SZOWG v Minister for Immigration
[2011] FMCA 493
•1 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOWG v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 493 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal constructively failed to exercise jurisdiction or erred in its application of s.91R(3) of the Migration Act. |
| Migration Act 1958 (Cth), s.91R(3) |
| Minister for Immigration Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642; [2009] HCA 40 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419; [2006] FCAFC 195 SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 SZHVL v Minister for Immigration and Citizenship [2008] FCA 356 SZNKR v Minister for Immigration and Citizenship [2010] FCA 582 |
| Applicant: | SZOWG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2736 of 2010 |
| Judgment of: | Barnes FM |
| Hearing date: | 1 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 1 June 2011 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2736 of 2010
| SZOWG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 15 November 2010 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People’s Republic of China, arrived in Australia in January 2010 and applied for protection in April 2010. In a statement accompanying her protection visa application she claimed to be a Falun Gong practitioner who had been arrested, detained and tortured by the Chinese authorities for four days in September 2004. She claimed that she was released after she signed a guarantee that she would cease practising Falun Gong. She subsequently moved to Japan for three years, returning to China before she applied for a visitors visa to come to Australia. She claimed that since arriving in Australia she had practised Falun Gong openly.
The applicant attended an interview with the delegate and provided photographs which she claimed depicted her engaging in Falun Gong activities in Australia. The delegate was not satisfied the applicant had been a Falun Gong practitioner since 2001 as claimed and refused the application.
The applicant sought review by the Tribunal. The applicant provided the Tribunal with a statutory declaration. She elaborated on her claims at two Tribunal hearings.
In its decision the Tribunal summarised the claims and evidence before it, setting out the essence of the applicant’s claim as being that “if she returns to China, she will be persecuted by the Chinese authorities because she is a Falun Gong practitioner”.
The Tribunal set out the evidence given by the applicant at the hearings, including details of concerns it raised with the applicant about various aspects of her claims including her failure to do Falun Gong exercises after September 2004 until she came to Australia in January 2010. The applicant reiterated her explanation that she did not have the opportunity to do the exercises in her three years in Japan because of her long hours of work and the fact she was monitored by her boss or his wife on her day off each week.
The Tribunal also put to the applicant that while from her answers to some of the Tribunal questions about Falun Gong and her demonstration of Falun Gong exercises at the first hearing it may accept that she was now a Falun Gong practitioner and had learnt the knowledge and exercise skills through Falun Gong related activities in Australia, if she had engaged in Falun Gong related activities or conduct in Australia for the sole purpose of strengthening her claim to be a refugee that conduct must be disregarded in assessing whether or not she was a refugee. The Tribunal explained to the applicant that it may disregard her Falun Gong related conduct in Australia, particularly if it found that she was not a Falun Gong practitioner before she came to Australia but that she was now.
The Tribunal also recorded that it put to the applicant concerns about the plausibility of aspects of her claims and the possibility that it may find her not to be a credible witness and her answers in that respect.
In its findings and reasons the Tribunal had regard to the applicant’s evidence that the sole reason she feared she would be persecuted if she returned to China was because she was a Falun Gong practitioner. The Tribunal accepted that the Falun Gong practice and its practitioners fell within the concepts of “religion”, “membership of a particular social group” or “political opinion” for the purposes of the Refugees Convention and that Falun Gong practitioners may suffer persecutory harm by the Chinese authorities. The Tribunal also accepted, based on independent information before it from Falun Dafa organisations, that the practice of Falun Gong consisted primarily of “two essential components”: self-improvement through studying Master Li’s teachings and performing eight specific sets of exercises. However, for reasons stated, the Tribunal found that “the applicant is not a Falun Gong practitioner”.
The Tribunal considered the applicant’s evidence that for more than five years before she came to Australia she did not do Falun Gong exercises at all. While accepting that for the two-year period the applicant lived in China, due to a risk of persecutory harm and a hostile husband she could not do exercises and also that she was restricted, fatigued and apprehensive of undesirable consequences if found to do exercises in the three years she lived in Japan, the Tribunal was of the view that the applicant still had the opportunity to do exercises in Japan in the privacy of her own room, but that she did not utilise this opportunity for more than three years. Based on the independent country information to the effect that the exercises were an essential component of the practice of Falun Gong, the Tribunal found that the applicant was not a Falun Gong practitioner before she came to Australia.
The Tribunal was also of the view that the applicant had fabricated the story about the way she was recruited into Falun Gong practice in 2001 (when the practice was banned) by a stranger in a busy marketplace asking her to resign from the Communist Party or the Youth Communist League or Young Pioneers. The Tribunal considered the high risk of adverse consequences to a person asking a stranger to resign from such organisations and join a banned organisation made this story implausible.
The Tribunal considered that the applicant had also fabricated the claims about her arrest and detention in September 2004. It found it implausible that it was not her priority to ask her husband to provide food and drinks after 72 hours of starvation or clean clothes in circumstances in which she claimed she had urinated on her clothes while detained. The Tribunal did not accept her explanation that because she was a Falun Gong practitioner such matters were not a priority. It considered that these things would “be a priority for any reasonable person including a Falun Gong practitioner”.
The Tribunal found that the applicant’s explanation that she did not seek protection in Japan or in Korea (which she visited for one day) because she did not know about the concept of refugee was unbelievable. It found that if the applicant was as desperate to leave China for freedom to practise Falun Gong as she claimed, she would have tried to exploit the fact that she was outside China and would have explored options to remain in either of these countries. It found this to be part of her fabricated story to establish refugee claims in Australia.
The Tribunal did not find the applicant to be a credible witness and did not accept that she was ever a Falun Gong practitioner in China.
The Tribunal then stated:
However, the Tribunal finds that the applicant is a Falun Gong practitioner at the present time. The Tribunal makes this finding on the basis of the answers she gave to some of the Tribunal’s questions on Falun Gong which were put to her at the first hearing. Her demonstration of the Falun Gong exercises at this hearing supports this finding. Numerous photographs she has provided to the Tribunal further supports this.
Given that she was not a Falun Gong practitioner before she came to Australia, how has she become a Falun Gong practitioner now? The Tribunal finds that she has learnt the practice’s theoretical knowledge and the exercise skills to a reasonable level as a consequence of her regular Falun Gong related activities in Australia from January 2010 to the present time. She gave evidence and provided photographs showing that she regularly did the exercises in groups and in private and also engaged in various other Falun Gong related activities since her arrival in Australia.
The Tribunal then considered whether the applicant feared persecution should she return to China, given that she was now a Falun Gong practitioner. However the Tribunal had regard to s.91R(3) of the Migration Act 1958 (Cth). It considered whether the applicant engaged in the Falun Gong related conduct in Australia for the sole purpose of strengthening her refugee claim or whether the conduct was engaged in for some other concurrent purpose. It stated:
Her evidence is that she engaged in the conduct because she believes in the Falun Gong principles and the practice has made her a better and happier person. The Tribunal has a different view. She did not do any Falun Gong exercise for more than 5 years before coming to Australia and for more than 3 years of this period she had reasonable opportunity to do the exercises. She gave evidence that immediately after coming to Australia she took up the practice and also became knowledgeable about the concept of refugee, and a couple of months later she lodged the protection visa application on the basis of fearing persecution due to being a Falun Gong practitioner and continued Falun Gong related conduct in Australia. Due to this history, the Tribunal is of the firm view that the applicant’s sole motivation for engaging in the Falun Gong related activities in Australia was for no other purpose other than to strengthen her refugee claims. Accordingly the Tribunal found that it must disregard all her Falun Gong related activities that she has engaged in Australia in assessing whether she has a well-founded fear of being persecuted [for a Refugees Convention reason].
The Tribunal found that the consequence of disregarding the applicant’s Falun Gong related conduct in Australia meant that the Tribunal’s finding that the applicant had never been a Falun Gong practitioner stood and that hence that she did not have a fear of persecution for reasons of Falun Gong practice. In light of these findings the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for any Convention-related reason if she returned to China now or in the reasonably foreseeable future and found that she was not a refugee.
The applicant sought review by application filed in this court on 20 December 2010. She filed an amended application on 16 March 2011 which is said to have been prepared by the barrister who provided advice under the Refugee Advice Scheme. No written submissions were filed and the applicant represented herself at the hearing. It was not entirely clear whether she intended to rely on the grounds in her original application as well as in the amended application. In these circumstances the solicitor for the first respondent addressed all of the grounds raised by the applicant in these proceedings, including in an affidavit supporting her original application.
In her original application the applicant claimed first that the Tribunal had “failed to investigate [her] claims”. There are no particulars to this contention. It was not addressed by the applicant in what she said orally today.
It is well established that the Tribunal is under no general duty to make inquiries. There is nothing in the circumstances of this case to establish that there was a failure by the Tribunal to make an obvious inquiry about a critical fact the existence of which was easily ascertained in the sense considered in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39. This ground is not made out.
The second ground is again unparticularised. It is that the “Tribunal decision was affected by actual bias constituting jurisdictional error”. It may be that the applicant intended to address this issue in claiming generally in oral submissions that the Tribunal was unfair in its findings and reasons. In particular, she seemed to assert that the Tribunal was unfair in not accepting that she was a genuine Falun Gong practitioner. However it is well established that actual bias is a serious allegation which must be distinctly made and clearly proved. (See the general discussion in Minister for Immigration Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17). In this case the material before the court, including what is in the court book, consists in essence of the applicant’s written claims and the Tribunal reasons for decision. There is no transcript of either or both of the Tribunal hearings before the court. Bias or, indeed, apprehended bias is not established merely by adverse findings. Nor is the fact that the Tribunal on its own account raised issues of concern with the applicant at the hearings such as to establish either actual or apprehended bias. Indeed, as was said in SZHVL v Minister for Immigration and Citizenship [2008] FCA 356, it is only in a rare and extreme circumstance that bias on the part of the Tribunal would be established simply by reference to the Tribunal reasons. This is not such a case. It was open to and indeed proper for the Tribunal to raise issues of concern with the applicant at the hearing. The matters raised by the applicant and the material before the court are not such as to establish actual or apprehended bias on the part of the Tribunal. This claim is not made out.
The third ground in the original application is that the “Tribunal failed to take into account the full gravity of [the applicant’s] circumstances.” Again this claim is not particularised. Insofar as it may be taken to be a submission that the Tribunal failed to take into account an integer of the applicant’s claims, this has not been established. Insofar as it is an assertion that the Tribunal failed to consider the applicant’s situation in China or her state of persecution as she claimed, the Tribunal considered the applicant’s claims about what she said had occurred in the past in China. However, as set out above, it found for reasons that were open to it on the material before it, that the applicant was not a credible witness and did not accept that she was a Falun Gong practitioner in China, or her claims about what she said had occurred to her on that basis. Credibility findings are matters for the Tribunal. Insofar as the applicant takes issue with such findings she seeks merits review which is not available in this court, as I endeavoured to explain to her. In addition to considering the applicant’s claims about past events in China, the Tribunal also turned its mind to whether it was satisfied that the applicant had a well-founded fear of persecution for any Convention related reason if she returned to China now or in the reasonably foreseeable future, insofar as necessary to do so on the findings it had made. The applicant’s disagreement with the Tribunal conclusions in that respect do not establish jurisdictional error or that the Tribunal erred in failing to consider her situation either in the past or the future in China.
In the course of her oral submissions the applicant sought to put before the court two translations of recent witness statements in corroboration of her claims about what she said occurred in China. However she confirmed to the court that these documents were not before the Department or the Tribunal. They were not admitted into evidence and were returned to her as it was not apparent that they were in any way relevant in establishing whether the Tribunal fell into jurisdictional error.
The applicant also claimed generally, without explanation, that the Tribunal referred to country information only to the extent to which it suited the Department. It is well-established that the selection and weight to be given to items of country information is a matter for the Tribunal. No jurisdictional error is established in this respect. Insofar as the Tribunal referred to information in relation to the practice and philosophy of Falun Gong, it put aspects of that information to the applicant in the course of the hearing. The issue she takes with the selection of country information does not establish jurisdictional error. No jurisdictional error is established on any of the bases contended for in the original application or supporting affidavit.
The amended application contains one ground with a number of particulars. It is that the Tribunal constructively failed to exercise its jurisdiction by failing to consider whether the applicant had a well-founded fear of persecution in China as a Falun Gong practitioner. The particulars are that:
a. The Tribunal found that the applicant was a Falun Gong practitioner: CB 137 at [62];
b. This finding was based, inter alia, on answers to questions asked by the Tribunal at the hearing.
c. However, it made its decision on the basis that the applicant was not a Falun Gong practitioner because:
i. she had become a Falun Gong practitioner because of her practice in Australia;
ii. she had only practised in Australia in order to strengthen her claims to be a refugee; and
iii. it was required to disregard her activities in Australia because of the operation of s 91R(3) of Migration Act 1958.
d. Section 91R(3) did not require the Tribunal to disregard the fact (as found by it) that the applicant had become a Falun Gong practitioner, only her conduct: see NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at 442 – 443, [92] – [96] per Young J.
e. This means that there was a factual basis which could have supported the applicant’s claim to be a refugee within the meaning of the Refugees Convention, namely, that she was a Falun Gong practitioner. The Tribunal’s failure to consider this constituted a constructive failure to exercise jurisdiction and, thus, infected its decision with jurisdictional error.
As indicated no written submissions were filed, although in her oral submissions the applicant did take issue generally with the Tribunal findings in this respect on the basis that the Tribunal should have believed she was a practitioner in Australia, and did not take into account the situation in mainland China if she was sent back to China.
This ground asserts an apparent flaw in the Tribunal reasoning, which was said to be made on the basis that the applicant was not a Falun Gong practitioner. It is contended that s.91R(3) only required the Tribunal to disregard the applicant’s conduct, not the fact she had become a Falun Gong practitioner.
This ground relates to the fact that in the middle of its findings and reasons the Tribunal made the statement that it found that the applicant was a Falun Gong practitioner at the time of its decision but later stated that she was not a Falun Gong practitioner. In considering the Tribunal reasons for decision and whether jurisdictional error is established it is necessary to bear in mind that, as was stated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6, the Tribunal decision should not be construed with an eye too keenly attuned to error. In Wu Shan Liang the majority judgment referred in some detail to the proper role of a reviewing court in stating (at [30]) that a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. The reasons for the decision under review are not to be construed minutely and finally with an eye keenly attuned to the perception of error.
The Tribunal made the positive finding on the basis of answers the applicant gave to questions at the first hearing on Falun Gong and a demonstration of exercises and photographs she had provided. The Tribunal however, was of the view the applicant had taken up the practice of Falun Gong in Australia.
It must be said that the Tribunal reasons for decision are not expressed with complete clarity. Indeed the solicitor for the first respondent submitted that the Tribunal’s expression in [62] in finding the applicant “is a Falun gong practitioner at the present time” could at the least be described as “infelicitous”.
However it was submitted, and for the following reasons I accept, that when the Tribunal reasons for decision were read as a whole and in context, it was clear that the Tribunal did not accept the applicant’s claim that she was a genuine believer in Falun Gong principles and practices notwithstanding that it accepted that she had acquired knowledge of Falun Gong and engaged in Falun Gong activities in Australia. The Tribunal put its concerns to the applicant in relation to the application of s.91R(3) in the course of the Tribunal hearing.
The Tribunal started its findings and reasons by stating that:
For reasons stated below, the Tribunal finds the applicant is not a Falun Gong practitioner and hence she cannot suffer persecution for reasons of her Falun Gong practice if she returns to China.
As the reasons reveal, this finding was based on the Tribunal’s assessment of the applicant’s claims about, and conduct in, China and Japan. The Tribunal did not find the applicant to be a credible witness for reasons it gave. It did not accept that she was ever a Falun Gong practitioner in China. It then accepted, in effect, that the applicant had engaged in Falun Gong activities and Falun Gong exercises in Australia. However it went on to consider, consistent with s.91R(3) of the Act, whether she had satisfied it that she engaged in such conduct otherwise than for the purpose of strengthening her claim to be a refugee.
The Tribunal stated:
Does the applicant meet the second element of the refugee definition given that she is now a Falun Gong practitioner and she fears persecution on this basis if she returns to China? To assess this question it is necessary to have regard to the provisions of s91R(3) of the Act. Section 91R(3) provides that, in determining whether a person has a well-founded fear of being persecuted for one or more of the Convention reasons, any conduct engaged in by the person in Australia must be disregarded unless the person satisfies the Minister (or the Tribunal on review) that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee. The meaning of the section was considered by the High Court in Minister for Immigration and Citizenship v SZJGV [2009] HCA 40. The High Court held that, section 91R(3) requires that conduct engaged in within Australia, which has as its sole purpose the creation of a claim to a well-founded fear of persecution, should not be taken into account. The High Court further stated that the Tribunal is to disregard conduct in Australia unless satisfied that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee if it is determined that evidence of the conduct would strengthen the claim.
The Tribunal then considered whether the applicant’s Falun Gong related conduct in Australia was engaged in for the sole purpose of strengthening her refugee claim or whether it was engaged in for some other concurrent purpose. In this context, it considered the applicant’s claim that she engaged in the conduct because she believed in the Falun Gong principles as well as her claim that the practice had made her a better and happier person. However it did not accept this. For reasons which it gave, due to the applicant’s history in Australia, the Tribunal was of the firm view that her sole motivation for engaging in the Falun Gong related activities in Australia was for no other purpose than to strengthen her refugee claims. In other words the Tribunal was not satisfied by the applicant of the genuineness of her motivation for engaging in certain Falun Gong activities.
In these circumstances, notwithstanding the bald statement in paragraph [62] of its decision, it cannot be said that the Tribunal accepted that the applicant was a genuine Falun Gong practitioner such that it had to consider whether she had a well-founded fear of persecution in China on that basis. This is in contrast to the situation in NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419; [2006] FCAFC 195 referred to in the amended application. That case was a decision of the Full Court of the Federal Court which predated the High Court decision on s.91R(3) in Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642; [2009] HCA 40. The main judgment was delivered by Young J, with whom the other two judges of the Full Court agreed. In the course of his judgment (see [86] – [90]) his Honour made some observations in relation to a ground that may have arisen in relation to s.91R(3) of the Act. Such observations were obiter as his Honour was of the view that for other reasons the appeal could be disposed of without determining whether or not the Minister’s reliance on s.91R(3) in that case was misplaced. His Honour referred to the issue of whether the acquisition of religious faith was to be regarded as conduct within the meaning of s.91R(3) or whether there was a distinction between the fact of a conversion (in that case to Christianity) and subsequent conduct engaged in by way of Christian faith in Australia.
However such comments were made in relation to a genuine conversion to Christianity. In that context that Young J referred to SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 (in which it had been accepted by a Full Court of the Federal Court (at [43]) that it was open to the Tribunal to find that a person’s claim to profess a particular religion was not genuine). Young J found that SBCC did not go so far as to say that s.91R(3) could be applied to disregard a person’s decision to adopt a particular religion, but rather that it related to a person’s engagement in activities. Relevantly, his Honour drew a distinction between the Tribunal finding that a religious conversion was not genuine and an acceptance that a religious conversion was genuine but, despite this, a conclusion that the fact of conversion should be disregarded under s.91R(3). In NBKT Young J found it unnecessary to consider whether s.91R(3) would authorise the Tribunal to disregard the fact of religious conversion as distinct from conduct that might thereafter be engaged in by a convert in Australia.
In this case, given that the Tribunal did not accept that the applicant had engaged in Falun Gong activities in Australia for “any purpose” other than to strengthen her refugee claim, it is clear that insofar as the applicant claimed to believe in Falun Gong principles the Tribunal did not accept that a claim was genuine. Rather it found that she had engaged in the practice of Falun Gong in Australia (and in that sense was a practitioner) for the sole purpose of strengthening her refugee claims.
As the first respondent submitted, the Tribunal rejected the applicant’s claim that she genuinely engaged in Falun Gong activities in Australia. In such circumstances it was open to the Tribunal to find that her practice of Falun Gong in Australia was not genuine (see SBCC at [43] to [45]) and it did not err in considering whether she had a well-founded fear of persecution as a believer in or genuine practitioner of Falun Gong.
Moreover, there is nothing in the present case to establish that the Tribunal failed to comply with or have regard to the operation of s.91R(3) of the Act. As the High Court recognised in SZJGV (in both the judgments of Crennan and Keifel JJ and French CJ and Bell J), s.91R(3) was intended to ensure that a protection applicant could not generate sur place claims by deliberately creating circumstances to strengthen his or her claim for refugee status (see the Explanatory Memorandum referred to in SZJGV and the Second Reading Speech to the same effect). Hence conduct in Australia is disregarded unless the Minister is satisfied that the actions were not done just to strengthen claims for protection (see SZJGV at [9], [27] and [63]).
In this instance the effect of the Tribunal disregarding the applicant’s conduct pursuant to s.91R(3) was that there was no evidence before it of the applicant’s Falun Gong conduct in Australia for the purposes of determining her claim to be a refugee. It is also clear that it did not accept that she had become a genuine Falun Gong practitioner. In SZNKR v Minister for Immigration and Citizenship [2010] FCA 582 at [18] to [24] Rares J discussed and summarised the effect of SZJGV. In that case, as here, the Tribunal gave detailed reasons why it rejected the applicant’s claim to be a Falun Gong practitioner in China. Having reached the view that it was not satisfied that she engaged in Falun Gong related conduct in Australia for any purpose other than to strengthen her claims to be a refugee, it was entitled and, indeed, bound by s.91R(3) to disregard that conduct.
Having found that the applicant’s sole motivation was for no purpose other than to strengthen her refugee claims, the Tribunal went on to disregard her Falun Gong related conduct. It did not leave extant, as it were, any genuine beliefs. The Tribunal went on to consider, as it was required to do, whether it was satisfied that the applicant had a well-founded fear of persecution for a Convention reason in China on that basis. In other words the Tribunal properly understood its jurisdictional task. It has not been established that it constructively failed to exercise its jurisdiction in the manner contended for in the amended application.
Notwithstanding the infelicitous manner in which the findings and reasons part of the Tribunal’s decision is expressed, in what appear at first sight to be contradictory statements in relation to whether or not the applicant is a Falun Gong practitioner, it has not been established that it erred in a manner constituting jurisdictional error.
I note finally that in the course of oral submissions the applicant took issue with the Tribunal’s findings. However, as indicated merits review is not available in this court. The applicant also claimed that she had had difficulties obtaining evidence from China and that such material was not before the Tribunal. There is no suggestion that the applicant sought additional time to provide information to the Tribunal or that any such request was not considered. The fact that the applicant now seeks to produce additional material does not go to show jurisdictional error on the part of the Tribunal, although it may be a matter that she wishes to raise with the Minister for Immigration. The existence of supporting documentation that was not before the Tribunal does not establish jurisdictional error on the part of the Tribunal.
The applicant also reiterated her claims to be a genuine Falun Gong practitioner. As I endeavoured to explain to her, it is not for this court to decide whether or not her claims should have been accepted as a matter of fact. Factual findings are a matter for the Tribunal and merits review is not available in this court. As no jurisdictional error has been established, the application must be dismissed.
The applicant has been unsuccessful and the Minister seeks costs in the sum of $4,300. Such an amount is appropriate in light of the nature of this and other similar matters. The applicant claimed that because she wanted to appeal it could not be said that she had lost her case. However the normal approach is to make a costs order where an applicant has been unsuccessful. If the applicant were to succeed on an appeal then the issue of costs would of course be revisited, but the fact that she indicates that he or she wishes to appeal is not a reason for not making the award of costs as sought in the present case. There is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 29 June 2011
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