SZQKO v Minister for Immigration
[2011] FMCA 821
•21 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQKO v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 821 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – Tribunal’s findings reasonably open to it – Tribunal complied with statutory obligations – impermissible merits review – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424, 424AA, 424A, 476 |
| Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 Re Minister for Immigration and Multicultural Affair; 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 NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174; (2006) 237 ALR 592; (2006) 156 FCR 205 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259 |
| Applicant: | SZQKO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1449 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 14 October 2011 |
| Date of Last Submission: | 14 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 21 October 2011 |
REPRESENTATION
| The Applicant: | In Person |
| Appearing for the Respondents: | Mr L Leerdam |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application made on 8 July 2011 is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
| SZQKO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 8 July 2011 under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of decision of the Refugee Review Tribunal (“the Tribunal”) made on 10 June 2011 which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The applicant is a national of the People’s Republic of China (“China”). He arrived in Australia on 27 February 2009 on a visitor visa. On 25 June 2010 the applicant applied for a protection visa (see Court Book – “CB” – CB 1 to CB 26).
Claims to Protection
The claims to protection advanced by the applicant were set out in his protection visa application (CB 17 to CB 20).
He asserted that he was a Falun Gong practitioner and he was “harassed and persecuted” because he held such beliefs (CB 17). The applicant claimed to have commenced following Falun Gong in June 2006. He stated that his religious activities were discovered by the Police in 2007 and as a result he was detained for one month at the Kaifeng detention centre. During this month, the applicant claimed to have been forced to “attend brainwashing classes and sign the written promise to give up our belief” (CB 17).
The applicant claimed to continue practising Falun Gong following his release from the detention centre. In 2008, prior to the Olympics, the applicant said he was questioned by the police on numerous occasions.
The catalyst for the applicant leaving his home city of Kaifeng and China was said to be the arrest of several of his fellow Falun Gong practitioners in January 2009.
The Delegate
On 1 September 2010 the applicant was invited to attend an interview with the delegate (CB 34 to CB 35). He did so on 5 October 2010 (CB 36). On 13 October 2011, the delegate refused the application for a protection visa (CB 40 to CB 51).
The delegate found that the Convention ground of political opinion was the essential and significant reason for the harm the applicant claimed to fear (CB 48) (presumably taking the view that Falun Gong was not a religion). Whilst the delegate held that the harm feared involved serious harm and systematic and discriminatory conduct as required under the Act, he was not satisfied that the applicant’s fear was
well-founded (CB 48 and CB 51).
The delegate considered the applicant’s written claims to be vague and lacking in specifics. Further, that the applicant was unable to provide additional details in his oral evidence, failing to remember specific dates such as when he was detained and dismissed from employment (CB 50). Even further, the applicant altered his oral evidence during the course of the interview, claiming initially not to know any Falun Gong practitioners in Sydney, and ultimately stating that he knew many, and indeed lived with another Falun Gong practitioner. On this basis, the delegate made an adverse finding on the applicant’s credibility and found there was no reliable evidence to support the finding that the applicant had a fear, or that it was well-founded (CB 51).
The Tribunal
On 22 October 2010 the applicant applied to the Tribunal for review of the delegate’s decision (CB 58 to CB 61). The applicant was invited to appear before the Tribunal on 16 December 2010 (CB 63 to CB 64) and indicated, on 15 December 2010, his intention to attend (CB 65 to 72).
The applicant’s correspondence with the Tribunal on 15 December 2010 also included a referral letter from the New South Wales Health Service to New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Victims (“STARTTS”) dated 13 December 2010 (CB 68). That referral stated that the applicant had been diagnosed with depression 2 to 3 years prior, and although initially on Valium now took an undisclosed antidepressant (CB 68 and CB 117).
In addition, the Tribunal received a brain CT and an X-Ray result concerning the applicant on 15 October 2010 (CB 68, CB 70 and CB 118).
On 16 October 2010 the applicant attended a hearing with the Tribunal. At the conclusion of the hearing the applicant agreed to return for a further day of hearing on 20 December 2010 (CB 80 to CB 81 and [45] at CB 124). The Tribunal suggested he bring all evidence he had in support of his claim, including the medication, on the next occasion ([46] at CB 124).
On 20 December 2010 the hearing resumed and the applicant continued to give oral evidence (CB 95 to CB 96).
The only account before the Court of what occurred at the two occasions of the hearing is that contained in the Tribunal’s decision record (CB 113 to CB 141).
Correspondence between the applicant and the Tribunal occurred on numerous occasions following the conclusion of the “second” hearing. Specifically:
1)21 December 2010: the applicant contacted the Tribunal in writing and requested the Tribunal reserve its decision until after 10 January 2010 to allow him to see a psychiatrist at Auburn Refugee Health Service (CB 99).
2)13 January 2011: the Tribunal wrote to the applicant and requested him to provide details of any Falun Gong websites in which he was named as a persecuted person, as he had claimed at the hearing, by 5.00pm on 27 January 2011 (CB 100).
3)24 January 2011: the applicant wrote to the Tribunal and provided the web address of three sites and indicated he could not remember on which his name appeared (CB 101). The applicant also claimed to have lost his “certificates” from Canterbury Hospital and Auburn Community Health Centre and expressed an intention to lodge them as soon as they were found (CB 101).
4)27 January 2011: the Tribunal requested, in writing, that the applicant provide the specific webpage address on which his name appeared (CB 102). The letter also advised the applicant to file all medical certificates and reports on which he sought to rely by 5.00pm on 8 February 2011.
5)4 February 2011: the applicant wrote to the Tribunal and indicated he had requested that the Auburn Refugee Service send the material to the Tribunal directly. He claimed to have visited the Chinese Consulate-General on three occasions for the purpose of obtaining a passport. The applicant claimed to have been unsuccessful in acquiring a passport or other travel documents. He further claimed that he was unable to remember the specific webpage address (CB 104).
6)4 February 2011: the Tribunal invited the applicant to submit a medical report or certificate from Auburn Refugee Service no later than 11 February 2011 (CB 105).
7)8 February 2011: the Tribunal received, by way of fax, a letter from the NSW Refugee Health Service regarding the applicant (CB 107 to CB 108). Attached was a copy of the applicant’s brain CT report (CB 109) and x-ray report (CB 110).
8)14 June 2011: the Tribunal notified the applicant that his application for review had been refused.
The Tribunal ultimately did not accept that the applicant was a Falun Gong practitioner ([83] at CB 135), nor his claims that he was detained, arrested and physically assaulted on account of his beliefs ([83] at CB 135). The Tribunal gave reasons for finding that the claims had been “invented” for the purpose of supporting his protection visa application. Consequently, the Tribunal found that the applicant was not a person to whom Australia owed a protection obligation ([102] at CB 141) and it affirmed the decision of the delegate ([103] at CB 141).
Before the Court:
The application before the Court is in the following terms:
“I have been a Falun Gong adherent for which I was tortured brutally and injured seriously. I have the evidence, but the Tribunal didn’t accept my evidence as credible. The Tribunal member refused my claims and evidence so he made jurisdictional error in making his decision”.
The applicant appeared in person before the Court and was assisted by an interpreter in the Mandarin language. Mr L Leerdam appeared for the respondent Minister. Written submissions were filed by the Minister’s solicitors. Despite leave being granted to the applicant to file an amended application giving particulars of the grounds he relied upon, none were filed.
On 19 September 2011 the applicant sent the following letter to the Court:
“Dear Officer of Federal Magistrates Court,
I first appreciate you for authorizing free legal advise for me who has met me discussing about my case.
He advised me that he couldn’t find jurisdictional error in the Tribunal decision, so my application will be dismissed and suggests to withdraw my application from the Court.
I was cruelly persecuted and I have provided evidence to the Tribunal. The PSB has listed me as wanted. If I was forced to return to China, I will be arrested.
I implore The Court Judge will consider my circumstances and return my case to the Tribunal.
I need a Chines (Mandarin) interpreter.
Yours truly
[The Applicant]”
At the hearing before the Court the applicant stated that he wanted the Court to take this into account. [The applicant was told that he did not have to tell the Court what the panel lawyer told him.] There was no objection by the Minister to the letter being treated as written submissions given the applicant’s confirmation that he wanted to put this before the Court.
The applicant made the following further submissions:
1)He was sick during the hearing before the Tribunal. He complained that, as the Tribunal member was not a doctor, he was not in a position to make a judgment as to whether or not he was sick. He was on medication and fell asleep.
2)There was no evidence to support the Tribunal’s finding. It was not clear whether this was a reference to a finding that he was able to participate in the hearing, or to the Tribunal’s conclusion in relation to his claims.
3)At the hearing he was “ordered” to answer the Tribunal’s questions “right away”. He was not given time. He claimed he was told that if he did not answer immediately the Tribunal would make its decision “right away”.
4)He was denied the opportunity to obtain further documents from “the hospital” because of his lack of English.
Consideration
For the reasons that follow, I cannot see jurisdictional error in the Tribunal’s decision as it is said to arise from the grounds of the application, nor from submissions made by the applicant.
The first “ground” raised by the application is merely an assertion that he is a Falun Gong practitioner who suffered harm as a result.
Without further particulars or explanation it fails to allege a reviewable error. The Tribunal held that the applicant was not a Falun Gong practitioner, nor did he suffer torture or abuse as a result of any real or perceived adherence to Falun Gong ([101] at CB 140). The Tribunal’s finding that the applicant was not, and never had been, a Falun Gong practitioner was a finding of fact that was open to the Tribunal to make on the evidence before it, and for which is gave cogent reasons (Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 (“Randhawa”) at 251).
It followed then that the applicant had not suffered persecution in the past for any Convention ground as the Tribunal held that his claims of physical abuse were not credible ([100] at CB 140). The Tribunal’s finding that the applicant’s claim as to past events were an “invention”, and in particular that he was not a Falun Gong practitioner, formed the probative basis for its conclusion that there was no a real chance that, if he returned to China in the reasonably foreseeable future, he would suffer persecution in the Convention sense ([101] at CB 141).
The second “ground” raised by the application is that the Tribunal erred as it did not accept his evidence. The short answer to the applicant is that the Tribunal is not obliged to uncritically accept all or any of the applicant’s evidence or claims (see Randhawa at 451; Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 at 596).
The Tribunal is empowered to make findings of fact, including findings as to credibility. Provided that the findings made are reasonably open to it on the evidence available to it, no error is revealed (Re Minister for Immigration and Multicultural Affair; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).
In this case, the Tribunal made its decision having regard to the vague and unspecified claims made by the applicant ([96] at CB 139). The Tribunal also considered the applicant’s repeated failure to provide requested documents and details, including the webpage address he claimed to be named on, despite being afforded several months to do so ([94] at CB 138). The Tribunal turned its mind to the substantial differences in the applicant’s oral evidence when before the delegate, on the first and second occasion of the hearing before the Tribunal, and in his subsequent correspondence with the Tribunal ([85] at CB 135 and [86] at CB 136 to [89] at CB 137).
As a result, the Tribunal found that the applicant was not a witness of truth in regard to his application for protection, and did not accept his evidence. Having rejected the factual basis of the applicant’s claims, the Tribunal could not be satisfied that he met the legislative requirements to be owed a protection obligation by Australia and affirmed the decision of the delegate. The Tribunal’s findings were open to it on the evidence before it and cogent reasons for its findings were provided ([78] at CB 134 to [101] at CB 140; Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 (“Kopalapillai”)). In these circumstances, there is no jurisdictional error.
The third “ground” raised by the application alleges jurisdictional error on the part of the Tribunal, although it provides no particulars to support such a claim. In the absence of particulars or further explanation, the Court cannot find a jurisdictional error in the Tribunal’s refusal to accept the applicant’s evidence or claims. As discussed above, the Tribunal is entitled to make findings that are open to it on the facts before it, including with respect to the credibility of an applicant’s claims and evidence (Kopalapillai).
A number of other matters require note for the sake of completeness and are, in part, possibly linked to the applicant’s submissions before the Court.
First, the Tribunal wrote to the applicant following the hearing inviting him to provide information about his claim to be named on a Falun Gong website. Clearly this fell within the terms of s.424 of the Act.
However, no error is revealed. In these circumstances, the Tribunal is required to have regard to any information it receives. Plainly, when the applicant provided details of some websites, the Tribunal had regard to them and searched them for the applicant’s name. That his name did not appear does not reveal any failure to comply with s.424 (see [41] at CB 122, [49] at CB 125, CB 100 and CB 102 and [73] – [74] at CB 132 – CB 133, and particularly [94] at CB 138).
On the evidence before the Court, the Tribunal complied with the requirements that it have regard to the information that was provided by the applicant in response when making its decision.
Second, as the Minister’s submits, the applicant’s name was not listed on these websites. This may be considered to be “information” for the purposes of 424A(1), even in circumstances where the Tribunal invites such information (NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174; (2006) 237 ALR 592; (2006) 156 FCR 205).
However as Mr Leerdam correctly submitted, no error is revealed in the circumstances of this case. The sequence of events is that the Tribunal invited the applicant to provide certain information. That is, the websites on which he said his name appeared (CB 100). As set out above, the applicant provided certain information (CB 101). Also as set out above, the Tribunal complied with s.424.
To the extent, however, that the applicant directed the Tribunal to search certain websites, and the Tribunal’s regard to and use of these websites engages s.424A(1), this was information given to the Tribunal by the applicant and falls within the exception to the obligation set out in s.424A(3)(b).
Before the Court the applicant stated that he was now in a position to provide the Court with the location details of a relevant website on which his name appeared. As I sought to explain to the applicant, the time for producing such a detail was before the Tribunal. He had ample opportunity before the Tribunal to do so. Even if he could produce it now, the Court had no role to examine such evidence and make findings of fact contrary to those found by the Tribunal.
Third, I note that the Tribunal put certain information to the applicant at the hearing, it said, “pursuant to s.424AA” (see [38] at CB 120).
As this information was about inconsistencies in the applicant’s evidence it was not information for the purposes of s.424A(1) (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [17]). But there is no error in the Tribunal having done so.
Fourth, the applicant provided a number of medically related documents to the Tribunal. Specifically:
1)
A referral letter from NSW Health to STARRTS, stating that the applicant had been diagnosed with depression, had previously been taking Valium, and was now taking an unknown
anti-depressant (CB 68).
2)Information leaflet on “Mirtazapine” (CB 88-89).
3)A letter from the applicant dated 21 December 2011, sent after the “second” hearing, stating that his mind had not been clear at the hearing due to him having taken an anti-depressant and indicating an intention to see a psychiatrist (CB 99).
4)
A letter from the NSW Refugee Health Service dated 27 January 2011 which recorded that the applicant had said he was depressed and suicidal, and that he was being treated for depression (CB 107 – 110). The report also summarised the brain CT and
X-ray results and the applicant’s claims that these arose from his assault in 2007.
5)A brain CT report which stated that the applicant had been assaulted in 2007 and suffered right hand weakness, LOC and memory impairment (CB 69). The report concluded that there was no acute intracranial pathology identified.
6)An x-ray report which stated that the applicant had allegedly been assaulted previously and concluded that there was a deformity on the applicant’s right hand (CB 70).
The applicant also gave evidence to the Tribunal on his claimed medical conditions and the medication he claimed to be taking.
Before the Court the applicant variously complained that he was sick at the hearing and fell asleep because of medication that he had recently taken. At best, I understood the applicant to assert that this explained his poor memory and inconsistent evidence before the Tribunal.
Although not articulated as such by the (unrepresented) applicant, the question may arise as to whether in these circumstances the applicant was denied the opportunity of a fair hearing before the Tribunal.
However there are a number of difficulties for the applicant in this regard.
First, the Tribunal clearly understood the applicant’s claims in this regard, and was alert to the potential impact on the conduct of the hearing and the applicant’s capacity to participate meaningfully in it (see [47] below).
Second, the applicant has not produced any evidence to the Court to contradict the Tribunal’s account of what occurred at the hearing.
In this circumstance it is not open to this Court to draw any inferences as to what may otherwise be said to have occurred (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).
But, third, not even in submissions does the applicant say what otherwise may have occurred to have prevented a fair hearing. Rather, he merely repeats his assertions put to the Tribunal that he was “not well”, on medication, and that his memory was “not very good”.
The Tribunal plainly understood and considered the applicant’s claims and evidence in this regard. It did so extensively (see [31] – [33] at CB 117 – CB 118, [47] at CB 124, [57] at CB 127 – CB 128, [58] – [59] at CB 128). This latter paragraph reveals that the Tribunal was alert to the potential impact on a fair hearing and asked the applicant how he was feeling, and importantly whether he understood the questions put to him. The applicant is reported as replying positively to both (see also [77] at CB 133).
Ultimately the Tribunal found, for reasons which it gave and were open to it, that the applicant was not taking medicine which affected his memory nor his capacity to participate meaningfully at the hearing. The Tribunal found that the applicant was competent to give evidence (see in particular [89] – [94] at CB 137 – CB 138).
I agree with the Minister that there is no error in the Tribunal’s approach (Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 (“SZNVW”) at 585 [20] and 583 [22] per Keane CJ). Further, the Tribunal’s gave specific reasons for its findings, which included:
1)The Tribunal’s observations of the applicant at the hearing;
2)That none of the medical documents provided by the applicant stated he was not capable of representing his claims to the Tribunal; and
3)The lack of evidence to support the applicant’s claims as to memory impairment or injury ([94] at CB 138 – CB 139).
Ultimately the Tribunal rejected the applicant’s claim to be, at the relevant time, on particular medication. This was open to it. It gave reasons. In effect the Tribunal rejected the applicant’s claims in this regard to the extent they were put forward to explain his inconsistent and unsatisfactory evidence. It considered his claims as to the question of a fair hearing, and for reasons open to it rejected this claim ([80] at CB 137, [92] at CB 138, [94] at CB 138 – CB 139).
As to the applicant’s possible complaint that there was no evidence to support the Tribunal’s finding in this regard, it was its evaluation of the applicant’s own evidence, including documentary evidence provided by him, and the evaluation of this evidence in the context of all of his claims, circumstances and evidence, that formed the probative basis for its conclusion.
The complaint that the Tribunal member was not a medical practitioner, and therefore not competent to determine his claims in this regard, does not assist the applicant in revealing jurisdictional error.
The Tribunal is a lay Tribunal given the jurisdiction to conduct a review of the delegate’s decision to refuse a protection visa to the applicant. The Tribunal did not make any medical findings. Rather, it accepted the applicant’s medical evidence that he had injuries to his right hand and a scar to his right forehead ([91] at CB 138). But for the reasons given, based on other evidence he gave, rejected the claim that he was taking medication and had memory lapses as the explanation for his inconsistent and unsatisfactory evidence. No error is revealed.
The applicant’s complaint that, at the hearing, he was not given the opportunity to answer the Tribunal’s concerns and was “ordered” to answer immediately, must be rejected on the basis of, relevantly, what appears in the Tribunal’s unchallenged (by any other evidence) account of what occurred at the hearing (see [38] at CB 120).
The applicant also complained before the Court that he was denied the opportunity to obtain further documents “from the hospital”. These appeared to be documents which he said related to his “seeing doctors at the psychiatric ward”. The difficulties appeared to be that he was unable to communicate because of his lack of English and the lack of an interpreter, and so was not able to obtain these documents.
Unless these unidentified documents were able to directly bear on the applicant’s capacity to meaningfully participate in the hearing, it is difficult to see how they could have been of assistance to him. Evidence of depression, stress or, for example, some Post Traumatic Stress Disorder, on their own, would not be sufficient to establish a lack of competence (see SZNVW at [18] to [22] per Keane CJ and at [45], [48] to [49] per Emmett J).
The difficulty for the applicant now, however, is that he had provided such medical documents to the Tribunal even with his claimed language and communication difficulties (see CB 88 – CB 89, CB 68 – CB 69 and CB 107 – CB 109). In these circumstances it is difficult to see how he can argue, having already obtained some such documents, even with his language difficulties, that he could not have done so again if there were documents to be obtained which could have been of assistance to him.
It may be, given relevant correspondence between the applicant and the Tribunal (see [16.5] and [16.6] above and CB 104 and CB 105), that before the Court the applicant was referring to obtaining some further documents from the Auburn Health Service, through the Auburn Refugee Service. If that is the case, and even if the applicant was not referring to some other documents, he was given a reasonable opportunity by the Tribunal to obtain evidence, including any such further medical documents (see CB 81.2, CB 99, CB 102, CB 105 and [46] at CB 124).
In all, the applicant applied for review to the Tribunal on 25 October 2010. He was told on at least two occasions in writing that, if he had documents to submit, he should do so as soon as possible: 25 October 2010 (at CB 62.7) and 15 November 2010 (at CB 64.3). The applicant did provide such material.
From the time he first made specific reference to “Canterbury Hospital and Auburn Community Health Centre” (CB 99 – 21 December 2010 and CB 101 – 24 January 2011) the applicant was given until 8 February 2011 to provide such documentation (CB 102) and then until 11 February 2011 (CB 105). This in itself was a reasonable time for this purpose.
In any event, the applicant did subsequently provide medical documents through the NSW Refugee Health Service (CB 106 to CB 110). Nothing further was heard from the applicant in this regard.
If he wanted more time to submit further documents there is no evidence that he made any approach to the Tribunal for that purpose up until the time of the Tribunal’s decision on 10 June 2011, some four months later.
In these circumstances, the Tribunal was entitled to proceed to a decision at that time.
I also considered the applicant’s letter (submissions) to the Court.
In these submissions the applicant appeared to accept also that there is no jurisdictional error in the Tribunal’s decision. He requests the Court to consider his circumstances and return the case to the Tribunal.
In making such a request, in the absence of jurisdictional error, the applicant is asking the Court to undertake impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259). Such a request betrays a misunderstanding on the part of the applicant as to the nature of these proceedings.
The Tribunal provided the applicant with a meaningful opportunity to present his evidence, both at a hearing and subsequently with opportunities given in writing. The reasons for the Tribunal’s affirmation of the delegate’s decision were its comprehensive rejection of what he said had occurred in China and Australia. The Tribunal also found as not being credible the applicant’s explanation for the delay in applying for a protection visa after arriving in Australia. The delay itself a factor going against the applicant’s claim of a fear of persecution.
The Tribunal found that he was not a Falun Gong practitioner because he had invented his claims in support of his protection visa application, a finding that was open to it on the material before it.
Conclusion
For the applicant to succeed, the Court would need to find jurisdictional error in what the Tribunal has done. As I cannot see jurisdictional error as it is said to arise from the grounds of the application, or the complaints made by the applicant, or otherwise, I will make an order dismissing the application.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 21 October 2011
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