SZOEU v Minister for Immigration

Case •

[2010] FMCA 347

•

19 May 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOEU v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 347
MIGRATION – Refugee Review Tribunal – applicant’s claims not supported by evidence – no error in inviting applicant to further hearings – no evidence of bias, apprehension of bias, or bad faith – no breach of s.424A – no denial of procedural fairness – no jurisdictional error – application dismissed.
Migration Act 1958 (Cth), ss.91R, 424A, 424AA, 425, 441A, 441C
Migration Regulations 1994 (Cth), reg.4.35D
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
Re Minister for Immigration & Multicultural Affairs; ex parte Epeabaka [2001] HCA 23; (2001) 179 ALR 296
Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 157
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; [2003] 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2009] HCA 40
Applicant: SZOEU
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 465 of 2010
Judgment of: Nicholls FM
Hearing date: 11 May 2010
Date of Last Submission: 11 May 2010
Delivered at: Sydney
Delivered on: 19 May 2010

REPRESENTATION

The Applicant: In Person
Appearing for the Respondents: Ms K Hooper
Solicitors for the Respondents: DLA Phillips Fox

ORDERS

  1. The application made on 5 March 2010 is dismissed.

  2. The applicant to pay the first respondent’s costs set in the amount of $4000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 465 of 2010

SZOEU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made on 5 March 2010 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 29 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 19 April 2007 (see Court Book – “CB” – CB 15). He applied for a protection visa on 3 February 2009 (CB 1 to CB 35 with annexures). He was assisted by a registered migration agent (CB 9, CB 27 to CB 29).

Claims to Protection

  1. The applicant’s claims for protection were outlined in a statement annexed to his protection visa application (CB 31 to CB 32).

  2. The applicant worked in China, buying and selling rice to food markets. In 1997 the applicant saw a friend with a group practising Falun Gong in a park. The friend explained the general theory of Falun Gong to the applicant and said that his health had improved as a result of practice. The applicant accepted an invitation to join the group. After several months of practice the applicant found his health had improved and that his “view of life was totally renewed”.

  3. The applicant indicated that Falun Gong had a “good reputation” until July 1999. At this time Falun Gong became illegal. The police found the “name list” of the group with which he practiced. All the people on the list were taken to the local police station and received “reeducation”. They were given two choices: to sign a guarantee letter, or be put into detention. Most of the group signed the guarantee letter. The group leader refused to sign and was sent to prison.

  4. The applicant felt guilty about signing the guarantee letter as it symbolised a betrayal of his belief. He continued to practice Falun Gong secretly. One day, the police came to search his home and found Falun Gong related notes that he had written. The applicant was again taken to the police station. He was eventually allowed to go home on condition that he return to the police station each day during the following week for education.

  5. Following this event, the applicant’s business “worsened” as people were no longer willing to do business with him for fear of bringing trouble on themselves. Friends pretended they did not know him. When his children were bullied by others, the teachers blamed them as the applicant was not a “good citizen”.

  6. The applicant obtained a passport and visa with the assistance of an agent to come to Australia.

The Delegate

  1. The delegate found that the applicant was unable to provide a plausible explanation for the two year delay in making an application for a protection visa following the applicant’s arrival in Australia in 2007. The delegate did not consider this to be consistent with a subjective fear of harm (CB 57). The delegate also noted that the applicant had travelled to Japan for two weeks in 2007, before returning to China, and considered that this indicated the applicant did not have a subjective fear of harm on return to China (CB 57). Moreover, the ability of the applicant to twice depart China legally indicated that he was of no ongoing interest to the Chinese authorities (CB 58).

  2. The delegate also noted that the applicant claimed to have practiced Falun Gong since 1999, but that this practice was largely in private, and that he had been able to continue his business without difficulty (CB 57).

  3. Further, the delegate found there were inconsistencies between the applicant’s claims in his original statement, and what was said at interview. As a result, the applicant’s claims of detention were found not to be credible (CB 58).

The Tribunal

  1. The applicant applied for review to the Tribunal on 11 August 2009 (CB 61 to CB 64). He was again assisted by the same migration agent (CB 62).

  2. The applicant was invited to, and attended a hearing before the Tribunal on 2 October 2009. This hearing was adjourned and a further hearing was held on 26 October 2009. The applicant attended a further hearing on 21 December 2009. The applicant’s migration agent did not attend on any occasion. During these three occasions the Tribunal raised a number of issues, or “information”, with the applicant, which it considered may be the reason for affirming the delegate’s decision (note [94] at CB 129 to [149] at CB 145 and [158] at CB 147).

  3. The Tribunal noted that the applicant had raised new issues at each of the interview with the delegate and the three Tribunal hearings. The Tribunal considered these claims had been manufactured to assist the applicant’s initial claims ([186] at CB 154 and [200] and [202] at CB 158). The Tribunal rejected the applicant’s explanation for the alleged inconsistencies between his written statement and evidence given orally before the Tribunal ([185] at CB 154). The Tribunal also found the applicant’s evidence to be inconsistent and unreliable, and that this placed the applicant’s credibility in issue ([192] to [202] at CB 156 to CB 158).

  4. The Tribunal concluded that the applicant’s return to China from Japan indicated that the applicant did not have a subjective fear of return. It did not accept the applicant’s explanation as to why he did not want to remain in Japan ([188] at CB 154 to CB 155). Similarly, the Tribunal did not accept the applicant’s explanations for his delay in applying for a protection visa in Australia ([189] to [190] at CB 155). The Tribunal concluded from these findings that the applicant did not have a subjective fear of persecution in China ([188] and [190] at CB 155 and [191] at CB 156).

  5. The Tribunal found adversely to the applicant’s credibility ([198] at CB 158). It rejected the factual basis of his claims. That is, it found he was not a Falun Gong practitioner in China and rejected the truth of the claims “associated” with this assertion ([203] at CB 158).

  6. In coming to this conclusion the Tribunal found:

    1)Adversely to the applicant’s credit in relation to his claimed trip to Japan and that he had given inconsistent evidence in this regard ([192] to [193] at CB 156).

    2)He had given inconsistent evidence about the circumstances of hiding Falun Gong related notes under his bed, which he said had been subsequently found by police ([194] at CB 156).

    3)It rejected his explanation for inconsistencies in his claim to have come to the attention of the police, to have been detained, and the circumstances of his release ([195] at CB 157).

    4)Inconsistencies between information he provided in his application for a visitors visa and what he put in his protection visa application ([196] to [197] at CB 157).

    5)The applicant’s omission from his initial statement of his subsequent claim provided in “great detail” at the hearing, and which became a “central part” of his claims, led it to doubt the reliability of the applicant’s evidence in this regard. The Tribunal found that, in the circumstances, the applicant: “… manufactured the claim at a later stage to bolster his claims” ([199] at CB 158).

    6)The Tribunal found similarly in relation to the applicant’s later claim that he was constantly in hiding since 1999 ([200] at CB 158).

    7)The Tribunal gave little weight to the applicant’s claims made at the hearing regarding the distribution of anti-police poetry ([202] at CB 158).

  7. Finally, the Tribunal found that the applicant had “learned” Falun Gong in Australia but that this was motivated solely to strengthen his claims. As such, this conduct was disregarded pursuant to s.91R(3) of the Act ([204] to [205] at CB 159).

Application to the Court

  1. The application to the Court contains one ground: “The RRT’s decision was affected by jurisdictional error”. This was supported by a number of particulars:

    “1) The RRT did not accept my claims because of the inconsistencies among my claims. I was asked the same questions by the same Tribunal Member for three times at three different occasions, while in normal cases applicants are only asked to attend hearing once. I was exhausted after having long hours of interview for three times.

    2) The Tribunal rejected my claims because of inconsistencies among my claims and that I provided new oral evidence in later interview but had not provided such evidence in previous evidence. It is reasonable that when one talks about his or her personal experience over year in a different country, there may always be something new to talk about in different occasion. It is not reasonable to expect that, when you interview a person for long hours, this person’s response to your questions must be exactly the same as if it had been rehearsed.

    “3) The RRT failed to consider my Falun Gong practice in Sydney.”

Before the Court

  1. The applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Ms K Hooper appeared for the first respondent.

  2. I understood the applicant’s submissions to be directed to grounds one and two of the application. These were that it was unfair and unreasonable of the Tribunal to conduct three “hearings”. The applicant submitted that he was asked the same questions at each of these occasions, and that this was done for the purpose of finding fault with his answers. While he was calm at the first hearing, he realised that this was the purpose of the Tribunal’s questioning at the second and third occasions. He felt under pressure and was unable to attend with a “normal mental status”.

  3. The applicant took issue with the Tribunal’s adverse finding as to his credibility based on the inconsistencies. He explained that no one could be expected to give the same answers to the same questions over three occasions. Further, also in explanation for the inconsistencies, it was “natural” to remember “new information” at different times, particularly as he was trying to remember the past, not reciting pre-remembered answers.

  4. The applicant also complained about the Tribunal’s findings concerning the “name list” and the incident where his daughter was bullied at school.

Consideration

  1. The Tribunal did conduct hearings on three occasions:

    1)Hearing “one”:

    a)Invitation dated 7 September 2009 for 2 October 2009 hearing (CB 69).

    b)Hearing duration: 1 hour, 47 minutes, 14 minutes adjournment, then a further 33 minutes. Total: 2 hours, 20 minutes (CB 73).

    2)Hearing “two”:

    a)Invitation dated 2 October 2009 for 26 October 2009 hearing (CB 81).

    b)Hearing duration: 2 hours, 1 minutes (CB 85).

    3)Hearing “three”:

    a)Invitation dated 25 November 2009 for 21 December 2009 hearing (CB 96).

    b)Hearing duration: 2 hours, 35 minutes (CB 100).

  2. What is immediately apparent from the above is that, while the total hearing time was just under six and a half hours, this was spaced over a period of just under 3 months. Even if the view is taken that the adjourned hearings were conducted at the instigation, and at the convenience of the Tribunal, each of the invitations to hearing provided a gap that exceeded the prescribed notice period (s.441A(4), s.441C(4), and reg.4.35D of the Migration Regulations 1994 (Cth)).

  3. The difficulty for the applicant now in relation to the first two grounds of the application, and as these grounds are explained in submissions, is that despite the opportunity offered to him at the first Court date in this matter (7 April 2010 – see order 3), the applicant has not filed any evidence, for example an affidavit annexing a transcript of the Tribunal hearing, to contradict or challenge the Tribunal’s own account of what occurred at each of the hearing occasions, and the Tribunal’s “reasons” for the need to conduct two “adjourned” hearings.

  4. In relation to the applicant’s complaint that he felt exhausted on the second and third occasions, and that this contributed to his contradictory answers, what must be noted is that the applicant did not endure one hearing of six and a half hours duration. Rather, he had over three weeks to recover, and prepare himself for the second, and then the third occasion.

  5. Further, in the absence of any other evidence, it is not open to this Court to draw inferences as to what may otherwise have happened at the hearings (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).

  6. The only account therefore before the Court does not provide any evidentiary basis to support the applicant’s complaint that he was exhausted and that this affected his mental state, or that this provided, in part, the explanation for inconsistencies in his evidence.

  7. While a short adjournment was taken at some point in the first hearing (see [22.1] above, and [55] at CB 125 of the Tribunal’s account), the applicant’s complaint about exhaustion was directed to the second and third occasions. There is nothing in the material before the Court to show that the applicant made any such complaint to the Tribunal at the time of the hearings. Nor that the applicant made any such complaint to the Tribunal after the second hearing (over two months), or after the third hearing where a period of over one month elapsed until the Tribunal made its decision. The applicant was not without assistance before the Tribunal. He had engaged a migration agent. If he was exhausted, and this affected his capacity and his mental state, then there was a clear opportunity of time, and with the assistance of his representative, who was a registered migration agent, to make such a complaint and ask the Tribunal to take it into account.

  8. Further, at the end of the third hearing, far from making any complaint about exhaustion, the applicant started reciting poetry at the point when the Tribunal indicated that the hearing was drawing to a close (see [149] at CB 145 and [150] to [151] at CB 146). At first the applicant “suggested” that he wrote a poem about police and the “crackdown” on Falun Gong and started to recite the poem ([151] at CB 146).

  9. When the Tribunal asked about the relevance of the poem to his claims, the applicant is reported to have said that the poem was not written by him but written by others and distributed to police by him. He then said that he did not distribute to police but put up a public notice for the police ([152] at CB 146).

  10. At this point the Tribunal sought to establish the relevance of this poetry to the applicant’s circumstances and whether it was a new claim. The Tribunal reports:

    “… The applicant laughed and said if he did not think it was important he would not have raised it. The Tribunal said it had been raised at the last minute. The applicant said it was because it had suddenly come to his mind…” ([152] at CB 146.5).

  11. The applicant then dictated four verses of the poem (apparently there were many more) to the interpreter. The poem was then recited to the Tribunal ([156] at CB 146). Ultimately, the applicant said the poem was not written by him, it was written by some scholars who had posted it publicly: “… in places where the Police would normally walk by…” ([157] at CB 147). He then said the poem was: “… not very significant, it only just came into his mind and he wanted to say it.” ([158] at CB 147).

  12. While it may be said the hearing was coming close to descending into a farce, I am not prepared to criticise the Tribunal for simply allowing the applicant every opportunity to have his say. Particularly as it may have been the emergence of a new claim, which may indeed have then led to some claim that the applicant had been denied the opportunity to put forward all aspects of his claim to fear persecutory harm.

  13. In terms of the applicant’s complaint, no incapacity to give his evidence is revealed in any of the report. His capacity to recite poetry, and even to want to do so, even though it was “not significant” is not symptomatic of any exhaustion. This was not an example of someone so broken by exhaustion that he did not know what he was doing.

  14. Rather, when read in context of the entire hearings, it was another example of the applicant belatedly attempting to raise another aspect of his claims. It is also another example of evidence that was internally inconsistent.

  15. Almost from the beginning of the first hearing the applicant indicated he had “new claims” ([29] at CB 122). He added quite a large amount of further detail ([31] at CB 122, [38] – [39] at CB 123, [42] at CB 123, [48] at CB 124, [54] at CB 125, [56] at CB 125).

  16. There is of course no criticism of the applicant adding a large amount of further detail at the hearing. After all, the purpose of the hearing is for the applicant to give his evidence, make his arguments, and explain his claims. The issue, however, in light of his complaints now about the number and length of hearings, is that the way the applicant chose to put his claims to the Tribunal, that is by providing so much detail, and indeed sequentially and belatedly raising new areas for consideration, lengthened the time required for the Tribunal to give the applicant a meaningful opportunity to give evidence. The Tribunal should not be criticised for asking open ended questions which provided the applicant with the opportunity to give a full, or more complete account of his claims. An opportunity which the applicant vigorously took up.

  17. The second hearing was clearly focussed on the Tribunal discharging its statutory procedural fairness obligations pursuant to both s.424A, through the avenue of employing s.424AA, and s.425.

  18. The Tribunal is of course statutorily obliged to put to the applicant information that it considers would be the reason, or part of the reason, for affirming the delegate’s decision. It is clear, particularly with reference to [83] at CB 128 and [94] at CB 129, that this was the focus of the second hearing. Throughout this process the Tribunal was obviously also focussed on “sufficiently indicating” to the applicant that the credibility of his factual account, with reference to many aspects of the applicant’s claims and evidence, was at issue (with reference to s.425 and SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 (“SZBEL”) at [47]).

  1. It is not immediately clear why the Tribunal felt the need for a third hearing. At the conclusion of the second hearing the Tribunal recorded ([116] at CB 136):

    “… The Tribunal said that the hearing was completed, as the applicant had responded to the information.”

  2. The reasons are not explained in the letter of invitation to the third hearing (CB 96), nor in the “File Note” drafted by an officer of the Tribunal on 25 November 2009, reporting on a telephone conversation held with the applicant at the direction of the Tribunal member, to alert the applicant to the need for a further hearing (CB 94).

  3. The third hearing does reveal some “overlap” in some subject matter with the second hearing. For example at [132] (CB 139) the issue of the delay in making the protection visa application which had been previously raised at the second hearing ([95] at CB 129).

  4. For the most part, the third hearing involved either new areas of concern, or a more forthright, if not vigorous, exchange with the applicant. For example, the Tribunal’s statement to the applicant that he had “lied once” and the Tribunal “cannot trust him completely” ([142] at CB 143.9) would have left the applicant in no doubt as to where he stood with the Tribunal.

  5. I should just note that at least implicit in the applicant’s complaint now that the Tribunal extended the hearings to exhaust him and in a sense to “entrap” him into making inconsistent statements could be construed as a complaint that the Tribunal acted in bad faith or exhibited bias.

  6. First, I should note that vigorous questioning of the applicant does not, of itself, reveal bias (Re Minister for Immigration & Multicultural Affairs; ex parte Epeabaka [2001] HCA 23; (2001) 179 ALR 296 per Kirby J). I note further the relevant authorities for bias, the apprehension of bias, and bad faith (Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43] to [44], Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; [2003] 131 FCR 102, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).

  7. Whatever else may be said about the Tribunal’s conduct of the hearings, on the only record before the Court of what occurred, none of these grounds can be properly asserted, let alone made out.

  8. The preferable view, based on the material before the Court, of why the Tribunal scheduled a third hearing is that, having subsequently reviewed what had occurred by the conclusion of the second hearing, the Tribunal felt the need to put further matters of concern to the applicant, to give him a further opportunity to squarely respond to both those matters, and some matters already raised. Further, to make it clear to him that his credibility was at issue. (See [137] at CB 141 and [142] at CB 143 as examples.)

  9. This view is derived from at least a fair reading of the Tribunal’s account of, in particular, the second and third hearings. It is consistent with what was said to the applicant, albeit in the usual formulaic way, in the letter of invitation to the third hearing. That is, that on the material before it, in context including what was said at the second hearing, the Tribunal could not make a decision favourable to the applicant and therefore gave him yet another opportunity to persuade the Tribunal to the contrary (CB 96.3).

  10. While it must be said that the Tribunal’s conduct of the third hearing in particular revealed some lack of control, or perhaps “tight” control of the proceeding, in the absence of anything else the Tribunal’s decision that a further hearing was required to properly fulfil its procedural fairness obligations is for the Tribunal to make. While the Tribunal could have properly curtailed the applicant’s “performance” in explaining at some length the lack of initial detail in his claims, in terms of the differences between a movie script and a television series (see, for example, [129] at CB 139 and [146] at CB 145), and could have curtailed his, ultimately conceded irrelevant, poetry recitals ([152] at CB 146 to [157] at CB 147), the fact that it did not does not support the applicant’s complaints now, nor importantly does it reveal jurisdictional error.

  11. The applicant complains that he was exhausted. There is no evidence to support this. To the contrary, the Tribunal’s finding, that the applicant: “… was very fluid in his verbal responses, providing detailed responses, and information…” ([185] at CB 154) was a finding that was reasonably open to it to make on what was before it. As was its finding that: “… he has raised new issues throughout” ([186] at CB 154).

  12. When this is added to the length of time between each of the hearings, and indeed the individual length of each hearing, which in the circumstances could not be said to be individually onerous, the applicant’s complaint now is further considerably weakened.

  13. The applicant complains that the Tribunal asked the same questions repeatedly. Again, the evidence before the Court does not support this complaint. While some “overlap” at the hearings on issues did occur, the Tribunal’s questions were directed to different aspects of these issues.

  14. For the most part the applicant continued to raise new issues, even at the occasion of the third hearing. What the applicant’s complaint now does not acknowledge is that there is a significant difference between providing further details to explain issues or events initially put in outline and raising new areas of claims.

  15. The applicant complains that the explanation for the inconsistencies in his various accounts is because “there is always something new to talk about in different occasion” (see ground two). What this fails to acknowledge is that the inconsistencies in his evidence found by the Tribunal were not just about “new” matters that were subsequently raised but about inconsistencies in relation to the same issues.

  16. This can be seen in relation to the applicant’s account of the notes that he claimed to have regularly written about Falun Gong, which he had hidden under his bed and which were said to have been found by the police.

  17. The issue of those notes, and the police, was raised in his initial statement in support of his protection visa application (CB 32.3). This matter was not raised with the delegate, despite the opportunity provided when questioned about his claims to being questioned by police in both August 1999 and 2001 (CB 120).

  18. It was properly raised by the Tribunal at the first hearing ([69] to [71] at CB 127). The applicant volunteered further information about this at the third hearing: “… He said he wanted to give the Tribunal a bit more information about that.” ([139] at CB 142.6).

  19. On what was before it, it was reasonably open to the Tribunal to find that his evidence in total on that issue was inconsistent ([194] at CB 156.9) and that his explanation for this was not plausible ([195] at CB 157.3).

  20. It should also be noted that to the extent that the applicant’s complaint now implies some action on the part of the Tribunal to “entrap” the applicant over time with exhausting hearings, the recordings of the earlier hearing was provided to the applicant at the conclusion of the second hearing (26 October 2009 – see CB 93), well in advance of the third hearing. It would not have required the further assistance of any interpreter for the applicant to have refreshed his memory for the third hearing about what he had earlier said to the Tribunal.

  21. Before the Court the applicant claimed that he did not keep a written record of what he said at the earlier hearing, so therefore each time he was asked the same question he could not remember what he had said earlier. I have already addressed the complaint regarding the repetition of questions. In relation to his being unable to remember what he had said the applicant could clearly have refreshed his memory from the recordings given to him. In any event, the applicant’s capacity to deal with the Tribunal’s questioning and the submission of his claims was considered by the Tribunal, as were his relevant explanations (see [185] at CB 154, [192] at CB 156, and [201] at CB 158).

  22. Before the Court the applicant also complained about the Tribunal’s treatment of how the police came to know of his involvement in Falun Gong (the “name list” issue).

  23. In his initial statement the applicant stated that he practiced Falun Gong in a park with others. Then: “The policemen easily found the name list from our regular meeting point, and everybody on the list, including me, was sent to the local police station and received reeducation” (CB 31.8).

  24. The Tribunal raised this matter at the first hearing ([61] at CB 126). The applicant gave evidence that the police “found” the list, but was not sure how they did this ([64] at CB 126). In response to the Tribunal’s concern that it was not understandable: “… how a name list would appear in the park, for the Police to pick up”, the applicant responded:

    “… that they had found the name list from their regular point” ([66] at CB 126).

  25. The applicant’s evidence continued to be confusing and speculative:

    “The applicant said he meant that his group of regular Falun Gong practitioners went there to practise but they never kept a name list. The Tribunal asked how in that case did the police get a name list. The applicant said maybe they came a lot and checked them out, he is not sure. Maybe before, they came secretly, or maybe they came in advance, he is not sure.” ([66] at CB 126).

  26. This matter was again raised at the second hearing in the context of the Tribunal seeking to meet its statutory obligations ([111] at CB 134). The Tribunal squarely put to the applicant that it: “… cannot make any sense out of the statement”. (That is, the applicant’s statement.) The Tribunal explained the relevance of this “information” (the applicant’s typed statement) in that it may lead the Tribunal to find that the statement was “not credible” given that it was: “… inconsistent with the applicant’s explanation for it”. The applicant challenged the Tribunal’s view and the Tribunal gave further explanation.

  27. The applicant himself is then reported to have wanted to tell the Tribunal: “… a bit more about the name list” ([113] at CB 134). Incidentally, I note this is another example of the hearing taking longer to complete due to the applicant’s desire to provide longer explanations. While no criticism is to be levelled at the applicant for this, it provides contrary evidence to his claim that the number and length of the hearings was due solely to the Tribunal’s conduct.

  28. Further, while the Tribunal’s subjective views of the applicant’s evidence is not “information” for the purposes of s.424A(1), and what he put in writing to the Minister’s department falls within the exception in s.424A(3)(ba), and what he told the Tribunal falls within the exception in s.424A(3)(b), there is no error in the Tribunal nonetheless putting this “information” to the applicant at the hearing.

  29. The Tribunal had concerns with the applicant’s credibility and it was entitled, if not obliged, to explore this issue if not for the purposes of s.424A certainly for the purposes of s.425 (SZBEL).

  30. The applicant complained to the Court that any seeming inconsistency in his evidence about the name list was due to a “mistranslation” of his original statement, however the Tribunal would not accept this.

  31. The difficulty for the applicant in relation to this complaint is that the Tribunal was at least entitled to explore this aspect of his factual account at the hearing. But further, when regard is had to the Tribunal’s findings, there is no evidence that the Tribunal relied specifically on the matter of the “name list” to find adversely to the applicant (see [172] to [208]).

  32. The Tribunal ultimately told the applicant at the hearing that it would give consideration “at greater length” to this matter. This would have included the applicant’s explanation that the seeming problem with his statement: “… is the way that he wrote it that has caused the confusion” ([111] at CB 135.3).

  33. The absence of specific reference to this matter from the Tribunal’s “Findings and Reasons” gives rise to a strong inference that the Tribunal decided to either accept the applicant’s explanation, or at least to not rely on this matter to find adversely against the applicant. To the extent that the applicant complains of some bad faith or bias on the part of the Tribunal, this provides an example of the Tribunal keeping an open mind.

  34. Before the Court the applicant also complained that at the second hearing he told the Tribunal about his daughter being bullied at school (probably with reference to [114] at CB 135.9). The applicant submitted that he became quite emotional and that he told the Tribunal he could not continue to talk about it. He stated that the Tribunal said it “could understand”, yet at the third hearing the Tribunal said he had fabricated the matter. The applicant complained that in these circumstances it was not open to the Tribunal to find he was lying.

  35. The Tribunal’s account reveals that the applicant raised this matter as an example of his Falun Gong involvement and the subsequent adverse reaction of local authorities, which also impacted on his children at school. The claim was that his child was bullied, including by a teacher, because he was a Falun Gong practitioner ([114] at CB 136.1).

  36. On the only evidence before the Court, the closest that it can be said that the Tribunal came to “accepting” his evidence at the hearing was that in response to his statement that his child: “…should not get treatment like that. The Tribunal said that was correct” ([114] at CB 136.3).

  37. While the Tribunal clearly put to the applicant at the third hearing that it had problems with the credibility of his claim to have been a Falun Gong practitioner in China, there is no record that this included, or rather relied in any way, on his claim that his child had been bullied at school.

  38. Again, in its “Findings and Reasons” there is no reliance specifically on that part of the applicant’s evidence to reject his claim to have been a Falun Gong practitioner. At best, the Tribunal was clearly agreeing at the hearing that children should not be bullied. Given the many other problems the Tribunal had with his evidence, it was clearly open to the Tribunal to find adversely on the credibility of his claims based on these many other issues. I note for the sake of completeness that the Tribunal’s references to his child at [174] under the heading of “Findings and Reasons” were clearly for the purpose of recounting the applicant’s evidence. Its analysis and consideration of the claims did not commence until [184] (at CB 154).

  39. While the Tribunal may at certain points of the third hearing have acted to properly curtail the applicant’s “irrelevant” expositions, in all, the material before the Court reveals the Tribunal was concerned to give the applicant every opportunity to make his claims, give his evidence, be on notice as to concerns about his evidence, and to provide his explanations. I do not accept the applicant’s complaints now that the Tribunal’s conduct, in arranging a number of hearings, and in the conduct of the hearings themselves, reveals any jurisdictional error on its part.

  40. Ground three of the application asserts that the Tribunal failed to consider the applicant’s Falun Gong practice in Sydney. This is factually incorrect. The Tribunal did consider this practice. It accepted that he had attended some sessions with other practitioners in Australia, had exercised at home, and learned about Falun Gong through his sessions with other practitioners ([204] at CB 159).

  41. However, as the Tribunal foreshadowed with the applicant at the second hearing ([115] at CB 136), it found in all the circumstances that this conduct was done solely for the purpose of strengthening his refugee claims. It therefore disregarded such conduct pursuant to s.91R(3). This finding was open to the Tribunal on what was before it. The Tribunal’s action in disregarding this conduct was consistent with what was relevantly said in the most recent High Court authority: Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2009] HCA 40.

Conclusion

  1. For the applicant to succeed the Court would need, at least, to find jurisdictional error in the Tribunal’s decision. I cannot find such error. The application is therefore dismissed.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  D Nestor

Date:  19 May 2010

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