Falun Gong Practitioner.”

   [Errors in the original]

Hearing before the Court

1. At the hearing before the Court the applicant appeared in person.

   
   

   He was assisted by an interpreter in the Mandarin language.

   
   

   Ms A. Mitchelmore of Counsel appeared for the first respondent.

2. The applicant stated that he had two issues “regarding the Immigration Department”:

   (1)That while he lived in Shanghai he worked for a trading company. The “Department” had said that he had provided inconsistent information because at first he had said twenty people were working for the company and then he said that four had been working for the sales department in that company. He could not understand why the “Immigration Officer” found that, because “he could have listened to the tape” which would have explained that he was talking about two different things.

   (2)That in relation to his passport he said he had to pay money to obtain it. That the “Immigration Officer” asked him to get relevant evidence from China as to this effect. The applicant complained that this demand was unfair, and therefore he refused to comply.

3. I confirmed with the applicant that his references to “the Department” were meant as references to the Tribunal. 

Ground one

1. The applicant’s complaint in ground one appears to take issue with the Tribunal’s finding that he attended Falun Gong activities, presumably in Australia, for the purpose of strengthening his claims. That such a finding was not “fair”.

2. Before the Tribunal, the applicant claimed amongst other things, that he practised Falun Gong and participated in Falun Gong activities in Australia. His migration agent submitted evidence on his behalf in support of this claim (see CB 57 to CB 58, CB 67 to CB 71, CB 79.5, CB 80.1 and CB 80.3).

3. The Tribunal accepted, on the basis of this evidence, that the applicant had been practising Falun Gong in Australia, and had attended Falun Gong activities here ([69] at CB 90).

4. Section 91R(3) however, compels the Tribunal to consider the purpose for which the applicant engaged in such conduct. In the current case the Tribunal’s consideration led it to conclude that it was not satisfied that he had become involved in Falun Gong in Australia other than for the purpose of strengthening his claim for refugee status. This was based on:

   “…having regard to the view that I have formed of his overall credibility and my rejection of his claims regarding his involvement in Falun Gong in China…”  ([69] at CB 90).

   Having arrived at that conclusion s. 91R(3) required the Tribunal to disregard that conduct for the purposes of determining whether or not the applicant had a well-founded fear of Convention related persecution.

5. The Tribunal’s approach to the application of this section was in my view consistent with current relevant authority (see SZJGV v Minister Immigration and Citizenship [2008] FCAFC 105 (“SZJGV”)).

   
   

   In relation to the claimed Falun Gong conduct in Australia, the Tribunal made primary findings of fact that the claimed conduct, that is, practising Falun Gong in Australia and attending Falun Gong activities here did in fact occur ([69] at CB 90). This engaged

   
   

   s. 91R(3). The Tribunal however, could not be satisfied that this conduct was engaged in other than for the purpose of strengthening his refugee claims. It therefore, properly disregarded this conduct for the purposes of determining whether the applicant had a well-founded fear of persecution for a Convention reason. This conduct formed no part of the Tribunal’s assessment of the applicant’s claims, including the difficulty that the Tribunal had in accepting the applicant’s claim to have been a Falun Gong practitioner in China. (See further below for “sur place” complaint).

6. The applicant also complains that the Tribunal’s finding in this regard was “not fair”. This Court does not have jurisdiction to determine whether the Tribunal’s decision (in the sense of the decision as the outcome of the process of the review) was “fair”. The Tribunal is required to provide fairness in the procedures that it employs and applies (see further below). But as to the outcome, it is as the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [25] (“SZBEL”) that procedural fairness requires a “fair hearing not a fair outcome” (with reference also to Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6 per Brennan J (“Quin”)).

7. In all the circumstances the applicant’s complaint that the decision was not fair can only be seen as a request for this Court to intervene and substitute its own findings as to the merits of his claims. This course is not open to this Court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”))

8. Finally, the applicant’s stated view in this ground that Falun Gong is good and cultivates his body and spirit does not, as the Minister submits, impugn the correctness of the Tribunal’s application of

   
   

   s. 91R(3), or indeed otherwise reveal jurisdictional error in its decision.

Ground two

1. In ground two the applicant asserts a denial of procedural fairness.

   
   

   He appears to particularise this with reference to what is said to be the Tribunal’s failure to address his: “potential sur place claim”.

2. Addressing first the issue of the claim of a denial of procedural fairness, I note that this is a case to which s. 422B of the Act applies. This means that the provisions that are set out in Division 4 of Part 7 of the Act are taken to be the exhaustive statement of the natural justice hearing rule (absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [59] to [67] (“Lay Lat”), SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8] (“SZCIJ”), SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [48] (“SZFDE”)).

3. Considering the material that has been put before the Court, I cannot see that the Tribunal failed to comply with the procedural code as set out in Division 4 of Part 7 of the Act. In short, therefore, I cannot see that the applicant was denied procedural fairness.

4. The statutory regime relevant to applications for protection visas is, in essence, found in ss.65 and 36(2) of the Act. In effect, these sections require the Tribunal to reach a requisite level of satisfaction that the applicant meets the criteria for the grant of a protection visa.
   For the current purposes this means that the Tribunal must be satisfied that the applicant meets the definition of “refugee” as set out in Article 1A(2) of the United Nations Refugee Convention. If the Tribunal is unable to reach this requisite level of satisfaction, the protection visa must be refused (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] to [16] (“SJSB”), NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5] (“NAST”), Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (“VSAF”)).

5. The applicant was invited to a hearing before the Tribunal pursuant to s.425(1) of the Act. He attended the hearing. The invitation was sent to the applicant’s address for correspondence (CB 38) pursuant to s.425A(2)(a). The Tribunal complied with ss.441A(4), 441C(4) and reg.4.35D of the Migration Regulations Act 1994 (Cth).

1. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”), the High Court explained the Tribunal’s procedural fairness obligations in relation to the conduct of a fair hearing pursuant to the obligation in s.425. I note, relevantly, what was said by the High Court at [33]:

   “The applicant is to be invited ‘to give evidence and present arguments relating to the issues arising in relation to the decision under review’. The reference to ‘the issues arising in relation to the decision under review’ is important.”

2. Further, that unless the Tribunal takes steps to identify some other issue (other than the issue that the delegate considered dispositive):

   “the applicant is entitled to assume that the issues the delegate considered dispositive are ‘the issues arising in relation to the decision under review.’...” (SZBEL at [35]).

   In that case, the Court found that the Tribunal did not accord the applicant procedural fairness because it did not give the applicant:

   “a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review” (SZBEL at [44]).

3. Following the delegate’s decision the applicant was entitled to consider that the determinative issues in his case were that:

   (1)Country information indicated that the Chinese authorities only target “core leaders” of the Falun Gong and that he was not a core leader or prominent member.

   (2)Given that he was detained in 2003 but was able to live without interruption in China until 2007, this demonstrated that he was not of interest to the Chinese authorities.

   (3)As was also demonstrated by his ability to acquire a valid passport in his own name.

4. The applicant has not put before the Court any other account, or transcript, to challenge the Tribunal’s account of what occurred at the hearing. Based on the Tribunal’s account it is clear that the Tribunal, through its extensive questioning more than “sufficiently indicated” (SZBEL at [47]) the determinative issues in his case, by addressing each aspect of the applicant’s factual account of what he said occurred in China and squarely putting to the applicant that it had difficulty in accepting his evidence. Issues which arose from and in addition to those identified by the delegate’s decision (other than that he was not a core member of or leader of the Falun Gong. This was not determinative of the review.) (See in particular paragraphs [33], [34], [36], [38], [39], [42], [45], [47] to [52] and [55] of the Tribunal’s account of the hearing).

5. In relation to its obligation pursuant to s. 424A, the Tribunal relied on the following information which fell within one of the exceptions set out in s. 424A(3) from the obligation in s. 424A(1):

   (1)The applicant’s evidence given at the hearing before it, and the documentary material provided on his behalf, all falls within the exception contained in s. 424A(3)(b), being information provided by the applicant to the Tribunal for the purposes of the review.

   (2)Independent country information relied on by the Tribunal (for example the information from the DFAT) is information of a non-in personam nature which falls within the exception contained in s. 424A(3)(a) from the obligation in s. 424A(1) (see VHAP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 (“VHAP”), Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264 (“NAMW”), QAAC v Refugee Review Tribunal [2005] FCAFC 92 (“QAAC”)).

   (3)Information contained in his application for a protection visa (in writing) comes within the exception set out in s. 424A(3)(ba). The applicant does not appear to have provided any information orally to the delegate. In any event the Tribunal did not rely on any such “information” such as to engage s.424A(1).

   (4)The Tribunal’s adverse views of the applicant’s evidence is not “information” for the purposes of s. 424A (SZBYRv Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 [18] (“SZBYR”)).

6. In any event, I note that the Tribunal took up the opportunity provided by s. 424AA and put certain matters and certain information to the applicant at the hearing. It gave him the opportunity to comment either at the hearing, or asked if he wanted additional time to comment or respond to the information in writing (see [46] to [52] at CB 84 to CB 86). In these circumstances s. 424A(2A) was engaged to relieve the Tribunal of the obligation set out in s. 424A(1) in relation to that information (if indeed any obligation remained, given the nature of the information that the Tribunal put to the applicant).

7. I cannot see that the Tribunal breached any other mandatory obligation or requirement set out in the procedural code in Division 4 Part 7, or was compelled by circumstances to engage in consideration of any discretionary power, such that it could be said that procedural fairness has been denied.

Ground Two” “Potential Sur Place” Claim

1. In ground two the applicant also complains of the Tribunal’s alleged failure to address his “potential sur place claim”.  Beyond a reference to “Falun Gong practitioner” no particulars are provided.

2. This probably derives from what was found by Driver FM in SZMBK as set out above. His Honour found error in the earlier constituted Tribunal’s decision arising from a misunderstanding and misapplication, of s. 91R(3), in that the earlier decision included a consideration by that Tribunal member of “the possibility of a sur place claim based upon the applicant’s asserted (and at least to a degree accepted by the “earlier” Tribunal) involvement with Falun Gong in Australia” (SZMBK at [19]).

3. A distinction needs to be drawn between the applicant’s claims to have practiced Falun Gong and to have engaged in Falun Gong related activities in Australia and that this would cause difficulties for him with the authorities in China and the reference to his claim (before the “earlier” Tribunal) that the Chinese authorities would investigate him on return because he had overstayed his visa in Australia.

4. The former claim has already been dealt with above ([21] to [35]).

   
   

   The Tribunal did not fail to deal with this “sur place” claim if that is the subject of the applicant’s complaint. As set out above, it properly disregarded the conduct giving rise to this claim pursuant to s. 91R(3).

5. In relation to the latter, the Tribunal found, that given that it did not accept the applicant’s evidence regarding his involvement in Falun Gong in China, it did not accept that he was ever of any interest to the authorities in China, nor that therefore, the Chinese authorities would be moved to investigate him because he had overstayed his visa in Australia ([68] at CB 90).

6. First, given what is set out in the Tribunal’s decision record, the Tribunal did not fail to address the applicant’s “sur place claim” whether “potential” or otherwise. The Tribunal’s finding that the applicant was not of interest to the Chinese authorities, and therefore, he would not be of interest to them because he had overstayed his visa in Australia was open to it on what was before it.

7. Second, the Tribunal’s finding as to his Falun Gong conduct in Australia was clearly not taken into consideration when assessing the applicant’s claims as they related to China and the adverse view that the Tribunal took of his credibility. Pursuant to s. 91R(3) the Tribunal plainly disregarded that (Falun Gong) conduct for the purposes of its decision in determining whether the applicant had a well-founded fear of persecutory harm in China for a Convention reason.

8. But neither was the applicant’s overstaying of his visa in Australia taken into account in rejecting the applicant’s factual account of what he said occurred in China and the Tribunal reaching an adverse view of the applicant’s credibility in relation to this account.

9. The reference to the applicant having told the “earlier” constituted Tribunal that the Chinese authorities would investigate him because he overstayed his visa in Australia appears at [68] (CB 90.2).

10. A plain reading of the Tribunal’s reasons reveals that its analysis and assessment of the applicant’s claims to fear persecutory harm, its formulation of the difficulty with the applicant’s evidence in this regard ends at [67] (CB 89.8). Paragraph [68] commences with: “Having regard to the matters dealt with in paragraphs [60] to [67] above, I do not accept that the applicant is telling the truth about his claimed involvement in Falun Gong in China or his claimed arrest in June 2003”. What follows at [68], is the Tribunals rejection of each item of the applicant’s factual claims.

11. It was in this “ticking off” of each item of the applicant’s claims that the Tribunal also said, at the end of [68], that his claim made before the “earlier” Tribunal that he had overstayed his visa would not lead to any interest by the Chinese authorities. It is clear that the Tribunal’s reference to it was made to ensure it had dealt with each integer of the applicant’s claims.

12. In SZGQK v Minister for Immigration and Citizenship [2008] FCA 1658 (per Tracey J) a matter on appeal from this Court, the Court said at [16]:

    “When asked whether he wished to make any oral submissions the appellant sought to raise what I understood to be an allegation of jurisdictional error, on the part of the Tribunal, involving a contravention of s 91R(3) of the Act. This issue had not been raised in his application to the Federal Magistrates Court and was not raised in the notice of appeal to this Court. The issue had been raised, in the Federal Magistrates Court, by counsel appearing for the Minister. It was drawn to the Court’s attention as a matter of fairness. It arose from an observation by the Tribunal to the effect that the appellant had not engaged in any conduct in Australia which was likely to bring him to the attention of Chinese authorities. The Federal Magistrate held that no contravention of s 91R(3) had occurred: see SZJGV v Minister for Immigration and Citizenship 247 ALR 451. This was because the Tribunal had done no more than assure itself that there was no additional basis on which the appellant’s claim might be upheld and that, in any event, the Tribunal had rejected the appellant’s claim on the free standing basis that his claims about events, said to have occurred in China, were not to be believed and that he had sought to rely on forged documents”.

    No error was found in this reasoning of the Federal Magistrate (see at [17]).

13. Similarly, in the current case I have read the Tribunal’s reference at [68] to the overstaying of the visa (a matter raised earlier by the applicant) as a final “assurance” that in light of its earlier comprehensive findings made on a “free standing basis”, rejecting the applicant’s factual account of what was said to have occurred in China and therefore rejecting the applicant’s claims to be of interest to the Chinese authorities, to be unaffected by the applicant’s statement to the “earlier” Tribunal that he was of interest because he had overstayed his visa.

14. Ultimately, the reference to the applicant having said that he overstayed his visa is not such that could be said to constitute conduct that would have been engaged in for the purpose of strengthening his claim to be a refugee, in the sense that no Convention ground (relevant to be recognised as a refugee) is enlivened without something more, by merely overstaying the visa. Section 91R(3) therefore was not enlivened. Therefore, the Tribunal was not required to disregard the “conduct” of overstaying the visa.

Other Complaint

1. Before the Court the applicant asserted two matters that he said occurred during the course of the hearing with the Tribunal (see [19] above):

   (1)Evidence that he claims to have given the Tribunal about the number of members of his place of employment in Shanghai.

   (2)That the Tribunal unfairly asked him to obtain evidence that he paid money to obtain his passport.

2. Despite opportunity, the applicant has not provided any evidence, for example by way of transcript, of what he says occurred at the hearing with the Tribunal. On the only evidence available to the Court, that is the Tribunal’s own account, I cannot see any reference in the Tribunal’s account of the hearing to any inconsistency being discussed as to the number of people working for the relevant company in Shanghai nor that the Tribunal made any finding of any such inconsistency.

3. Further, I cannot see that the Tribunal asked the applicant to obtain relevant evidence from China in relation to his claim to have paid money to obtain his passport or that the applicant told the Tribunal that this demand was unfair and that he refused to do it.

4. As Ms Mitchelmore submitted there is nothing in the Tribunal record to reflect this complaint. It is not open to this Court to draw inferences on what may or may not have occurred at the hearing without evidence before it to support the drawing of such inferences (see NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 (“NAOA”)). In any event I also agree with Ms Mitchelmore that a refusal by the applicant to obtain evidence does not reveal jurisdictional error on the part of the Tribunal.

5. Ultimately, the applicant’s complaints about the view taken of the number of people working in his company in Shanghai has no evidentiary basis on which to found such a complaint. Further, the complaint now in relation to the passport which was discussed at some length at the hearing (see [47] to [49] at CB 84 to CB 85), appears to be a complaint about the merits of the Tribunal’s decision, and does not reveal jurisdictional error on the part of the Tribunal.

Conclusion

1. In all, the applicant was unable to satisfy the Tribunal as to the credibility of his claims to have been a Falun Gong practitioner in China and to have drawn the adverse interest and attention of the authorities as a result. The Tribunal’s findings and its ultimate conclusion that the applicant’s account lacked credibility was open to it on the material before it. No error is revealed simply because the applicant is aggrieved by its conclusion.

2. The Tribunal did not “ignore” what the applicant describes as his “sur place” claim. The Tribunal accepted that the applicant had engaged in Falun Gong conduct and activities in Australia, it was compelled to disregard such conduct for the purposes of determining whether the applicant had a well-founded fear of persecution pursuant to s. 91R(3), given that it found that it was not satisfied that the applicant had engaged in such conduct other than for the purposes of strengthening his refugee claims. This again was a finding open to it on what was before it.

3. In relation to his claim made before the earlier constituted Tribunal, that the authorities in China would be interested in him because he had overstayed his visa in Australia. The Tribunal found, that it was unable to accept given its earlier findings, that the authorities would investigate him because he had overstayed his visa in Australia.

4. Importantly neither of these two matters (conduct) formed part of the Tribunal’s analysis and reasoning in rejecting the applicant’s claims as to whether he had a well-founded fear of persecution in China as it was said by the applicant to arise because of his activities in China. While

   
   

   s. 91R(3) was engaged in the former, it was not enlivened in relation to the latter.

5. For the applicant to succeed before this Court the Court would need to discern jurisdictional error in the Tribunal’s decision. As I cannot discern such error this application is dismissed.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  S.Polley

Date:  3 July 2009