SZOEG v Minister for Immigration

[2010] FMCA 412

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOEG v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 412

MIGRATION – Review of decision of Refugee Review Tribunal – Tribunal did not fail to refer to relevant evidence – Tribunal did not fail to make an obvious inquiry – Tribunal did not misunderstand evidence – Tribunal finding not irrational or illogical – Tribunal did not fail to consider a claim – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 91R, 430, 476

SZMGX v MIAC [2008] FMCA 1529
SZMGX v MIAC [2009] FCAFC 67
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Abebe v Commonwealth [1999] HCA 14; 197 CLR 510
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister of Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Applicant A169/2003 v Minister of Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8
WAEE v Minister of Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184
Paul v Minister of Immigration and Multicultural Affairs (2001) 113 FCR 396; [2001] FCA 1196
Minister for Immigration & Ethnic Affair v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
SZMJM v Minister for Immigration & Citizenship [2010] FCA 309
SZDAQ v Minister for Immigration and Multicultural Affairs (2003) 199 ALR 265
SZDWC v Minister for Immigration and Multicultural Affairs [2005] FCA 1386
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802
Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396
VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104
WAEE v Minister for Immigration & Multicultural Affairs (2003) 75 ALD 630; [2003] FCAFC 184
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1
Applicant A v Minister for Immigration, Multiculturalism and Ethnic Affairs (1997) 190 CLR 225
S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; 217 CLR 387; 206 ALR 242; 78 ALJR 854
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; (2003) 77 ALJR 1088

Applicant: SZOEG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 375 of 2010

Judgment of: Nicholls FM

Hearing date: 10 June 2010

Date of Last Submission: 10 June 2010

Delivered at: Sydney

Delivered on: 21 September 2010

REPRESENTATION

Counsel for the Applicant: Mr H P T Bevan

Counsel for the Respondents: Mr G Kennett

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 24 February 2010, and amended on 10 June 2010, is dismissed.

2. The applicant to pay the first respondent’s costs set in the amount of $6,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 375 of 2010

SZOEG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made under s.476 of the Migration Act 1958 (Cth) (“the Act”) on 24 February 2010 and amended on 10 June 2010, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 27 January 2010 which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The applicant is a national of the People’s Republic of China (“China”) who arrived in Australia on 24 October 2007 and applied for a protection visa on 1 November 2007 (see Court Book – “CB” – CB 1 to CB 26).

Claims to Protection

1. Her claims to protection were initially set out in a written statement attached to her application (CB 27 to CB 29. See also subsequent statement at CB 102 to CB 107).

2. In all, the applicant claimed to fear persecutory harm in China because of her practice of Falun Gong. She claimed to have been exposed to Falun Gong during her weekly visits to her mother, and to have taken up the practice in 2006.

3. She claimed that in February 2007 she and her mother were arrested while practising Falun Gong at home. She was subsequently taken to a “forced labor camp”. She was physically and psychologically abused.

4. The applicant was released in May 2007 after signing an undertaking not to practice Falun Gong. However she and her mother (who had been released earlier after the payment of a sum of money) continued to practice Falun Gong at her mother’s home. Subsequently the applicant was able to pay money to obtain a visa and to leave China.

The Delegate

1. The applicant was invited to, but did not, attend an interview with the delegate. In these circumstances the delegate was unable to be satisfied on what was before him at the time that the applicant had a well-founded fear of Convention related persecution (CB 64).

The Tribunal and the Court Previously

1. The applicant applied to the Tribunal for review on 22 January 2008 (CB 65).

2. Since that time:

   1)By decision made on 10 April 2008 the Tribunal, as differently constituted, affirmed the delegate’s decision (CB 82 to CB 89).

   2)The applicant sought judicial review in this Court. This application was dismissed by orders made by Scarlett FM in November 2008. (See SZMGX v MIAC [2008] FMCA 1529.)

   3)The Full Federal Court set aside the relevant orders and the matter was remitted for rehearing by this Court. (See SZMGX v MIAC [2009] FCAFC 67.)

   4)The Tribunal’s decision was subsequently quashed by consent and the matter was returned to the Tribunal by orders made on 11 August 2009 (see copy at CB 91).

3. On this occasion the applicant was represented before the Tribunal (CB 98).

4. In addition to the further statement of her claims already referred to above (CB 102 to CB 107) the applicant relevantly provided:

   1)A statement from her brother-in-law (CB 111).

   2)Four statements from persons supporting her claims to be a Falun Gong Practitioner (CB 112 to CB 115).

   3)A statutory declaration from the brother-in-law (CB 131 to CB 133).

5. The applicant attended a hearing before the Tribunal on 20 October 2009. Two witnesses also gave evidence (CB 126).

The Tribunal’s Reasons

1. The Tribunal’s analysis and reasons are set out at [104] to [119] of its decision record (CB 152 to CB 154). In outline the Tribunal:

   1)Accepted that the applicant showed some familiarity with Falun Gong theory and practice at the hearing ([106]).

   2)But given that she had, beyond her own assertions, provided no evidence that she was a Falun Gong practitioner in China, and that she: “… only showed a sound knowledge of Falungong… after she had been living here for one year”, could not be confident as to when she gained her knowledge of Falun Gong ([106]).

   3)In relation to her claimed detention and its circumstances, noted the lack of corroborative evidence, although it accepted the claim was consisted with country information as to the treatment of Falun Gong practitioners in 2007 ([107] to [109]).

   4)The question of credibility was important in the absence of other evidence ([110]).

   5)The Tribunal found she had not been truthful in her key factual claims ([114]).

   6)There appeared to be three elements underpinning that finding:

   a)Her willingness to allow the person who assisted her in obtaining permission to come to Australia to not be truthful to obtain this. Further, that she knew that the person who wrote out her claims after arrival in Australia was: “… concocting a history on her behalf” ([111]).

   b)The applicant’s explanation as to the reason and circumstances that she recommenced Falun Gong practice after release from detention lacked logic and was implausible ([112]).

   c)The applicant’s account as to the authorities’ failure to search her own home was illogical and implausible in light of independent information before the Tribunal ([113]).

   7)Disregarded her Falun Gong related conduct in Australia pursuant to s.91R(3) of the Act ([115]).

   8)Was not satisfied the applicant was a genuine Falun Gong practitioner ([116]).

   9)Accepted that it was possible that her sister had been detained as the applicant claimed. But found that this did not have any relevance to the applicant’s own circumstances ([118]).

2. The Tribunal concluded that it could not be satisfied that the applicant had a well-founded fear of Convention related persecution if she were to return to China ([119] to [120]).

Before the Court

1. Mr HPT Bevan of counsel appeared for the applicant. Mr G Kennett of counsel appeared for the first respondent. Written submissions were filed by both parties.

2. Leave was granted (no objection made) for the applicant to file an amended application in Court. In addition to the Court Book the Minister also put into evidence a transcript (“T”) of the Tribunal hearing annexed to the affidavit of Elizabeth Warner Knight of 9 June 2010 (no objection made).

3. The amended application puts forward five grounds with particulars:

   “1. In finding that the Applicant ‘only showed a sound knowledge of Falungong to a practitioner in Australia after she had been living here for one year’ and that the Tribunal ‘cannot be confident as to when [the Applicant] gained her knowledge of Falungong precepts’ (RD 152 [106]), the Tribunal committed jurisdictional error by failing to refer to relevant evidence.

   2. Further, and in the alternative, in making the findings referred to in Ground 1 above, the Tribunal committed jurisdictional error in that the Tribunal constructively failed to exercise jurisdiction by failing to make an obvious inquiry about a critical fact the existence of which was easily ascertained.

   3. In finding that the incident concerning the Applicant’s sister following her return to China in May 2009 was ‘simply one of extortion and unrelated to Falun Gong’ and that it was of no ‘relevance to [the Applicant’s] own circumstances’ (RD 155 [118]), the Tribunal committed jurisdictional error:

   (a) by misunderstanding, or in the alternative, by no referring to, relevant evidence.

   (b) in that the Tribunal constructively failed to exercise jurisdiction by failing to make obvious inquiries about critical facts the existence of which were easily ascertained.

   4. In finding that the Applicant was not a credible witness (RD 154 [114]), the Tribunal committed jurisdictional error in that the Tribunal’s finding is illogical or irrational in the light of the Tribunal’s various errors with respect to both the finding of facts and the process of reasoning.

   5. The Tribunal committed jurisdictional error by failing to consider a claim that emerged clearly from the material before it.”

   [Particulars omitted.]

Ground One

1. In its analysis the Tribunal was relevantly concerned with the applicant’s level of knowledge of Falun Gong practice and theory, the timing as to when she gained such knowledge, and to the extent that this would inform whether she was a Falun Gong practitioner in China.

2. The Tribunal accepted that at the hearing in October 2009 the applicant displayed some relevant familiarity with Falun Gong. Further, that there was some evidence to support her Falun Gong practice in Australia. This was a reference to the evidence of two of the persons who had provided statements in support of the applicant (Mr Shi Yuan Wang – CB 113, and Ms Ping Yu – CB 112), who also gave oral evidence to the Tribunal.

3. The relevant part of the Tribunal’s reasoning is at [106]:

   “[The applicant] showed a familiarity with Falungong theory and practice during the Tribunal hearing held in October 2009, a fact that may indicate to the Tribunal that she has been truthful when she claims to have been, and to be, a genuine Falungong practitioner. The Tribunal was also provided with evidence about her involvement with Falungong practice in Australia, one source (Mr Shi Yuan Wang) stating that she had attended a study group since around October 2008, and another (Ms Ping Yu) who said she had seen her occasionally at exercise sessions in Auburn since January 2008. Mr Wang said that he did not attend the study group every week, just when he was free. However he said that [the applicant] had an understanding of Falungong texts that showed a ‘sound knowledge’. Each expressed the view in late 2009 that the applicant was a ‘genuine Falung Gong practitioner’. I accept that these individuals may believe this to be the case. However beyond her own assertions [the applicant] has submitted no evidence that she was a practitioner in China, and it appears that she only showed a sound knowledge of Falungong to a practitioner in Australia after she had been living here for one year. The first opportunity a decision maker has had to ascertain her knowledge of Falungong was the Tribunal hearing held some two years after her arrival in Australia. Therefore I cannot be confident as to when she gained her knowledge of Falungong precepts, and am not prepared to simply rely on the evidence from the above sources to find that she gained them in China”.

   [Emphasis added – see [33] and [41] below.]

4. The applicant’s attack concentrates on the words: “… only showed a sound knowledge of Falungong to a practitioner in Australia after she had been living here for one year…”. The applicant says that the first error is that there is no evidence for this finding. The second that there was evidence to the contrary to which the Tribunal made no reference.

5. The statement of Mr Wang is at CB 113. It is dated 16 October 2009. His assertion that he has known the applicant “for about 1 year” therefore must be understood as being that he has known the applicant since about October 2008. He states:

   “I believe that [the applicant] is a genuine Falun Gong practitioner because she has a good understanding of the Falun Gong texts. She could not exchange the views she does with me without a sound knowledge of Falun Gong”.

6. Mr Wang gave oral evidence to the Tribunal at the hearing. This commences at T5, line 22. He said he had nothing to add to his written statement. The Court was referred to the following exchange in the transcript (T5, line 45 to T6, line 11):

   “[TRIBUNAL MEMBER]: Let me just find the statement that you provide before we do that. Okay, so you said that you’ve known [the applicant] for about a year, is that right?

   THE INTERPRETER: Around one year, yes.

   [TRIBUNAL MEMBER]: And when you first met her did you form an impression of her familiarity with Falun Gong texts and the principles of Falun Gong?

   THE INTERPRETER: As we met at the Falun Gong study in Burwood, usually we talked to each other after the study. And from what I hear she must have done Falun Gong study before.

   [TRIBUNAL MEMBER]: That was the impression you got when you first met her?

   THE INTERPRETER: Yes.”

7. Ms Yu’s statement is at CB 112. The statement is dated 15 October 2009. The relevant part for current purposes was said to be:

   “I first met [the applicant] in about January 2008. we see each other occasionally on Sundays at the park in Auburn where we meet with a group of Falun Gong practitioners to practice Falun Gong exercises. These sessions go for a few hours in the mornings and there are usually about 4 to 6 people at each session. I myself have been practicing Falun Gong for about 12 years. From what I have seen and what she has told me, I believe [the applicant] is a genuine Falun Gong practitioner”.

8. The attack on the Tribunal’s approach then is that it identified as a critical matter the timing as to when the applicant acquired her familiarity with Falun Gong theory and practice which she was able to show at the Tribunal hearing in October 2009. The relevance of this timing was important as it went to the question as to whether there was any other evidence (other than the applicant’s own evidence) as to whether she had such familiarity before she came to Australia, such as to support her claim to have been a Falun Gong practitioner in China.

9. The Tribunal concluded that it could not be confident as to when she gained such knowledge and was not prepared to rely on the statements of Mr Wang and Ms Yu or the applicant to find that she gained this familiarity in China.

10. In short, the attack is that there was no evidence that she “only” showed a sound knowledge to a practitioner after she had been living here for one year (Mr Wang). That the Tribunal emphasised that the only evidence in support of when she acquired such knowledge was that of Mr Wang.

11. Yet second, there was the evidence of Ms Yu that she had showed such knowledge earlier. The Tribunal made no reference in its analysis to this.

12. A number of general points need to be made. First, the weight or value to be accorded to any piece of evidence before it is a matter for the Tribunal in the exercise of its jurisdiction (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 42 per Mason J, Abebe v Commonwealth [1999] HCA 14; 197 CLR 510 at [197], Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [44] per Gleeson CJ and McHugh J, [184] per Callinan J; Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]).

13. Second, in that sense, as Mr Kennett submits, the existence of evidence that may tend against a conclusion reached by the Tribunal does not on its own establish jurisdictional error. The weighing and balancing of evidence is a matter for the Tribunal. That a Tribunal may have come to a different conclusion does not reveal error where a finding on the evidence was reasonably open to it to make and for which it gave reasons.

14. Third, s.430 of the Act does not require the Tribunal to refer to every piece of evidence before it. It requires the Tribunal to refer “to the evidence… on which the findings of fact were based” (s.430(1)(d)). The applicant’s reliance on [106] of the Tribunal’s reasoning in this regard therefore does not assist her. In any event any such failure in itself does not reveal jurisdictional error (Minister of Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [68], [73] to [74] and [91], Applicant A169/2003 v Minister of Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24], WAEE v Minister of Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [47], Paul v Minister of Immigration and Multicultural Affairs (2001) 113 FCR 396; [2001] FCA 1196).

15. A point of difference between the parties was whether the reference to showing knowledge to a practitioner after one year was a finding (the applicant) or an observation (the respondent).

16. It must be said that the use of the word “appears”, on its face, in this part of the Tribunal’s analysis could be problematic. The word “appears” is of such character, and conveys such equivocation, that it may be difficult to discern therefore what the Tribunal intended.

17. However, as Mr Bevan submitted, ultimately this difference may be of no real consequence. I am reminded of what the High Court said about not zealously reading Tribunal decisions with an eye attuned to error (Minister for Immigration & Ethnic Affair v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, with reference to Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280).

1. The resolution to this question, and indeed the answer to the applicant’s ground, is to be found in a holistic reading of the Tribunal’s reasoning, rather than the focus on one word, or one part of one paragraph.

2. It is clear that at the hearing the applicant “showed a familiarity with Falungong”. Properly, the Tribunal addressed the question as to how this was to be understood, and as to whether it would assist in weighing the applicant’s claims as they related to claimed events in China.

3. The Tribunal ultimately concluded that the applicant was not a “genuine” Falun Gong practitioner ([116]). Its starting point in its analysis was to look at the question of when the applicant acquired such knowledge.

4. Mr Bevan submitted that a “crucial” issue before the Tribunal was whether the applicant had been a Falun Gong practitioner in China. That must be accepted.

5. However, when its reasoning is looked at holistically, what appears at [106] does not represent the basis, let alone a complete basis, for rejecting the applicant’s claim to have been a Falun Gong practitioner in China.

6. Plainly the Tribunal saw her familiarity with Falun Gong as displayed at the hearing as an indication that she may have been truthful in her claims. The Tribunal however was unable to reach a positive conclusion based on the applicant’s assertions alone. Its examination of the evidence of Mr Wang and Ms Yu was part of its consideration of the relevant circumstances to see if it could make a positive finding in favour of the applicant, based on her evidence and their evidence in support.

7. In my view, ultimately the words “it appears” are not problematic. This accurately reflects the Tribunal’s state of doubt about the applicant’s claims to have been a Falun Gong practitioner in China based on her evidence alone, and including its assessment of the evidence of Mr Wang and Ms Yu and what it said about, or what could be inferred from it, as to events in China.

8. As the Tribunal says: “… I cannot be confident…”. It is then that the Tribunal proceeds to analyse her evidence before it beginning at [107].

9. What is set out previously at [106], therefore, is not determinative of the review. It is an expression by the Tribunal that it could not reach the requisite level of satisfaction based on this evidence alone such that the visa must be granted (s.65 and s.36(2)). (See SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15] to [16], NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] to [5], Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.)

10. Looking then at this evidence, remembering the context, the Tribunal was entitled in my view to start with what the applicant relevantly said at the hearing. The implication arising from Mr Bevan’s submission that there can be “no suggestion” that the applicant caused the “state of affairs” that led to the Tribunal hearing being conducted so long after she first applied and as being the “first opportunity a decision maker has had to ascertain” her relevant level of knowledge does not assist. It must be rejected.

11. Plainly the Tribunal was reflecting an uncontroversial fact. It made no adverse finding relating to the applicant in this regard. The Tribunal noted her level of knowledge but was entitled to pursue the question as to whether the applicant’s demonstrated familiarity as at October 2009 could inform the truth of claimed events and claimed level of knowledge of Falun Gong in China some two years earlier.

12. In relation to Mr Wang’s evidence, and whether the Tribunal made a “finding” or an “observation”, its reasoning was as follows. Mr Wang provided evidence about the applicant’s involvement with Falun Gong in Australia. The Tribunal noted that his evidence was that she had attended a Falun Gong study group since October 2008. In context that was a year after she came to Australia. The Tribunal accepted his evidence that she had a good understanding of Falun Gong texts and was a genuine Falun Gong practitioner. It accepted that this may be what he genuinely believed.

13. In my view a distinction can be drawn, as is implicit in the Tribunal’s reasoning, between what Mr Wang was able to provide as first hand evidence of what he saw (he knew her for about a year – from October 2008 – and while they did not discuss “our personal lives”, believed through his discussion with her that she displayed a good understanding) and what the applicant told him about events prior to their meeting at these sessions.

14. What the applicant told Mr Wang about prior events remains just that. It does not add weight to the applicant’s evidence about her prior state of knowledge.

15. His oral evidence to the Tribunal did add his view that from their discussions after study: “… And from what I hear she must have done Falun Gong study before” (T6, line 7).

16. But this does not assist the applicant’s attack now on the Tribunal’s analysis. The attack is that there was no evidence for the “finding” that she “only showed a sound knowledge of Falun Gong to a practitioner in Australia after she had been living here for one year”.

17. Factually this is correct. Mr Wang did not know the applicant before October 2008. This was one year after her arrival. This was when she therefore first demonstrated her knowledge to him. She could not have “shown” him a sound knowledge when he was not in a position to be so shown.

18. In light of the applicant’s ground as pleaded, the evidence for the Tribunal’s “finding” was Mr Wang’s own evidence.

19. To the extent that he said he formed the view that she had done Falun Gong study “before” does not detract from the Tribunal’s “finding” that she “only” actually demonstrated this as from the time Mr Wang met her and started talking to her “after the study” sessions (see T6).

20. The attack on the Tribunal regarding Ms Yu’s evidence is that Ms Yu’s written statement supports and corroborates the applicant’s evidence that she was a practitioner in China.

21. In my view, on any plain reading, it does not do so. The Tribunal plainly read Ms Yu’s statement as being an assertion of her belief that as at October 2009 (the time of the making of the statement) the applicant was a genuine Falun Gong practitioner.

22. I should note Ms Yu did not add anything of substance to her statement in her oral evidence before the Tribunal. What can be said about the statement is that there is no express reference to the state of the applicant’s knowledge or practice of Falun Gong in China.

23. Further, Ms Yu said she first met the applicant in January 2008 (about 3 months after her arrival in Australia) and “occasionally” saw her on Sundays thereafter at Falun Gong practice at Auburn with other practitioners. The last sentence of the statement:

    “From what I have seen and what she has told me, I believe [the applicant] is a genuine Falun Gong practitioner”.

    is in my view a conclusion drawn by Ms Yu and reflective of the state of affairs as at October 2009.

24. It was at least reasonably open to the Tribunal to understand Ms Yu’s statement in that way. The statement is expressly silent as to the applicant’s level of knowledge of Falun Gong as at when they first met. In these circumstances I cannot agree that it is “plainly corroborative” of the applicant’s claim to have been a Falun Gong practitioner in China.

25. That Mr Bevan reads the statement as having the “effect” that the applicant possessed knowledge of Falun Gong when Ms Yu first met her about three months after her arrival in Australia does not assist the applicant now. The statement makes no such express claim such that it could be said to be “plainly corroborative” of the applicant’s claims as to events in China.

26. As Mr Kennett in my view correctly submits, even if it “could” be read in this way (and it is a weak, inferential “could”) it was a matter for the Tribunal. What remains is that the reading that the Tribunal gave it (that it asserted, and the Tribunal accepted, that she was a genuine Falun Gong practitioner as at late 2009) was reasonably open to the Tribunal to make. That it did not go further was also reasonably open to the Tribunal on what was before it.

27. That the Tribunal did not consider a possible interpretation of the evidence, that it preferred another view of the evidence, falls far short of saying it failed to take into account a crucial piece of evidence that “plainly corroborated” the applicant’s claims.

28. I agree with Mr Kennett that the Tribunal reasoned that on what was before it there was nothing other than the applicant’s assertion that she had a sound knowledge, or indeed any knowledge, of Falun Gong before she arrived in Australia. This conclusion was based on its view of what was before it and its view that there was an absence of evidence in this regard, other than the applicant’s own evidence. The Tribunal did not need another body of “evidence” to support its analysis and finding that there was an absence of such evidence.

29. I should just note that in these proceedings no attack was pleaded or submitted as to whether the Tribunal erred at law in proceeding on the basis that the applicant needed to provide corroborative evidence before she would or could be believed (see Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041 per Hill J at [16]). On a holistic reading of the Tribunal’s decision record such an attack may not in any event have succeeded. But given it was not raised I do not need to consider it.

30. In the meantime, ground one is not made out.

Ground Two

1. Ground two emerges out of the same factual situation as ground one. In short, the applicant asserts that the Tribunal should have made the obvious enquiry of Ms Yu about Ms Yu’s knowledge or assessment of the applicant’s knowledge of Falun Gong as at the time Ms Yu first met the applicant in January 2008. The applicant asserts that this was a critical fact the existence of which was easily ascertained.

2. Mr Bevan’s submissions referred the Court to the following sequence. The transcript of the Tribunal’s hearing reveals that Ms Yu gave her evidence first. While no criticism is made of the Tribunal in taking her evidence before that of the applicant, the sequence meant that the Tribunal did not ask Ms Yu, or more pointedly make inquiry of Ms Yu, what turned out to be a critical fact in issue.

3. Namely, Ms Yu’s knowledge of the applicant’s state of Falun Gong knowledge as at January 2008. A time much closer to her leaving China and arrival in Australia than the one year after her arrival which figured as a signpost marker as referred to in ground one.

4. The argument continues that even though no questions were asked of Ms Yu in relation to the applicant’s prior state of knowledge of Falun Gong, that is prior to the date of the making of the statement, such a question was asked of Mr Wang who then gave evidence, and again relevantly, before the applicant herself gave evidence.

5. During Mr Wang’s evidence the Tribunal did ask him about his “impression” of the applicant’s level of knowledge about Falun Gong when he first met her (see T6, line 10).

6. The applicant relies on Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (“SZIAI”) at [25]:

   “Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a ‘duty to inquire’, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.” [Footnotes omitted.]

7. In short, therefore, Mr Bevan’s submission is that the Tribunal itself identified “the critical question” (see T6, line 15 and [106]) as being the state of her knowledge when he first met her. Further, in light of the applicant’s subsequent evidence as to her knowledge of Falun Gong and when she acquired her knowledge, the Tribunal could have made an obvious enquiry of Ms Yu (either when it spoke to her or presumably subsequently, or even if it had taken evidence from her after taking evidence from the applicant) as to Ms Yu’s observation of the applicant’s Falun Gong knowledge when she first met her in January 2008.

8. Relevant to the applicant’s argument is the following part of the Tribunal hearing (T6, line 3 to T6, line 16):

   “[TRIBUNAL MEMBER]: And when you first met her did you form an impression of her familiarity with Falun Gong texts and the principles of Falun Gong?

   THE INTERPRETER: As we met at the Falun Gong study in Burwood, usually we talked to each other after the study. And from what I hear she must have done Falun Gong study before.

   [TRIBUNAL MEMBER]: That was the impression you got when you first met her?

   THE INTERPRETER: Yes.

   [TRIBUNAL MEMBER]: Okay, thank you very much. All right, well, I don’t know if, I don’t think I need to ask you any more questions, that was really the crucial question for me. Thanks very much…”

9. This ground does not succeed in showing jurisdictional error on the part of the Tribunal.

10. First, I do not agree with Mr Bevan that what the Tribunal said, as set out above, elevates the question put to the applicant to a critical fact in issue in the review such as envisaged in SZIAI.

11. When plainly read, and in context of Mr Wang’s statement, what the Tribunal was plainly saying was that the crucial question that it had for him arose out of the statement he gave and particularly the Tribunal’s attempt to clarify what he had said.

12. Ms Yu’s statement was clear and simple: she first met the applicant in January 2008. She sees her occasionally on Sundays at the practice of Falun Gong exercises. From her observation, and what the applicant told her, she has formed the belief that the applicant is a genuine Falun Gong practitioner.

13. The Tribunal accepted this.

14. Unlike Ms Yu’s statement, Mr Wang’s statement went further. His belief was that she was a genuine Falun Gong practitioner because she had demonstrated to him a good understanding of the relevant texts. His statement was that she could not have exchanged “views” with him unless she had a “sound” knowledge of Falun Gong.

15. Given that his statement was unclear as to when they first started to have these exchanges, noting that he said he had known her for about one year, the Tribunal quite properly asked him whether his impression as to her familiarity with Falun Gong texts was formed when he first met her or at some time later (T6, line 3).

16. His answer was that the impression was formed when they first met (T6, lines 6 to 11). The Tribunal also accepted this.

17. The “crucial question” therefore was to clarify with Mr Wang the temporal basis for his impression as to her Falun Gong familiarity. I cannot see in the circumstances that the Tribunal’s description elevates this matter to a critical fact in the review.

18. In any event, a further answer to the applicant’s ground is to be found in a proper understanding of what was said in SZIAI at [25].

19. Mr Kennett referred the Court to SZMJM v Minister for Immigration & Citizenship [2010] FCA 309 per Bennett J, a matter on appeal from this Court and one which specifically considered what was relevantly said in SZIAI ([25] to [32]).

20. I note what Her Honour said at [30] to [32]:

    “[30] SZIAI stated that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could amount to a failure to review. A Tribunal’s failure to inquire may ground a finding of jurisdictional error because the failure renders the ensuing decision manifestly unreasonable, but such circumstances are rare and exceptional (Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [60] per Kenny J at [60]). The critical underlying question remains whether the decision is vitiated by jurisdictional error. The failure to inquire must constitute a failure to undertake the statutory duty of review or otherwise be so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error (SZIAI at [26]; see also Minister for Immigration and Citizenship v Dhanoa [2009] FCAFC 153; (2009) 180 FCR 510 at [46]–[51] per Jagot and Foster JJ and SZNBX v Minister of Immigration and Citizenship [2009] FCA 1403 at [30] per Bennett J).  The fact that it may have been reasonable for the Tribunal to make a certain inquiry does not elevate the lack of such an inquiry into a jurisdictional error.

    [31] In SZIAI at [25] the High Court described the failure on the part of the Tribunal that could, in some circumstances, give rise to jurisdictional error by a constructive failure to exercise jurisdiction. For a failure to inquire to amount to a jurisdictional error, the appellant needs to show:

    • that the inquiry was an obvious inquiry;

    • that it concerned a critical fact the existence of which was easily ascertained; and

    • that it could supply a sufficient link to the outcome to constitute a failure to review.

    [32] The Tribunal has no general duty proactively to gather opinions, assessments and evaluations in weighing material that an applicant has chosen to put before it. The Tribunal is under no obligation to inquire or to seek information not presently available or not put before it by an applicant.”

21. What I relevantly draw from this is that, to the extent that the applicant’s attack assumes that SZIAI stands for the proposition that the Tribunal was otherwise under some general duty to inquire about a particular fact, this must be rejected.

22. As Mr Kennett submitted, what still remains is that there is no general duty on the Tribunal to make inquiries. Nor without anything else the inquiry that the applicant now says the Tribunal should have made of Ms Yu.

23. Further, I also note that there was nothing in that part of SZIAI relied on by the applicant now to say that it is no longer the case that the Tribunal is not obliged to make out the applicant’s case for her (for the latter proposition see SZDAQ v Minister for Immigration and Multicultural Affairs (2003) 199 ALR 265 and SZDWC v Minister for Immigration and Multicultural Affairs [2005] FCA 1386).

24. It must be noted that Ms Yu’s statement did not remain on its own before the Tribunal. Once having submitted the statement in support of her claims, the applicant also caused Ms Yu to appear in person before the Tribunal as a witness (see T4, line 28: “… your witness”).

25. The transcript reveals that Ms Yu was asked if she had anything to add to her statement. The answer was “No” (T5, line 1 to 4). The applicant was asked if she had any question for the Tribunal to ask Ms Yu. The answer was: “No” (T5, lines 6 to 9).

26. The applicant’s adviser was also present and was asked if there was any question for Ms Yu. The second sentence of her response is interesting (T5, lines 14 to 16):

    “[APPLICANT’S ADVISER]: Well, I mean really she was just here in case you wanted to speak with her. I’m not sure if she has anything more to say than what’s in her witness statement”.

    If the inquiry was so “obvious”, as Mr Bevan now says, then clearly the applicant’s representative did not think so at the time. Nor importantly was any request or submission made in this regard even after the applicant gave her evidence.

27. Mr Bevan submitted that Ms Yu’s presence at the hearing and her availability is no answer to the failure by the Tribunal to inquire about Ms Yu’s impression or knowledge of the applicant’s knowledge of Falun Gong as at the time she first met her.

1. In SZIAI, and as highlighted in SZMJM, the circumstances that could relevantly give rise to jurisdictional error require the applicant to show that the inquiry that should have been made was an obvious inquiry, that it concerned a critical fact the existence of which was easily ascertained, and that ultimately it could provide a sufficient link to the outcome such as to constitute a failure to review.

2. In the current case the applicant has not made out her case such that it could be said her matter falls within these circumstances.

3. First, as I understood Mr Bevan’s argument, the Tribunal should have asked Ms Yu, or made the “obvious inquiry”, about the applicant’s state of Falun Gong knowledge when they first met. Mr Bevan was careful not to rely on or to criticise the Tribunal for taking evidence from Ms Yu first, or rather before taking evidence from the applicant.

4. In submissions he described as “prescient” the Tribunal’s question to Mr Wang as to the applicant’s state of Falun Gong knowledge when he first met her. “Prescient” in the sense that after or during hearing from the applicant her state of knowledge and when she acquired that knowledge was “critical” in the review.

5. On this basis therefore, although not expressly articulated, I understood the submission to be put in the context that, once the Tribunal came to the view of the importance of this matter, it should have then recalled Ms Yu to put this “obvious” question to her.

6. Mr Kennett submitted that if that was the case then there was no material before the Court to show how the Tribunal could contact Ms Yu, in circumstances where it is unclear whether she remained in the vicinity, other than to contact her through the applicant.

7. Given that this therefore was not an inquiry that the Tribunal was in a better position to make than the applicant, then the strength of any obligation on the Tribunal to make the inquiry is diminished.

8. This submission has force also in circumstances where the applicant was represented by a “solicitor and migration agent” (see for example CB 100 and CB 101) who was present at the hearing.

9. Even if the inquiry was not obvious when Ms Yu was there it should have become obvious to the representative that evidence going to the question of Falun Gong knowledge at an earlier time would have been of assistance to the applicant. It was the applicant’s witness, yet if the issue was critical the question must remain why the representative took no steps to provide, for example, another more detailed statement from Ms Yu.

10. In any event the question of whether an inquiry is obvious must at least be resolved with reference to the particular circumstances of the case. In my view this is clear with reference to SZIAI and how the High Court disposed of the matter in that case (see [25] and then [26] and what follows).

11. In the current case I am not persuaded that the question which Mr Bevan says was an obvious question was an “obvious” question to ask Ms Yu.

12. As already set out above, the two statements provided by Ms Yu and Mr Wang were materially different. The Tribunal asked him what it described as the “crucial question” because it obviously arose from his written statement. The Tribunal’s specific reference and linking of this question to the statement is clear (see T5, line 46 to T6, line 16). It was an obvious question to put to Mr Wang because his statement gave rise to the applicant having demonstrated a sound knowledge of Falun Gong through her exchange of views with Mr Wang. It was “obvious” in these circumstances for the Tribunal to seek clarification from Mr Wang as to whether she demonstrated this knowledge from the time he first met her or later.

13. The proposed obvious question is not “obvious” when regard is had to Ms Yu’s statement. While she said she met the applicant in January 2008, and saw her occasionally at Falun Gong practice sessions, there was nothing in Ms Yu’s statement to suggest that they had discussed or exchanged views about Falun Gong texts.

14. At its highest Ms Yu’s statement, to which she added nothing in her oral evidence to the Tribunal, was that she believed the applicant to be a genuine Falun Gong practitioner.

15. The specific detail provided by Mr Wang made the question put to him an “obvious” question. That “obvious” circumstance was lacking in Ms Yu’s statement.

16. As Bennett J said in SZMJM (at [30]), even the fact that it may be said that: “… it may have been reasonable for the Tribunal to make a certain inquiry does not elevate the lack of such an inquiry into a jurisdictional error”.

17. In my view, in the current circumstances, given the nature of Ms Yu’s statement and evidence, it does not even rise to this level of reasonableness, let alone go beyond it to jurisdictional error.

18. Further, I also agree with Mr Kennett, and at best for the applicant it would be a matter of some doubt, that the: “critical fact the existence of which was easily ascertained” in the current case was not whether or not the applicant was well versed in Falun Gong practice or teaching as at January 2008.

19. While the state of her knowledge plainly figured in the Tribunal’s analysis and the timing of her acquiring such knowledge and importantly the absence of any evidence as to her having such knowledge until a year after she arrived in Australia (Mr Wang’s evidence) was an important element, it was not a critical fact on which the outcome of the review could directly turn.

20. I agree with Mr Kennett that such a critical fact would be, and in fact was, whether the applicant practiced Falun Gong in China. Any evidence in this regard, that may have been readily available, would have been a critical fact.

21. But the “obvious” question in the current case did not relate to any such critical fact. Even if the question had been asked as pressed by Mr Bevan now, it may have elicited some information that related to the applicant’s knowledge as at January 2008. This in turn may have led to an inference about whether she came to Australia with such knowledge. But this is a tenuous line on which to say with clarity that this was a “critical fact”.

22. Even further, even if the applicant is given the benefit of the doubt in this regard, I cannot see that a sufficient link between the proposed inquiry and the ultimate outcome has been put forward.

23. I agree with Mr Kennett’s reliance on the way the High Court itself approached the resolution of the matter in SZIAI. It is clear that at [26] of SZIAI one of the reasons that the High Court saw as relieving it of the need to further explore the principles set out at [25] was that there was nothing to indicate that any further inquiry by the Tribunal in the way subsequently proposed by the applicant for the visa in that case “could have yielded a useful result”.

24. Ultimately, this Court can only proceed on the evidence that the parties have chosen to put before it. The material relevant to this issue is of course the Tribunal’s reasoning as revealed in its decision record, Ms Yu’s statement, and her evidence before the Tribunal.

25. The written statement is such that any number of questions may have been posed by the Tribunal. But the statement is, although brief, clear. Ms Yu first encountered the applicant in January 2008 and they occasionally saw each other at Falun Gong exercises since that time. She believed that the applicant was a genuine Falun Gong practitioner based on what she saw and on what she had been told.

26. She added nothing to this at the hearing despite the direct opportunity offered to her, to the applicant, and, in my view importantly, the applicant’s representative.

27. It is here that the tension between the principle of an applicant being expected to put forward sufficient material to satisfy the Tribunal as to a favourable outcome and the limited or rare circumstance referred to in SZIAI where the Tribunal is obliged to make further inquiry comes out.

28. The role of the migration agent in this matter before the Tribunal, and in this case a migration agent who was also a solicitor, is part of the circumstances of the case which in my view is relevant to what could have been put before the Tribunal at any time up to the making of its decision, which could now be seen as providing some link between the “unasked question”, the proposed inquiry and the ultimate outcome in the Tribunal’s reasoning.

29. There is nothing in what was subsequently put before the Tribunal to provide any indication that Ms Yu may have provided a useful contribution to the outcome. Nor beyond suggestions in submissions was anything of a tangible nature put before the Court in this regard.

30. On what is before the Court the nature of Ms Yu’s statement and her subsequent evidence do not provide a basis to indicate a useful link to the outcome. Mr Kennett was in my view correct to say that on what had been put before the Court there was no way of knowing what her evidence would have been such that the failure to make the proposed inquiry could be said to have had a sufficient, let alone a useful, link to the outcome.

31. At least two, if not all three, elements of what was relevantly said by the High Court in SZIAI are not present in the current case. Ground two is not made out.

Ground Three

1. The complaint in ground three arises from the applicant’s evidence concerning her sister (see [76] – [77] at CB 146 and T25, line 25 to T28, line 26).

2. Mr Bevan submitted that the applicant gave evidence that her sister had returned to China from Australia in May 2009 after her application for a protection visa had been refused. At some time after arrival her sister had been detained by police and had been beaten. She gave money to a corrupt police officer to secure her release.

3. The applicant’s sister was apparently married to an Australian citizen. He provided a written statement to the Tribunal, dated 17 October 2009 (3 days before the hearing) (CB111):

   “I, Peter Jurcik have come to China to look after my wife. China Police have been very hard for my wife do Falungong, now I am worried for [the applicant] if she returns to China, if she receives the same treatment as did my wife”.

4. During the hearing the Tribunal made reference to the applicant’s brother-in-law and said it was not minded to telephone him, but did provide further time if the applicant wanted him to provide a written declaration.

5. Such a declaration was provided to the Tribunal on 28 October 2009. It is dated 26 October 2009 and reproduced at CB 132 to CB 133. Mr Bevan specifically referred to the following parts of the declaration:

   “2… My wife practice Falun Gong and to the best of my knowledge and belief her family also practices Falun Gong.

   3. Shortly after my wife’s return to China in May, I think it was a week or two later, my wife was arrested and locked up by the Chinese Police. She told me that the Chinese Police held her for a few days and they were very brutal. She told me that the Police beat her and she had a lot of sever bruising. I have been sending my wife financial assistance and I understand she had to pay the Police a significant amount of money to secure her release. I am not sure of the exact amount. My wife is very distressed and wants to return to Australia because she does not feel safe in China. I have spent the last few weeks in China organising a spouse visa application for my wife to get her out of China. I returned to Australia on 20 October 2009.

   4. I am very concerned for [the applicant’s] welfare if she is also returned to China. The system is very different from Australia and the Police are quite brutal. I am worried that [the applicant] will be subjected to the same treatment as her sister.”

6. Relevantly, the Tribunal found ([118] at CB 154):

   “As to the evidence that her sister was detained by the police for several days in or around May 2009, shortly after her return to China, it is possible that this occurred. Therefore I have considered its implications for [the applicant] if she were to re-enter China. It is unclear from Mr Jurcik’s statutory declaration whether this incident occurred because of a perception that [the applicant’s] sister was a Falungong practitioner. He does not say it did and, given that she was released a few days later after paying off a corrupt police officer, was not subjected to the type of punishment to which practitioners are frequently subjected, and apparently has not been troubled by the authorities again in the subsequent 7-8 months, I infer that the incident was simply one of extortion and unrelated to Falungong. I am not satisfied that it has any relevance to [the applicant’s] own circumstances, and consider the chance remote that she would face a similar problem. However, even if she did, I do not accept that the essential and significant reason for that harm would be one of those listed in the Refugees Convention”.

7. The applicant’s first attack in this ground is that the Tribunal’s failure in its analysis to refer to the brother-in-law’s “first” statement (CB 111) is of itself revelatory of jurisdictional error.

8. Mr Bevan’s submission was that what the brother-in-law said in his “first” statement was probative of the applicant’s claim to be a Falun Gong practitioner and that her family were Falun Gong practitioners.

9. A number of points need to be made. First, it is not correct to say that the Tribunal “ignored” this evidence. The Tribunal acknowledged in its decision record that a “brief statement” had been submitted by the brother-in-law. It set out that statement (see [52] at CB 143).

10. Second, this handwritten statement remains unclear in important respects. Even putting to one side the “shorthand” expression and grammatical inaccuracies, a number of reasonable interpretations of what the brother-in-law meant could be inferred. It is the case that one possible reading could be, as Mr Bevan submits, that his wife, the applicant’s sister, was treated “hard” by the police because of her Falun Gong practice and that he was worried the applicant could receive the same treatment.

11. Equally, however, another reasonable reading is that the police were hard on his wife because of her Falun Gong practice, and he feared for his sister-in-law because of her relationship with his wife. There is nothing in this brief statement to directly link the applicant as being a Falun Gong practitioner.

12. Third, the relevant part of the transcript of the hearing provides the answer as to how the Tribunal dealt with this handwritten note. The first mention of her sister is at T7, line 32, where the applicant makes a reference to her: “younger sister who went back to China just in May this year.”

13. Nothing is said about the sister being a Falun Gong practitioner, or that she had trouble with the police, or had been detained. While the applicant subsequently gave evidence that her sister was also a Falun Gong practitioner (T17, line 17), the specific reference subsequently made by the Tribunal (at T25, line 25):

    “… So you’ve said that your, your sister has had some problems since she went back to China in May this year…”

    must have come from the Tribunal’s reading of the applicant’s own statement at 16 October 2009 in which she referred to “My sister’s case” (CB 106.8) and included a reference to the brother-in-law having to go to China and securing her release.

14. The brother-in-law’s brief statement was submitted to the Tribunal a few days later on 19 October 2009 (the day before the hearing) as an attachment to a submission by the applicant’s representatives. The bundle of attachments also included the statement’s of Ms Yu and Mr Wang and others (CB 108 to CB 116).

15. It was in the context of a discussion as to what had happened to her sister that the Tribunal said (T27, lines 1 to 2):

    “[TRIBUNAL MEMBER]: Now you’ve, you’ve said that her husband has just come back from China and that he’s available on the telephone. Is that right?”

16. Given that no such reference was made earlier at the hearing by the applicant or her representative it can only be assumed that the Tribunal was referring to what had been put in the advisers written submissions to which the brother-in-law’s handwritten statement was attached (see CB 108.8).

17. It was not unreasonable of the Tribunal to prefer not to telephone him. He was given every opportunity in the Statutory Declaration to clarify, explain, and expand on what he said in the handwritten note. As the Tribunal said (T28, lines 17 to 18):

    “[TRIBUNAL MEMBER]: Okay. Okay. Well, if he wants to provide a statement he can put all that in the statement if he, if he wants to.”

18. This attack is similar to the attack in ground one. Even if it could be said that the handwritten note contained by inference some evidence that could tend against a relevant conclusion made by the Tribunal, this does not amount to jurisdictional error for similar reasons set out in ground one above.

19. In my view, ultimately it was reasonable of the Tribunal to read the handwritten note as being unclear and one to be therefore read in light of the subsequent statutory declaration.

20. That the statutory declaration was read as unclear in relation to whether the sister was detained because she was a Falun Gong practitioner or otherwise was a reading reasonably open to the Tribunal. That the earlier handwritten note could also have been read this way does not reveal error on the part of the Tribunal.

21. In the circumstances it was at least open to the Tribunal to give greater weight to the statutory declaration than to one possible reading of the earlier handwritten note.

22. The second attack under ground three in a sense derives from the lack of clarity of both the handwritten note and the statutory declaration.

23. As another example of the complaint in ground two, and in reliance on SZIAI, the applicant says the Tribunal failed to make obvious inquiries of the applicant’s brother-in-law about critical facts the existence of which were easily ascertained.

24. Namely, that the Tribunal should have made further inquiries of the brother-in-law about whether the police treatment of her sister was because she was perceived to be a Falun Gong practitioner, whether she was subjected to the type of punishment usually meted out to Falun Gong practitioners, and an inquiry relating to whether she had been troubled by the authorities in the “7-8 months” since her return to China.

25. The obvious inquiries are said to derive from what the Tribunal found at [118] (see [128] above).

26. As with ground two, the tension between the Tribunal’s obligation to make inquiries in certain circumstances and the principle that the Tribunal does not have to make out an applicant’s case is plainly evident here.

27. The significant difference however is that the applicant’s example in ground three is weaker than in ground two. What must be said is that I do not understand SZIAI to stand for the proposition that the Tribunal is obliged to make an inquiry that an applicant’s counsel subsequently before the Court argues may have assisted the applicant’s case.

28. As Bennett J said in SZMJM (at [30] and drawing on Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at [60] per Kenny J):

    “… A Tribunal’s failure to inquire may ground a finding of jurisdictional error… but such circumstances are rare and exceptional”.

29. The critical issue is whether the Tribunal’s decision is infected by jurisdictional error. According to SZIAI, for a failure to inquire to amount to jurisdictional error the applicant needs at least to show the matters set out at [84] above (SZIAI at [31]).

30. The applicant’s case at its best before the Court in this regard is that whether the applicant’s sister was detained and its consequences because she was a Falun Gong practitioner or otherwise was directly probative of the applicant’s fear of persecutory harm if she were to return to China. That is, that she would receive the same treatment as her sister because she also was a Falun Gong practitioner.

31. First, dealing with the matter of whether what is put now is an obvious inquiry. The short answer is, to the extent that the brother-in-law’s “first” note was unclear, a further opportunity was provided to him to clarify the situation, including to address the matters put forward by Mr Bevan now.

1. I do not see SZIAI as obliging the Tribunal to embark on a continuous round of inquiry until a witness provides unambiguous evidence or even evidence that assists the applicant. In terms of the “tension” referred to above, in the circumstances of this case there was every opportunity for the applicant, or her representative, to have arranged for any further information or evidence to be put before the Tribunal from the brother-in-law. As Mr Kennett correctly submitted, the Tribunal was not required to take over the running of the applicant’s case. If the inquiry was so “obvious” as now claimed, then the applicant was far better placed to make it than the Tribunal.

2. But even further, I cannot see that the brother-in-law’s evidence, even if any further inquiry was made as suggested, could in the circumstances of this case concern a “critical fact” and could supply a sufficient link to the outcome to constitute a failure to review.

3. The applicant claimed to be a Falun Gong practitioner in China and to fear persecutory harm because of this if she were to return. She gave the Tribunal an account of relevant events in support of these claims. For reasons based on findings which were reasonably open to it to make, the Tribunal rejected the applicant’s factual account of past events and concluded that, on the applicant’s own account, it could not be satisfied that she was a genuine Falun Gong practitioner.

4. This conclusion is set out in its analysis at [116]. What follows at [117] and relevantly at [118] was the Tribunal quite properly, and necessarily dealing with other aspects of the applicant’s claims (Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 (“Htun”) at [42], Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79], VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104 at [25] and [31], WAEE v Minister for Immigration & Multicultural Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [46]-[47]). At [117] the Tribunal considered whether the applicant’s obvious association with her husband, whom she also claimed was attending Falun Gong sessions in Australia, generated any fears for her if she were to return.

5. At [118], again properly and as necessary, the Tribunal asked the same question as it was said to arise from the applicant’s sister’s circumstances.

6. In these circumstances I cannot see how asking the brother-in-law whether his wife was subjected to the same treatment as other Falun Gong practitioners, or whether she had been in trouble with the authorities in the subsequent seven or eight months, could be linked to the outcome given the Tribunal’s unequivocal rejection of the applicant’s factual account of what she said had occurred in China.

7. What must be remembered is that the Tribunal could not reach the level of satisfaction that the applicant was a Falun Gong practitioner in China because it could not be satisfied she had been truthful in her relevant evidence ([114]).

8. Further, even if the brother-in-law had been asked and confirmed that the “incident” involving his wife was because she was perceived to be a Falun Gong practitioner, it was not satisfactorily explained before me as to how this could supply a sufficient link to the outcome as it related to and arose from the applicant’s own evidence. The Tribunal clearly had doubts about the truth of the applicant’s relevant factual account. It was not explained before me how the inquiry of the brother-in-law was sufficiently linked to the critical fact in issue which was the credibility of the applicant’s factual account to have been a Falun Gong practitioner in China and to have suffered harm as a result.

9. It is the case that the applicant gave evidence that, were it not for what happened to her sister, she would have returned (T32, line 46 – see also [82]).

10. The difficulty for the applicant now in showing a sufficient link between her sister’s claimed circumstances, even if this were relevantly supported by further answers by the brother-in-law if an inquiry had been made, and the outcome of the critical issue in the review, the truthfulness of the applicant’s own factual account of Falun Gong practice in China, remains unsupported by any material to make that link.

11. The answer to the applicant’s complaint now, and the explanation as to why the Tribunal proceeded in its analysis as outlined above, was given by the applicant’s own representative to the Tribunal.

12. In relation to the evidence and circumstances of the applicant’s husband, and relevantly her sister (T36, line 25), the applicant’s representative told the Tribunal that her “clients” claims “should certainly be considered independently” (T36, lines 38-39).

13. In context the presentation of the applicant’s case was that her claims to be a Falun Gong practitioner in China should be considered “independently” of the husband’s and sister’s circumstances. That is exactly what the Tribunal did.

14. In all, therefore, ground three is not made out.

Ground Four

1. Ground four asserts jurisdictional error in the Tribunal’s decision on the basis that certain key parts of the Tribunal’s reasons make certain findings which in themselves, and when taken together, disclose a reasoning process of such illogicality and irrationality that gives rise to a constructive failure to exercise jurisdiction or, in the alternative, to stand as a separate ground of review in its own right.

2. This latter was clearly put with reference to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [24] per Gummow ACJ and Kiefel J. See also [119] and [130] per Crennan and Bell JJ.

3. The applicant’s attack focuses on and begins with the Tribunal’s finding at [110] that, because of the absence of corroborative evidence, the applicant’s “general credibility is plainly an important consideration”.

4. Mr Bevan submitted that, at least on a fair reading, the next three paragraphs of the Tribunal’s record, which should be read together, reveal the error asserted:

   “[111] As to that, [the applicant] claims to have agreed with the person who assisted her to get a passport and visa in China that she would not be truthful about her employment, telling the Tribunal that she agreed to this because she had to leave China. According to the evidence she gave at the hearing, after arriving in Australia she also allowed a person tow rite an account of her problems in China in support of the protection visa application, while knowing that she had given him no details of those problems. She has said that she did this because she trusted him. However it is plain that she must have known he was concocting a history on her behalf. Her willingness to do so casts doubt on [the applicant’s] general credibility.

   [112] Secondly, she has claimed that the PSB thoroughly searched her mother’s home and confiscated Falungong-related materials, as a result of which both were taken into detention. She has said that she had no idea how the PSB could have become aware that she and her mother were doing Falungong exercises at her mother’s home. Nevertheless she has told the Tribunal that on release from detention they immediately resumed doing the exercises at the same addresses, her mother having obtained new Falungong materials that were hidden under a bed. She has explained that they did so there because they would be caught wherever they did these things. This explanation for risking harsher punishment lacks logic, and I do not consider it plausible that she would have tempted fate in this way, particularly if she was sufficiently frightened that she left China just a few months later.

   [113] Thirdly, she has claimed that the PSB never searched the home at which she lived with her husband and daughter at the motor vehicle plant address, despite conceding that they must have investigated and found out where she lived. It is illogical and implausible that, if the authorities were so certain she was involved in illegal Falungong-related activity that they detained her for three months, and if they questioned her every day after that as to whether she was doing Falungong practice, they would not have bothered to visit or search her house at any time. The authorities’ failure to do so is entirely inconsistent with the high level of pressure on practitioners at local level reflected, for example, in the evidence above about the 610 Office.”

5. This reasoning led to the Tribunal’s adverse finding as to the truthfulness of the applicant’s claim to have been a Falun Gong practitioner in China and to have been detained as a result.

6. Mr Bevan submitted that there were three “aspects” of the analysis leading to this conclusion:

   1a)The applicant’s agreement with the person who assisted her in obtaining documentation to come to Australia that she would not be truthful about her employment.

   1b)In Australia she allowed a person to write an account of her problems in China in support of her protection visa application in circumstances where she must have known he was “concocting a history of her behalf”.

   These were said to cast doubt on her general credibility ([111]).

   2)The applicant gave evidence that after she and her mother were released from detention the applicant continued to practice Falun Gong at her mother’s house. The Tribunal found the applicant’s explanation that they hid Falun Gong material at her mother’s house and continued to practice there because they would be caught wherever they did these things to lack logic ([112]).

   3)The applicant gave evidence that the authorities never searched her own house. The Tribunal found as illogical and implausible that, in circumstances where the authorities were so certain she was involved in illegal activities, they detained her for three months, questioned her every day after her release, and that they would not bother to search her house at any time.

7. Mr Bevan relied on the transcript of the hearing to submit that the entire relevant passage of the Tribunal’s reasoning ([111] to [113]) is based on the Tribunal’s premise, as revealed at the hearing, that a central tenet of Falun Gong is truthfulness and that her failure, in contrast, to be truthful led to the Tribunal ultimate conclusion (see T15, line 24 to line 32):

   “[TRIBUNAL MEMBER]: You see it does seem to me that you must have realised that Mr Nhou was writing a lot of things in that statement about you that you hadn’t told him and the reason that concerns me is that you’re saying that you’re a Falun Gong practitioner and that you were at that time a Falun Gong practitioner. And as you know, one of the tenants [sic] or principles of Falun Gong is truthfulness, so I think it’s important that you try to explain to me how these two things fit together because you must have realised that some of the information in that statement was unlikely to be true and that this person was just, you know, creating a story for you to give to the Immigration Department?”

8. At this part of the hearing the Tribunal was questioning the applicant about the circumstances of the preparation of her protection visa application. As I understood the argument, the Tribunal’s reference in the hearing to the Falun Gong tenet of truthfulness in that part of the hearing dealing with the preparation of the protection visa application provided the underlying premise to the Tribunal’s entire reasoning at [111] to [113] because this particular item was addressed in the same paragraph that dealt with her dealings with the person who assisted her to come to Australia ([111]), and that this must be read as a whole with [112] and [113].

9. Mr Bevan submitted that the Tribunal’s analysis, as it related to the two sets of facts dealing with the preparation of documents, is illogical because there is no evidence to demonstrate that the applicant’s actions constitute a departure from the central tenet of Falun Gong of truthfulness.

10. In relation to [112] Mr Bevan submitted that the applicant gave evidence that she did not otherwise practice Falun Gong at home because of concern for her child (see T22, line 31 to line 40). The submission was that the Tribunal’s description of her explanation as being one that lacks logic is only made out if the applicant’s evidence is ignored.

11. The attack continues with the submission that the very explanation that the Tribunal said lacked logic (at [112] – “they will find you wherever you go”) is used against the applicant by saying it was illogical and implausible by implicitly accepting what it had earlier rejected on the basis that it also lacked logic. This with reference to the Tribunal’s reasoning at [113] and its treatment of the applicant’s evidence that the authorities never searched her home.

12. While Mr Bevan made passing reference to SZMDS, the legal basis of the complaint was that the illogical or irrational reasoning is indicative of a constructive failure to exercise jurisdiction. Ultimately Mr Bevan confirmed that the resolution of this ground will come down to a proper reading of the Tribunal’s analysis. That is, whether it reveals a lack of logic, irrationality or not.

13. First a preliminary observation. It must be said that I have some difficulty with those charged with determining whether a person’s circumstances come within the definition of refugee, as that term is understood in the UN Refugees Convention of 1951, and included as it applied previously to those “displaced persons” towards the end and in the aftermath of World War II, to expect such persons fleeing persecution to do so by having obtained travel documents, visas etc in the normal way.

14. That a person fleeing persecution would not be truthful about matters of employment in securing travel authority to escape from a country of claimed persecution does not appear to me to be such a noteworthy matter as made out by the Tribunal in this case. This of course can be contrasted with a situation of expectation of truthfulness once such a person (if they were “genuine” in their fears and claims) reaches a country where they seek to engage that country’s protection obligations.

15. In any event this is not how the applicant’s attack proceeded in this case.

16. On the basis on which it did proceed, however, I began to understand the extent of Mr Bevan’s earlier observation that grounds one and two were the stronger grounds of the five pressed.

17. This was confirmed when Mr Bevan described the Tribunal’s reasoning as being of the kind of “jesting Pilate”: “quid est veritas” type of logic in that what was put against the applicant that she departed from a central tenet of Falun Gong in circumstances where the “logical and understandable reasons for those would therefore mean that she has departed on a philosophical basis”.

18. I understood the reference to Pilate to be the reported discussion between Pontius Pilate and Jesus Christ, where Pilate asked Jesus: “What is truth?” (see John 18:37, the Bible - New International Version, King James Version).

19. I also understood the reference to “philosophical basis” to be simply that the Tribunal used the Falun Gong tenet of truthfulness against the applicant in the sense that as a Falun Gong practitioner she would always tell the truth, there were instances where the Tribunal found she did not tell the truth, therefore she could not be a Falun Gong practitioner.

20. While the question of the truthfulness of her account to have been a Falun Gong practitioner in China who had suffered persecutory harm was certainly a live issue before the Tribunal, I do not agree with Mr Bevan that the underlying presumption in the Tribunal’s analysis was the central tenet of Falun Gong of truthfulness.

21. The Tribunal clearly made a reference to the Falun Gong tenet of truthfulness at the hearing (T15). However, at its highest, the Tribunal was making the point at the hearing that the applicant claimed to be a Falun Gong practitioner yet she allowed another person to put things on her behalf that she would have realised were not true.

22. A number of points need to be made. In a long and comprehensive hearing this was one question out of many put by the Tribunal to the applicant.

23. Second and critically, there is nothing in the Tribunal’s relevant analysis to even suggest that the Tribunal tested the truthfulness of the applicant’s evidence as against a standard or tenet of Falun Gong. Quite plainly, on the simplest reading of its relevant analysis, the Tribunal imposed a general standard quite frequently seen in cases of this type. That is, whether the applicant’s factual account of what occurred in China could be accepted.

24. There is nothing in the analysis to suggest the kind of reasoning alleged by Mr Bevan now, elevating the assessment of the applicant’s claims as against some philosophical standard of Falun Gong truthfulness.

25. Whatever Pontius Pilate may have said to Jesus, whatever jesting or mocking tone was employed in asking “what is truth”, as interesting as this may be in a number of different contexts, it bears no resemblance to what the Tribunal did in this case.

26. Some discussion took place at the hearing before the Court as to whether the resolution of this ground depended on a holistic reading of each of the relevant paragraphs or whether they should be read separately as directed to different aspects of the applicant’s account.

27. Mr Kennett submitted that the terms “firstly”, “secondly”, and “thirdly” used at the beginning of each of the relevant paragraphs should not be read as tying each of the paragraphs together in the way suggested by Mr Bevan. That these terms are just a “loose piece of expression” and that to discern the real meaning of the Tribunals’ analysis requires a proper understanding of what the Tribunal was addressing in each of the paragraphs.

28. Ultimately this does not matter. In my view, the first and critical answer to the applicant’s attack is that whatever reference may have been made to the Falun Gong tenet of truthfulness at the hearing, this did not survive as an element in the Tribunal’s analysis, whether the paragraphs are read separately or holistically. Nor has the applicant, beyond assertion, pointed to anything in the analysis to make that link.

29. As the Tribunal itself said at [111], the important consideration for the Tribunal was “her general credibility”. Her general credibility as to whether she was a Falun Gong practitioner should not be confused with importing any Falun Gong tenet of truthfulness in the Tribunal’s expectations or otherwise in its analysis.

30. To the extent therefore that the applicant’s attack depended on some such underlying assumption in the Tribunals’ reasoning to reveal illogicality or irrationality, this must be rejected.

31. The Tribunal’s reasoning must indeed be understood holistically. But not just [111] to [113].

32. The thread running through the Tribunal’s analysis is that the applicant displayed some familiarity with Falun Gong theory and practice. This could indicate the truthfulness of her claim to have been a Falun Gong practitioner in China.

33. There was some evidence before the Tribunal that she practiced in Australia. But there was no evidence beyond her own to show that she had been a practitioner in China.

34. It was therefore necessary to closely examine just what the applicant herself had said in relation to events in China. This involved an assessment of “her general credibility”. Given the absence of anything else this was a perfectly rational and logical approach to take.

35. [111] begins with “As to that”, “that” is a clear reference in context to the assessment of the applicant’s “general credibility”. In this regard the Tribunal noted that she agreed with a person who assisted her to come to Australia that she would not be truthful about her employment. It also noted her willingness to knowingly allow a person to concoct a history on her behalf in the making of her protection visa application.

36. The reference at the end to “doubt” on her “general credibility” clearly links [111] to [110] and the matter of the applicant’s “general credibility”.

1. I agree with Mr Kennett that on a plain reading of what is dealt with, and what is said, at [112] and [113] the Tribunal has moved away from the issue of “general credibility” and addresses specific aspects of the applicant’s account of relevant events in China dealing with her claimed Falun Gong practice and her claimed detention and the events surrounding it. Quite plainly these specific events relate directly to what the Tribunal had earlier posed as being necessary to consider in conducting this review in the circumstances presented. It is linked to [107]:

   “It is therefore necessary to consider [the applicant’s] claims regarding her practice in China, and her claimed detention and the events surrounding it. As to whether she was a practitioner in China, or was detained because of a perception that she was, I have considered the following:”

2. Without the “underlaying assumption” put forward by Mr Bevan, [112] is plain. The applicant gave evidence that the authorities thoroughly searched her mothers home, found Falun Gong materials, and as a result she and her mother were taken into detention. The Tribunal noted that the applicant was unable to explain how the authorities became aware of her and her mother’s Falun Gong practice.

3. Plainly the Tribunal was troubled that, as against this background, and keeping in mind the applicant’s evidence of her claimed suffering in detention, immediately on release she resumed Falun Gong practice at the same address. Further, that her mother obtained new Falun Gong materials and hid them under the bed. As the Tribunal told her at the hearing, it found all of this “surprising” (see T21, lines 39 to 44).

4. It was entirely appropriate, if not logical and rational, for the Tribunal to question the applicant’s actions in this regard. While the applicant may have given evidence that they did not practice at her own home because of her child (see T22, lines 32-33), the reason that she advanced for resuming practice at the same address, the place where as the Tribunal reminded her at the hearing she said the police had previously caught her, was that they would be caught wherever they practiced (T22, lines 1 to 5).

5. The Tribunal found this explanation lacking in logic. In essence, as it subsequently went on to say, it found the explanation implausible, particularly in circumstances where she was so frightened that she left China a few months later. There is no lack of logic here. The Tribunal’s finding, its rejection of this explanation, was reasonably open to it to make in the circumstances.

6. Mr Bevan submitted this becomes illogical given that the applicant also gave evidence, which the Tribunal “ignored”, that she did not practice at her own home because of her child.

7. First, I note the Tribunal does not have to refer to every piece of evidence before it in its decision record. Section 430 of the Act requires it to refer to that evidence on which its findings are based. In any event any such failure is not on its own jurisdictional error.

8. But relevantly what I cannot accept is that the Tribunal’s “omission” rendered its analysis irrational or illogical. The fact that she said she did not practice at home because of her child does not explain her earlier answer that they practiced at the same place where they had earlier been caught by police because they would be caught anywhere.

9. It simply explains why she did not practice at home. That she practiced at the same place is still left, on any reasonable assessment, open to the Tribunal to see as implausible.

10. At [113] the Tribunal considered another element in the claimed events surrounding her location by the police as a Falun Gong practitioner and her claimed detention by the authorities.

11. The Tribunal was plainly concerned that it was implausible that, in circumstances where the authorities were so concerned about her illegal Falun Gong activities that she was arrested and detained for three months and questioned daily after her release, the police did not bother to search her house. It found her explanation to be implausible.

12. Mr Bevan’s attack that the Tribunal changed its position as between [112] and [113], and that this in itself revealed a lack of logic, must be rejected. This is so for the simple reason that the Tribunal was not as Mr Bevan submitted seeking some philosophical answer to “what is truth” or engaging in any “jesting Pilate” exercise, it was simply trying to deal with the applicant’s own evidence, and to try and make sense or understand whether there was a coherent basis to the applicant’s account in the light of the Tribunal’s concerns put to the applicant at the hearing.

13. I agree with Mr Kennett that the plain reading of [112] and [113] reveals the following thread of analysis. Why, after all that had happened to her, did the applicant go back to the very place to practice Falun Gong where she had first been located, and be complicit in the hiding of Falun Gong materials under the bed all at the time when she was questioned daily by the police?

14. The applicant’s answer, that she would be found anywhere, did not satisfy the Tribunal. Taking the applicant’s own answer, the Tribunal posed the following concern that, if that was the case, then why did the authorities not search her own home. Plainly they had not been restrained in searching her mother’s home.

15. There can be no doubt that countless people have and continue to derive inspiration and illumination from the gospel of St. John. Unfortunately for Mr Bevan, I cannot see that the question “what is truth”, whether posed by a “jesting Pilate”, a “mocking Pilate”, or even an “existentialist Pilate”, has any relevance nor provides illumination to this ground.

16. In my view, what does provide illumination is the direction provided by Heydon J in SZMDS in the way his Honour approached the resolution of that case. In the current case the Tribunal’s relevant findings arising from its analysis, while as his Honour said in SZMDS may have been findings and analysis on which minds may differ, were reasonably open to the Tribunal to make on what was before it.

17. I would venture to say that the current case was much stronger for the Tribunal than the circumstances in SZMDS. In these circumstances the Tribunal’s analysis does not reveal illogicality, irrationality or, for that matter, unreasonableness.

18. Ground four is not made out.

Ground Five

1. Ground five contains a combination of two attacks. The first is a failure to consider a claim that was said to emerge clearly from the material before the Tribunal. This relies on such authorities as Htun at 246 [13]-[14] per Merkel J, 259 [41]-[42] per Allsop J and 245 [1] per Spender J, and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 (“NABE (No 2)”) at [68].

2. The second is that this material included a claim based on the Convention ground of membership of a particular social group. This is said to be defined as: “Chinese nationals who return to China from overseas and who are perceived to have defamed China while overseas”. Such persons are said to thereby be susceptible to detention, physical harm and/or extortion.

3. The applicant’s complaint appears to arise from what was said had occurred to the applicant’s sister when she returned to China. The applicant’s submissions rely on the Tribunal’s reasoning as set out in [118] (see [128] above]) and the applicant’s relevant evidence as set out in the Tribunal’s decision record (see [76] and CB 146).

4. The relevant essence of the Tribunal’s report of this evidence which is consistent with the transcript is that her sister had been detained, and had offered a corrupt officer who knew she had been living abroad money and her watch. In reply to the Tribunal’s observation that this appeared to be an act of extortion rather than flowing from a perception that she was a Falun Gong practitioner, the applicant gave evidence that the police had said she was a practitioner, that Falun Gong practitioners defamed China abroad and that the applicant and her husband were still abroad. The applicant’s written submissions also make reference to other evidence that the Chinese authorities were aware of the applicant’s activities in Australia (the applicant’s evidence that she engaged in public protest activities in Australia – [80] at CB 147).

5. Before the Court Mr Bevan, fairly, accepted the respondent’s criticism expressed in written submissions that the manner in which the group had been identified would seem to define itself by the persecutory conduct.

6. As Mr Kennett submitted, the particular group proposed by the applicant, to the extent that it includes vulnerability to persecution as a part of its definition, is inconsistent with what was relevantly established in Applicant A v Minister for Immigration, Multiculturalism and Ethnic Affairs (1997) 190 CLR 225 (“Applicant A”).

7. Mr Bevan however pressed in oral submissions that even if that aspect is removed from the proposed definition then the Tribunal’s findings themselves (as set out in [118]) still leaves it open to consider a group who are Chinese nations returning from overseas and who are perceived to have defamed China while overseas. The Tribunal ought to have considered this group.

8. The issue is, in my view, resolved against the applicant, because I cannot see that the evidence or material before the Court could be said to go to a particular social group that could be constructed out of the sister’s claimed experience. Nor beyond general reference to the Tribunal’s findings did Mr Bevan point to any beyond what was said in the applicant’s written submissions.

9. As Mr Kennett submitted, it is theoretically conceivable that a particular social group could have been further constructed using the sister’s claimed experience as a base. But the applicant did not provide the evidence or the arguments to the Tribunal on which such a construction could be built. I agree with Mr Kennett that a great deal more material would be needed before it could be said that there was even a suggestion that such a group existed, or that people were persecuted because of membership of such a group.

10. Looking at the applicant’s case as pleaded and argued, the relevant expression of legal principles in NABE (No 2) leaves the applicant’s ground based on a remote theoretical possibility rather than the expression of evidence such as to engage the Tribunal’s obligations to consider the existence of such a group, let alone any consideration as to whether the applicant was a member of any particular social group (Applicant A; see also S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; 217 CLR 387; 206 ALR 242; 78 ALJR 854. See also Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; (2003) 77 ALJR 1088 at [26] as to the steps that the Tribunal is obliged to relevantly take.).

11. Ultimately, the applicant gave evidence about what she said had occurred to her sister on her return. The Tribunal accepted the possibility that she may have been detained. It was reasonably open to the Tribunal to find that the brother-in-law’s statement and subsequent declaration left it unclear if she had been detained because of a perception that she was a Falun Gong practitioner. The Tribunal reasoned that the release through the actions of a corrupt police officer was inconsistent with what was usually done to Falun Gong practitioners. The Tribunal noted that, after her release, her sister remained untroubled by the authorities.

12. Any reading of the transcript reveals that what the applicant put to the Tribunal relating to the sister was put in an attempt to link the sister’s claimed detention to her being a Falun Gong practitioner, just as the applicant claimed she was, and therefore would be dealt with in the same way if she were to return to China.

13. These were the circumstances presented. This is what the Tribunal addressed. It found the incident with the sister to be one of extortion and not related to Falun Gong, and not relevant to the applicant’s own circumstances. The Tribunal found that even if the applicant were detained as her sister had been it would not be for a Convention related reason.

14. These findings were all reasonably open to the Tribunal to make on what was before it. I cannot see that it failed to consider a claim made or one which could be said to clearly arise from the material presented (NABE (No 2)).

15. Ground five is not made out.

Conclusion

1. With the benefit of counsel the applicant has put forward five grounds. None reveal jurisdictional error on the part of the Tribunal. The application will therefore be dismissed given that, at the very least, to succeed the applicant would need to reveal such error in the Tribunal’s decision.

I certify that the preceding two hundred and thirty-seven (237) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: 

Date:  21 September 2010