SZMGA v Minister for Immigration
[2008] FMCA 1469
•31 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMGA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1469 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – whether breach of s.424A of the Act – merits review not function of judicial review – credibility – procedural fairness – whether s.91R(3) of the Act misapplied – whether sur place claim. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424A, 474 |
| QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 SZGIY v Minister for Immigration & 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 Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 Selvadurai v Minister of Immigration & Ethnic Affairs & J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 Chen Xin He v Minister for Immigration & Ethnic Affairs [1995] FCA 1682 (23 November 1995) SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105 |
| Applicant: | SZMGA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1204 of 2008 |
| Judgment of: | Orchiston FM |
| Hearing date: | 19 September 2008 |
| Date of Last Submission: | 19 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2008 |
REPRESENTATION
| The applicant appeared in person. |
| Solicitors for the Respondent: | Mr P Snell of Sparke Helmore |
ORDERS
The application filed on 13 May 2008 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $3300.00 payable within three (3) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1204 of 2008
| SZMGA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
By an application filed on 13 May 2008 under rule 44.05 of the Federal Magistrates Court Rules, the applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (the Act) in respect of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 15 April 2008 which affirmed the decision of a delegate of the respondent Minister (the delegate) dated 24 December 2007 to refuse to grant a Protection (Class XA) visa to the applicant.
Background
The applicant was born on 28 November 1970. He claims to be a national of the People’s Republic of China, of Chinese ethnicity, and of Falun Gong faith.
The applicant arrived in Australia on 6 September 2007 on a Chinese passport issued in his own name.
The applicant lodged an application for a protection visa on 18 October 2007 and in a Statement attached to the application claimed that he had suffered persecution in China for reason of his practice of Falun Gong and feared further persecution if he were to return to China (Court Book (CB) 26-27).
On 24 December 2007 the delegate refused to grant the applicant’s protection visa on the basis that he was not a person to whom Australia had protection obligations under the Refugees Convention (CB 30-39) (see Legislative framework).
On 25 January 2008 the applicant applied to the Tribunal for review of the delegate’s decision (CB 40-43).
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 8 February 2008, the Tribunal sent a letter to the applicant inviting him to appear before it on 10 March 2008 to give oral evidence and present arguments (CB 46-47). The applicant attended the hearing on that occasion.
The Tribunal’s findings and reasons (CB 69 – 71)
The Tribunal was not satisfied that the applicant had told the truth about his involvement in Falun Gong in China. It noted that the applicant had given evidence that he had practised Falun Gong in a public park in 2000, however, when questioned about this evidence he stated that the park was secluded. The Tribunal considered that the applicant would not have been able to practise in public in 2000 without being detected.
The Tribunal also noted that the applicant obtained a passport in his own name. It relied upon independent country information which suggested that a person who had come to the attention of the Chinese authorities would have experienced difficulty in obtaining a passport.
The Tribunal also noted that the applicant delayed in departing from China, which led the Tribunal to conclude that he did not genuinely fear being persecuted in China for reason of his claimed involvement in Falun Gong.
The Tribunal summarised its findings, as follows:
For the reasons given in paragraphs 41 to 44 above, I do not accept that the applicant is telling the truth about his involvement in Falun Gong in China. I do not accept that he started practising Falun Gong in China in 2000, that he was detained for two weeks and forced to attend a ‘brainwash class’ after he took part in a ‘sit-in petition’ with two other Falun Gong practitioners in front of the Guangdong Provincial Government in Guangzhou in October 2003 nor that in January 2006 some public security officers came to search his home. Since I do not accept that the applicant was ever involved in practising Falun Gong in China I do not accept that he was ever persecuted for reasons of his involvement in Falun Gong in China (whether this claim is regarded as coming under the Convention grounds of religion, membership of a particular social group or real or imputed political opinion or a combination of those grounds) (CB 70-71).
The Tribunal accepted that the applicant had practised Falun Gong in Australia, but was not satisfied that he had engaged in this conduct otherwise than for the purpose of strengthening his claim for refugee status. Accordingly, the Tribunal disregarded this conduct pursuant to s.91R(3) of the Act.
For these reasons, the Tribunal concluded that:
Since I do not accept that the applicant was ever involved in practising Falun Gong in China in the past, I do not accept that there is a real chance that he will be involved in practising Falun Gong if he returns to China now or in the reasonably foreseeable future. Since I do not accept that the applicant was ever involved in practising Falun Gong in China in the past, and since, for reasons given above, I consider that I am required to disregard the applicant’s conduct in becoming involved in Falun Gong in Australia, I do not accept that there is a real chance that he will be perceived as a Falun Gong practitioner if he returns to China. I do not accept, therefore, that there is a real chance that the applicant will be persecuted for reasons of any real or perceived involvement in Falun Gong (whether this claim is regarded as coming under the Convention grounds of religion, membership of a particular social group or real or imputed political opinion or a combination of those grounds) if he returns to China now or in the reasonably foreseeable future.
… For the reasons given above, therefore, I conclude that the applicant does not have a well-founded fear of being persecuted for a Convention reason if he returns to China now or in the reasonably foreseeable future. Having considered the evidence as a whole, I am not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in paragraph 36(2)(a) of the Act for a protection visa.
The proceedings before this Court
The applicant filed the application in this Court on 13 May 2008 setting out 2 grounds of review of the Tribunal’s decision.
The applicant appeared in person before the Court on 19 September 2008 with the assistance of a Cantonese interpreter. Mr Snell 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 RRT decision was affected by jurisdictional error in that the Tribunal failed to invite the applicant to comment on adverse information. The Tribunal breached S424A of the Migration Act.
In this case, no letter was sent to the applicant pursuant to s.424A of the Act. The applicant has not provided any particulars to this ground to identify precisely what “information” he says the Tribunal was required to provide to him for his comment or response in a s.424A letter.
The clear statutory rationale for s.424A is to ensure, “as far is reasonably practicable” that the applicant understands and is aware of any “information” upon which it might make an adverse finding, and to give the applicant an opportunity, as a matter of fairness, to respond or comment on that information before the Tribunal makes its decision.
As summarised by the Tribunal, the evidence before it comprised the applicant’s original application (CB 64-65), the applicant’s evidence at the hearing (CB 65-69) and independent country information (including at CB 65, paragraph 18; and at CB 67, paragraphs 29, 31).
In the present case, the Tribunal’s adverse findings of credibility, were founded on “information” provided by the applicant himself from his oral evidence and upon independent country information.
Subsection 424A(3), provides important statutory exceptions to s.424A(1). In particular, it is well-settled that independent country information falls within the statutory exception under s.424A(3)(a) and is thus not required to be put to an applicant for comment: QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 per Dowsett, Hely and Lander JJ at [7-30].
Also, information “that the applicant gave for the purpose of the application for review” falls within the statutory exception under s.424A(3)(b), seemingly because the applicant is clearly on notice of such information provided by himself.
In any event, it is also clear that, a proper construction of the word information in the context of s.424A and hence what information must be given to an applicant for comment, does not extend to matters where the Tribunal does not believe the applicant’s evidence and does not find him to be a credible witness: 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 & 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).
I am satisfied therefore that the Tribunal was not obliged to notify the applicant pursuant to s424A(1) of its concerns about the applicant’s credibility.
To the extent that the applicant is seeking to challenge more generally the Tribunal's findings in relation to his alleged fears of persecution, it is not part of the function of this Court to engage in fact finding concerning the merits of the 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 was not required to accept uncritically any or all of the allegations made by the applicant: Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451-2. 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.
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 & Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 at [67]. I consider that a fair reading of the Tribunal decision demonstrates that it was open to the Tribunal, based on the evidence before it to reach the conclusion that the applicant had invented his claims concerning his involvement in Falun Gong activities in China.
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 & Ethnic Affairs [1995] FCA 1682 (23 November 1995) at [24].
The procedural fairness requirements in Part 7 Division 4 of the Act deal only with the process of decision-making, not the merits of the decision. As relevantly stated by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 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.
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 regarding his Falun Gong activities in China; explored those claims with him at the Tribunal hearing; identified to the applicant 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 then made findings based on all the evidence and material before it.
I consider that its findings of fact, in particular as to the applicant’s adverse credibility, were open to it on the evidence and material before it; that it provided well-articulated and 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.
I thus detect no breach of s.424A of the Act in this case and am satisfied that the Tribunal accorded the applicant procedural fairness in accordance with its statutory obligations.
Accordingly, Ground 1 of the application is rejected.
Ground 2 of the application
Ground 2 of the application states that:
The RRT decision was affected by jurisdictional error in that the Tribunal failed to give sufficient consideration to the applicant’s curently [sic] Falun Gong activities in Australia. The RRT misapplied S91R(3) of the Act.
The applicant has not provided any particulars of the basis on which he asserts the Tribunal failed to give sufficient consideration to his claims to practise Falun Gong in Australia and that it misapplied s.91R(3) of the Act. Further, the applicant has not provided the Court with the transcript of the Tribunal hearing.
Sub-section 91R(3) provides that conduct engaged in by an applicant in Australia must be disregarded unless the applicant satisfies the Tribunal that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee.
The Tribunal summarised the applicant’s evidence in regard to his Falun Gong activities in Australia, including that:
I noted that it was obvious from the photographs which the applicant had produced that he had been practising Falun Gong in Australia. I explained, however, that the law in Australia required me to disregard certain conduct engaged in by a person in Australia unless I was satisfied that the person had engaged in the conduct otherwise than for the purpose of strengthening the person’s claim for refugee status (see subsection 91R(3) of the Act). I explained that whether I accepted that the applicant’s conduct in Australia had been engaged in for that purpose or for other purposes depended very much on my view of his overall credibility and his account of his involvement in Falun Gong in China (CB 67).
I put to the applicant that if I did not accept that he had been involved in Falun Gong in China I might disregard his conduct in Australia (where I accepted he had been practising Falun Gong). I put to him that, as we had discussed, the law in Australia required me to disregard a person’s conduct in Australia unless I was satisfied that the person had engaged in the conduct otherwise than for the purpose of strengthening the person’s claim for refugee status (see subsection 91R(3) of the Act). I explained that I might therefore disregard the applicant’s involvement in Falun Gong in Australia. I put to him that if I did not accept that he had been involved in Falun Gong in China in the past I might therefore conclude that there was not a real chance that he would be involved in practising Falun Gong in China in the future. The applicant indicated that he understood but he said that he did not want to comment (CB 68-69).
On the basis of the applicant’s evidence, the Tribunal concluded that:
As I indicated to the applicant, I accept on the basis of the knowledge he demonstrated of Falun Gong at the hearing before me that he has been practising Falun Gong in Australia. However, having regard to the view I have formed of his overall credibility and my rejection of his claims regarding his involvement in Falun Gong in China I am not satisfied that he has become involved in Falun Gong in Australia otherwise than for the purpose of strengthening his claim for refugee status. I consider that I am therefore required to disregard his conduct in becoming involved in Falun Gong in Australia in determining whether he has a well-founded fear of being persecuted for one of more of the reasons mentioned in the Refugees Convention as amended by the Refugees Protocol (see subsection 91R(3) of the Act)
… Since I do not accept that the applicant was ever involved in practising Falun Gong in China in the past, and since, for reasons given above, I consider that I am required to disregard the applicant’s conduct in becoming involved in Falun Gong in Australia, I do not accept that there is a real chance that he will be perceived as a Falun Gong practitioner if he returns to China (CB 71).
I consider that a fair reading of the Tribunal’s decision demonstrates that the Tribunal gave sufficient and proper consideration to the applicant’s Falun Gong activities in Australia. Its conclusion to disregard these activities pursuant to s.91R(3) was reasonably open to it in light of its findings as to the adverse credibility of the applicant and its rejection of his claims concerning his involvement in Falun Gong in China.
In SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105, the Full Federal Court stated that a Tribunal would breach s.91R(3) if it went beyond disregarding an applicant’s conduct in Australia and sought to bring that conduct into account in determining whether the appellant satisfied the requirements for being a refugee. It relevantly observed that:
Section 91R(3) was intended to and does require such conduct to be disregarded when assessments are being made … Decision makers are … required to disregard “any” conduct in Australia by an applicant. The conduct is to be disregarded in determining “whether” an applicant had a well founded fear of persecution for a Convention reason. The conduct may suggest that such a fear is or is not well founded. In either case it must be disregarded. If the Tribunal brings the conduct into account it will contravene s91R(3) (at [24]).
SZKBK claimed to have been a member of a Seventh Day Adventists Church in China and that she had attended a Christian church in Sydney on a few occasions after arriving in Australia. She claimed to fear persecution on return to China by reason of her membership of a Christian church. The Tribunal concluded that there was no real chance of her being persecuted by reason of her religious beliefs on her return to China. The principal reason for this conclusion was that the appellant was not a committed Christian. The Tribunal was led to this conclusion by a number of factors including the appellant’s failure to attend church regularly in Australia and her failure to take any active steps to locate a Seventh Day Adventists Church in Australia. Having set out these reasons and its conclusion the Tribunal then said that it disregarded the appellant’s conduct in Australia because it was satisfied that her limited contact with the Christian church in Australia had occurred in order to strengthen her claim to be a refugee (at [29]).
Had the Tribunal made its findings in relation to the appellant’s conduct in Australia, then applied s.91R(3) and thereafter paid no regard to that conduct in its reasons, it would not have fallen into error. This, however, is not what it did. It expressly relied on conduct in Australia in determining that the appellant was not an active Christian and would not, therefore, face a real chance of persecution should she return to China. Only after these findings had been made was the relevance of s.91R(3) recognised and the statement made that the Tribunal disregarded the applicant’s conduct in Australia. The Tribunal did not, however, then return to the earlier analysis and consider whether or not it should be reviewed, given that certain evidence, originally relied on, was no longer to be taken into account. We are not persuaded, notwithstanding the Tribunal’s asserted disregard of the appellant’s conduct in Australia, that the Tribunal did act in accordance with the requirements of s.91R(3). On the contrary, its reasons strongly suggest that the appellant’s conduct in Australia was taken into account for the purpose of determining her application to the Tribunal. The Tribunal erred in law [emphasis added] (at [30]).
I am satisfied that the Tribunal’s rejection of the applicant's evidence to have been a Falun Gong practitioner in China, in the present case, was made independently of any consideration of the applicant's conduct in Australia. Its conclusion to disregard the applicant’s practice of Falun Gong in Australia, pursuant to s.91R(3), was reached following its findings regarding the applicant’s claimed practice of Falun Gong in China. The Tribunal did not seek to use the applicant’s conduct in Australia to bolster these earlier findings, nor to impugn the applicant's credibility, nor otherwise to determine whether or not the applicant was a refugee. I accept the submission by the first respondent in this regard that:
It is clear that the Tribunal disregarded the applicant’s conduct in Australia when considering whether the applicant had a well founded fear of persecution. The Tribunal made factual findings that it did not accept the applicant had practised Falun Gong in China and that he had not been persecuted as a result of his involvement in Falun Gong, prior to considering whether the applicant’s conduct in Australia should be disregarded. The Tribunal has not taken into account the applicant’s conduct in Australia, it is simply noting that it has had to disregard the applicant’s conduct.
I thus detect no breach of s.91R(3) in this case and am satisfied that the Tribunal complied with the statutory regime in this regard.
Accordingly, Ground 2 of the application is rejected.
Applicant’s oral submissions
In his oral submissions to this Court, the applicant asserted that
I say that that Tribunal was trying to say that the Falun Gong was - has been banned in 1999, July 21, and that I only started practising the Falun Gong in year 2000. Therefore actually I already know that Falun Gong has been banned and I only started it afterwards (Court transcript, 19/09/2008, p 2);
and that:
So, actually, the practice of Falun Gong, or Falun Gong itself, is a very good exercise and it helps people to strengthen their health and it also help cure other people and that it is actually a really good practice and a very good thing to do and then that's why I have adopted it and I don't want to give it up but only in Australia I can continue to do this and therefore I maintain that I should be given the freedom to stay in Australia above (Court transcript, p 3).
I consider that the applicant is seeking that the Court engage in impermissible merits review which is not the function of this Court (and see further under ground 1 above). I accept the submission by the first respondent in this regard that:
[the applicant] indicated that the Tribunal was trying to say that Falun Gong had been banned in 1999 and that he had only started practising in 2000, and he knew it had been banned at that time. That was the evidence that the applicant gave during the hearing, but ultimately the Tribunal did not accept it because it made adverse credibility findings for the reasons above (Court transcript, p 8).
The applicant further asserted in his oral submissions that:
So, in Australia we practise Falun Gong in the public early in the morning and then actually there are spies who have taken our photographs and we all know that. This is the information the Tribunal should have, and then they must have learned and then with this photograph, if I go back in China, I will definitely be persecuted. And I don't think in any such circumstance, that the Tribunal has considered this aspect (Court transcript, 19/09/2008, p 10).
The applicant appears to be raising here for the first time a sur place claim. He had not provided the transcript of the Tribunal hearing before the Court in support of any such contention.
Furthermore, nowhere on the face of the Tribunal decision record is there any evidence of the applicant raising such a claim that he had fears of further persecution if he were to return to China on the basis of his practice of Falun Gong in Australia. Rather, the decision record provides the following relevant summary of the exchange of questions and answers between it and the applicant:
The applicant said that he was practising Falun Gong in Australia. He said that he practised at 10.00 am on Tuesdays (which was his day off) in a park near the Central Railway Station and at Darling Harbour at 9.00 am on Saturdays and Sunday … I asked him if there was anyone at the Central Railway Station site or at the Darling Harbour site who could provide a statement saying that he had been practising there. He said that there was not. I noted that he had said that he practised there every week. The applicant said that he only had photographs taken by the members. He produced some photographs of him practising Falun Gong and handing out leaflets in Australia (CB 66)
In this context, the applicant clearly had ample opportunity to raise such a claim. There is thus no evidence to support the applicant having raised a sur place claim before the Tribunal. There is further no evidence before this Court to support such a claim.
In essence, the Tribunal made overall adverse credibility findings in respect to the applicant’s claims and rejected his claims to practise Falun Gong in China on this basis (and see further under ground 2 above in regard to s.91R(3)). As stated above, it is not the function of this Court to interfere with this finding where such finding, as here, was reasonably open to the Tribunal on all the evidence and material before it.
I thus detect no jurisdictional error on this basis.
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 before this Court is dismissed.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 31 October 2008
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