SZQOJ v Minister for Immigration - [2012] FMCA 298

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQOJ & ORS v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 298

MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – first applicant claiming persecution in China as a Falun Gong practitioner who commenced that practice in Australia – first applicant not believed in critical respects and her conduct in Australia that was accepted was disregarded pursuant to s.91R(3) of the Migration Act 1958 (Cth) – whether the Tribunal disclosed sufficient information about the issues in the review at the Tribunal hearing considered – whether the Tribunal’s reasoning in relation to the motivation for the applicant’s conduct in Australia was illogical considered – no jurisdictional error established.

Migration Act 1958 (Cth), ss.91R, 424A, 425

Minister for Immigration v SZMDS (2010) 240 CLR 611
Subramaniam v Minister for Immigration (unreported, Federal Court of Australia, V 310 of 1997, 10 March 1998)
SZBEL v Minister for Immigration [2006] 228 CLR 152
SZJYM v Minister for Immigration & Anor [2008] FMCA 652

SZMIA v Minister for Immigration (2010) 116 ALD 580
SZOOR v Minister for Immigration [2012] FCAFC 58
SZOZT v Minister for Immigration [2011] FCA 1245
SZQLJ v Minister for Immigration & Anor [2011] FMCA 932
SZQWM v Minister for Immigration & Anor [2012] FMCA 310
SZQSS v Minister for Immigration & Anor [2012] FMCA 31

First Applicant:

SZQOJ

Second Applicant:

SZQOK

Third Applicant:

SZQOL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1857 of 2011

Judgment of:

Driver FM

Hearing date:	11 April 2012
Date of last submission:	3 May 2012
Delivered at:	Sydney

Delivered on:

17 May 2012

REPRESENTATION

Counsel for the Applicant:

Mr C Jackson

Solicitors for the Applicant:

Robert Dawson & Associates

Solicitors for the Respondents:

Mr O Jones
Clayton Utz

ORDERS

The amended application filed on 15 November 2011 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1857 of 2011

SZQOJ

First Applicant

SZQOK

Second Applicant

SZQOL

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 27 July 2011. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are three applicants. The first applicant made the relevant protection visa claims and references in this judgment to “the applicant” are references to her. The second applicant is the first applicant’s daughter and the third applicant is the first applicant’s mother. The applicant married in July 2010 but her husband is not included in the protection visa application.
On 29 September 2011 I appointed the first applicant to be the litigation guardian of the second applicant, who was born in Australia in 2010.
The following statement of background facts is derived from the submissions of the parties.
The applicant applied for a protection visa on 15 November 2010.[1] The delegate refused the visa on 28 March 2011.[2] The applicant applied for review by the Tribunal on 19 April 2011.[3] The Tribunal affirmed the delegate's decision on 27 July 2011.[4]
[1] Court Book (CB), 1-43.
[2] CB 72-77.
[3] CB 87-90.
[4] CB 172-194.

Tribunal's decision

In essence, the applicant claimed to fear serious harm amounting to persecution if she were to return to China now or in the reasonably foreseeable future because she is known to the authorities as a Falun Gong practitioner. As part of her claims, the applicant stated she had been introduced to Falun Gong by her flatmate's brother, Mr Wang. She also claimed she had come to the adverse attention of the authorities in China after disclosing her name and address to a person she met at a public rally. Lastly, she claimed her husband was a Falun Gong practitioner. [5]
[5] CB 187-188, [93]-[94].
The Tribunal noted at the hearing that the applicant's husband had applied separately for a protection visa and referred to the contents of the hearing before the Tribunal.[6] The Tribunal also noted in its decision the applicant's delay in commencing Falun Gong practice and reporting that practice to the Minister’s Department.[7]
[6] Affidavit of Dorcas Ayerakwa dated 5 October 2011 at page 22.
[7] CB 193, [120].

The present application

These proceedings began with a show cause application filed on 23 August 2011. The applicants now rely upon an amended application filed on 15 November 2011. There are four grounds in that application:
Ground one.
The Tribunal failed to comply with section 425 of the Act in failing to put to the Applicant particulars of issues which arose out of the review (but which did not form part of the reasoning of the delegate) in order to allow the Applicant to comment on them (SZBEL (2006) 228 CLR 152 (at [42], [43] and [47]).
Particulars.
Part of the Tribunal’s reason for rejecting the Applicant’s claim lay in the following “issues” which the Tribunal determined adversely to the Applicant, and these issues were not identified by the delegate, nor raised at the section 425 hearing;
(i) That it was implausible that the Applicant would freely give out information about where she had lived in China to a stranger at a public rally, therefore, her father’s evidence that some time after the rally, officials had come to her family home in China asking about her could not be accepted;
(ii) In her statement of 1 July 2011 and at hearing, she had said that she met Mr Wang in 2002, which was inconsistent with her statement of 12 July 2011 (after the hearing) where she said that she met Mr Wang in 2002;
(iii) Her evidence about whether she had practised Falun Gong with her husband when she discovered he was a practitioner in 2005 was inconsistent; at hearing she said that he lost patience with her when showing her the exercises, and thus her interest “was held up”, while in her statements dated 1 July and 12 July 2011 she stated that she had practised with her husband.
Ground 2
The Tribunal failed to comply with its continuing obligation of disclosure under section 424A(1) of the Act when it failed to provide the Applicant clear particulars of adverse information, failed to give clear particulars of how that information might be used, and failed to offer the Applicant time to respond, that information being the statements made by the Applicant’s husband in his unrelated Refugee Review Tribunal application which were inconsistent with the Applicant’s own case (Khan (2011) 192 FCR 173).
Ground three.
The Tribunal’s reasoning was, in part, illogical and unreasonable. In particular, the following reasons for rejecting the Applicant’s evidence were illogical or unreasonable;
(i) The “applicant’s delay in commencing Falun Gong practice” until 2009 despite having been “introduced to it” in 2002.
(ii) The Tribunal’s finding that she only took up practice in 2009 to bolster her refugee claim, while also finding that it reflected adversely on her credibility that she did not tell Departmental officers that she was practising Falun Gong in 2010; necessarily, the fact that she did not mention it in 2010 would suggest that she did not take it up simply to bolster her claim, given that this would have been the first thing she would have told them, if this had been her purpose.
Ground four.
In the alternative, the Tribunal took into account an irrelevant consideration when it considered that the “delay in commencing Falun Gong practice” impacted upon the Applicant’s credibility, and its assessment of the genuineness of the Applicant’s commitment to Falun Gong.
Ground 2 was not pressed.
I received as evidence the court book filed on 19 September 2011 and the affidavit of Dorcas Ayerakwa made on 5 October 2011, to which is annexed a transcript of the Tribunal’s hearing conducted on 7 July 2011.
In relation to ground 1, the applicant relies upon the decision of the High Court in SZBEL v Minister for Immigration[8] and submits that there was an obligation on the Tribunal to warn her of its credibility concerns bearing upon the assessment made by the Tribunal that it must disregard the applicant’s conduct in Australia, pursuant to s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”).
[8] (2006) 228 CLR 152.
In relation to ground 3, the applicant relies upon the decision of the High Court in Minister for Immigration v SZMDS[9] to support the contention that the Tribunal’s reasoning leading to its conclusion that it must disregard the applicant’s conduct in Australia pursuant to s.91R(3) was irrational, illogical and unreasonable.
[9] (2010) 240 CLR 611.
Ground 4 raises the alternative proposition to that raised in ground 3, namely that the applicant’s delay in commencing her Falun Gong practice and her failure to tell Departmental officers about it when she was interviewed in 2010 were irrelevant to the Tribunal’s assessment of the applicant’s credibility and the Tribunal erred by taking irrelevant material into account.
The Minister contends that SZBEL can be distinguished on the basis that none of the supposed issues of inconsistency or implausibility were considered by the delegate. Secondly, the Minister contends that the relevant issues were raised by the Tribunal with the applicant.
In relation to grounds 3 and 4, the Minister contends that there was no illogicality or unreasonableness in the Tribunal’s reasoning leading to its application of s.91R(3). The Minister’s solicitor filed further submissions concerning the interpretation of s.91R(3) on 3 May 2012[10].
[10] In particular those submissions addressed the decision of the Federal Court in SZOZT v Minister for Immigration [2011] FCA 1245, which I had referred to in the course of argument.

Consideration

The Tribunal summarised the applicant’s claims at [93]-[94] of its reasons as follows[11]:
The applicant’s claims may be summarised as follows. The applicant claims she will be persecuted if she returns to China because she is a Falun Gong practitioner. She claims that she was first introduced to Falun Gong in 2002 after she came to Australia, by her flatmate’s brother, Mr Xianwei Wang. However she did not take up Falun Gong practice at that time. She met her husband in 2002 and moved in with him in 2003. She claims her husband was a Falun Gong practitioner. The applicant claims that she started practising Falun Gong regularly in the middle of 2009 after she was given a copy of a Falun Gong book by her neighbour, Yulan Jin. She claims that she renounced her membership of youth wing of the Chinese Communist Party on 30 August 2009. She claims she started practising Falun Gong publicly in December 2009 and that she tried to introduce Falun Gong to her friends.
The applicant claims that she was not a Falun Gong practitioner in China and her practice only started after she came to Australia. She claims that she was in China in 2002, shortly after her old neighbour, Mr Zhang, was arrested for being a Falun Gong practitioner. The applicant claims that Chinese government representatives may be aware that she is a Falun Gong practitioner because of her participation in a Falun Gong protest march on 14 May 2011. She claims that on 20 May 2011 police officers visited her father’s home, asked about her whereabouts and ransacked the house. The applicant claims that two years ago, she sent money to her brother for his birthday and the police asked if the money was being used to fund Falun Gong activities. She claims that the police are monitoring her family and are likely to take action against her and her family if she returns. The applicant claims that if she returns to China she has fears being arrested and persecuted like her former neighbour, Mr Zhang. She fears she will have her organs harvested.
[11] CB 187-188.
The Tribunal did not accept the applicant’s claims for the reason that it formed an adverse view of the applicant’s credibility, based on what the Tribunal described as her inconsistent and contradictory evidence about when she first developed an interest in Falun Gong. Secondly, the Tribunal did not accept the applicant’s claims that she was introduced to Falun Gong by her flatmate’s brother (a Mr Wang) in 2002 and yet she did not take up Falun Gong practice at that time. The Tribunal found[12] that the applicant’s delay in commencing her Falun Gong practice led it to doubt her claim that she was ever introduced to Falun Gong in 2002 and cast doubt on her commitment to Falun Gong. It also led the Tribunal to doubt her claim that she later developed a genuine interest in Falun Gong and that she is a genuine and committed Falun Gong practitioner. The Tribunal further found that the applicant had provided inconsistent evidence about when she was first introduced to Falun Gong by Mr Wang.
[12] At [101], CB 109.
Further, the Tribunal declined to accept the applicant’s claims concerning her husband’s practice of Falun Gong. The Tribunal also found that the applicant had provided inconsistent evidence about whether she practised Falun Gong with her husband after she discovered he was a practitioner in 2005.
The Tribunal was further concerned about the applicant’s significant delay in applying for a protection visa. The applicant had claimed that she had started Falun Gong practice in mid 2009 after she was introduced to it by her neighbour. However, she did not lodge her protection visa application until 15 November 2010 after Departmental compliance officers came to her house as she was, at that time, an unlawful non citizen.[13]
[13] [106] at CB 190.
The Tribunal did not accept the applicant’s explanations for her delay in applying for protection and gave reasons for its rejection of those explanations. At [110][14] the Tribunal noted that the applicant showed very limited interest in finding out if she was part of her husband’s protection visa application (which he had made separately) or whether she could make her own visa application. At [111][15] the Tribunal raised a further credibility concern that the applicant failed to mention her Falun Gong practice when questioned by Departmental compliance officers on 28 September 2010 but had freely discussed with them her asserted Christian faith (which ultimately did not form a part of her protection claims).
[14] CB 191.
[15]Ibid.
The Tribunal found at [112][16] that the applicant had provided inconsistent evidence about whether she and her husband currently practised Falun Gong at home. Finally, at [113][17] the Tribunal did not accept the applicant’s claims that she freely gave out her personal information and hometown address to a “Chinese government representative” at a Falun Gong protest rally on 14 May 2011.
[16] Ibid.
[17] Ibid.
The Tribunal gave consideration to the applicant’s claimed Falun Gong practice bearing upon the present judicial review application at [114]-[120][18] where it said:
[18] CB 191-193.
The Tribunal accepts that the applicant displayed some knowledge and understanding of Falun Gong practice at the Tribunal hearing, the Departmental interview and in her written statements to the Tribunal. The Tribunal does not accept that this evidence in itself demonstrates that she is a genuine and committed Falun Gong practitioner who would practice Falun Gong upon her return to China. Given the Tribunal’s stated concerns about the applicant’s credibility, as outlined above, the Tribunal gives less weight to this evidence. This evidence does not overcome the Tribunal’s concerns about the applicant’s evidence and the adverse findings about her credibility.
The Tribunal has had regard to the evidence from third parties about the applicant’s claimed Falun Gong practice in Australia, being the oral and written evidence from her brother, the statement from the applicant’s grandfather, the two statutory declarations from Svetlana Gaintsev, the two statutory declarations from Gennady Gaintsev, the statutory declaration from Yulin Jin and the statutory declaration from Shuliang Jing. The Tribunal accepts, from these statements that the applicant has practiced Falun Gong at home since June 2009 and in groups since December 2009. However, in some instances the applicant’s own evidence is inconsistent with the third party evidence. The applicant’s mother stated in her written statement that the applicant was first introduced to Falun Gong by the neighbour, Mr Zhang in China. The applicant stated at the hearing that this was not the case, and she was not introduced to Falun Gong until she came to Australia. Given these inconsistencies and the Tribunal’s stated concerns about the credibility of the applicant’s evidence, the Tribunal gives less weight to the evidence from the family members and friends listed above. This evidence does not overcome the Tribunal’s concerns about the applicant’s evidence and the adverse findings about her credibility.
Having regard to the findings and consideration of the evidence above, the Tribunal does not accept that the applicant has given a credible account of all aspects of her claims and does not accept that she is telling the truth about why she cannot return to China. The Tribunal finds she is not a credible witness.
For the reasons outlined above, the Tribunal does not accept that the applicant is a genuine Falun Gong practitioner. The Tribunal does not accept that the applicant was first introduced to Falun Gong in 2002 by Mr Xianwei Wang. The Tribunal does not accept that the applicant’s husband is a Falun Gong practitioner and that she practiced Falun Gong on a limited basis with him at home. The Tribunal does not accept that the applicant renounced her membership of youth wing of the Chinese Communist Party in 30 August 2009 because of her commitment to Falun Gong. The Tribunal does not accept that she tried to introduce Falun Gong to her friends. The Tribunal does not accept that Chinese government representatives may be aware that she is a Falun Gong practitioner because of her participation in a Falun Gong protest march on 14 May 2011. The Tribunal does not accept that police officers visited her father’s home on 20 May 2011 …, or that they asked about her whereabouts and ransacked the house. The Tribunal does not accept that the when the applicant sent money to her brother for his birthday two years ago, that the police asked if the money was being used to fund Falun Gong activities. The Tribunal does not accept that the police in her hometown are monitoring her family. The Tribunal has considered all of the applicant’s claims individually and cumulatively. Having considered the evidence as a whole, the Tribunal does not accept the applicant’s claims.
Section 91R(3) – conduct in Australia
In this case, the applicant has not claimed that she practices Falun Gong in China and her claimed Falun Gong practice has taken place entirely in Australia. The Tribunal has considered the applicant’s evidence and the evidence from third parties. The Tribunal has considered the applicant’s evidence and the evidence from third parties. The Tribunal accepts, based on this evidence, that the applicant has practised Falun Gong at home from June 2009, that she was given a Falun Gong book by her neighbour in June 2009, that she started attending Falun Gong group exercises in December 2009, and that she attended a Falun Gong protest march on 14 May 2011. The applicant must satisfy the Tribunal that she has engaged in this conduct in Australia, otherwise than for the purpose of strengthening her claim to be a refugee.
The Tribunal has had regard to the applicant’s evidence that she has not taken up Falun Gong practice simply to get a protection visa and she practises Falun Gong for its own sake and for the benefits it gives her, The Tribunal had regard to the evidence of the applicant’s mother and brother that they believe the applicant to be a genuine Falun Gong practitioner. The Tribunal has also considered the evidence from Ms and Mr Gaintsev that the applicant did not say anything to them about practising Falun Gong to get a visa. The Tribunal gives this evidence little weight, as it would not expect the applicant to discuss her intentions about lodging a protection visa with Mr and Mrs Gaintsev.
The above evidence does not overcome the Tribunals concerns about other aspects of the applicant’s evidence in relation to the applicant’s claimed interest in Falun Gong, the inconsistencies in her evidence, her delay in lodging a protection visa and her delay in taking up Falun Gong practice on a regular basis. The Tribunal has found that the applicant has not told the truth about the way in which she developed an interest in Falun Gong and the events that occurred in China. The Tribunal has found that she is not a credible witness. Given the above concerns, the Tribunal finds that the applicant’s sole purpose in performing Falun Gong exercises in Australia, reading the Falun Gong book and practicing in protect marches, was for the purpose of strengthening her claim to be a refugee. The applicant has not satisfied the Tribunal that she has engaged in her conduct in Australia, otherwise than doe the purpose of strengthening her claim to be a refugee. The Tribunal is therefore required to disregard her conduct engaged in Australia in accordance with subsection 91R(3) of the Act.

The applicant’s argument in relation to ground one can be summarised succinctly. The applicant says that the case is analogous to SZBEL, and that the source of the “procedural fairness” obligation in SZBEL is found in s.425.
In this case, as in SZBEL, details of the claim which were said to be “implausible”, impacting upon the applicant’s credibility, founded the rejection of the applicant’s claim.
In this case, the problems that the Tribunal identified with supposed inconsistencies and implausibilities in the applicant’s claim were central to its finding that she was not a “genuine Falun Gong practitioner”, hence her sole purpose in taking up Falun Gong practice in Australia (the fact of which was accepted by the Tribunal at [118][19]), and hence any persecution which she might face because of this conduct in Australia was to be disregarded by the Tribunal because of the operation of s.91R(3) of the Migration Act[20].
[19] CB 192.
[20] CB 192, [120].
The issues of concern to the Tribunal which the High Court held should have been put to the applicant in SZBEL were particular and detailed (SZBEL at [22]).
At [41] and [42] the High Court clarified the error:
The appellant's complaint in the present matter can be expressed in different ways. It could be described as being that the Tribunal acted upon unstated assumptions about the nature of Iranian society, when it decided that three aspects of his account were implausible. So, to take one of the three critical issues, when the Tribunal concluded (as it did) that it was implausible that what was said in a conversation between friends over coffee would come to the attention of a fellow member of the appellant's crew and thus be conveyed to the ship's captain, the Tribunal assumed that matters of religious interest would not ordinarily be the subject of gossip in a town in such a way as to come to the attention of a fellow crew member. The appellant says that he had no notice that the validity or content of the cultural and other assumptions that underpinned his account were in issue.
But closer examination reveals that the appellant's complaint is more deep-seated than a complaint about the making of unstated cultural assumptions. It is that he was not on notice that his account of how his ship's captain came to know of his interest in Christianity, and his account of the captain's reaction to that knowledge, were issues arising in relation to the decision under review. (emphasis added)
The failure of the Tribunal in SZBEL to warn the applicant of these concerns (or “issues”) constituted a failure to comply with s.425 of the Migration Act, because it did not alert the applicant to all of the “issues arising out of the review”. Thus it did not give the applicant an opportunity to directly respond to and counter those concerns.
In the applicant’s case, the applicant contends that several “issues” were relied upon by the Tribunal which were neither identified by the delegate nor raised with her at the hearing.
They can be characterised as follows:
a)That it was implausible that she would freely give out information about where she had lived in China to a stranger at a public rally, therefore, her father’s evidence that some time after the rally, officials had come to her family home in China asking about her could not be accepted.
b)In her statement of 1 July 2011 and at hearing, she had said that she met Mr Wang in 2002, which was treated as inconsistent with her statement of 12 July 2011 (after the hearing) where she said that she met Mr Wang “very soon after I came to Australia in 2001”.
c)Her evidence about whether she had practised Falun Gong with her husband when she discovered he was a practitioner in 2005 was inconsistent; at hearing she said that he lost patience with her when showing her the exercises, and thus her interest “was held up”, while in her statements dated 1 July and 12 July, she stated that she had practised with her husband.
The second particular is the most striking, because simply putting the inconsistency to the applicant could easily have led to a simple explanation that the Tribunal had misread the statement[21].
[21] The applicant had arrived in Australia in November 2001 so the inconsistency between the two statements is far from obvious.
I do not accept the Minister’s submission that the present case can be distinguished from SZBEL on the basis that the issues of inconsistency or implausibility considered by the Tribunal were not considered by the delegate. For the purposes of considering the principle in SZBEL, I draw no distinction between a case in which a delegate reaches a positive conclusion on particular facts and the Tribunal draws a negative conclusion based on the same facts and a situation where the Tribunal bases its decision upon the factual issues not considered by a delegate at all.
I accept, however, the Minister’s submission that there was sufficient disclosure by the Tribunal in relation to the relevant issues. As the High Court noted in SZBEL there is no obligation on the Tribunal to give a running commentary upon what it thinks about the evidence that is given.[22]
[22] SZBEL at [48].
The issues of substance in the present case were the nature and extent of the applicant’s association with Mr Wang and how far she and her husband had communicated with respect to, and together practised, Falun Gong. Both of those issues were raised with the applicant at the hearing.[23]
[23] CB 183 at [64]-[65]; affidavit of Dorcas Ayerakwa, pages 8-9, 12-16.
Further, the decision of the Tribunal discloses a wide range of credibility concerns, none of which might be determinative in isolation, but which were determinative when considered cumulatively. The Tribunal considered all of those factors cumulatively. There was no single item of evidence which assumed the same level of significance as was the case in SZBEL.
I conclude that while the applicant has raised an issue of substance arising from the High Court decision in SZBEL, it is not made out on the facts of this case.
I also reject grounds 3 and 4.
There are two flaws with the applicant's submissions regarding illogicality. First, illogicality in the sense of SZMDS goes to the Tribunal's overall state of satisfaction. It is not, of itself, enough to identify irrationality in particular aspects of the Tribunal's decision. As Nicholls FM said, citing SZMDS, in SZQSS v Minister for Immigration & Anor[24]:
consideration of whether the reviewer fell into error by way of illogical or irrational analysis requires regard to be had to all of the reviewer’s consideration in relation to all of the claims advanced, as they informed the ultimate conclusion as to the state of satisfaction. That is, the decision as a whole.[25]
[24] [2012] FMCA 31.
[25] Ibid, [32].
I am not persuaded by the applicant's submission which asserts that SZMDS goes to “aspects of the Tribunal's reasoning, and not just to the ultimate issue”[26].
[26] At [23].
Secondly, illogicality is absent where a conclusion by the Tribunal is open on the material before it or concerns something in respect of which minds might differ.[27] Further, as Crennan and Bell JJ stated in SZMDS, “not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case”[28].
[27] SZMDS at [131], [133] (Crennan and Bell JJ), cited in SZMIA v Minister for Immigration (2010) 116 ALD 580 at [20] (Tracey J).
[28] Ibid, [130].
The issue was considered very recently by the Full Federal Court in SZOOR v Minister for Immigration[29] where Rares J said at [11]-[12] and [15]:
[29] [2012] FCAFC 58.
It is one thing for reasons to be expressed inelegantly or, even, clumsily, provided that what is recorded portrays a reasoning process. But the dividing line between what is not rational or logical reasoning and a mere error of fact is far from clear. That can be because, as experience teaches, fact finding often has few bright lines for a decision-maker. Evidence is usually weighed as a whole so that an error in finding one fact can impact on the integrity of the whole decision. So much is recognised by the criminal appeal process from decisions by a jury that a person is guilty of an offence. If inadmissible evidence is put before a jury and they convict, generally the verdict will be set aside because the impact of the inadmissible material cannot be gauged. Where administrative decision-makers, such as the Tribunal, must give reasons, a Court can see how the decision was reached. So after making appropriate allowances for the decision-maker’s use of less than perfectly phrased language to convey his or her thought processes, a Court should be able to see whether those thought processes were, in substance, irrational or illogical vehicles to arrive at the decision.
Irrationality and illogicality as grounds for judicial review are distinct from an assertion that the decision-maker merely made a wrong finding of fact. Ordinarily, a decision-maker will not make an error of law or a jurisdictional error simply by making a wrong finding of fact: City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at 153-154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ. After all, the jurisdiction so exercised, is to make findings of fact not to make findings of fact that are necessarily correct. However, if the fact wrongly found is a jurisdictional fact, the decision will be amenable to judicial review. That is because the decision-maker cannot create or negate the existence of his, her or its jurisdiction by an erroneous finding or supposition that the jurisdiction exists or does not exist: Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 570-571 [64], 572-573 [67]-[68] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; cf too Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 200 per Dixon J, 258 per Fullagar J; Plaintiff S157/202 211 CLR at 512-513 [102].
…
The approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decision-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of a jurisdictional error.
The applicant claims illogicality in the Tribunal's finding that the applicant's delay in commencing her Falun Gong practice after being introduced to it undermined her credibility. The applicant's submission is that it does not “logically cast doubt about the genuineness of her practice from the time that she had taken it up”[30]. This is arguable, but it was open to the Tribunal to reason that the delay was not consistent with the applicant taking up Falun Gong as seriously as she claimed.
[30] At [25].
The same may be said of the Tribunal's finding that the applicant only took up Falun Gong practice in 2009 to bolster her refugee claim, but this lacked credibility because she did not tell the Department that she was a Falun Gong practitioner in 2010. The applicant claims “this would have been the first thing she would have told them, if that had been her purpose”.
This submission challenges the Tribunal's application of s.91R(3) of the Migration Act. It misunderstands the provision. The provision requires the applicant to satisfy the Tribunal that she has engaged in conduct in Australia otherwise than for the purpose of strengthening her claim to be a refugee. If the Tribunal is not so satisfied, the conduct is presumed by s.91R(3) of the Migration Act to be for that purpose and the Tribunal is required to disregard it. In any event, I reject the contention that the applicant’s delay in telling the Department about her Falun Gong practice meant the Tribunal's satisfaction under s.91R(3) of the Migration Act was relevantly irrational or unreasonable.
I dealt with similar issues to the present in SZQWM v Minister for Immigration & Anor[31]. Relevantly, I said in that case at [24]-[29]:
As I found in SZQLJ v Minister for Immigration & Anor [2011] FMCA 932, s.91R(3) may apply to conduct in Australia before protection is claimed. That recognises that a person may plan a claim for protection before the claim is made. Further, s.91R(3) does not require a blanket judgement to be made about conduct in Australia. It is open to a decision-maker to make different judgements about conduct in Australia occurring at different times or for different purposes. For example, it would have been open to the Tribunal to find that the applicant had commenced Falun Gong practice in 2008 out of curiosity, but, in 2010, heightened his involvement in order to support his protection visa claims. Alternatively, the Tribunal might have found that the applicant did not commence practising Falun Gong at all until 2010, shortly before he claimed protection.
That is not to express any view as to what the Tribunal should have found. That is simply to recognise that a range of conclusions were open to the Tribunal. Where the Tribunal does not specify in its reasoning relevant factual findings and explanations for its conclusions, the court is left to engage in some speculation.
A concern for the Tribunal was the applicant’s delay in seeking protection if he had been a genuine Falun Gong practitioner. In those circumstances, it is surprising that the applicant, if not a genuine Falun Gong practitioner, would engage in Falun Gong practice in Australia for years before making a claim for protection for the sole purpose of supporting that claim.
There is a risk in the Tribunal, if it does not make clear factual findings and adopt clear reasoning, might expose itself to allegations of absurdity and irrationality. However, I am not able to conclude that the conclusions reached by the Tribunal concerning the applicant’s conduct in Australia were unavailable to it on the evidence before it. Reasonable minds can differ about the probability of an applicant engaging in Falun Gong practice for the sole purpose of enhancing a protection visa claim and then delaying making that claim for a period of years.
It is important to bear in mind here that s.91R(3) casts upon an applicant the onus of satisfying the Tribunal that conduct in Australia was engaged in for some purpose other than enhancing protection claims. While the Tribunal purports to make a finding at [119][32] of its reasons, it was, in reality, for the purposes of s.91R(3), expressing a lack of satisfaction. It was for the applicant to persuade the Tribunal that he had some purpose for his conduct engaged in prior to claiming protection other than supporting that claim. If the applicant was never a genuine practitioner as the Tribunal found but had some purpose other than to enhance his protection claims, that purpose may not have assisted him.
While I have some concerns about the lack of express factual findings by the Tribunal and the paucity of reasoning, I am not satisfied that the Tribunal fell into jurisdictional error in applying s.91R(3).
[31] [2012] FMCA 310.
[32] CB 156.
I reach a similar conclusion here. The Tribunal accepted that the applicant had commenced Falun Gong practice in Australia, about a year before claiming protection. It is not irrational or unreasonable for the Tribunal to have reasoned that the applicant planned her protection visa claim before making it. There is a logical basis for such reasoning, although the longer the gap between the commencement of Falun Gong practice and the claim of protection, and the more opportunities to claim protection on the basis of the practice that are not taken, the more difficult it would be to demonstrate the logic of that reasoning.
The remaining issue is the applicant's claim of irrelevancy. The applicant cannot be suggesting that the delay was somehow an irrelevant consideration for the purposes of the review. Such matters are regularly, and properly, taken into account by the Tribunal.[33] To the extent the applicant complains of irrelevancy on some other basis, she is merely challenging the persuasiveness, or merits, of the Tribunal's conclusions. Given the absence of irrationality, the submission fails to establish jurisdictional error.
[33] See, for example, Subramaniam v Minister for Immigration (unreported, Federal Court of Australia, V 310 of 1997, 10 March 1998), discussed in SZJYM v Minister for Immigration & Anor [2008] FMCA 652 at [49].
I conclude that the applicant has failed to demonstrate a case of jurisdictional error in the decision of the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed.
I will hear the parties as to costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 17 May 2012