SZQBM v Minister for Immigration

[2011] FMCA 807

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQBM v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 807

MIGRATION – Review of decision of the Refugee Review Tribunal – whether the Tribunal applied an assessment posited by an expert as a test of credibility – whether the Tribunal’s reasoning was illogical, irrational or unreasonable – whether the Tribunal asked the wrong question – meaning of the words “assess” and “test” – request for impermissible merits review – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 91R, 414, 476

Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367

Applicant: SZQBM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 546 of 2011

Judgment of: Nicholls FM

Hearing date: 26 August 2011

Date of Last Submission: 26 August 2011

Delivered at: Sydney

Delivered on: 21 October 2011

REPRESENTATION

Counsel for the Applicant: Mr C Jackson (direct access)

Appearing for the Respondents: Ms K Whittemore

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 24 March 2011, and amended on 31 May 2011, is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 546 of 2011

SZQBM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The application before the Court was made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 24 March 2011 and amended on 31 May 2011. It seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 February 2011, 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 11 August 2009 as the holder of a student visa. She applied for a protection visa on 31 May 2010 (see Court Book – “CB” – CB 1 to CB 28). She was assisted by a registered migration agent – “Qian Weiming” (CB 26).

Claims to Protection

1. Her claims to protection were initially set out in a statement attached to her application (CB 29 to CB 31). Her claims to fear harm were that she had harboured a Falun Gong practitioner in China who was “caught” by police. She was taken to a police station where she was mistreated.

2. On release she and her mother, who had begun to practice Falun Gong, were “paid a lot more attention” by the authorities. After she came to Australia she learned that her mother was taken by police and mistreated. While in Australia she started to practice Falun Gong.

3. Her fear of harm emanated from the Chinese authorities and the claimed “inhuman” treatment given to Falun Gong practitioners in China, and because of the help she gave to the practitioner.

The Delegate

1. The applicant was interviewed by a delegate of the respondent Minister. He found that there were “unlikely and implausible factors” in her account, that it was unreliable and inconsistent, and that some of her evidence was difficult to believe. In all, the delegate found that she was not a genuine Falun Gong practitioner and refused the application (CB 65 to CB 71).

The Tribunal

1. The applicant applied to the Tribunal for review on 24 September 2010. She continued to be assisted by the same registered migration agent (CB 72 to CB 75).

2. Following a number of postponements, some due to the applicant’s claimed medical circumstances, the applicant ultimately appeared at a hearing before the Tribunal on 17 June 2011 (CB 107). The Tribunal’s account of what occurred is contained in its decision record ([17] at CB 133 to [130] at CB 146).

3. The Tribunal understood the applicant’s claims to arise from two causes. First, that she harboured a Falun Gong practitioner who was of interest to the authorities and that she would be punished for this. Second, that she would be punished because, since coming to Australia, she herself had become a “genuine [Falun Gong] practitioner” ([141] at CB 148).

4. The Tribunal had concerns about the truthfulness of the applicant’s account based on her inconsistent evidence ([142] at CB 148 to [149] at CB 150). In addition, the Tribunal found there were “logical” problems with some aspects of the applicant’s account. Fairly read, this is a finding that certain aspects of her account were variously illogical, implausible, difficult to accept, or lacking internal consistency ([150] at CB 150 to [154] at CB 151).

5. As it found that the applicant was not a witness of truth, the Tribunal rejected her factual account of claimed events and harm which were said to have been suffered in China ([155] to [156] at CB 151).

6. While the Tribunal accepted that the applicant engaged in some Falun Gong related activity in Australia, it disregarded this conduct pursuant to s.91R(3) of the Act ([158] at CB 152 to [162] at CB 153).

Before the Court

1. The applicant was represented by Mr C Jackson of counsel (direct access) at the hearing before the Court. Ms K Whittemore appeared for the first respondent. Leave was granted to the applicant to file an amended application.

2. The grounds are:

   “Ground one.

   1. The Tribunal based its finding that the Applicant’s practice of Falun Gong in Australia had to be disregarded in assessing her claims pursuant to section 91R(3) of the Migration Act 1958 (Cth) on a test of credibility which had no basis in the evidence before the Tribunal.

   Particular one.

   The Tribunal directed itself that ‘genuine [Falun Gong] practitioners never hold back’ when speaking about their practice (Relevant Documents, page 152, paragraph 159 (‘RD152[159]’) (in apparent reliance on a quote from a seminar to the RRT (RD147[137]), in making a finding that she was not a ‘genuine Falun Gong practitioner’ (RD152[159]), because she claimed moderate benefits, and required ‘some prompting to talk about what Falun Gong meant to her’ (as, in fact, was advocated by Dr Perry in the Tribunal seminar.)

   Ground two.

   In the alternative to ground one, the Tribunal’s reasoning particularised in ground one was illogical, irrational, or unreasonable, because it applied an illogical, irrational, or unreasonable test of the genuineness of the Applicant’s commitment to Falun Gong.

   Ground three.

   In the alternative to grounds one and two, the Tribunal asked the wrong question when it asked whether or not the Applicant ‘held back’, or expressed her opinions without prompting, in determining whether or not the Applicant’s practice of Falun Gong in Australia should be excluded pursuant to section 91R(3) of the Act.”

3. The applicant’s three grounds arise from the following aspects of the Tribunal’s reasoning, centred on the following paragraph in its “Findings and Reasons” ([159] at CB 152):

   “Country information as quoted above indicates that three factors are useful indicators of whether a person is a genuine Falun Gong practitioner: their ability to perform the five exercises, their reading of Zhuan Falun and their ability to speak about why they do Falun Gong, what their experience of it is, and how it has helped them and other people they know (a subject on which genuine practitioners never hold back). The Tribunal asked the applicant on several occasions during the hearing to describe the importance of Falun Gong in her life. The applicant’s first response was to say that Falun Gong had made her fitter and healthier and spiritually more tolerant and calmer. The Tribunal put to her that she was being medically treated for high blood pressure, stress and insomnia which seemed to belie the claimed benefits. The applicant said that within the circumstances of her health, she had gained some benefits. As put to the applicant at hearing, while she was able to talk about what Falun Gong meant to her, the Tribunal considered that she required some prompting to do so and did not gain the impression from her delivery that she had a deeply felt personal attachment to Falun Gong even though she was describing it as her faith. The applicant did not respond specifically to this observation except to say that her migration agent had advised her that her evidence of Falun Gong practice in Australia was insufficient”.

   [Emphasis added – see below at [20].]

Understanding the Grounds

1. As set out above, one of the bases for the applicant’s claim to fear serious harm (persecution) if she were to return to China in the foreseeable future was that she had taken up the practice of Falun Gong since coming to Australia.

2. No transcript of the Tribunal hearing is before the Court, however the Tribunal’s own account, contained in its decision record which is before the Court, reveals that the applicant was questioned about Falun Gong (see [92] to [96] at CB 139).

3. Mr Jackson submitted that the Tribunal found “… that the applicant has a sound knowledge of Falun Gong principles…” ([126] at CB 145).

4. I should just note that the part of the decision record relied on in this regard was not in the Tribunal’s “Findings and Reasons”, but contained in the Tribunal’s account of what occurred at the hearing. More properly, this should be read as the Tribunal having put to the applicant at the hearing that, in relation to her claimed relevant conduct after arrival in Australia, such conduct needed to be considered in light of s.91R(3) of the Act. That while it appeared to the Tribunal that the applicant had a sound knowledge of Falun Gong principles, the relevant task for the Tribunal was to assess whether “the applicant is genuine about her practice of Falun Gong” ([126] at CB 145).

5. Mr Jackson takes issue with the subsequent relevant finding (in [159] at CB 152 – see [15] above). In particular, that part of its analysis which referred to “genuine practitioner’s never hold back” when speaking of their Falun Gong practice. This led the Tribunal, it was said, to make a finding that the applicant was not a genuine Falun Gong practitioner because she required some prompting to talk about what Falun Gong meant to her (see emphasis at [15] above – in [159] at CB 152).

6. The applicant’s grounds, therefore, are that the Tribunal fell into error because it proceeded on a “test of credibility which had no basis in the evidence” before it (ground one). In the alternative, its reasoning was illogical, irrational, or unreasonable in applying this test to the genuineness of the applicant’s commitment to Falun Gong (ground two). Further, in the alternative, that the Tribunal asked the wrong question in asking whether the applicant “held back” or expressed her opinions without prompting in its determination of how to proceed pursuant to s.91R(3) (ground three).

The Applicant’s Submissions

1. Mr Jackson explained that the applicant had “no issue” with the “basic” question first posed by the Tribunal. That is, there is no attack on the Tribunal for posing the question as to whether the applicant was a “genuine” Falun Gong practitioner. Rather, the attack is on the reasoning or “process” by which the Tribunal concluded that she was not.

2. Mr Jackson referred to this “process” as derived from the Tribunal’s decision record:

   1)At [73]: The applicant gave evidence at the hearing that she took up Falun Gong for health reasons.

   2)At [80]: After reading some Falun Gong books she became “better mentally”.

   3)At [82]: She described the changes made to her life by Falun Gong.

   4)At [83]: The Tribunal raised the matter of the health benefits of Falun Gong and her separately having consulted medical practitioners for health reasons.

   5)At [93] – [95]: The applicant gave detailed evidence concerning her Falun Gong “faith” and “practice”.

   6)At [137]: The Tribunal recorded information obtained from Dr Benjamin Penny about “assessing the genuineness” of Falun Gong adherents:

   “Concerning assessing the genuineness of Falun Gong adherents, Dr Benjamin Penny said in 2006:

   What I would do to test genuineness, however, is to talk to applicants about why they do Falun Gong, what their experience of it is, how it has helped them and other people they know, etc. I realize the interview situation can be a little artificial but whenever I’ve talked to practitioners and displayed sincerity in wanting answers, they’ve never held back. You might also ask them how they apply the moral tenets of truth, compassion and forbearance (zhen, shan, ren) in their lives. (Penny, Dr. B, ‘Falun Gong: An Academic’s Perspective’, transcript of seminar presented to the RRT on 26 July 2006).”

3. Mr Jackson submitted that, in “sensible”, “unexceptional” terms, Dr Penny described a technique as to how to get Falun Gong “practitioners to talk to you”. The submission was that, implicit in Dr Penny’s evidence, as reported by the Tribunal, there is an element of coaxing and prompting.

4. This was the origin of the applicant’s particulars to ground one, which assert that the Tribunal directed itself that “genuine [Falun Gong] practitioners never hold back” when speaking about their practice. The attack on the Tribunal being, as it relates to facilitating practitioners to speak, that implicit in what Dr Penny advised was that there is an element of “coaxing” and “prompting” involved. This relates also to grounds two and three.

5. I understood the applicant’s position to be that Dr Penny was describing a process, or a technique, as to how he goes about obtaining from the claimant the material he needs to test whether the claimant is a “genuine” Falun Gong practitioner. Implicit in this is an element of prompting. Importantly, the emphasis in the submission is that this is a technique, not a test. Nor is it a test about the applicant’s unwillingness or reticence to answer. It is ultimately an assessment. That is, not a “test of genuineness”, but an “assessment of genuineness”. The attack on the Tribunal is that it took this “assessment” technique and applied it as a “test”. The submission is that this application can be seen at [157] to [158] of the Tribunal’s decision record, and especially at [159] (see above at [15]).

6. The applicant’s submission was that the central element of the “test” which the Tribunal has, by its misunderstanding of Dr Penny, incorrectly applied was especially that genuine practitioners “never hold back” in talking of their experience of Falun Gong and how it has helped them and others.

7. In its application of this test the Tribunal found that the applicant “required some prompting” in being able to talk about what Falun Gong meant to her. This then led the Tribunal not to gain the impression from the applicant’s “delivery” at the hearing that she had a deeply held commitment to Falun Gong “even though she was describing it as her faith”.

8. Against this background, following submissions, the applicant’s grounds as outlined at [21] above can be understood as follows:

   1)Ground one: The Tribunal misunderstood what Dr Penny said. It elevated what he said to a test of credibility in circumstances where there was no basis, or no evidence to support it doing so.

   2)Ground two: The Tribunal’s decision was illogical, irrational and unreasonable because there was no basis to apply Dr Penny’s advice as a “test”.

   3)Ground three: The Tribunal asked the wrong question in proceeding on the basis that the applicant held back and needed to be prompted before expressing her opinion of the benefits of Falun Gong.

Consideration

1. There are a number of answers to the applicant’s attack.

2. First, the applicant argues that Dr Penny was seeking to explain how he would assess whether a person is a genuine Falun Gong practitioner. The Tribunal misunderstood that what was being posited was an assessment technique and not a rigid “test” to be applied.

3. It is interesting to note that the actual word used in the quote attributed to Dr Penny (at [137]) is “test”, not “assess” (“What I would do to test genuineness”).

4. The Macquarie Dictionary (Revised 3^rd Edition), in its most relevant definitions, defines:

   1)“Assess”: to measure or evaluate.

   2)“Test”: that by which the presence, quality or genuineness of anything is determined.

5. It would appear therefore, given the above dictionary definition and a plain reading of what Dr Penny is reported to have said, that “test” is the more appropriate term to use given what Dr Penny was seeking to convey.

6. Second, it is the case, in any event, that this exercise in semantics does not assist the applicant. Whether Dr Penny used “test” and meant “assess”, or whether he used “test” and did not mean “assess”, or even if he used “test” to mean “test”, is not the relevant question for this Court.

7. The task with which this Tribunal was jurisdictionally charged was to review the delegate’s decision to refuse a protection visa to the applicant (s.414 of the Act). The central question for the Tribunal in the exercise of its jurisdiction was whether it would be satisfied that the applicant met the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention, such that the visa must be granted (s.65 and s.36(2) of the Act).

8. In the circumstances of this case, the Tribunal was required to answer the question of whether the applicant had a well-founded fear of persecution if she were to return to China in the foreseeable future because she was a Falun Gong practitioner.

9. Any claimed failure to properly exercise jurisdiction, whether actual or constructive, must be assessed in that context, and as against the requirements of the test as outlined immediately above.

10. In addressing that test the Tribunal had regard to certain information. Specifically, and relevantly, this included the advice from Dr Penny.

11. What must be immediately noted is, as Ms Whittemore correctly submitted, that it is for the Tribunal to identify the material it finds relevant to its reasoning, and to give it what it considers to be the appropriate weight (Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] – [7]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [46]). After all, that is what the proper exercise of its jurisdiction to review the delegate’s decision required it to do. The choice and weight given to such information is a factual matter for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] – [13]).

12. But the applicant’s attack really is on what is said to be the Tribunal’s misunderstanding and misapplication of what Dr Penny said. The misapplication being, in great part, that the Tribunal misunderstood that what Dr Penny said was not a rigid test to be applied to assessing the applicant’s “genuineness” as a Falun Gong practitioner.

13. In this context the third and critical answer to the applicant’s argument is that the applicant was unable to explain what the difference is, in the circumstances of this case, between an “assessment” and a “test”, and second and in particular, and pointedly, was unable to explain how the Tribunal’s actual reasoning elevated what was said to be Dr Penny’s assessment technique for “genuineness” to a test.

14. It is difficult in the circumstances of this case not to view the applicant’s argument as an artificial construct designed to achieve the outcome of revealing jurisdictional error. It is the case that a failure to apply the correct test, or the misapplication of the correct test, or the misapplication of a test, can lead to jurisdictional error. However an assessment with which the applicant disagrees is merely a challenge to the merits. That is a challenge to the fact finding made by the Tribunal. This does not lead to jurisdictional error being revealed, particularly in circumstances where this Court cannot conduct merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481).

1. A plain, and certainly a fair, reading of the material before the Court reveals that the Tribunal did not purport, or even mistakenly act, to apply any such “test” in the way that the applicant now contends.

2. The relevant facts as found by the Tribunal, and not disputed by the applicant now, are that the applicant was not a Falun Gong practitioner, genuine or otherwise, in China. The relevant events in China, as put by the applicant herself, were that she feared harm because she had harboured a Falun Gong practitioner.

3. It is the second basis of her claim to fear persecutory harm which is of concern to the applicant’s attack now. That is, that she became a “genuine Falun Gong” practitioner since she came to Australia, and feared persecutory harm for this reason if she were to return to China.

4. The applicant’s charge that it can be inferred that the Tribunal elevated Dr Penny’s “assessment” technique to a “test”, particularly with reference to the reasoning at [159] (at CB 152), when also seen in light of what is set out at [137] (at CB 147), must be considered in light of the actual claims made by the applicant and her claim that what is referred to at [46] above formed a second basis for her claim to fear persecutory harm.

5. In the circumstances, the Tribunal properly turned its mind to the claimed conduct in Australia, and as to whether this conduct was such as to be caught by s.91R(3) of the Act.

6. In this light the critical paragraph is at [162] (at CB 153) of the Tribunal’s decision record. Here, the Tribunal concluded that it accepted that the applicant had developed knowledge of Falun Gong since arriving in Australia, and had some limited involvement in practice sessions and other Falun Gong activities. However, the key finding by the Tribunal was that it did not accept that this knowledge and conduct evidenced a genuine commitment to Falun Gong. The Tribunal disregarded such conduct pursuant to s.91R(3) of the Act.

7. Its reasons for this were varied.

8. First, the Tribunal found that the applicant was “not a person of credibility” ([162] at CB 153). In context, this in part informed the Tribunal’s subsequent findings about the applicant’s claimed conduct in China and Australia ([162]).

9. Second, the Tribunal reasoned that, in circumstances where the applicant made no claim to have been a Falun Gong practitioner in China, her Falun Gong related conduct in Australia, when seen in light of the adverse credibility finding, in part led the Tribunal to find that it was not satisfied she engaged in such activity in Australia other than for bolstering her refugee application ([163] at CB 153).

10. Third, the Tribunal had regard to the applicant’s own evidence that she feared being associated with Falun Gong in China, and that she had initially stated she had intended to return to China at the end of her course of study. In these circumstances, the Tribunal had difficulty in accepting that simply reading some Falun Gong material (the “Nine Commentaries”) would change firmly held views of the previous 10 years ([157] at CB 151).

11. Fourth, the Tribunal also had regard to the applicant’s evidence that she started her Falun Gong practice in Australia “properly” on 16 April 2010, which was almost 10 days before her mother was arrested in China, and when she claimed a summons had been issued to her by the Chinese authorities. Given her other evidence about her fear of the Chinese authorities, the Tribunal found it unlikely that the applicant would have continued with her Falun Gong practice even if it accepted that the claimed events had occurred ([158] at CB 152).

12. Fifth and further in this regard, the Tribunal gave little weight to photographs the applicant provided in corroboration of her claimed conduct in Australia in circumstances where the photographs related to the only two Falun Gong events in which she claimed to have participated in Australia. This must also be seen in context of a general statement provided by another claimed Falun Gong practitioner who asserted, without any explanatory detail, that the applicant was “genuine” (CB 96 and [160] at CB 152).

13. The reasoning in the paragraph ([159] at CB 152) under attack now must be seen in light of, and in context of, the totality of the Tribunal’s reasoning as outlined above.

14. At [159], therefore, the Tribunal had regard, amongst the other things set out above, to three factors which the relevant information before it said were “useful indicators” of whether a person was a “genuine” Falun Gong practitioner.

15. Plainly, whatever is meant by the use of the word “test” as used by Dr Penny, or the word “assess” as Mr Jackson claims Dr Penny used the word “test”, the Tribunal, on any plain reading, saw that what Dr Penny had set out were “useful indicators” of a genuine Falun Gong practitioner.

16. There is nothing in the language, meaning or context in which this appears, to say that the Tribunal elevated a technique of assessment to a rigid test. Quite the contrary, the relevant factors were said to be “useful indicators” (at [159]).

17. Of the three factors, the applicant’s attack now is focussed essentially on the third. Namely, that one of the useful indicators of whether a person is a genuine Falun Gong practitioner is: “… their ability to speak about why they do Falun Gong, what their experience of it is, and how it has helped them and other people they know (a subject on which genuine practitioners never hold back)…” (at [159]).

18. The Tribunal then recounted those parts of the applicant’s evidence that it considered to be relevant to this assessment. The Tribunal relevantly made two findings arising from this evidence. First, that while the applicant was able to talk about what Falun Gong meant to her she required some prompting to do so and second, that the Tribunal did not gain the impression from her delivery that she had a deeply felt personal attachment to Falun Gong, even though she was describing it as her faith.

19. Mr Jackson submitted as to the first that, contrary to the approach by the Tribunal, Dr Penny implicitly accepts that some prompting may be required. Although initially this was put as an argument in support of the proposition that the Tribunal elevated Dr Penny’s advice from an “assessment” to a “test”, ultimately it was put in the context that what Dr Penny was doing was giving advice as to how the Tribunal members could become “better inquisitors”.

20. First, it is a matter for the Tribunal as to how it chooses to asses such “country” information. Second, and ultimately, the applicant’s attack here, whether pitched as an assessment elevated to a test or advice as to how to be a better inquisitor, does not succeed on the basis that I do not agree that the Tribunal misunderstood or misinterpreted what Dr Penny said in this regard.

21. At best, in this regard I understood the applicant’s argument to be that it was implicit in Dr Penny’s advice that some “prompting” of Falun Gong claimants was required. The submission was that this arises from that part of his advice that, whenever he has spoken to Falun Gong practitioners and displayed sincerity in wanting answers in those circumstances, “they never hold back”. That is, the display of sincerity is the prompt for them to “never hold back”.

22. In my view, I do not see the reference to the inquisitor displaying sincerity as grounding an inference that Falun Gong practitioners require prompting. Rather, it was open to the Tribunal to understand this advice as being that genuine practitioners never hold back in talking about their Falun Gong faith. To facilitate this discussion Dr Penny would seek to display some sincerity in seeking answers.

23. The difficulty for the applicant now is that she has brought no evidence to the Court to base any argument that this Tribunal member did not act in this way. On the evidence before the Court, that is the Tribunal’s account of what occurred at the hearing, the Tribunal gave the applicant every opportunity to present her evidence relevant to the question of her Falun Gong faith (see in particular at [79] – [82] (at CB 137), [93] – [95] (at CB 139) and [127] (at CB 145)). That the Tribunal also indicated to the applicant that it had concerns about her evidence does not go to reveal any display of lacking sincerity in wanting answers.

24. It cannot be that Dr Penny should be understood by that phrase as meaning that the Tribunal should disregard its procedural fairness obligations to the applicant and not put to her matters adverse to her cause for fear that this could discourage the applicant, or be seen as a display lacking sincerity (whatever that really means). Plainly, what was meant was that the Tribunal should engage in a meaningful way with the applicant such as to provide the opportunity that would facilitate, or create the appropriate environment, in which a genuine Falun Gong practitioner would best display their ability to speak about Falun Gong in a fulsome way (“never hold back”). There is nothing before the Court in the account of the hearing that would argue that the Tribunal did not act in this way.

25. Whatever intricacies of meaning the applicant may seek to introduce now, whatever meanings of words may be sought to be attributed, and whatever inferences may be sought to be drawn, what remains is that it was open to the Tribunal to understand that what Dr Penny was saying was that, in the appropriate environment, notwithstanding the artificial aspects of an “interview”, genuine Falun Gong practitioners would speak openly and fulsomely about their Falun Gong faith.

26. There is no error evident in how the Tribunal understood Dr Penny. Nor can I see error in how the Tribunal applied his advice in one plank of its rejection of the applicant’s claim to have been a genuine Falun Gong practitioner.

27. In the Tribunal’s view, the applicant had not displayed a satisfactory ability to speak fulsomely and openly about her Falun Gong faith.

    
    

    To the contrary, the Tribunal found she required prompting. It ultimately formed the view from her “delivery” that she did not have a deeply felt personal attachment to Falun Gong. Implicit in this is that, given that she was claiming to describe her faith, the Tribunal expected her to have done so.

28. In my view, this was an exercise within jurisdiction. The Tribunal applied relevant information to the applicant’s circumstances and evaluated her evidence and the way that she gave that evidence. This was done as against the expert advice it had received as to how a genuine Falun Gong practitioner would deal with the presentation of their faith, even in the stressful, artificial environment of an “interview”.

29. When viewed in this way, the Tribunal’s assessment that the applicant was not a genuine Falun Gong practitioner, based as it was on the applicant’s own evidence and relevant information before it, was reasonably open to make on what was before it, and for which it gave reasons.

30. This did not involve some misunderstanding or misapplication of a test outside the scope of the Tribunal’s proper exercise of its jurisdiction. The Tribunal used the information made available by Dr Penny to assist in its assessment of the applicant’s evidence. Its finding that the applicant was not a genuine Falun Gong practitioner, such that it could not be satisfied that relevant conduct in Australia was engaged in other than for the purpose of strengthening her refugee claims, was in accordance with s.91R(3) of the Act. Ground one is not made out.

31. The test for unreasonableness, irrationality or illogicality is that as explained by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367, and supported by the approach taken by Hayden J in that case, in factual circumstances similar to those before this Court now.

32. As set out above, the Tribunal’s findings, and its relevant ultimate satisfaction (in the context of s.91R(3) of the Act), in this case are based on probative evidence before it. Its reasoning was not illogical because, whatever else may be said about it, while minds may differ, the Tribunal’s finding was open to it. Ground two is not made out.

33. Nor on what is set out above did the Tribunal ask itself the wrong question, in the context of s.91R(3) of the Act, in answer to the pleading that it did so when it asked whether or not the applicant “held back”, or expressed her opinions without prompting. The Tribunal found against the applicant’s cause in this regard on a range of factors in answering the question posed pursuant to s.91R(3) of the Act. That the applicant required some prompting to answer questions which the Tribunal found would have been answered immediately and fulsomely by a genuine Falun Gong practitioner, and that this informed the question posed by s.91R(3), was a part of the evaluation process engaged in by the Tribunal. It was within jurisdiction. Ground three is not made out.

Conclusion

1. With the benefit of counsel the applicant has put forward three grounds. None of these are made out. The application is to be dismissed.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  21 October 2011