SZMEQ v Minister for Immigration - [2008] FMCA 1316

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMEQ v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1316

MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – whether actual or apprehended bias – whether unfair manner of questioning – applicant must make out own case – whether breach of s.425 of the Act – credibility – procedural fairness – no general duty to investigate applicant’s claims – choice and assessment of weight of independent country information – sur place claim – whether breach of s.91R(3) of the Act – whether breach of s.424A of the Act – merits review not function of judicial review.

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

NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328
Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425
Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 Abebe v Commonwealth (1999) 197 CLR 510
Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Selvadurai v Minister of Immigration & Ethnic Affairs & J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105
Minister for Immigration & Multicultural & Indigenous AffairsvVSAFof 2003 [2005] FCAFC 73
NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1
NAHIv Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
SZHFE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2006] FCA 648
SZBYR v Minister for Immigration & Citizenship (2007) HCA 26
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Abebe v Commonwealth (1998) 197 CLR 510 at 560
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Chen Xin He v Minister for Immigration and Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported)

Applicant:

SZMEQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1032 of 2008

Judgment of:

Orchiston FM

Hearing date:

19 August 2008

Date of Last Submission:

19 August 2008

Delivered at:

Sydney

Delivered on:

23 September 2008

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr J. Mitchell

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application filed on 23 April 2008 and the amended application filed on 25 July 2008 are dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,000 payable within five (5) months of the date of these Orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1032 of 2008

SZMEQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

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 25 March 2008 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.

Background

The applicant was born on 5 July 1972. He claims to be a national of China.
The applicant arrived in Australia on 30 August 2007 on a Chinese passport issued in his own name.
The applicant lodged an application for a protection visa on

12 September 2007
on the basis that he was arrested and detained for being a Falun Gong practitioner and fears further persecution if he is to return to China.
On 10 December 2007 the delegate refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 28 December 2007 the applicant applied to the Tribunal for review of the delegate’s decision.

Legislative framework

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

On 17 January 2008, the Tribunal sent a letter to the applicant inviting him to appear before it on 4 March 2008 to give oral evidence and present arguments. The applicant appeared before the Tribunal on that occasion.

The applicant’s claims and evidence

I accept that the first respondent accurately summarises the Tribunal's claims and evidence as follows:
The Applicant claimed that he was a principal of Yu Xi Liu Cuo Primary School. He claimed that he practised and promoted Falun Gong. He claimed that in June 2003 he was interrogated by police, threatened, beaten and “forced to confess”. He was demoted from being a principal and transferred to another school to work as a teacher. Subsequently, he continued to practice Falun Gong and continued his involvement with a Falun Gong group. He was subject to surveillance from the authorities during this time. He claimed that in March 2007 he was informed that police were investigating his Falun Gong activities. He paid a large amount of money to obtain his passport and visa. He left China and fears that if he returns the Chinese government will persecute him.

The Tribunal’s findings and reasons (Court Book (CB) 62–69)

The Tribunal found that:
·the applicant was not a witness of truth and consequently rejected all of his claims
·the applicant did not hold sufficiently strong convictions to warrant refugee status
·it was implausible that demotion would be the only penalty meted out to the applicant given the brutal suppression of Falun Gong by Chinese authorities
·it was implausible that the applicant, as a person under close surveillance, would be able to view Falun Gong materials on the internet without detection
·the applicant’s explanation for his delay in leaving China after his passport had been issued was implausible
·the applicant’s lack of practice of Falun Gong in Australia was not consistent with his claims.
Accordingly, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.

The proceedings before this Court

The applicant filed the application in this Court on 23 April 2008 setting out 3 grounds of review of the Tribunal’s decision. The applicant filed an amended application on 25 July 2008 setting out

2 grounds of review.
The applicant appeared in person at the hearing on 19 August 2008 with the assistance of a Mandarin interpreter. Mr Mitchell of counsel appeared for the first respondent.
The applicant was invited to say anything he wished to in support of the grounds of review, and generally, after each ground was translated for him.

Grounds of application

Ground 1 of the application

Ground 1 of the application states that:
The Tribunal had bias against me and failed to consider my application according to law.
The applicant has provided no particulars in his application to identify the precise nature of the allegation of bias. Further, he has not provided the Court with the transcript of evidence taken at the Tribunal hearing.
It is well-settled that any allegation of bias must be “distinctly made and clearly proved”: SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 at [22]; citing Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, [69]. This has simply not been done in the present case.
I further note the observations by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.” His Honour further relevantly observed at [38]:
The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.
In order to establish bias or bad faith the applicant would need to demonstrate that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [56-59]. Again, this has simply not been demonstrated by the applicant. There is nothing disclosed on the face of the Tribunal decision record to support any assertion of actual bias on its part.
I am further satisfied that there is nothing on the face of the decision record to show that a “hypothetical fair minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias”, might reasonably apprehend that the Tribunal did not bring an impartial mind to the task of the decision making process: Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 at [28].
I am satisfied therefore that no allegation of bias, whether actual or apprehended, can be demonstrated on the face of the Tribunal decision record.

Applicant’s oral submissions

In his oral submissions, the applicant makes the following statement in support of this ground:
Why the RRT says that my application only by way of ask simple questions that required me to answer yes or no. Based on those answers to came to the conclusion according to their view. Did not go outside to investigation or test other things at all. Prior to the hearing I brought along some materials just lay on the table and back then they told me if they need something they will ask me to submit. Until the matter was finalised they did not request those things at all …
On the surface RRT showed great sympathy to my circumstances at the hearing but when they refused me they didn't notify me in written format what was the reason how my application refused. Which misled me a great deal.
It is difficult to discern precisely from this submission where the applicant says the Tribunal has erred. To the extent to which the applicant is asserting that the Tribunal asked him yes and no questions, again, the applicant has not provided the transcript of the Tribunal hearing to support any allegation of procedural unfairness on its part for this reason.
In any event, the Tribunal is entitled to control the direction of the hearing, including by asking questions in order to satisfy itself of the merits of the application: NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 at [124]-[125].
As relevantly observed by the High Court in Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 at [30]-[31]:
Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker’s view (and see also Re Minister for Immigration; Ex parte Applicant S 154/2002 (2003) 201 ALR 437 at [57]).
I am satisfied that there is nothing disclosed on the face of the Tribunal decision record concerning the manner and form of the questions asked of the applicant in this case, from which a fair-minded lay observer or a properly informed lay person might say that the applicant was thereby intimidated or overborne and from which an inference might otherwise have been available that the Tribunal acted unfairly or in bad faith.
Furthermore, there is no duty on a Tribunal to prompt or stimulate an expansion of an applicant’s answers or claims. It is well settled in this regard 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.
The Tribunal is not required to make the applicant’s case for him: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-70; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [40]; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57] and [1]; 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.
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.

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.
I thus detect no procedural unfairness on this basis.
To the extent to which the applicant is alleging a breach of s.425(1) of the Act, the applicant has not provided any particulars, nor the transcript of the Tribunal hearing, nor any other evidence to identify what if any determinative issue or issues he has been denied the opportunity to respond to. As relevantly observed, in this regard, by the Full Federal Court in NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241:
The appellant had not given any evidence (in affidavit form or orally) to the effect that this issue had not been raised … In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice (at [21]);
and that:
it is sufficient if the gravamen or substance of the issue or factor is brought to the [applicant's ] attention; or that the applicant is on notice of its 'essential features’ (at [25]).
A fair reading of the Tribunal decision demonstrates that the Tribunal complied with its statutory obligations under s.425(1) by giving the applicant the opportunity at the hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. In this regard, the Tribunal identified for the applicant the determinative or critical issues upon which the decision was likely to turn, and gave the applicant sufficient opportunity to give evidence and make submissions concerning those determinative issues before it reached its conclusions: SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63 at [33]–[48].
Beyond this, procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. As observed by the High Court in SZBEL at [47]-[48] in this regard:
It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor …
…as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry]:
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. if this were a rule of natural justice only the most talkative of judges would satisfy it …”
Accordingly, I detect no breach of s.425(1) of the Act in this case. I am therefore satisfied that the applicant was accorded procedural fairness by the Tribunal in accordance with the statutory regime.
In regard to the applicant’s assertion that he brought materials to the Tribunal hearing and that the Tribunal never asked to see those materials, he has provided no particulars to identify what these materials are and in what context he says the Tribunal did not seek to see them.

The applicant has also provided no evidence to support this assertion by way of the transcript of the Tribunal hearing, nor has he filed any other evidence on the matter. Further, there is nothing disclosed on the face of the Tribunal decision which assists the applicant’s assertion in this regard.
As stated above, the Tribunal is not required to make out the applicant’s case for him and it is for him to put whatever evidence or argument he wished to the Tribunal to enable it to reach “the requisite state of satisfaction.”
To the extent to which the applicant is asserting that the Tribunal did not make any outside investigations in this regard, again, he has failed to provide any particulars specifying precisely what investigations, he says, were required in this case and over what materials.
In any event, there is no general duty on a Tribunal to make such enquiries. As Heerey J observed in Selvadurai v Minister of Immigration & Ethnic Affairs & J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7]:
A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.
Whilst the Tribunal has the power under s.424 of the Act to “get any information that it considers relevant” and to “invite a person to give additional information”, these powers are permissive not prescriptive. As recognised by the Full Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v VSAFof 2003 [2005] FCAFC 73 at [20]:
If his Honour meant that the Tribunal should have sought information from other sources available to it under s.424, the existence of such an obligation is denied by a substantial body of authority. See Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and at [124] per Callinan J; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 561 and SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8]; SJSB at [16].
Whilst the Tribunal may choose to exercise this information-gathering power, as well as its other investigative and information-gathering powers under ss.426 and 427 of the Act, it has no obligation to do so.
Furthermore, in the present case, in the Response to Hearing Invitation Form, the applicant marked the “No” answer box to question 2(c), which asks the question: "Do you want the Tribunal to take oral evidence from any witnesses?" (CB 49).
Having properly considered the evidence before it, the Tribunal was thus under no obligation to conduct any further investigation before concluding that the applicant did not have a well-founded fear for a Convention reason.
I thus detect no jurisdictional error on this basis.
The applicant further asserts that:
on the surface RRT showed great sympathy to my circumstances at the hearing but when they refused me they didn't notify me in written format what was the reason how my application refused. Which misled me a great deal.
It is difficult to discern exactly what the applicant is alleging in this respect. To the extent to which he is alleging that the Tribunal breached its statutory obligations under s.424A of the Act by failing to invite him to comment on information in writing upon which it would otherwise make an adverse finding, I rely on my reasoning under amended ground 2 below in the present context. I thus detect no procedural unfairness on this basis.
To the extent to which the applicant alleges that any of the above matters raised by him in his oral submissions discloses bias, whether actual or apprehended, I consider that a fair reading of the Tribunal decision provides no support for, let alone a basis for proof of, any allegation that the Tribunal “acted dishonestly or arbitrarily or capriciously” towards the applicant, or that it prejudged the matter, or embarked on it with a mind not open to persuasion.
Accordingly, for the reasons stated above, Ground 1 of the application is rejected.

Ground 2 of the application

Ground 2 of the application states that:
The Tribunal failed to notify me in writing the reason or part of the reason for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with s.424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason.
This ground is dealt with under amended ground 2 below. I adopt my reasoning therein in the present context.
Accordingly, Ground 2 of the application is rejected.

Ground 3 of the application

Ground 3 of the application states that:
The Tribunal referred to some irrelevant independent information for the consideration of my application.
The applicant has provided no particulars in his application to identify what independent information he says was irrelevantly considered in this regard.
In its Findings and Reasons, the Tribunal referred to and made findings based on independent country information (in particular at CB 66-67 under the sub-heading “Asylum seeker and illegal departure from the PRC”).
It is well settled, however, that the Tribunal’s choice of particular country information and its assessment of the weight to be accorded it, are purely factual matters for it: NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 at [8] per Gleeson J. As summed up by the Full Federal Court in NAHIv Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, in the context of assessing country information:
Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal (at [13]) …
… the Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item (at [14]), (and see NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC) at [81]).
Even if there is evidence to establish that the Tribunal has made an error of fact by relying upon incorrect country information, this would not amount to an error of law, let alone jurisdictional error: Abebe at [137].
I consider that, in the present case, the Tribunal properly considered all the country information before it and the conclusions that it reached were open to it on this material.
I thus detect no jurisdictional error on this basis.

Applicant’s oral submission

In his oral submissions, purportedly in support of this ground, the applicant makes the following statement:
At the RRT hearing the member spent of the time asked about me, my occupation, what I did in China. How far away from my work unit to my home address and those irrelevant questions. In relation to how I practised Falun Gong or how much knowledge do I have about Falun Gong. I practised to which level in relation to Falun Gong. Those things they asked so little. Secondly, the Tribunal member asked about my occupation income in Australia and these things I don't think it's relevant to my application but by way of asking those questions and I gave my answer to them I think which affect my application.
Again, the applicant has not provided the transcript of the Tribunal hearing in support of this submission. In the absence of the applicant pointing to any passage or passages from the Tribunal transcript on these matters, the Court is left to consider the face of the decision record. I consider that a fair reading of the Tribunal decision does not disclose that “irrelevant questions” were asked of the applicant about his background both in China and Australia, nor that “so little” was asked about his practice of Falun Gong.
Furthermore, in circumstances where the applicant has set out his claims solely in a one paragraph Statement, which accompanied his protection visa application, (at CB 28), the Tribunal is entitled to ask questions to further elucidate the basis and circumstances of these claims. I accept the submission by the first respondent in this regard that:
… it's not surprising that the Tribunal member would ask the applicant certain questions to try and fill some of the gaps of his claims to have suffered in the past in circumstances where he claimed that he had commenced practising Falun Gong in 2002, had been demoted from his position as the principal of the school in June 2003, was detained in 2003 and subsequently left for Australia in the middle of 2007.
All those events are summarised in the one paragraph by the applicant in his written evidence and … these are not matters of irrelevance … asking the applicant about where he worked, what his occupation was, what his income was in Australia were not irrelevant considerations. The Tribunal had to make an assessment as to whether his claims were well founded. It did that by reference to his credibility and in part made that assessment based on what he had done in Australia and his lack of participation in public Falun Gong activities in Australia. The question that was directed towards those matters was entirely relevant to the question as to whether his views were well founded.
… in any case, the applicant's only making assertions in respect to questions that have been asked not in respect to matters that have been considered by the Tribunal in coming to its decision and in my submission there's no evidence in the Tribunal's decision that it is actuated by extraneous matters or extraneous considerations to the question that the Tribunal was tasked with, that is, determining whether the applicant's views were well founded on a Convention base (Court transcript, 19/8/08, p.13)
As stated above under ground 1 of the application, the Tribunal is entitled to control the direction of the hearing, including by asking questions in order to satisfy itself of the merits of the application: NADH of 2001 at [124]-[125].
I thus detect no procedural unfairness on this basis.
The applicant makes the further oral submission that:
RRT member tried to cover their own mistakes by utilise all those information and the knowledge in this field. I don't think that is a fair treatment in relation to the United Nations how to deal with refugee claims. Please the Court should pay attention to all the conduct by the RRT …
The applicant has failed to provide any particulars as to what information and knowledge in this field, the Tribunal is said to have utilised and thereby “tried to cover their own mistakes”.
In any event, to the extent to which the Tribunal based some of its decision on its own experience and knowledge, I accept the submission by the first respondent that:
It is entirely appropriate and open for a Tribunal or administrative decision maker to rely on their store of knowledge and experience built up over numerous cases and … [in] Maddy [v Minister for Immigration & Anor [2006] FMCA 722 at [131]- [134]… a judgment of Barnes FM where her Honour held that it was entirely appropriate for a Migration Review Tribunal to have reference to its own experience regarding British bases, British Armed Forces Bases in offshore jurisdictions because the particular member had had some experiences at trial in growing up in a family where her family served in a military capacity. Her Honour Federal Magistrate Barnes refers to another judgment in that case [at 133] of Branson J, [NAEH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 927 at [13] (appeal dismissed on other grounds [2003] FCAFC 28].
So I submit that … in the [Findings and] Reasons [at] Court Book, page 64 … where the Tribunal says:
Be that as it may, I presume it is not controversial to state that PRC authorities were brutally suppressing the practice of Falun Gong in June 2003.
… there's no country information before the Court insofar as what the Tribunal actually had before it in that respect, … that is, that it has come from the Tribunal member's own knowledge and experience … So even if it's not based on country information that's before the Tribunal member in this matter, it's of no consequence that it is based on the Tribunal member's experience or knowledge that may have come from pervious cases (Court transcript, p.15).
I thus detect no procedural unfairness on this basis.
Accordingly, for the reasons stated above, Ground 3 of the application is rejected.

Grounds of amended application

Ground 1 of amended application

Ground 1 of the amended application states that:
The Tribunal failed to consider the fact that I have been practising Falun Gong in Australia, and my activities here may cause further persecution to me on my return to China.
The applicant raises here for the first time a sur place claim. He has not provided the Court with the transcript of the Tribunal hearing in support of such a contention.
Nowhere on the face of the Tribunal decision record is there any evidence of the applicant raising such a claim that he has fears of further persecution if he were to return to China on the basis of his practice of Falun Gong, in private, in Australia. Rather, the decision record provides the following summary of the exchange of questions and answers between it and the applicant under the sub-heading “The applicant’s practice of Falun Gong in Australia” (at CB 67):
I asked the applicant if he practised Falun Gong in Australia. He said that he did not practise publicly. He said that he practised in private. I then asked the applicant how often he practised in private (in Australia). I asked him how many times per month he practised. He claimed he did not practise 'much' in Australia. He said he did 'not have much time'. He said he had to work.
The Tribunal proceeded to make the following findings in respect to that practice in Australia (at CB 67):
With respect, the applicant is thus claiming he 'fled' the PRC for reason of his practice of Falun Gong but now that he is in Australia, he is too busy to practise. I do not accept this is indicative of a person with any real convictions about Falun Gong. I do not accept the applicant's alleged practice of Falun Gong warrants refugee protection in Australia.
In these circumstances, it is clear that there is no evidence to support any intention on the part of the applicant to raise a sur place claim before the Tribunal.
I consider that this is not a case where s.91R(3) of the Act has been enlivened. I accept the submission by the first respondent that s.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. As relevantly observed by Jacobson J in SZHFE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2006] FCA 648 at [30]-[31]:
The effect of the submission is 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. In my opinion, this is plainly the effect of section 91R(3) and the subsection is not enlivened in the present case.
Accordingly, in my view it is clear that there was no error in the RRT having regard to that conduct in making the findings which it did. This is particularly so in the present case where the appellant did not rely on his conduct in Australia to support his claim for refugee status
(and see SZHFE v Minister for Immigration & Citizenship [2007] HCA Trans 10 at 2 per Kirby J; SZGDJ v Minister for Immigration & Citizenship [2008] FCA 722 at [17]-[22] per Weinberg J; SZIMY v Minister for Immigration & Citizenship [2007] FCA 249 at [11] per Conti J; and SZHTC v Minister for Immigration & Citizenship [2007] FCA 1199 at [25] per Gilmour J).
In the present case, the applicant merely gave evidence about his practice of Falun Gong in Australia in response to questions put to him by the Tribunal as is demonstrated by the above summary of the exchange of questions and answers. He simply answered the Tribunal’s questions as to his conduct in Australia, but did not otherwise claim to hold fears arising from that conduct. The Tribunal thus made no finding in respect to 91R(3). The statutory obligation on a Tribunal to disregard an applicant’s conduct in Australia (unless the applicant satisfies it that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee), was not thereby activated in this case.
As observed by the Full Court in SZJGV at [23], in each of the three cases before it, (being also SZJXO and SZKBK), “the evidence that led to the findings was called by the [applicant]” [emphasis added]. This was not the case, in the present context.
I further accept the submission by the first respondent that:
SZJGV has no application in the present case. That case concerned Tribunal decisions that included findings that an applicant’s conduct should be disregarded pursuant to s 91R(3). That is not so in the present case. As was observed by the Full Federal Court in SZJGV, the facts and circumstances that arose in SZHFE did not arise for its consideration: SZJGV at [26]. Accordingly, SZJGV has no application and should be distinguished from the present case.
In these circumstances, I accept the submission by the first respondent that:
in essence, the Tribunal had credibility concerns in respect to the Applicant’s claims and those concerns were reinforced by his conduct in Australia.
It is not the function of this Court, however, to engage in impermissible merits review (and see further under amended ground 2 below).

I consider that a fair reading of the Tribunal decision demonstrates that its finding of adverse credibility, in this context, was open to the Tribunal on all the evidence before it.
I therefore detect no jurisdictional error under this amended ground.
Accordingly, for the reasons stated above, Ground 1 of the amended application is rejected.

Ground 2 of amended application

Ground 2 of the amended application states that:
The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with s.424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason. The Tribunal was required to provide particulars of the information that was the reason or part of the reason for affirming the decision and was required to explain why the information is relevant and provide the applicant with an opportunity to comment upon it. The above mentioned had to be provided in writing (SAAP v Minister for Immigration & Multicultural and Industrial and Ethnic Affairs (2005) HCA 24 (18 May 2001)).
The applicant asserts, in effect, that the Tribunal has breached its statutory obligations pursuant to s.424A of the Act by failing to provide him in writing with “information” upon which it would make an adverse finding, subject to his comment or response.
The applicant has, however, failed to provide particulars to identify what the information is, which he says, the Tribunal should have provided to him in this regard.
In any event, the Tribunal decision was based on the applicant’s oral evidence given at the Tribunal hearing, considered in the light of independent country information. Both the applicant’s oral testimony and country information fall respectively within the statutory exemptions to the Tribunal’s obligations under s.424A(1), being information that “the applicant gave for the purpose of the application for review”: s424A(3)(b), and information that “is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”: s.424A(3)(a). I accept the submission by the first respondent on this matter that:
Neither source of information was subject to s 424A(1) obligations. In respect to the Applicant’s testimony, that was given by the Applicant for the purpose of his application for review: see NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at [41] – [64]; VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302 at [48]; SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35]. In respect to the country information, that was not specifically about the Applicant or another person: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92.

Furthermore, the central finding of the Tribunal in this case was based upon its view of the applicant’s credibility. It found that:
… for the reasons set out herein, I do not accept the present applicant is a witness of truth. I am satisfied the applicant was prepared to embellish if not entirely fabricate his material claims in order to enhance his chance of invoking refugee protection obligations in Australia. I am sufficiently satisfied the present applicant is not a witness of truth such that I am satisfied there are reasonable grounds to reject all his material claims. Thus, to the extent I have not expressly rejected his material claims elsewhere, given I am sufficiently satisfied he is not a witness of truth, I find that none of the applicant's material claims to invoke refugee protection obligations in Australia are true.
The Tribunal was not obliged to put to the applicant in writing its adverse findings as to his credibility in this regard. It is clear that the word “information” in s.424A, upon a proper construction, does not extend to the Tribunal's subjective thought processes and appraisals of the evidence, including its failure to believe the applicant's evidence. As observed by the High Court in 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.
Equally, in the present case, the lack of credibility of the applicant’s claims was at the forefront of the Tribunal’s thought processes.
Likewise, in SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [27], the Full Federal Court commented that:
The proposition than an inference or deduction based upon two facts can constitute "information" for the purposes of sub 424A(1) does not fit easily into the structure of s.424A as a whole. In SZBYR the High Court stressed the distinction between the concept of "information" and the reasoning process leading to affirmation of the decision under review… The drawing of inferences and the assessment of their relevance are more appropriately described as part of the reasoning process than as information for the purposes of sub 424A(1).
The procedural fairness requirements in Part 7 Division 4 deal 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.
This statement reflects the well-established case law that it is not part of the function of this Court to engage in fact finding concerning the merits of an applicant’s case: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. Furthermore, there is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1998) 197 CLR 510 at 560 [137].
The Tribunal’s finding that the applicant was not a credible witness was a finding of fact par excellence, not open to review by this Court: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 at [67]. As remarked by McHugh J therein:
If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.
Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law: Chen Xin He v Minister for Immigration and Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported) at [24].
I thus detect no breach of 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.
Overall, 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 reasoned analysis of the applicant's claims; explored those claims with him at the hearing; identified the determinative issues and gave him sufficient opportunity to give evidence and make submissions on those issues at the hearing; 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.
I consider that the Tribunal’s findings of fact, in particular as to the applicant’s adverse credibility, were open to it on the evidence and material before it; that the Tribunal provided well-articulated and sufficient 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.
Accordingly, for the reasons stated above, Ground 2 of the amended application is rejected.

Conclusion

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.
The application and the amended application before this Court are dismissed.

I certify that the preceding one-hundred-and-one (101) paragraphs are a true copy of the reasons for judgment of Orchiston FM

Associate: Duncan Maconachie

Date: 23 September 2008