SZQLJ v Minister for Immigration & Citizenship
[2011] FMCA 932
•2 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQLJ v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 932 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant not believed – applicant claiming memory loss – whether the Tribunal erred in dealing with that claim considered – whether issues relating to the representation of the applicant disabled the Tribunal’s review function considered – whether the Tribunal erred in applying s.91R(3) of the Migration Act 1958 (Cth) considered. |
| Migration Act 1958 (Cth), ss.91R, 363A, 424, 424C, 425, 425A, 427 |
| Minister for Immigration v SGLB (2004) 78 ALJR 992 Minister for Immigration v SZMDS (2010) 240 CLR 611 Re Minister for Immigration; Ex parte Durairajasingham (2000) 74 ALJR 405 Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 SZGUR v Minister for Immigration [2011] HCA 1 SZMIA v Minister for Immigration (2010) 116 ALD 580 SZNIL v Minister for Immigration & Anor [2010] FMCA 470 SZOKX v Minister for Immigration & Anor [2011] FMCA 107 SZOUS v Minister for Immigration & Anor [2011] FMCA 166 SZQIG v Minister for Immigration & Anor [2011] FMCA 619 |
| Applicant: | SZQLJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1530 of 2011 |
| Judgment of: | Driver FM |
| Hearing dates: | 25 November & 2 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 2 December 2011 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr O Jones Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,655.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1530 of 2011
| SZQLJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). A decision was made on 17 June 2011. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of religious persecution.
The following statement of background facts relating to the applicant’s protection claims and the decision of the Tribunal on them is derived from the Minister’s written submissions filed on 16 November 2011.
The applicant is a national of the People's Republic of China. On
19 July 2010, she applied for the protection visa.[1] On 27 September 2010, the delegate refused the application and notified the applicant.[2] On 25 October 2010, the applicant applied to the Tribunal for review of the delegate's decision.[3] On 6 January 2011, the applicant, having been invited by the Tribunal, appeared at a Tribunal hearing. The hearing was adjourned. [4] On 12 January 2011, the Tribunal requested further information from the applicant.[5] On 10 February 2011, the Tribunal contacted a third party regarding the applicant's attendance at church services in Australia.[6] On 11 February 2011, the hearing resumed.[7]
On 23 February 2011, the applicant provided medical evidence regarding alleged memory deficiency to the Tribunal.[8] On 17 June 2011, the Tribunal affirmed the decision of the delegate and notified the applicant of its decision.[9]
[1] Court Book (CB), 1-31.
[2] CB 36-50.
[3] CB 51-54.
[4] CB 56-57, 75-83.
[5] CB 83.
[6] CB 83.
[7] CB 84-88.
[8] CB 59-65.
[9] CB 66-96.
On 19 July 2011, the applicant commenced the current proceedings.
Case for protection visa
The applicant's claims were very similar before the delegate and the Tribunal. In essence, the applicant claimed that she and her family were practising as Christians in China. On one occasion, there was a gathering at the applicant's church in China. The police came to the church, arrested the applicant and others, and detained them for seven days. They were tortured. They were also forced to sign statements undertaking not to attend their church and pay a fine. They were warned that they would be gaoled if they participated in family church gatherings again.
The applicant was forced to attend political study groups by the Chinese authorities. She then decided to escape from China. After arriving in Australia, the applicant attended church regularly. She obtained material from church in Australia and posted it to her husband, who was back in China. Her husband was caught by the police at a church gathering in China. After being beaten and tortured, her husband revealed that the applicant had sent the materials to him. As a result, the applicant has been asked by the Chinese authorities to return to China and is afraid she will be persecuted there.
Decision by Tribunal
The Tribunal rejected the applicant's claims. It did not consider the applicant to be a reliable, credible and truthful witness. It based this conclusion on inconsistencies and changes in the applicant's evidence, implausibility and lack of detail in significant respects, including knowledge of and genuine commitment to the Christian religion; and inability to substantiate aspects of her written claims. In short, the applicant had not offered persuasive evidence and did not face a real chance of persecution in China.[10]
[10] CB 91-95.
In reaching its conclusion, the Tribunal grappled with a particular point made by the applicant, namely that the applicant suffered from memory problems as a result of a trauma to the head. The written evidence of this condition was insufficient. Further, the Tribunal had not received any additional or current medical evidence from the applicant. The Tribunal, in light of the applicant's recall at the hearing, was not satisfied that the applicant had the memory problems she claimed and felt she had used the claim of such problems to explain why she could not substantiate her case.[11]
[11] CB 90-91.
The present application
These proceedings began with a show cause application filed on
19 July 2011. There are three grounds and four particulars in that application:
Grounds
1.RRT concluded that my claimed memory problems didn’t exist, which is against the fact.
2. RRT didn’t accept the fact that I experienced the car accident and impaired my memory. It is a denial and hurt to me.
3. RRT thinks that a Christian should answer all questions about Christianity or Bible. …
[Particulars]
1. I was injured in a car accident which happened in 2006. My memory was dramatically affected. I went to see the doctors in 1996, 1998 and 2002 respectively, but the situation was not improved. RRT thought the medical report can’t reflect my memory impairment because the medical checks happened many years ago. My memory impairment and insomnia was getting worse from 1996 to 2002. It is a long time and ongoing situation. I didn’t go back to doctor after 2002 because my family was in financial hardship and I didn’t find any improvement through seeing the doctor. RRT concluded that my claimed memory problems didn’t exist, which is against the fact.
2. RRT put emphasis on that I could not recall some information clearly, I could not understand and answer some questions properly and evidence I gave is not consistent, but they could not accept those were the result of my memory problems; RRT pointed out that I couldn’t remember some dates and numbers. But it doesn’t indicate that I could have the same ability to remember/recall liberal or descriptive contents. RRT didn’t accept the fact that I experienced that car accident and impaired my memory. It is a denial and hurt to me.
3. I just attended primary school for two years. I rarely have reading and writing skills. There are a lot of people like me in [C]hina. We don’t know much Christian prospects or the contents of the Bible, but it could stop us to be a devout Christian. RRT thinks that a Christian should answer all questions about Christianity or Bible, it is preconceive.
4. RRT did not consider my situation. If I go back to [C]hina, I will be deprived the basic human right and be put into the jail.
I gave directions in this matter on 10 August 2011. I dispensed with the requirement for any preliminary hearing and gave the applicant the opportunity to file and serve an amended application and additional evidence. She has not taken advantage of that opportunity.
The Minister has provided written submissions. The applicant made oral submissions when the hearing of this matter commenced on
25 November 2011. Those submissions focussed upon the applicant’s asserted medical condition, which affected her memory. In substance, the applicant contended in her submissions that the Tribunal was wrong to make adverse credibility findings against her because of her medical condition affecting her memory.
The applicant also responded to questions from me concerning the conduct of her case before the Department and the Tribunal by two migration agents. The applicant was clear about two things. She could not remember who either of those agents were but she was adamant that she had not paid any money.
The applicant became distressed during the conduct of the hearing on 25 November 2011. I was also concerned that documents additional to those which had then been included in the court book would assist the Court. I adjourned the hearing, in the light of the applicant’s distress, and in order to allow time for the Minister’s Department to provide additional documents having some bearing on the case.
I ultimately received as evidence the court book filed on 23 August 2011, a supplementary court book filed on 30 November 2011, and a letter to the applicant from the Tribunal dated 12 January 2011, which I accepted as an exhibit[12]. I also have before me the applicant’s affidavit filed on
19 July 2011 in support of her application to the Court, which is not controversial.[12] exhibit R1.
Consideration
Subject to my observations below, I agree with the Minister’s written submissions.
The grounds for judicial review identified by the applicant are not sustainable. They essentially seek merits review of the Tribunal's decision, which is not available in this Court.
The Tribunal concluded that the applicant was not credible. Such a finding is “the function of the primary decision-maker par excellence”.[13] The Tribunal's state of satisfaction as to whether Australia has protection obligations for the purposes of the protection visa will be reviewable if it can be described as illogical or irrational.[14] However, no such criticism can be sustained where:
it was open to the tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it.[15]
[13] Re Minister for Immigration; Ex parte Durairajasingham (2000) 74 ALJR 405, [67].
[14] Minister for Immigration v SZMDS (2010) 240 CLR 611, 620-621, 625, 632, 647-648.
[15] Ibid 648, applied in SZMIA v Minister for Immigration (2010) 116 ALD 580, 583.
This is clearly so in the present case. The Tribunal's overall conclusion and the specific findings referred to by the applicant were open to the Tribunal, including with respect to the applicant's memory.
It may be added that, during the initial Tribunal hearing, it appears from the Tribunal's decision that the applicant was quite emotional.
On this basis, the Tribunal ultimately adjourned the hearing, which was resumed the following month.[16] The Tribunal was not subject to:
competency requirement as to the satisfaction of which [it had to be] convinced before an applicant can take part or continue to take part in proceedings before the tribunal[17]
[16] CB 83 [62].
[17] Minister for Immigration v SGLB (2004) 78 ALJR 992, 1000.
Further, as part of its inquisitorial function, it was required to “test the evidence presented - [even] often vigorously”.[18] However, the Tribunal clearly concluded that the applicant had the mental capacity to participate in the hearing, while seeking to accommodate the applicant's emotional state. It did not err by doing so.
[18] Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425, 435.
There are striking features in this case. The first is that the circumstances of the applicant’s representation at various times by two migration agents and ultimately, ostensibly by no one, bear an uncanny resemblance to earlier proceedings before me. Those earlier proceedings were SZOUS v Minister for Immigration & Anor [2011] FMCA 166 and SZQIG v Minister for Immigration & Anor [2011] FMCA 619.
The court book discloses that the applicant was assisted in her protection visa application by Ms Weiming Qian, a registered migration agent who provided her own contact details.[19] The applicant provided a personal postal address of PO Box 367, Auburn, New South Wales 1835[20]. That is also an address known to be associated with Ms Qian and used by other applicants in other cases.
[19] CB 8.
[20] CB 12.
Notwithstanding the clear disclosure of Ms Qian’s involvement, the applicant was unable to recall who her agent was at the time she was interviewed by the Minister’s delegate. The Tribunal summarises what transpired at [26] of its reasons[21]:
The applicant gave evidence that she only has a photocopy of her passport, her original passport being lost. She did not report the loss of her passport to the police. She did not bring her Chinese identity card with her to the interview. Her agent told her to bring a photocopy of her passport and a card. When asked the name of her migration agent, she responded that she has forgotten. When asked if she has her agent’s business card, she responded that she has not. When asked again if she knows the name of her migration agent, she responded that the agency is called "home town for the North" she gave evidence that the agency is located in Auburn. When asked for the address or its location she responded it is around the station. When asked if she has a phone number for the agency she responded that she has not. When asked how she contacts the agency she responded she has a friend. She gave evidence that she has not been to the agency and that she met the agent at the train station, but she never went to the migration agent's office. The Department put to the applicant that her agent has provided a detailed written statement setting out her claims of persecution which is signed by the applicant and asked how this was prepared if she has never been to the agent's office. She responded that she prepared it herself. She spoke in Chinese and they prepared it. She told her claims at the station. They did not record her statement. She has never seen her English-language statement before. She spoke and they wrote it down. She gave evidence that the signature on the English-language statement is her own. When asked how she could sign it without having seen it before she responded that they brought it to her and she signed it. She then said that she has seen the English-language statement before. She saw it when she was at the station. When asked if they translated that document to her at the station she responded that she spoke and they wrote it down. The delegate asked if, at the time that she signed the English-language document, the five English-language pages were read to her in Chinese so that she understood what she was signing. She confirmed that she has signed the English-language document at the station, and that prior to signing, at the station, the contents of that document were read to her word-for-word in Chinese. It took a pretty long time to translate that document word-for-word. When asked if her migration agent is a man or a woman she responded that it is a woman. She introduced herself to the applicant by saying she is doing this business. She gave her name but the applicant forgets. If she needs to contact her agent she does so by looking for her at Auburn train station. Sometimes they meet on the weekends. When asked if she has an appointment to meet with her agent after the Department interview, she responded "on weekends". She also plans to meet her agent at the train station that evening following the Department interview.
[21] CB 72.
The circumstances of her representation outlined by the applicant appear to me to be bizarre. They are certainly not reflective of the provision of ordinary migration assistance by a migration agent. Like the Tribunal, I am not disposed to explain away the applicant’s lack of recall by her asserted memory loss.
The court book also discloses that Ms Qian assisted the applicant with her application to the Tribunal. However, the Tribunal’s reasons disclose, and the supplementary court book confirms, that there were two changes of representation in circumstances uncannily similar to those in SZQIG, which were of concern to me. I am inclined to draw the conclusion that the Tribunal was actively misled as to this applicant’s circumstances by those who had been assisting her. The reasons for that misleading merit further investigation by the Minister’s Department and, if appropriate, by the Office of the Migration Agents Registration Authority.
The second circumstance of note in this case is the applicant’s asserted mental disability. The Tribunal, like this Court, encountered some difficulty in conducting a hearing because of the applicant’s apparent distress. The Tribunal hearing commenced on 6 January 2011 but was adjourned when the applicant became tearful. Following that adjournment, the Tribunal sought further information in terms outlined at [63] and [64] of the Tribunal’s reasons[22]:
[22] CB 83.
On 10 February 2011 the Tribunal contacted Mr Joshua Ng of the Christian Assembly of Sydney who gave evidence of: his understanding, via the church small group leader in Lidcombe, that the applicant attends that church regularly although he does not know how regularly; that the services in Lidcombe are conducted in English with a Mandarin translation; there is no one person that always conducts services on Sundays as it is a brethren church conducted very much on the lines of a house church where groups pray together with no real leader, however there are 8 main leaders in Sydney who share the services amongst themselves; as far as he is aware the applicant has been baptised.
By letter dated 12 January 2011 the Tribunal wrote to the applicant through her representative inviting her to appear before the Tribunal on 11 February 2011 to give evidence and present arguments. The letter also invited the applicant to provide further information in writing to the Tribunal as follows:
Detailed medical evidence prepared in accordance with the enclosed Guidelines on Expert Opinion Evidence regarding any memory problems you experience which includes a medical opinion regarding:
· the nature of any memory problems you have;
· how any such memory problems impact on your daily life and your ability to recall information and/or give evidence;
· details of any other medical condition you suffer from which may adversely impact on your ability to recall information and/or give evidence;
· how long you have had any such memory/ medical problems.
The Tribunal requested that this information is provided to it at least 3 working days prior to 11 February 2011.
The Tribunal received information from the Christian Assembly of Sydney, summarised at [65] of its reasons[23]:
The applicant provided to the Tribunal a letter dated 30 January 2001 on the letterhead of the Christian Assembly of Sydney, stating the following:
I am writing to you in regards to Mrs Xiuqin Huang who attends the Christian Assembly of Sydney meetings held in Lidcombe.
Mrs Xiuqin Huang commenced attending meetings from March, 2008.
Yours sincerely
Yingsang Ng Joshua
[23] CB 83.
The Tribunal received no response prior to the resumed hearing, to its request for expert medical advice on the applicant’s asserted memory difficulties. The Tribunal hearing resumed on 11 February 2011. The Tribunal put to the applicant that her inability to answer questions clearly and directly may not be the result of any physical or mental condition, but may simply reflect evasive evidence which is lacking in detail. At [80], the Tribunal records putting to the applicant its concerns about the applicant’s inability to provide substantive information about a range of issues.
Following that resumed hearing the Tribunal records, at [86] and [87] of its reasons[24], circumstances of the provision of some additional information, and the purported withdrawal of the applicant’s second representative:
In a statement typed in English and dated 22 February 2011, bearing the name of the applicant, the applicant noted that she contacted her family in China who found her medical report and faxed them to her. She has also contacted a doctor in Australia and was told she needs to do tests such as a “head CT” and that it would take "quite a long time to finish all the tests and analysis". She stated that she will provide the documents later. She attached medical certificates identified as being issued in respect of the applicant by the No 1 Hospital of Fuzhou. One is dated 20 November 1996 and identifies a “diagnosis” of "severe post-concussion syndrome, intracranial haematoma". One is dated 6 February 1998 and identifies a “diagnosis” of “post-concussion syndrome after a car accident, memory damaged”. One is dated 21 October 2002 and states a “diagnosis” of "severe post-concussion syndrome, hypomnesis and insomnia". At the date of this decision no further medical evidence has been received by the Tribunal.
By letter dated 11 April 2011 the applicant’s representative advised that she was ceasing to act due to changes in her employment. In a Change of Contact Details form dated 21 April 2011 the applicant advised of new contact details bearing the same phone, fax and email details as her previous representative.
[24] CB 89.
At [89] and [90] of its reasons[25], the Tribunal dealt with the applicant’s competency to give evidence. The Tribunal found that the applicant’s claimed memory problems were not substantiated by the evidence before it, and that the applicant’s memory problems had been selectively referenced by her to explain why she could not substantiate significant aspects of her claims.
[25] CB 90-91.
The Tribunal was not satisfied that the applicant has the memory problems she claims. In my view, the Tribunal’s findings were open to it on the material before it. I invited submissions from the Minister’s solicitor on the question of whether the Tribunal erred in not obtaining its own medical assessment of the applicant, pursuant to s.427(1)(d) of the Migration Act 1958 (Cth) (“the Migration Act”). I accept the Minister’s submission that, based on the decision of the High Court in SZGUR v Minister for Immigration [2011] HCA 1, in particular at [38], [41], [75] and [76], there was no obligation on the Tribunal to make its own inquiries, and no obligation on the Tribunal to consider the exercise of its discretion under s.427(1)(d).
Further, exhibit R1 was, in substance, a request for information issued pursuant to s.424 of the Migration Act. Section 424C provides that if a person is invited in writing under s.424 to give information and does not give that information before the time for giving it has passed, the Tribunal may make a decision on the review without taking any further action to obtain the information. The Tribunal had requested medical information from the applicant at least three days before the resumed hearing. That request was not met.
It is worthy of note that s.425 provides an exception to the general obligation on the Tribunal to invite an applicant to appear before it, where the Tribunal is unable to make a favourable decision on the papers. Relevantly, s.425 provides that s.425(1) does not apply if s.424C(1) applies. Section 425(3) provides that if any of the paragraphs in subsection (2) of that section apply, the applicant is not entitled to appear before the Tribunal.
In the present case, I think it is strongly arguable that the technical requirements of s.425 and, for that matter s.425A, applied to the hearing invitation issued by the Tribunal prior to the hearing commencing on 6 January 2011, but not to the resumption of the hearing on 11 February 2011. The Tribunal only conducted one hearing, albeit over two days.
Even if I were wrong in that view, the Tribunal, unlike the Migration Review Tribunal, is not required to deny an applicant a hearing opportunity to which he or she has been invited because of a non‑provision of requested information[26]. In my view, the Tribunal was entitled to proceed with the resumed hearing on 11 February 2011, notwithstanding the failure by the applicant or her representative to provide the requested medical information prior to that resumption.
[26] See s.363A of the Migration Act.
The applicant submitted to me orally that she was unable to provide the medical report sought because of a lack of money. That was not what was put to the Tribunal, purportedly by her, after the resumed hearing. As the Tribunal noted at [86] of its reasons[27] the statement, typed in English, dated 22 February 2011, bearing the name of the applicant, states that she had found the medical reports furnished after the resumed hearing and that the difficulty with obtaining a report from an Australian doctor was one of delay. There was, nevertheless, a statement that the applicant would provide the opinion sought by the Tribunal later. However, no Australian medical report was provided.
[27] CB 89.
In my view, those assisting the applicant with her application could have done considerably more to assist her in supporting her claims of a mental or physical disability. A proper response should have been made to the Tribunal’s request for an Australian medical assessment.
If for some reason it was not possible to provide the report that the Tribunal asked for, the Tribunal should have been told prior to the resumption of the hearing. Further, those assisting the applicant could have requested the Tribunal to exercise its discretion under s.427(1)(d). There is no evidence before me that that was done.
I have considered whether it might be argued that, by reason of the conduct of the applicant’s former migration agents, there was a fraud on the Tribunal which disabled the Tribunal’s review function. I think it likely that the Tribunal was misled by someone assisting the applicant about her representation. I think it likely that the applicant, for reasons which are not clear to me, was encouraged to obfuscate on the issue of that representation. Whoever was assisting the applicant did her a disservice by failing to respond in a timely or meaningful way to the Tribunal’s important, and possibly critical, request for medical evidence about the applicant’s condition.
The Tribunal would have been in a better position to perform its functions if the applicant had been more effectively represented. However, I am not satisfied that it could seriously be argued that the Tribunal’s review function was disabled by any misfeasance or nonfeasance by those assisting the applicant. There was no fraud on the Tribunal in any relevant legal sense. I conclude that the Tribunal decision is free from jurisdictional error.
The other question is whether it might be argued that the Tribunal erred in applying s.91R(3) of the Migration Act. The Tribunal concluded at [101] of its reasons[28] that whilst it accepted that the applicant participated in church activity, it was not satisfied on the evidence before it that the applicant had participated in church activity in Australia, otherwise than for the purpose of strengthening her claims to be a refugee. The Tribunal had received a letter dated 30 January 2011 from the Christian Assembly of Sydney, asserting that the applicant commenced attending church meetings from March 2008, which was more than two years before the applicant applied for protection. The Tribunal did not contest that statement but it did contest a statement in that letter concerning the applicant’s baptism and found that the applicant was not a genuine Christian.
[28] CB 95.
A question arises whether the Tribunal was entitled to disregard conduct engaged in by the applicant prior to her protection visa application, for the purposes of s.91R(3). The Tribunal did not, in its reasons, dispute the statement that the applicant had been attending church in Australia since March 2008. I accept the Minister’s submission, supported by the decision of this Court in SZOKX v Minister for Immigration & Anor [2011] FMCA 107, that s.91R(3) applies to conduct engaged in prior to lodging a protection visa application. In that regard, at [45]-[46] of that judgment, her Honour Barnes FM referred to my earlier judgment in SZNIL[29]:
In SZNIL Driver FM proceeded on the basis that s.91R(3) could apply to conduct engaged in prior to the lodgement of a protection visa application. I am not persuaded that such a view is clearly wrong and hence should not be followed. In SZNIL Driver FM was addressing the fact that after making factual findings relating to the conduct that may or may not fall within the purview of the section, the Tribunal must “then” consider the purpose or motivation for that conduct (at [34]) and in so doing must apply a sole purpose test. His Honour suggested that in that context the Tribunal may categorise conduct in a number of ways having regard, among other things, to when it occurred. As Driver FM suggested, the Tribunal may be able more readily to conclude that conduct engaged in after a protection visa application was made was engaged in for the sole purpose of strengthening the application, whilst it may be more difficult for a Tribunal to reach such a conclusion in relation to pre-application conduct. This does not mean that s.91R(3) cannot apply to pre-application conduct.
The fact that Driver FM expressed the view in SZNIL that it would be unusual for an applicant to engage in conduct in Australia prior to making a protection visa application for the sole purpose of strengthening a hypothetical future protection visa application is, as his Honour stated, relevant to whether or not the applicant is able to satisfy the Tribunal that his or her motivation for conduct was not solely to strengthen a protection visa claim which had not yet been made. It does not mean that as a matter of law such conduct is not subject to s.91R(3) of the Act.
[29] SZNIL v Minister for Immigration & Anor [2010] FMCA 470.
One may quibble over the lack of reasoning in the Tribunal’s decision for concluding that it was not satisfied that the applicant engaged in church activity in Australia, otherwise than for the purpose of strengthening claims to be a refugee, in circumstances where that conduct commenced at least two years before protection was claimed. While such a conclusion may be difficult for the Tribunal to draw, it is not impossible. Hypothetically, an applicant may engage in conduct to support a future protection claim[30]. The Tribunal might have explained its reasoning in relation to that prior conduct expressly, but its failure to do so, in my view, does not constitute a jurisdictional error.
[30] I infer that the Tribunal reasoned that the applicant must have had a protection claim in contemplation whenever she commenced church attendance in Australia.
It follows that the Tribunal decision is a privative clause decision and the application must be dismissed. I so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the amount of $5,655. The applicant claimed that she was not in a fit mental state to make any submission on that issue. The issue for me is whether costs in the amount sought have been reasonably and properly incurred on behalf of the Minister. I am satisfied that they have been. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,655.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 7 December 2011
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