SZOMD v Minister for Immigration

[2010] FMCA 1001

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOMD v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 1001

MIGRATION – Review of decision of Refugee Review Tribunal – weight given to material a matter for the Tribunal – Tribunal did not ask itself the wrong question – findings open to the Tribunal to make – no failure of procedural fairness – not for Tribunal to make out applicant’s case for him – no failure to make an obvious inquiry – Tribunal did not arbitrarily impose a standard of Falun Gong practice – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 91R, 424A, 424AA, 425, 476
Evidence Act 1995 (Cth), s.136

Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Abebe v Commonwealth [1999] HCA 14; (1999) 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 for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZMOI v Minister for Immigration & Citizenship [2008] FMCA 1507
Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
SZMJM v Minister for Immigration and Citizenship [2010] FCA 309
Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547
W148/00A v Minister for Immigration and Multicultural Affairs ([2001] FCA 679; (2001) 185 ALR 703
SZOCT v Minister for Immigration & Citizenship [2010] FMCA 425
Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108
SZONC & Anor v Minister for Immigration & Anor [2010] FMCA 723
Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 1599
WALT v Minister for Immigration & Anor [2006] FCA 42
SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 231 ALR 592

Applicant: SZOMD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1354 of 2010

Judgment of: Nicholls FM

Hearing date: 26 October 2010

Date of Last Submission: 26 October 2010

Delivered at: Sydney

Delivered on: 21 December 2010

REPRESENTATION

Appearing for the Applicant: Mr M Vassili

Solicitors for the Applicant: Vassili Fozzard Lawyers & Consultants

Counsel for the Respondents: Mr D Hughes

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 18 June 2010 is dismissed.

2. The applicant to pay the first respondent’s costs set in the amount of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1354 of 2010

SZOMD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This application to the Court was made on 18 June 2010 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 May 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 citizen of the People’s Republic of China (“China”) who arrived in Australia on 23 August 2009 with a student guardian visa. He applied for a protection visa on 14 October 2009 (see Court Book – “CB” – CB 1 to CB 34 with annexures).

The Claims to Protection

1. The applicant claimed to have been a Falun Gong believer and practitioner in China since October 2003. He practiced “privately”. On 30 March 2009, acting on information that he was practicing Falun Gong, police came to his home. His Falun Gong materials were seized, he was attacked and taken to the police station where he was questioned, beaten and tortured.

2. He was released the next day and subsequently attended hospital on 1 April 2009 because of injuries he received.

3. The applicant decided to leave China so that he could freely practice Falun Gong. Since his arrival in Australia his wife has been arrested in China and placed in a mental institution. His mother-in-law, who introduced him to Falun Gong, died while being held in detention.

The Delegate

1. The applicant was interviewed by the Minister’s delegate on 5 January 2010 (CB 71). The delegate refused the application (CB 62 to CB 79).

2. The delegate found that the applicant was not a genuine Falun Gong practitioner. Essentially, this was because the delegate found that the applicant’s level of knowledge of Falun Gong was not commensurate with what would have been expected of a Falun Gong practitioner, he gave inconsistent accounts from his claimed reading of a relevant Falun Gong text, and that his answers as to how he actually practiced Falun Gong were “vague” and “evasive”.

3. In addition, the delegate found that the applicant was not a witness of truth. This arose from findings that the account of his arrest and release in March 2009 was vague and lacking in credibility. His application for the student guardian visa was lodged on the same day that he said he was in hospital. His explanation that his wife lodged it without his knowledge raised doubts about his credibility.

4. The application for this visa was signed by him (on 24 March 2009) at a time before he was arrested. His account was that it was this arrest which was the motivation for his leaving China.

The Tribunal

1. The applicant applied for review to the Tribunal on 14 January 2010 (CB 80 to CB 83). He appointed a migration agent to represent him (who was also a solicitor, and who continues to represent the applicant before the Court). (CB 87 and CB 89.)

2. The applicant was invited to a hearing scheduled for 11 March 2010 (CB 92). Given subsequent events reported below, I note that the applicant responded to the invitation by indicating he would attend (CB 107). He indicated he required a Mandarin speaking interpreter. He indicated: “no preference” in answer as to whether the interpreter should be male or female.

3. The applicant attended the hearing and gave evidence, as did his son and another witness (CB 249). Also present were his lawyer (Mr Borg), his “assistant” (Mr Vassili) and a “support person”.

4. Submissions were made in writing to the Tribunal by Mr Borg and Mr Vassili (of Vassili Fozzard Lawyers) both before and after the hearing (CB 109 to CB 198 and CB 255 to CB 265). The applicant also provided his own written statement (CB 176 to CB 182).

5. Amongst the submissions and photographs provided to the Tribunal, the applicant provided medical reports from medical practitioners:

   1)Dr Frederick Leung certified that the applicant was “receiving treatment for headache and neck pain for the period Monday, 1 March 2010 to Friday, 5 March 2010 inclusive”. [Interestingly the certificate was said to have been “completed on 28/2/2010”.]

   2)Dr Richard Wu, consultant psychiatrist, provided an opinion (dated 19 February 2010) that the applicant was suffering from post traumatic stress disorder (“PTSD”) and reactive depression (“RD”).

   3)In a second report dated 9 April 2010 Dr Wu explained that it was plausible that the PTSD may have caused the applicant at the “interview” (Tribunal hearing) to show: “signs of anxiety physically or in his speech which made him seem incoherent or repetitive” (CB 266). This comment was made, not based on personal observation, but on a report from Mr Borg to Dr Wu on the applicant’s behaviour at the hearing.

6. The Tribunal did not find the applicant to be credible ([87] at CB 294). In arriving at this conclusion, the Tribunal noted that his advisers sought to address the credibility concerns found by the delegate by the provision of various submissions including medical reports.

7. The Tribunal found the reports of Dr Wu were of limited value. The first report was said to have been based on only one two hour session and that there was no mention in the report that the applicant was “suffering memory loss or difficulty in recalling information” ([88] at CB 294). The assertion that he was “suffering memory loss and is forgetful and vague” was made by his legal representative, not Dr Wu.

8. The second report was found to have been based “solely” on “the legal representatives summarization to Dr Wu of the applicant’s behaviour at the hearing and the environment within which the hearing took place”. The Tribunal noted that Dr Wu qualified his assessment on this basis ([89] at CB 294).

9. The Tribunal did not accept the applicant’s account that he “simply” filled in and signed his protection visa application at the direction of his then (unregistered) migration agent. The Tribunal relied on his level of education and work experience and the involvement of his son who completed the form in English.

10. The Tribunal found that “at best, he passively complied in providing incorrect information” and this “does raise concerns about his reliability as a witness of truth” ([90] at CB 294).

11. Nor did the Tribunal accept that the applicant’s wife prepared his student guardian visa application without his knowledge ([91] at CB 294). Nor that there was any reason why it was “prepared” at the time he claimed.

12. The Tribunal did not accept the applicant was a Falun Gong practitioner. The reasons were:

    1)His responses to questions at the hearing about his Falun Gong commitment were: “brief, limited and uninformative” ([92] at CB 295).

    2)He did not respond, when asked to elaborate on “Falun Gong as his belief system” “in a meaningful, persuasive or detailed manner that one would reasonably expect from a person claiming to have adhered to Falun Gong since 2003, and claiming to have had access to DVDs and books on Falun Gong” ([93] at CB 295).

    3)The Tribunal did not accept that the “limited manner” of the description of his Falun Gong belief was: “… explainable by reason of anxiety, depression or memory loss” ([94] at CB 295).

13. The Tribunal accepted some parts of the applicant’s claims, to have attended a Falun Gong forum in Australia, but disregarded this conduct pursuant to s.91R(3) of the Act ([96] to [99] at CB 295).

14. The Tribunal rejected the applicant’s factual account to have been detained and tortured in China on the basis that it did not accept that he was a Falun Gong practitioner in China or imputed to be one ([100] at CB 296). Further, the Tribunal found his “description of the arrest to be unpersuasive and improbable” ([101] at CB 296). Nor did the Tribunal place any weight on the report of Dr Wu in this regard ([103] at CB 296).

15. The Tribunal found the applicant’s claim that the arrest was the catalyst for his fleeing China, to be inconsistent with the circumstances and timing of the making of his application for a student guardian visa ([102] at CB 296).

16. In all, the Tribunal did not accept the applicant had a well-founded fear of persecution for a Convention reason and affirmed the delegate’s decision.

Before the Court

1. At the hearing Mr M Vassili appeared for the applicant. Mr D Hughes appeared for the first respondent.

2. Put into evidence before the Court was:

   1)A transcript (“T”) of the Tribunal hearing. [Evidence in chief by Mr Borg as to the provenance of the transcript – ultimately without objection.]

   2)[43] – [45] of the applicant’s affidavit of 20 June 2010 were admitted provisionally subject to relevance to allow Mr Vassili to develop his submission. The words: “… being asked as my wife has been forcibly placed in a mental institution for being a Falun Gong practitioner and is likely to be used for organ harvesting” were also subject to s.136 of the Evidence Act 1995 (Cth) (“Evidence Act”) admitted provisionally only as a statement of the applicant’s subjective belief not as the truth of what was said.

   3)[11] and [13] of the applicant’s affidavit of 26 September 2010 admitted provisionally subject to relevance being established and pursuant to s.136 of the Evidence Act only to the extent that what is asserted is said to be the applicant’s subjective belief.

   4)The affidavit of Dr Richard Wu of 23 September 2010. [1] – [15] admitted without objection. Annexure “A” was admitted provisionally and subject to the respondent’s objection as to hearsay, and [1] and [2] were admitted subject to s.136 of the Evidence Act application which was granted. Annexure “B” again was admitted provisionally subject to the respondent’s objection as to hearsay, and the last paragraph at page 1 to the end of the third paragraph at page 2 were all subject to a s.136 application which was upheld.

   5)The Court Book.

3. A large number of affidavits were filed on behalf of the applicant. For the sake of completeness I note that Mr Vassili did not seek to read the following:

   1)The applicant’s affidavit of 17 June 2010.

   2)Mr Borg’s affidavit of 18 June 2010.

   3)Mr Borg’s affidavit of 25 August 2010 (with annexure).

   4)Mr Borg’s (second) affidavit of 25 August 2010.

   5)Mr Borg’s (third) affidavit of 25 August 2010.

4. Mr Vassili sought leave to read the following. Leave was refused in upholding the respondent’s various objections:

   1)The affidavit of Lei Pan of 24 August 2010.

   Relevance.

   2)The affidavit of Fei Xu of 20 July 2010.

   [1] – [11]: Relevance.

   [12] – [17]: Relevance and hearsay.

5. Prior to the hearing the applicant’s solicitors communicated with the Court’s Registry, to request that no women be present in Court, including the provision of a male interpreter. The intention was that the applicant was to give evidence about torture that he claims to have suffered while in detention in China. This apparently was to include reference to matters of some sensitivity.

6. Although arrangements were made to accommodate this request, the applicant did not give any such evidence. In any event, it is difficult to see how any such evidence could have assisted, or indeed been admissible, before the Court, given that it goes to the merits of his claim to be a refugee. As such, this Court would not be able to entertain that any such evidence could reveal jurisdictional error in the Tribunal’s decision.

7. Nor, importantly, was any claim whatsoever made to the Court that the applicant was prevented from giving any such evidence to the Tribunal either by way of the presence of women at the Tribunal hearing or otherwise.

Ground One

1. The first ground as pleaded in the application simply asserts that the Tribunal fell into error in not accepting the medical evidence as to the applicant’s PTSD. No particulars are provided, but it is assumed the reports referred to are those of Dr Wu.

2. The short answer to the ground as pleaded is, as Mr Hughes submits, that it is for the Tribunal to give weight to the evidence before it (Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24. See also Abebe v Commonwealth [1999] HCA 14; (1999) 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]). That the Tribunal found that the reports of Dr Wu were of limited value and omitted relevant facts was a matter for the Tribunal in the proper exercise of its jurisdiction.

3. The applicant has sought the put a large amount of evidence before this Court, including material in relation to this ground. Even if the Court were to take into account that material excluded on evidentiary grounds, much of what has been put forward asks the Court to substitute its own findings as to the truth and merit of the applicant’s claim to fear persecutory harm in China.

4. This is impermissible (Minister for Immigration & Ethnic Affair v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). The Tribunal’s findings in this regard were all reasonably open to it on what was before it.

5. Mr Vassili’s oral and written submissions strayed far from the ground as pleaded. “Pleaded” by way of submission was that the Tribunal asked itself the wrong question, failed to ask the right question, took into account an irrelevant consideration and failed to (properly?) inquire in relation to the applicant’s claimed medical condition. The submissions also referred to what was described as “a constructive failure of Jurisdiction”. (See at [15] of the applicant’s written submissions.)

6. In oral submissions Mr Vassili attempted to explain some of this. The argument is that there were three elements critical to the Tribunal’s reasoning. First, as the delegate found, the applicant’s credit. Second, his practice as a Falun Gong practitioner. Third, the trauma and “persecution” he suffered in China as a result. This last is presumably a reference to the applicant’s factual account relating to his claimed detention.

7. The applicant’s complaint centres around the following in the Tribunal’s decision record ([88] at CB 294):

   “The Tribunal finds the medical reports from Dr Wu to be of limited value in ascertaining whether the applicant’s capacity to give oral evidence is impaired by his suffering PTSD. In the report (dated 19 February 2010) Dr Wu assesses the applicant to be suffering PTSD and to be experiencing anxiety, depression and flashbacks and has a fear of crowded places. This assessment is made on the basis of only one two hour session with the applicant and there is no mention in Dr Wu’s report that the applicant is suffering memory loss or difficulty in recalling information. The assertion that the applicant is suffering memory loss and is forgetful and vague is made by the legal representative in his submission to the Tribunal…”

8. Dr Wu’s report of 19 February 2010 is at CB 141.

9. For the sake of completeness, regard should also be had to the following in the Tribunal’s analysis in relation to Dr Wu’s second letter (CB 259):

   “[89] In the second report of April 2010 Dr Wu comments on the applicant’s apparent mental state at the hearing before the Tribunal. He does so solely on the basis of the legal representative’s summarization to Dr Wu of the applicant’s behaviour at the hearing and the environment within which the hearing took place. Dr Wu concludes his assessment with the caution that as he was not at the hearing his report offers ‘… a plausible explanation based on (the legal representative’s) description of this behaviour at this time’.”

10. In relation specifically to the applicant’s factual account, the Tribunal found (at [103] at CB 296):

    “The Tribunal notes that the medical report of Dr Wu offers the opinion that the applicant’s PTSD and reactive depression is a result of his arrest and torture. Dr Wu basis for his opinion is that of the applicant’s own recitation of his claimed arrest and torture. As such the Tribunal does not place weight on the medical report as independent evidence of the applicant’s claim to have been arrested and tortured. Nor is the Tribunal satisfied that the statement from Dr Li Xueyan at Fengman District Hospital in Jilin City that the applicant was admitted with concussion of the brain is evidence that the applicant was arrested and tortured by reason of involvement in Falun Gong.”

11. With reference to the first report Mr Vassili submitted that three aspects were important. First, it linked his PTSD to the persecution the applicant suffered in China. Second was the question of the applicant’s “fitness” to give evidence to the Tribunal. Third, the link to the Tribunal’s adverse finding as to the applicant’s credit.

12. The applicant challenges the Tribunal’s relevant findings. The submission that the Tribunal addressed the wrong question is said to be explained by the focus by the Tribunal on the length of Dr Wu’s consultation, rather than on the diagnosis or opinion he provided.

1. It must be said that in the circumstances I could not see that the attack rose above a cavilling with the Tribunal’s factual findings.

2. The applicant’s attack on the Tribunal’s claimed focus on the duration of the consultation with Dr Wu, in context, is really a complaint that the Tribunal should have given greater weight and been persuaded by Dr Wu’s opinion that the applicant had PTSD to find positively as to the applicant’s credit, and presumably then to accept his account of past harm in China.

3. Ms Vassili did not put any authority before the Court to support any proposition that the Tribunal was bound to accept the opinion of Dr Wu. It is as Mr Hughes submitted that it is for the Tribunal to form its own view of the weight to be accorded to the evidence before it.

4. To the extent that the applicant relies on what was said in this Court in SZMOI v Minister for Immigration & Citizenship [2008] FMCA 1507 (“SZMOI”) (at [15]) to support the proposition that Dr Wu’s diagnosis of the applicant’s PTSD was a factor that needed to be taken into account, SZMOI (which also needs to be understood in light of the subsequent Full Federal Court in Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41 (“SZNVW”)) does not stand for any proposition that the Tribunal was bound to accept that this diagnosis affected the applicant’s capacity to give evidence and therefore the outcome as to his credit.

5. In any event, the applicant’s attack misunderstands or mischaracterises the Tribunal’s approach, reasoning and findings.

6. First, the Tribunal’s adverse credibility findings were not arrived at because of Dr Wu’s report. The Tribunal’s findings (as referred to above) arose out of a variety of circumstances which were open to the Tribunal on what was before it.

7. In essence, the applicant’s submissions are based on the premise that the Tribunal should have found that Dr Wu’s reports were of assistance on the question of the applicant’s credit.

8. The Tribunal reasoned however that the reports were of limited value. The Tribunal’s reasoning needs to be understood in the context from which it emerged.

9. Amongst other things, the delegate found the applicant to be “vague and evasive” at the interview. This in part led into the delegate’s view as to the applicant’s lack of credit.

10. In submissions provided prior the hearing, Mr Borg submitted to the Tribunal (CB 114):

    “(41) When I interviewed [the applicant] he displayed symptoms of post traumatic stress disorder (PTSD) memory loss, difficulty in recalling information, concussion, stress, anxiety and paranoia [as in CB copy] which are all consistent with a person tortured and traumatized.”

11. Dr Wu’s first report was provided prior to the hearing. It was attached to the submissions along with a number of other documents. It was plainly submitted in support of Mr Borg’s submission as set out above (at [54]). (See CB 114.8.)

12. That the Tribunal gave little weight to the report was arrived at for two reasons. One, it was based on one two hour session with the applicant. On its own this reason could be seen as “weak”. Although equally the report is silent as to any relevant psychological tests that may have been carried out.

13. But what is critical, as Mr Hughes submitted, is that the Tribunal found that the report was not probative for the purpose for which it was offered. That is, that the applicant was suffering memory loss and was forgetful and vague. The Tribunal found that this assertion was made by the legal representative, and not the medical expert. This was plainly open to it when regard is had to the circumstances. What was in the doctor’s report was that the applicant was suffering from PTSD and other anxieties. The Tribunal’s reasoning was that the report was of little value and that little weight was to be accorded to it, because it did not address, or more pointedly support, the explanation put forward as to the applicant’s “poor” performance at the interview with the delegate.

14. At the hearing with the Tribunal the applicant’s adviser told the Tribunal that the applicant was “nervous and had headaches”. (Presumably the certificate from Dr Leung was offered in support, although nothing was made of this before the Court.) He asked the Tribunal to take this into account ([34] at CB 285 and T5). Further, the consultation with Dr Wu was raised ([45] at CB 287 and [65] at CB 290). Even further, there was a discussion about the applicant’s nervousness in this context and treatment recommended by Dr Wu ([65] to [68] at CB 290).

15. Although the issue of the credibility of the applicant’s factual account was at issue following the delegate’s decision, both the Tribunal hearing transcript and the Tribunal’s account of the hearing reveal that this continued to be an issue before the Tribunal.

16. In this light, the applicant’s advisers understandably sought to squarely address with the Tribunal the matter of the applicant’s credibility. Mr Vassili urged the Tribunal to note the applicant’s PTSD and Dr Wu’s report in assessing the applicant’s credibility (CB 262).

17. A second letter from Dr Wu was also submitted (CB 266). It was addressed to Mr Borg and in response to a question put to the doctor relating to the applicant’s reported behaviour at the hearing before the Tribunal.

18. The Tribunal gave little weight to this letter as it noted that Dr Wu’s comments on the applicant’s apparent mental state at the hearing was based solely on the adviser’s summary of what he had observed and said had occurred. The Tribunal noted that Dr Wu concluded his assessment with the “caution” that he was not at the hearing.

19. As Mr Hughes submits, the Tribunal’s according of little weight to this report in the circumstances was entirely open to it. This was clearly a report of possibility based on a second hand account.

20. No error is revealed in the Tribunal’s approach in this regard.

21. Mr Vassili also submitted, in what I ultimately understood to be an attack grounded in s.425 of the Act, that the applicant’s claimed lack of capacity at the Tribunal hearing derived from his medical condition and resulted in his not receiving a fair hearing.

22. The answer to this complaint is not to be found in SZMOI, although it is understandable that the applicant’s advisers sought to rely on this case.

23. What is not so understandable is that no reference was made in the applicant’s submissions to the Full Federal Court in SZNVW. This case provides the direct answer. The appeal from this Court squarely concerned the operation of s.425 of the Act in similar and (in terms of the applicable law) comparable circumstances to the current case.

24. Chief Justice Keane (with whom Emmett J agreed at [49]) relevantly said (at [19]):

    “More importantly, evidence that the respondent’s psychological difficulties might explain an unconvincing performance during the hearing before the Tribunal is hardly apt to establish his unfitness to ‘give evidence and present arguments.’ It may be accepted that the Tribunal might have taken a different view of the credibility of the respondent’s account of his circumstances in Pakistan if the further evidence relating to the respondent’s psychological deficits and their impact on his ability to give persuasive evidence had been placed before the Tribunal. But the absence of that further evidence does not establish that the hearing before the Tribunal proceeded on a false assumption about the respondent’s ability to ‘give evidence and present arguments relating to the issues arising in relation to the decision under review’.”

25. Importantly, this was not a case where the: “… integrity of the hearing under s.425 was subverted by a want of an appreciation on the part of the Tribunal that the [applicant’s] case might have been adversely affected by an impaired mental state of which the Tribunal was oblivious” (SZNVW at [37]).

26. The Tribunal was plainly on notice as to the medical evidence that the applicant was said to be suffering from PTSD, and for that matter RD. The relevant question here however is not just whether the applicant was suffering from these conditions, but whether he was fit or capable of giving evidence and presenting arguments.

27. That “unfitness” was said to be because of the applicant’s memory loss, and because he was forgetful and vague. It was reasonably open to the Tribunal to therefore give little weight to Dr Wu’s first report as it did not directly address the submission made, nor link PTSD with the memory loss and vagueness.

28. Further, while the second report attempted to address this “link”, it was also reasonably open to the Tribunal to take the view that this report was of little value given the circumstances of its creation.

29. Unlike as in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553, in this case the Tribunal was squarely on notice as to the applicant’s claims in this regard. In the circumstances it was open to the Tribunal to come to an adverse view as to the applicant’s credit. Further, there was no error in the Tribunal’s assignation of little weight to the reports from Dr Wu which it found did not affect its adverse credit finding.

30. Nor in the circumstances was there any failure of procedural fairness arising from s.425. The applicant had every opportunity to put his claims. His representatives were present at the hearing. They made a number of submissions. The issues in the review were aired. The applicant may indeed have been suffering from PTSD and anxiety. In the circumstances, however, this did not mean that the Tribunal was thereby bound to uncritically accept or excuse everything that the applicant said. Dr Wu’s attempt in the second letter to link a diagnosis of PTSD to hearing performance was dealt with by the Tribunal. In the circumstances, it was open to the Tribunal to find this report was not of assistance.

31. The applicant’s claim that the Tribunal did not consider the consequences of his PTSD condition in considering the application must be rejected. It did consider Dr Wu’s report in this regard and arrived at the conclusion that it did not outweigh, nor affect, nor explain its own view of the applicant’s lack of credit.

32. The critical element which the applicant’s submissions failed to recognise is that the question is not whether the Tribunal failed to recognise whether the applicant’s diagnosed PTSD condition affected his capacity, but rather whether, in the context of s.425 of the Act, he was denied a “meaningful opportunity” to present arguments in support of his claims and to be able to understand and respond to the questions put to him by the Tribunal (SZNVW at [20]).

33. I agree with the Minister that in all the circumstances, the applicant did have such an opportunity. He was vigorously represented by two lawyers, one of whom was a registered migration agent. He and his son, who appears to have some competency in English, gave evidence at the hearing.

34. Importantly, the transcript of the hearing reveals that the applicant was able to understand (through the interpreter) the Tribunal’s questions and to respond to them. It was open to the Tribunal to find that the paucity of his responses and the manner in which they were given was not due, or explained by, memory loss, anxiety or depression ([94] at CB 295).

Ground Three

1. Another allied line of attack in submissions was that the Tribunal should have been “enlivened” by Dr Wu’s reports to the need to make further inquiry about his PTSD condition and how this affected his capacity and performance at the Tribunal hearing.

2. This was also said to be directly linked to, or that ground three follows consequentially from, the complaint in ground one.

3. The attack had a number of iterations. The first was to assert a breach of s.424A.

4. This was explained in submissions that s.424A (probably a reference to s.424A(1)(b)) provides that the Tribunal should have provided “proper particulars” of the intention to affirm the delegate’s decision by finding adversely to the applicant’s credit, which in turn was reached by disregarding the applicant’s medical condition.

5. Even putting to one side that the factual basis for this complaint (that the Tribunal did not consider his medical condition) is not made out in the circumstances, what the Tribunal made of this evidence, its “intention” to affirm the decision, its subjective view of the doctor’s reports and the weight to be accorded to them, and the applicant’s medical condition, is not “information” for the purposes of s.424A (SZBYRv Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) at [17] to [18]).

6. A second iteration was that the Tribunal should have made further inquiry about the applicant’s medical condition. In effect, I understood the attack to be that the applicant’s medical condition was “not an insignificant matter” (oral submissions), that the applicant’s condition went to “the heart of the evidence” that the Tribunal “was receiving” (oral submissions). In all, even if there was a “difference” between Dr Wu’s report (PTSD and anxiety) and Mr Borg’s submission (that the applicant was suffering from memory loss), the Tribunal should have made further inquiry (presumably of Dr Wu or the applicant or his advisers) to ascertain whether PTSD had the affect as submitted by Mr Borg.

7. To the extent that that “inquiry” should have been directed to the applicant and/or his advisers and that there was an obligation on the Tribunal to do so beyond the s.424A argument otherwise pressed, such a submission is rejected in showing error on the part of the Tribunal.

8. First, the applicant relies on Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (“SZIAI”) at [25]. Of course what was explained there must also be understood by this Court in the context of what was also said in SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 per Bennett J (with reference to Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 per Kenny J at [60]) at [30]:

   “… 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 …”

9. The circumstances of this case do not fall into the rare and exceptional category. The applicant was represented by two lawyers before the Tribunal. Both were present at the hearing. Dr Wu’s second letter was clearly commissioned by one of them following the hearing and in light of what occurred there.

10. If the inquiry was so “obvious”, the question remains as to why the applicant’s advisers did not make it of Dr Wu themselves. Dr Wu was not some third party unknown or remote from the applicant. The duty to inquire in rare and exceptional circumstances must also be seen in light of the obligation on the applicant to make out his case. It is not for the Tribunal to do this for him.

11. However, the substantial answer to the applicant’s complaint is that that mirrors the approach to the circumstances before the High Court in SZIAI and how the Court (the joint judgment) approached them (at [26]).

12. What is missing in the applicant’s submissions now is the fact that “further inquiry” actually did take place. Mr Borg made that inquiry of Dr Wu and provided a second report to the Tribunal. Not having been present at the Tribunal hearing, as he openly and properly set out, it is difficult to see what obvious further inquiry could then have been made of Dr Wu by the Tribunal.

13. Further, and also in this context, as was found in SZIAI, it is difficult to see that any further inquiry directed by the Tribunal to the applicant’s representatives, and then through them to Dr Wu, could have yielded any useful result.

14. In submissions before the Court I understood the thrust of the criticism to be that once the Tribunal had been “enlivened” to the matter of the applicant’s diagnosed PTSD and of the possible impact and explanation for his performance at the hearing, the Tribunal should have made “further inquiry” of him and given him the opportunity to provide further evidence and submissions.

15. To the extent that this implies that the Tribunal was required to provide a running commentary on its views of the evidence presented and submissions already made then this must be rejected. There is no failure in procedural fairness in not providing “endless loops” of opportunities for comment in itself.

16. Any complaint that the applicant was denied an opportunity to be heard must also be rejected. The Tribunal complied with its procedural fairness obligations as they arose from s.425 of the Act (see SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 231 ALR 592). The applicant was squarely on notice following the delegate’s decision that the credibility of his factual account was at issue. He was given every opportunity to address this, both before, during and after the hearing with the Tribunal. That Dr Wu’s second response did not, and indeed in the circumstances could not, go any further in assisting him does not mean he was denied the opportunity to be heard.

17. In all, grounds one and three are not made out.

Ground Two

1. Ground two as stated (without any particulars whatsoever) asserts that the Tribunal fell into error in not accepting the “applicant’s credit” in determining that he was not a refugee.

2. The short and simply answer is that the Tribunal is not obliged to do so. There is no obligation on the Tribunal to uncritically accept part or all of what an applicant says (Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 per Beaumont J).

3. Second, an adverse finding of an applicant’s credibility is a finding of fact within the exercise of the Tribunal’s jurisdiction (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 per McHugh J).

4. In the current circumstances the Tribunal’s adverse finding was reasonably open to it on what was before it. The Tribunal gave careful consideration to the matters before it including the applicant’s submissions and documentary evidence. Those matters on which its analysis focussed provided a probative, and it must be said logical, basis for its adverse credibility finding (Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 at [64] – [69] per Tamberlin and Nicholson JJ).

5. As referred to above (at [18] – [25]) the Tribunal had ample and probative material on which to base its conclusion. The Tribunal dealt with the totality of the applicant’s claims and evidence. It rejected his claims to have been a Falun Gong practitioner in China for reasons arising from the presentation and circumstances of that claim.

6. That it also found adversely to the applicant’s credit with reference to the circumstances surrounding the making of his protection visa application and the making of the student guardian visa application was also within the ambit of the exercise of its jurisdiction. There is no error in the Tribunal finding, based as it was on these matters relevant to the circumstances of the applicant leaving China and coming to Australia, that the applicant’s provision of “incorrect information” in this regard raised concerns about his reliability as a witness of truth. To assert error in this regard, without anything further, is really to cavil with the Tribunal’s relevant findings of fact.

7. Further, as Mr Hughes submitted, the Tribunal was plainly aware of the need to have regard to the difficulties faced by applicants in presenting their claims, and that the benefit of the doubt should be given to those who are generally credible ([87] at CB 294). This obviously echoes what is set out at [203] – [204] (at page 48) of the “Handbook on Procedures and Criteria for Determining Refugee Status”.[1]

   [1] Office of the UNHCR, Reedited edition, 1992, Geneva.

8. As stated, ground two is not made out.

1. In submissions ground two appeared to metamorphose into a different complaint. Putting to one side that no leave was granted for the applicant to amend his application at this late stage of the proceedings and in seeking to give the applicant every opportunity (albeit that with two legal advisers proper grounds with particulars should have been pleaded at an earlier time) I understood the complaint to have three limbs.

2. The first was, it must be said, a confused misunderstanding of what was said in SZOCT v Minister for Immigration & Citizenship [2010] FMCA 425 (“SZOCT”) at [31]. In drawing on this, the submission appeared to be that the Tribunal fell into error in not asking itself the right question as to whether the applicant was a Falun Gong member (see [20] of the applicant’s written submissions).

3. I understood this complaint to be that the Tribunal did not focus on matters relating to Falun Gong, but first looked to other matters such as the applicant’s circumstances in making his applications for the student guardian and protection visas.

4. At best, the complaint appears to be the Tribunal then “used” the adverse credibility finding in relation to these matters to find adversely to the applicant’s claim to be a Falun Gong practitioner.

5. To the extent that this is a complaint about the Tribunal’s adverse credibility finding in general this must be rejected for the reasons already set out above.

6. Further, the complaint also fails at the factual level. While the Tribunal did have regard to these “other” (but still relevant) matters, it specifically and separately addressed and considered the applicant’s claim to be a Falun Gong practitioner. The Tribunal did not reject the applicant’s claim in this regard because of its adverse credibility finding in relation to the other matters alone.

7. The Tribunal also rejected his claim to be a Falun Gong practitioner because of what it perceived about his responses to relevant questions ([92] at CB 295), his inability to go beyond a brief description of the basic tenets of his claimed faith ([93] at CB 295), and his inability to elaborate in a meaningful, persuasive or detailed manner ([93] at CB 295). No error is revealed here.

8. The second limb flows from the first. The submission was that the Tribunal denied the applicant procedural fairness in that it did not permit the applicant to demonstrate his ability to practice Falun Gong by demonstrating relevant Falun Gong exercises.

9. In particular, Mr Vassili took issue with the Tribunal’s findings that the applicant’s responses to questions about Falun Gong were brief (see generally at [92] to [93] at CB 295). He referred the Court to the transcript of the Tribunal hearing at T22, lines 28 to 44:

   “[DR O’CONNELL] Okay. So you’re taking the medication and you’re practising Falun Gong. Okay. Now, there was some other things – were there things that you wanted to tell me about that I haven’t asked you questions about? I’m conscious that I’ve been asking you questions. Maybe there’s something you wanted to tell me.

   [THE INTERPRETER] What do you want to know?

   [DR O’CONNELL] Well, it’s not what I want to know. It’s what you think it’s important that I know in order that I can be satisfied that you’re a refugee.

   [THE INTERPRETER] Can I show you how to do a practice, the exercises?

   [DR O’CONNELL] If you want to you can, but I don’t consider myself in the position to really judge a person by their exercise, since I don’t do those exercises myself. But perhaps at the end of the hearing you’re welcome to show me. If we run out of time – I would just like to make sure we use the interpreter as much ---”

10. What is immediately apparent is that when regard is had to the whole of the transcript, the Tribunal’s approach in relation to the applicant’s claimed practice of Falun Gong was in part to draw the applicant on his understanding of the Falun Gong “faith”, how he came to this understanding and how and in what circumstances he practiced it both in China and Australia (see for example T12, line 16: “… And when did it become your faith?”).

11. That part of the transcript relied on by the applicant now must be read and understood in context. The applicant was given every opportunity to explain his faith and his practice of it. That evidence was more than sufficient to provide the probative basis for the Tribunal’s findings which are now the subject of this complaint.

12. It is the case that the statutory test, the question the Tribunal was compelled to answer, was whether the applicant had a well-founded fear of persecution if he were to return to China. In effect, this meant it needed to see if it could be satisfied that he met the definition of refugee (s.65 and s.36(2) of the Act). The central claim advanced was that he feared persecutory harm because of his faith in, and practice of, Falun Gong in China.

13. The Tribunal chose a particular way of answering this question. That is, to ask the applicant about his faith, his understanding of its tenets and his practice. There is certainly nothing improper, irrelevant or irregular in such questioning. In fact, it is highly pertinent to ask an applicant about his faith if he is claiming to be in fear of persecutory harm because of it. There is clearly no failure of procedural fairness (either pursuant to s.425 or at common law) in this approach.

14. That the applicant wanted to demonstrate certain exercises does not in the circumstances reveal any error on the part of the Tribunal. The Tribunal plainly, as in effect it clearly said, was unable to be assisted in reaching the requisite level of satisfaction by the applicant demonstrating these exercises. The Tribunal said it could not “judge” these exercises. In these circumstances, any such demonstration would have been a futile exercise.

15. When regard is had to the statutory test, the Tribunal’s position is entirely appropriate. Even if the applicant had demonstrated the exercises, it would not have assisted him before the Tribunal. The statutory test does not posit some objective criterion which this Court can then “judge” for itself whether the applicant is a refugee. The test is one of the satisfaction of the relevant decision maker. In this case, there was no failure of procedural fairness in the Tribunal indicating that such a demonstration would not assist in fulfilling its statutory and jurisdictional charge.

16. Nor is there any requirement that the Tribunal member be omniscient or all-knowing. Ultimately, it is for the Tribunal to conduct the hearing, having regard to the law, but clearly also to conduct the hearings within its own human limitations.

17. This is not a case where no opportunity was provided to the applicant to demonstrate his Falun Gong faith and practice. Nor is this a case where the dispositive issues in the review were not made apparent to him.

18. It may well be that the applicant went to the hearing expecting to be asked to demonstrate Falun Gong practices as is often seen in many cases before the Tribunal. But this Tribunal’s approach does not, in the circumstances, reveal any failure of procedural fairness.

19. The third limb of this complaint is that the Tribunal set itself up as the arbiter of what a Falun Gong practitioner should believe. That is, it set its own standard about the question of doctrinal faith and judged the applicant against this.

20. The applicant relied on SZOCT at [31]:

    “I conclude that the Tribunal committed a jurisdictional error because by approaching the applicant’s claims on the basis that he had to satisfy the Tribunal that he possessed a particular level of doctrinal knowledge to justify being regarded as a Christian, the Tribunal asked itself the wrong question and there was a constructive failure of jurisdiction.”

21. The applicant says this is demonstrated when regard is had to the Tribunal’s analysis at [93] (CB 295):

    “… He did not elaborate in a meaningful, persuasive or detailed manner that one would reasonably expect from a person claiming to have adhered to Falun Gong since 2003, and claiming to have had access to DVDs and books on Falun Gong”.

22. The applicant’s complaint that the Tribunal approached the applicant’s claim to be a Falun Gong practitioner from the basis that he had to satisfy the Tribunal that he possessed a certain level of knowledge misunderstands what was more relevantly and recently said on this issue by the Full Federal Court in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 (“SZLSP”), especially per Kenny and Rares JJ, and in SZONC & Anor v Minister for Immigration & Anor [2010] FMCA 723 per Raphael FM.

23. I respectfully agree with Raphael FM that, in light of earlier Federal Court authorities (Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 1599, WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 42) that:

    “[41]… the Court should recognise those cases in which this course of action [to find error as asserted now] is undertaken by the Tribunals as rare and should not rush to so minutely examine every case in which religious knowledge is questioned in order to attempt to find such error...”

24. For current purposes, the applicant’s complaint can be rejected if regard is had to what Kenny J said in SZLSP at [37]:

    “… There is, however, a difference between: (a) operating from the premise that all believers will have certain specific knowledge; and (b) concluding, after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant’s lack of knowledge indicates that he is not a genuine adherent of a religion.”

25. Beyond mere assertion, the applicant made no real, let also persuasive, argument that the Tribunal approached the matter as in “(a)” above.

26. As her Honour went on to say in the same paragraph:

    “Further, it must be remembered that the Tribunal’s written reasons typically represent a Tribunal’s concluded view after considering all the evidence. If a Tribunal ultimately finds that an applicant’s lack of particular knowledge is a reason to reject his claim, this finding does not necessarily mean that the Tribunal approached the matter from the outset on the a priori basis that the applicant was required to demonstrate that knowledge.”

27. In my view, the material before the Court is such as to show that the Tribunal proceeded as in “(b)” above.

28. The applicant’s lack of knowledge about Falun Gong was at issue before the delegate. While the applicant told the delegate that he had read relevant literature, his demonstrated lack of knowledge about that literature “… coupled with the inconsistency and vagueness in his answers…” led the delegate to believe that the applicant was not a Falun Gong practitioner as he claimed (CB 77.4).

29. This situation was mirrored before the Tribunal. The applicant’s evidence was that he had been practising Falun Gong since 2004 ([41] at CB 286) and had Falun Gong DVDs, CDs and books at home. These were allegedly found by the police when they arrested him.

30. The Tribunal’s assessment of his answers to relevant questions at the hearing was plainly based on his brief, limited, uninformative ([92] at CB 295) responses. The Tribunal plainly saw his failure to “… elaborate in a meaningful, persuasive or detailed manner” to be inconsistent with, amongst other things, someone who had claimed to have had access to Falun Gong DVDs and books. Plainly the standard against which the Tribunal reached its conclusion was with reference to the Falun Gong materials that the applicant claimed to have had in his possession and to otherwise have had access. This was not some arbitrary standard imposed by the Tribunal ([91] at CB 295).

31. The transcript and the Tribunal’s account of the hearing in its decision record reveals that the Tribunal sought to evaluate the applicant’s answers against the material which the applicant himself claimed to have had in his possession. The weight to be given to that evaluation is for the Tribunal (SZLSP at [38]).

32. In written submissions under this ground ([24] of the applicant’s written submissions) reference is made to the Tribunal’s failure to particularise “matters” that were required to be put to the applicant pursuant to s.424A.

33. What this has to do with the ground as asserted in the application or even the remainder of the written submissions under the heading of ground two remained unexplained.

34. In submissions before the Court, Mr Vassili referred the Court to the transcript at T73, lines 28 to 32 (noting again that Mr Vassili was present at the hearing and that the Tribunal’s comments here were addressed to him):

    “[DR O’CONNELL] Yes, that’s fine. As I said, I won’t be moving for a decision, and if I think there are things that I haven’t, sort of, brought to your attention, then I will certainly be writing, you know, things that have come under Act 424A, as opposed to just processes of my mind, because that obviously is not something that needs to be put to you.”

35. Mr Vassili explained that what he understood from this was that the Tribunal was going to “particularise the issues that arose during the proceedings” and to write to the applicant in this regard.

36. While it may be allowed that there was some looseness of language by the Tribunal with the reference to “matters”, there is no basis for Mr Vassili’s expectation either in fact, or more pointedly with regard to the relevant law.

37. First, the Tribunal’s plain language was that if any “matters” (Mr Hughes invited the Court to read this as “information”) pursuant to s.424A, arose during the course of the subsequent consideration the Tribunal would write to the applicant in this regard.

38. Second, in submission Mr Vassili clearly confused the concept of “information” as it is relevant to s.424A (and s.424AA) and “issues” relevant to s.425.

39. It should be understood that, with the reference to s.424A, the Tribunal could only have been referring to “information” and not “issues”. Even if the Tribunal did not understand the difference (and there is not sufficient material before the Court to make such a finding), at the hearing Mr Vassili, as a lawyer, should have understood the Tribunal’s comment in this way. If he was confused by what the Tribunal said (the reference to “material”), then the opportunity was available to clarify it.

40. Third, whether the Tribunal misunderstood or not is in any event irrelevant. Only one “issue” or “matter” was raised before the Court as revealing the Tribunal’s failure pursuant to s.424A. That was the adverse view that the Tribunal took of the applicant’s credibility. This is clearly not “information” or indeed a “matter” for the purposes of s.424A or s.424AA (SZBYR at [17] to [18]).

41. To the extent that the complaint was that there may have been some other “issues” unidentified, but generally foreshadowed by the Tribunal’s comment, then the answer is that the Tribunal’s comment was contingent on some “matter” arising. It was not a promise to write no matter what.

42. Further, no other “matters” or “issues” were identified before the Court (other than what is referred to above).

43. The “issues” that Mr Vassili says should have been put in writing, the Tribunal’s view of the applicant’s credit, was not a matter relevant to s.424A. Any failure of procedural fairness in relation to the

    
    

    non-disclosure of “issues” is to be more properly seen in context as relevant to s.425.

44. Here, as the High Court explained in SZBEL, such issues if they did not arise as a result of the delegate’s decision need to be aired at a hearing, not in writing. Mr Vassili’s complaint before the Court that the applicant was entitled to conclude that there were no “issues” in relation to these unidentified matters referred to by the Tribunal is misguided.

45. He seemed to suggest that there may have been documents that “were said to be forgeries”. The problem for the applicant is that the Tribunal made no such finding. If what was meant was the Tribunal’s findings in relation to the preparation and submission of his student guardian (the applicant raised this matter and as noted during the hearing that this was a forgery – see T72, line 31) and protection visa applications, then these were discussed in any event at the hearing (see T9 and T26).

46. In whatever fashion, whether as pleaded, submitted or explained, ground two, in all its iterations, does not reveal error on the part of the Tribunal.

Conclusion

1. With the benefit of legal advice, the applicant has put a large number of complaints before the Court (in one way or another). None reveal error, let alone jurisdictional error, on the part of the Tribunal. In these circumstances, the application is dismissed.

I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  21 December 2010