SZNZV v Minister for Immigration - [2010] FMCA 137

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNZV v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 137

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal took into account an irrelevant consideration – whether the Refugee Review Tribunal failed to take into account a relevant consideration – whether Refugee Review Tribunal adverse credibility findings were open to it on the material before it – whether the applicant was on notice of all relevant issues before the Refugee Review Tribunal.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 425; 430(1); 474; pt.8 div.2

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant:

SZNZV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2676 of 2009

Judgment of:

Emmett FM

Hearing date:

17 February 2010

Date of Last Submission:

17 February 2010

Delivered at:

Sydney

Delivered on:

3 March 2010

REPRESENTATION

Counsel for the Applicant:

Ms L. Doust

Solicitors for the Applicant:

Ms M. Byers

Counsel for the Respondent:

Mr J. Smith

Solicitors for the Respondent:

Ms E. Baggett, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2676 of 2009

SZNZV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

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) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 30 September 2009 and handed down the same day.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and a Falun Gong practitioner (“the Applicant”).
The Applicant arrived in Australia on 25 December 2006 having departed legally on a passport issued in her own name and a Student Guardian subclass TU-580 (Short stay) visa issued on 22 May 2009.
On 19 March 2009, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 12 June 2009, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 6 July 2009, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 30 September 2009, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 3 November 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’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 political opinion, is outside the country of his nationality and is unable or, owing to such fear, 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 persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

The Applicant provided a statement in support of her protection visa application in which she stated that she feared persecution by Chinese authorities by reason of her practice of Falun Gong in China.
The Applicant claimed she first started practicing Falun Gong in 1997 and until 1999 practiced in a park with around 200 people, including her mother, and attended lessons every Saturday night. From the time of the Chinese government’s ban of Falun Gong on 20 July 1999 until she left China the Applicant claimed she witnessed the arrest and detention of fellow practitioners involved in protest activities.
The Applicant claimed her mother was not detained but “summoned to attend the brainwashing session” and her Falun Gong materials confiscated.
The Applicant claimed she handed in two Falun Gong books in compliance with government demands but kept one illegally at home, continued to practice in the mornings in her home and attended secret lessons with about five others, held in different places to evade detection.
In August 1999, the Applicant also claimed police came to her house, threatened her with arrest, searched her house and, when they found the Falun Gong book she had kept, made her attend “re-education”.
The Applicant claimed “after the police came the second time, [she] kept practicing” in secret in the mornings until 2006 when she applied for her visa to Australia.
After arriving in Hobart on 12 August 2006, the Applicant claimed she practiced Falun Gong in the evenings alone.
The Applicant claimed that, when she returned to China in November 2006 she took Falun Gong books and newspaper articles with her. She claimed she made them into pamphlets and distributed them. She claimed others, who assisted her in their distribution, were arrested and told the Chinese authorities that she had brought them into China.
On 21 December 2006, the Applicant claimed her brother called to inform her that her house had been searched by police and she was required to report to the police station. She claimed he told her that the Falun Gong book she gave her mother had been seized. She claimed that she was issued with a summons by local police for questioning, with which she did not comply.
The Applicant claimed her brother asked his friend to drive her to the airport and gave the friend her passport, a ticket to Australia for 10 January 2007 and her clothes. She claimed that, once there, she changed her ticket to 24 December 2006. She claimed that she was not stopped or questioned at the airport when she left.
The Applicant claimed that her attendance at various Falun Gong demonstrations in Australia had been documented in newspapers. She claimed that, in Australia, she regularly attends Falun Gong practice and Fa-study.
The Applicant claimed that police regularly visited her home in China and questioned her family members about her whereabouts. The Applicant claimed that, in December 2007 and December 2008, her niece returned to China for school holidays and was approached by police regarding the Applicant.
In late July 2008, the Applicant claimed that police and “the leader of [her] workplace” visited her home in China threatening to terminate her employment if she did not report to police. In August 2008 she claimed that dismissal documents were delivered to her home.
The Applicant clamed she did not know she could apply for a protection visa until December 2008 and, because she had a visa valid until that time, had been “hoping the problem in China would go away” so she could return.

The Delegate’s decision

On 29 May 2009, the Applicant attended an interview with the Delegate.
On 12 June 2009, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.

The Tribunal’s review and decision

On 6 July 2009, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided further documents in support of her review application.
On 23 July 2009, the Tribunal wrote to the Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing and, on 24 September 2009, the Applicant and a witness attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“Tribunal’s Decision
The Tribunal found that the applicant was not a Falun Gong practitioner and had no well-founded fear of persecution for the following reasons:
There was nothing in her application to reveal her knowledge of and commitment to Falun Gong: CB 253 at (62);
She stated her religion as “Falun Gong” whereas adherents profess that it is not a religion: CB 253 at (62);
If she had been a Falun Gong practitioner in China since 1997, identified as one by the police and required to undergo re-education in 1999, and had been identified as the source of Falun Gong material imported into China, she would have enquired about and actually lodged a protection visa shortly after her second arrival in Australia, but she did not: CB 255 at (64);
Her evidence that she was no aware that she could apply for a protection visa was inconceivable as she had been involved in Falun Gong activities here: CB 255 (65);
She manufactured her claim to have left China early in 2006 to avoid arrest: CB 255 at (66);
The documents relied on by her to corroborate her claim were not genuine: CB 256 at (67);
Her Falun Gong activities in Australia were engaged in for the purpose of strengthening her claim to be a refugee: CB 256 at (68).
For these reasons the Tribunal affirmed the delegate’s decision.”

The proceeding before this Court

The Applicant was represented by Ms Doust, of counsel.
On 19 November 2009, Ms Byers attended a directions hearing before me on behalf of the Applicant and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit.
At the commencement of the hearing, Ms Doust confirmed that the Applicant relied on grounds 1, 3, 5 and 6 of the amended application, filed on 18 December 2009. Those grounds are as follows:
“Grounds of Application
1. The Tribunal fell into jurisdictional error when it took irrelevant considerations into account.
PARTICULARS
a) The Tribunal considered an irrelevant matter when determining that the Applicant’s evidence was internally inconsistent by completing that her religion in the protection visa application was Falun Gong at clause 62 of the decision record.
…
3. The Tribunal made an error by making a credibility finding without examining the documentary evidence first with an impartial mind.
PARTICULARS
a) At clause 67 of the decision record the Tribunal found:
Further, in view of all the above findings, and most notably as the Tribunal does not accept that the applicant was not a Falun Gong in china and has manufactured her claims in order to make a protection visa application, the Tribunal finds that the support documentation including the summons, the circular from the Education Department, and the alleged witness statements from Falun Gong practitioners in china, are not genuine and have been manufactured to support claims. Accordingly, the Tribunal attaches no weight to them.
…
5. The Tribunal erred by denying the Applicant procedural fairness in that it based its conclusion that the Applicant was not a Falun Gong practitioner on her failure to have demonstrated her knowledge and commitment of that philosophy in her application and at the tribunal hearing.
PARTICULARS
a) The Tribunal did not disclose to the Applicant that it proposed to take that issue into account;
b) The Tribunal had not questioned the Applicant in such a manner as to invite a response which revealed the extent of her knowledge and commitment to Falun Gong; and
c) When the Applicant sought an opportunity to explain her position, it denied her that opportunity, and required her to limit her response to those matters the Tribunal had expressly raised in the hearing.
6. The Tribunal erred by failing to take into account a relevant consideration.
PARTICULARS
a) The Tribunal failed to have any regard to the Applicant’s explanation for why she had referred to “Falun Gong” as her religion in her application in reaching its conclusion that the Applicant was not a Falun Gong practitioner.”

Grounds 1 and 6

At the heart of grounds 1 and 6, is a complaint about the use made by the Tribunal of the Applicant’s answer in her protection visa application to the question, “Religion, (if any)”. The Applicant answered, “Falun Gong”. The Tribunal had regard to country information before it that stated that Falun Gong is not a religion.
Counsel for the Applicant contended that, because the Applicant had answered the question on the protection visa application in respect of her religion as “Falun Gong”, her answer was a reason why the Tribunal decided that the Applicant was not a Falun Gong practitioner. Counsel for the Applicant submitted that the manner in which she answered that question was not a matter to which the Tribunal should have had regard in considering whether or not she had a real fear of persecution for a Convention related reason.
Alternatively, counsel for the Applicant submitted that the Tribunal should have had regard to her explanation as to why she had referred to “Falun Gong” in her protection visa application.
The relevant findings relied on by the Applicant in support of ground 1 are as follows:
“The applicant has provided a number of documents as evidence. This includes what is purported to be a summons to appear at the Beicheng Police Station on 21 December 2006; a circular from the Education Bureau of Shulan City dated 12 August 2008; and a number of letters purportedly to be from fellow Falun Gong practitioners in China. While the potential for such documentation to be easily manufactured is a very real, the Tribunal finds that the evidence is compelling and has not treated this documentation lightly. That said, the applicant herself claims that she has been a Falun Gong practitioner now for some 12 years yet, at no stage in her application does she reveal a genuine interest in and commitment to it. For example, the Tribunal is satisfied that if she was a genuine Falun Gong practitioner, she would have one way or another made some efforts to reveal her knowledge of and commitment to Falun Gong in her application and at the hearing in reply to the questions put to her by the Tribunal when it explored her claims. However, she did not do so. Moreover, and of a far greater importance, the applicant claimed in her protection visa application that Falun Gong was her religion. As was put to the applicant at the hearing, however, independent country information makes it clear that there is no organisation to join and it is not a religion (“Background on Falun Dafa”, 1999, Info.html) and in a publication Danny Schechter observes that Falungong stresses that it is “not a cult, or a sect, or even a religion. (Schechter, D. 2000, “Falun Gong’s challenge to China. Spiritual practice or ‘evil cult’?”, Akashic Books, New York, CH.4, p.32). When the Tribunal put this to her at the hearing, and said this may indicate that she was not a Falun Gong practitioner in China which also raise serious questions about the veracity and genuineness of the witness statements, the applicant replied that she knew Falun Gong was not a religion but she sees it as a personal or spiritual pillar, and she knew the wording she had used was not appropriate. However, and notwithstanding her claims, the Tribunal is satisfied that if the applicant was a genuine Falun Gong practitioner who had been practising in china since 1997, she would not have stated in her protection visa application that her religion was Falun Gong. Accordingly, and given the above, the Tribunal is not satisfied that the applicant was a Falun Gong practitioner in China and does not accept this claim.” (emphasis added)
The Tribunal clearly put that country information to the Applicant and noted her responses. The transcript makes clear that the Tribunal’s summary is accurate. The exchanges the Tribunal had with the Applicant about that matter are as follows:
“TRIBUNAL MEMBER: You claim that Falun Gong is your religion but independent country information makes it clear that there is no organisation to join and it is not a religion. For example the official web site claims that Falun Gong is non-commercial, non-political and non-religious, and in a publication by Danny Schetzer(?) observes that Falun Gong stresses that it is not a cult, a sect or even a religion. Notwithstanding the material you’ve provided from people you claim to be witnesses to your being a Falun Gong practitioner in China, the fact you claim Falun Gong is your religion when independent country makes it clear that Falun Gong is not a religion may indicate that you are not a Falun Gong practitioner in China. This also draws into serious question the veracity and genuineness of the witness statements. Do you understand what I’ve just said and would you like to comment?
APPLICANT: Can I explain?
TRIBUNAL MEMBER: Please.
APPLICANT: Well I know that Falun Gong is not a religion but I saw that just like my personal pillar, like a stone, and it’s just like your religion which you choose and I build it as my personal stone.
TRIBUNAL MEMBER: Sorry, you as a personal stone?
APPLICANT: Like a pillar, spiritual pillar.
TRIBUNAL MEMBER: Thank you. Continue.
APPLICANT: And I see that as my, as a goal for me to pursue and it’s also the way I behave like a human being. And maybe my wording is not very appropriate but I know that it’s not a religion and I just think it’s my personal spiritual pillar. ” (emphasis added)
In analysing the protection visa application, it is clear that the question about her religion, Question 13, to which the Applicant responded “Falun Gong” was in the section headed “Details of applicant”. It followed personal questions, such as name, sex, date of birth, place of birth, language spoken and written. Question 12 is “Ethnic group you belong to”. The Applicant left the corresponding block blank. Question 13 stated “Your religion (if any)”, to which the Applicant answered “Falun Gong”. The next sections of the protection visa application are headed “Previous addresses” and “Previous employment”. The next section referred to the Applicant’s claims and is headed “Your reasons for claiming to be a refugee”. The Applicant attached a statement addressing her reasons as posed by the questions in that section of the protection visa application. The Applicant’s statement states that she is a “Falun Gong practitioner” and that she fears harm in China because of her “Falun Gong beliefs and practices”. She did not assert in that statement that Falun Gong is a religion

When the Tribunal put the country information to the Applicant that Falun Gong was not a religion, the Applicant answered that she knew Falun Gong was not a religion and that her wording was “not very appropriate”. She had also said that she saw Falun Gong as a personal or spiritual pillar. The Tribunal’s decision record makes clear that the Tribunal was aware of that part of her explanation but plainly did not find it sufficient to satisfy its concerns about her lack of knowledge of Falun Gong and why she put Falun Gong as her religion in her protection visa application.
The Delegate had found the Applicant’s knowledge of Falun Gong to be “rudimentary”. The Delegate found that she was unable to provide credible or convincing reasons when asked about her Falun Gong beliefs and her need for protection. The Delegate noted that the Applicant herself claimed that she did not have a good understanding of the theory behind Falun Gong, although she claimed to have been practising since 1997. The Delegate also found that the Applicant was unable to provide any evidence that she was a Falun Gong practitioner who had suffered persecution in China. The Applicant’s lack of knowledge of Falun Gong was one of the reasons the Delegate was not satisfied that the Applicant had been a Falun Gong practitioner in China. The Delegate concluded the Applicant’s claimed fear was neither genuine or well-founded. Such findings amount to comprehensive adverse credibility findings in respect of the Applicant’s claims.
In the circumstances, the Delegate’s decision sufficiently indicated to the Applicant that everything that she said in support of her application was in issue (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (“SZBEL”) at [47]). Further, unless the Tribunal told the Applicant “something different”, the Applicant was on notice that the reasons given by the Delegate for refusing to grant the application would identify the issues that arose in relation to that decision (SZBEL at [36]). A fair reading of the Tribunal’s decision record makes clear that the Tribunal did not tell the Applicant “something different” about a new issue that was not an issue before the Delegate. The issues that the Tribunal had concerns about remained the same as those that had been raised by the Delegate.
In any event, it is clear that the Applicant was aware that the Delegate made an adverse finding in respect of her claims because of her lack of knowledge of Falun Gong. In support of her review application, the Applicant sent a letter to the Tribunal, dated 12 August 2009, referring specifically to that issue. The letter stated as follows:
“The applicant’s answers to Falun Gong knowledge are very basic and general. This was because the Department officer spent a lot of time asking me about the information of my family. Regarding the Falun Gong issue, I was only asked: “What have I done in your Falun Gong practice?” For this reason, I did not have the opportunity to give the detailed answer.”
Plainly, her explanation as quoted above does not disclose any further information about her understanding of Falun Gong.
A fair reading of the Tribunal’s decision record suggests that, it was in the context of the Applicant’s letter provided in support of her review application and the Delegate’s adverse findings, that the Tribunal had concerns about why the Applicant stated that her religion was Falun Gong when she was not required to do so, and it was not in the context of her claims to be a refugee. It was reasonable for the Tribunal in the circumstances, to have concerns about the manner in which the Applicant had completed her protection visa application and to put that information to the Applicant.
In the circumstances, it was open to the Tribunal to put that matter of concern to the Applicant in the terms that it did. The Tribunal was then left with the Applicant’s acknowledgement that she knew what she had written was incorrect and yet she gave no further information from the Applicant as to her knowledge of Falun Gong beyond that it was the spiritual pillar of her belief. On any view, the information given by the Applicant does not provide much information about the Applicant’s knowledge about Falun Gong.
In the circumstances, it was open to the Tribunal not to be satisfied by the Applicant’s explanations and, as foreshadowed by the Tribunal to the Applicant, to hold the Applicant’s answer that her religion was Falun Gong against her as a reason for concluding that she was not a Falun Gong practitioner in China. As stated above, the Tribunal clearly gave that information to the Applicant, explained its relevance and invited the Applicant to comment.
Much of counsel for the Applicant’s submissions in relation to this issue were based on a comparison of the Applicant’s statement in support of her protection visa application where she refers to her Falun Gong practice rather than stating that Falun Gong was a religion. Counsel for the Applicant submitted that a fair reading from her statement makes clear that she did not characterise Falun Gong as a religion and that when the Tribunal put its concerns to her about her description of her religion as Falun Gong, she described “philosophy and practices of a spiritual and moral nature which are not immediately susceptible of precise theological classification.” Counsel for the Applicant submitted that such an answer was consistent with the country information. Counsel for the Applicant also submitted that in her statement in support of her protection visa application the Applicant variously referred to Falun Gong as follows:
“In her initial statement, the Applicant variously refers to Falun Gong:
a. As a “practice” (para 8), and as herself as a “practitioner” (para 12);
b. As involving “cultivation experience and feeling (para 8);
c. As possessing “universal properties” (para 8);
d. As involving a “moral standard” of “Truthfulness, Benevolence and Forbearance” which had been advocated by the “Falun Dafa” (para 9);
e. As requiring materials and a text: Zhuan Falun (para 10)
f. As involving lessons with other practitioners (paras 10 and 11).”
However, for the reasons referred to above, counsel for the Applicant’s submission does not address what appeared to be at the heart of the Tribunal’s concern about her stating that her religion was Falun Gong. As stated above, the Delegate’s decision made clear the difficulties it had with her lack of knowledge and detail about Falun Gong as provided by her in her written statement in support of her protection visa application and at interview. As stated above, her letter to the Tribunal, dated 12 August 2009 (see paragraph 48 above) in support of her review application makes clear that she was aware of that issue before the Tribunal and addressed it in a less than comprehensive fashion. Whether she regarded Falun Gong as a religion or not was clearly a matter that went to her knowledge of Falun Gong. True it is that she acknowledged to the Tribunal that it was not a religion. However, the Tribunal was entitled to remain concerned that she would seek to describe it as such in her protection visa application and then acknowledge that she was wrong, yet provide no further information about her knowledge of Falun Gong.
Counsel for the Applicant also submitted that there was no evidence to support the Tribunal’s finding that Falun Gong practitioners do not regard Falun Gong as a religion. Such a contention cannot be made out in light of the Tribunal’s decision record. It is plain that the Tribunal had regard to independent country information which expressed the view that Falun Gong is not a religion. The Tribunal identified the country information to which it had regard on that issue. The country information to which a tribunal has regard and the weight it gives that information is a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]).
Accordingly, grounds 1 and 6 are not made out.

Ground 5

At the heart of ground 5, is a complaint that the Tribunal should have raised with the Applicant at the hearing its concerns about her lack of knowledge of Falun Gong. Counsel for the Applicant submitted that the transcript shows that the Tribunal controlled the direction of questioning and put to the Applicant other matters of concern about her evidence without specifically putting its concern about her lack of knowledge of Falun Gong. Counsel for the Applicant submitted that the manner in which the hearing was conducted denied the Applicant procedural fairness in addressing the issue of her lack of knowledge of Falun Gong.
In support of that submission, counsel for the Applicant again referred to the Tribunal’s decision record (quoted in paragraph 42 above) in submitting that the Tribunal had regard to the Applicant’s lack of knowledge in making its adverse findings. In support, counsel for the Applicant also referred to the following extract of the transcript as referred to below:
“TRIBUNAL MEMBER: Thank you for your testimony. We’ve reached the end of the hearing and we’ve discussed a number of matters today. As I mentioned at the beginning of the hearing you’re entitled to seek additional time to comment on or to respond to the information that I’ve given you during the hearing that I consider would be a reason for refusing you a visa. Do you need more time to be able to comment on or to respond to the information I’ve put to you today?
APPLICANT: And can I explain to you in details again?
TRIBUNAL MEMBER:    No, is there anything else you want to tell me either nor or whether you want to adjourn the hearing and you respond to the specific points I’ve put to you already today?
APPLICANT: I just want to ask if I already explain those to you and do you think that’s clear enough.
TRIBUNAL MEMBER: I’ve heard everything you’ve said and I’ve got records of that, so the opportunity is up to you. If there’s anything further you need to reflect on or tell me then I’m willing to consider that but otherwise we’ll close the hearing and I’ll proceed to make a decision about your claims.
APPLICANT: I just want to say that if you think my answers are not very clear and maybe you can explain and I can explain to you again or answer you again.
TRIBUNAL MEMBER:    Well I’m content with the clarity of what you’ve told me and if you don’t wish to be able to further reflect on the information I’ve put to you, or alternatively to provide a further submission, I’ll close the hearing now and proceed to make a decision.
APPLICANT: Because I think I made my points very clearly and if you think some points I didn’t make that very clearly you can ask me and I can explain that to you.
TRIBUNAL MEMBER As I say I’m content that you have made your points clearly.
APPLICANT: Okay.
TRIBUNAL MEMBER:    And you’ve had several written submissions which are very detailed and I’ve also read those carefully.
APPLICANT: Okay.
TRIBUNAL MEMBER:    I will call the hearing officer to close the hearing.”
Section 425 of the Act obliges the Tribunal to invite the Applicant to come to a hearing and present arguments relating to issues arising from the decision under review. As at the commencement of the review, the issues under review were those defined by the Delegate’s decision. As stated above, a fair reading of the Delegate’s decision makes clear that the Delegate rejected comprehensively the Applicant’s claims, finding that they were not genuine. Further, the Delegate identified, inter alia, the unsatisfactory nature of the Applicant’s evidence in relation to her knowledge of Falun Gong and Falun Gong practice, particularly in circumstances where she claimed to have been practising for 12 years.
As stated above, the Applicant was aware that her lack of knowledge of Falun Gong was an issue arising from the decision under review. As stated above, she provided a letter to the Tribunal in support of her review application specifically addressing that issue. As stated above, that explanation did not purport to provide any further information about Falun Gong. The Applicant’s complaint after the Delegate’s hearing was that she had not been given an opportunity to address that issue before the Delegate.
The Tribunal invited the Applicant to come to a hearing “to give evidence and present arguments relating to the issues arising in the applicant’s case.” The Applicant’s complaint that she was not given an opportunity to address the issue of her knowledge of Falun Gong before the Delegate, was an issue of which she was plainly aware and to which she referred specifically in the letter provided in support of her review application to the Tribunal.
The Tribunal commenced the hearing by explaining to the Applicant that it would ask her some general and specific questions and may discuss with her information that the Tribunal may find to be a reason for affirming the decision under review. The Tribunal told the Applicant it would explain the information and invite her to comment. The Tribunal invited the Applicant to tell it if she wished to have any more time to respond to any matter raised by the Tribunal. The Tribunal then said at the end of the hearing it would give her an opportunity to make any comments or remarks.
The Tribunal then commenced by exploring with the Applicant her travel history, including her prior trip to Australia and her return to China. The Tribunal then explored where various members of the Applicant’s family lived. The Tribunal then asked the general and open ended question “…please tell me why you believe you are a refugee.” The Tribunal then explored aspects of the Applicant’s claims with her. The Tribunal put to the Applicant various matters of concerns it had about her evidence and about her delay in making a protection visa application.
Fairly read, the Tribunal made clear to the Applicant that it had serious concerns as to whether in fact she was a Falun Gong practitioner in China. During the Tribunal’s discussions with the Applicant about the genuineness of her documents, the Applicant responded “You said it’s not genuine that you don’t think I was a Falun Gong practitioner in China.” Such a statement by the Applicant makes clear that the Applicant understood that the Tribunal had serious concerns about her credibility generally and, in particular, whether she was a Falun Gong practitioner in China.
The Tribunal then heard from the Applicant’s witness and asked the witness, inter alia, “And what do you want to tell me in support of the Applicant’s claims?”; “What else can you tell me about the Applicant’s claim for refugee status?”. In answer to the second question, the witness answered “Nothing…”.
At the end of the hearing the Tribunal had the exchange relied on by the Applicant and quoted above in support of the Applicant’s contentions in respect of this ground. That exchange makes clear that the Applicant was invited again to say anything else she may wish to tell the Tribunal beyond those matters she had already addressed. The Tribunal offered the Applicant an opportunity to put anything further in writing. The Applicant declined.
In all the circumstances, the Applicant was aware, or should have been aware, that her credibility generally was an issue for the Tribunal. She was certainly aware that her lack of knowledge of Falun Gong was an issue before the Delegate. In any event, such an issue is clearly subsumed in the issue of her general credibility, having regard to the comprehensive adverse credibility findings made by the Delegate (SZBEL at 600-602). The Applicant had every opportunity to give evidence and present arguments in relation to the issues arising from the decision under review.
Accordingly, there was no breach of s.425 alleged by the Applicant and ground 5 is rejected.

Ground 3

At the heart of ground 3 is the Applicant’s contention that the Tribunal did not consider the Applicant’s documents with an “impartial mind” in that it made its adverse credibility findings about the Applicant before considering the documents.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal comprehensively rejected the Applicant’s claims. The Tribunal found the matter central to the Applicant’s claims, as far as the Tribunal was concerned, was the Applicant’s prior trips to Australia and return to China and her 2 year delay in applying for a protection visa. These were matters explicitly put by the Tribunal to the Applicant at the hearing. The Tribunal found that the Applicant deliberately obfuscated her evidence and when the Tribunal’s concerns were put to her, she changed her position. The Tribunal found her not to be a credible witness and comprehensively rejected her claims of ever having been a Falun Gong practitioner in China or persecuted for that reason or any other Convention related reason.
Prior to its adverse credibility findings, the Tribunal stated, as quoted above, that it found the documentary evidence to be compelling and that it had not treated that evidence lightly. However, the Tribunal found that nowhere had the Applicant demonstrated a real commitment to Falun Gong, nor did she take the opportunity to reveal any such commitment. The Tribunal found the Applicant not to be a credible witness and that she had manufactured her claims in order to make a protection visa application.
In the circumstances, her claims had been discredited by comprehensive findings of dishonesty and untruthfulness. A fair reading of the Tribunal’s decision record makes clear that there was cogent material to support the Tribunal’s conclusion that the Applicant had lied. As the Full Court of the Federal Court of Australia stated in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74, in such a situation, “Necessarily, such findings are likely to negate allegedly corroborative material.” (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, per McHugh and Gummow JJ at [49]).
Otherwise, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its comprehensive adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67], per McHugh J).
Accordingly, ground 3 is rejected.

Conclusion

A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about her evidence and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
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 proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 2 March 2010