SZRPG v Minister for Immigration - [2013] FCCA 994

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRPG & ORS v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 994

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no reviewable error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 91R(3), 424A, 425

Cases cited:
Appellant P119/2002 v Minister for Immigration and Multicultural And Indigenous Affairs [2003] FCAFC 230
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Citizenship v SZMOK & Ors (2009) 257 ALR 427
Re Minster for Immigration and Multicultural Affairs: Ex parte Durairajasingham (2000) 168 ALR 407
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152
SZJKH v Minister for Immigration & Anor [2007] FMCA 1899
SZLBC v Minister for Immigration [2008] FMCA 181
SZLBC v Minister for Immigration and Citizenship [2008] FCA 728
WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912
WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87

First Applicant:

SZRPG

Second Applicant:

SZRQL

Third Applicant:

SZRQM

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1390 of 2012

Judgment of:

Judge Lloyd-Jones

Delivered by:

Judge Manousaridis

Hearing date:

15 March 2013

Delivered at:

Sydney

Delivered on:

2 August 2013

REPRESENTATION

The Applicants:

The First Applicant appeared in person on behalf of the Applicants with the assistance of a Mandarin interpreter

Solicitors for the First Respondent:

Ms K. Hooper of DLA Piper

The Second Respondent:

The Second Respondent filed a submitting notice of appearance

ORDERS

The name of the first respondent be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.
The application filed on 26 June 2012 and amended on 27 August 2012 be dismissed.
The first and second applicants pay the first respondent’s costs and disbursements of and incidental to the application.

The Applicants in these proceedings are not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and have been given the pseudonyms SZRPG, SZRQL and SZRQM.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1390 of 2012

SZRPG

First Applicant

SZRQL

Second Applicant

SZRQM

Third Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The solicitors for the first respondent, the Minister for Immigration, Multicultural Affairs & Citizenship (the “Minister”), were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This direction was complied with before the First Court Date directions hearing and the volume of material provided is identified as the Court Book (“CB”). On the date of the hearing, the Court Book was marked Exhibit “A” and is the only evidence before the Court.
At the First Court Date directions hearing, the applicants were granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material on or before 28 August 2012. The applicants elected to file an amended application on 27 August 2012. The applicants were also required to file and serve a short written outline of submissions and a list of authorities 14 days before the hearing. The applicants elected not to file any written submissions.
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review in respect of a decision of the Refugee Review Tribunal (“the Tribunal”), affirming the decision of a delegate of the first respondent, the Minister to refuse the applicants Protection (Class XA) visas. It is the decision of Tribunal Member J. Eutick dated 30 May 2012, RRT Case Number 1112684, that is the decision subject to review in the proceedings before this Court.

Background

In setting out the following background material I have quoted directly from the Court Book and submissions prepared by Ms Hooper appearing for the Minister. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book (“CB”), each item contains a Court Book reference for that material.
This is an application filed in the Federal Circuit Court under the Judiciary Act 1903 and the Migration Act seeking relief in the form of constitutional writs against the Tribunal. The Tribunal affirmed the decision of a delegate of the Minister refusing the applicants’ application for Protection (Class XA) visas.
The first named applicant (the “Applicant”) is a female citizen of China (CB 45). She arrived in Australia on 11 July 2011 (CB 47) on a Visitor visa subclass TR676. The second and the third named applicants are the Applicant’s husband and son, and also arrived in Australia on 11 July 2011 (CB 50 and 53) on Visitor visas subclass TR676.
The applicants applied for Protection visas on 25 August 2011 (CB 1). The Applicant claimed to fear persecution because she was a Falun Gong practitioner (CB 17). The Applicant’s husband and son applied for Protection visas on the basis of their membership of the Applicant’s family unit.

The delegate’s decision

A delegate of the Minister refused the applicant’s application on 28 October 2011 (CB 67). The applicants sought review by application to the Tribunal lodged on 25 November 2011 (CB 84).
The delegate noted that the Applicant, at the interview, stated that she was only interested in practising the exercises of Falun Gong, which she did for a period of two years in China, between 1998 and November 1999 (CB 107). The delegate noted that the Applicant has only developed an interest in studying and learning the main aspects of Falun Gong and taken up practice of the exercise upon her arrival in Australia, twelve years after she ceased all form of Falun Gong practice. The delegate was of the view that the Applicant engaged in conduct in Australia otherwise than for the purpose of strengthening the person’s claim to be a refugee (s.91R(3) of the Migration Act) (CB 107).
The delegate acknowledged that the Applicant does not wish to return to China, but the delegate did not accept that the Applicant’s claim that she faced a real chance of persecution on return to China for reason of her imputed political opinion. The delegate formed the opinion that the Applicant’s preference to remain in Australia was for the lifestyle, culture and freedom of the Australian way of life (CB 107).
The delegate found that, on the evidence, she was not satisfied that there was a substantial basis from which a finding of well-founded fear of persecution in the reasonably foreseeable future, in respect of the Applicant, could be made out. The delegate found that the Applicant had engaged in conduct in Australia otherwise than for the purpose of strengthening the person’s claim to be a refugee (CB 107).

Proceedings before the Refugee Review Tribunal

The Applicant attended a hearing before the Tribunal by video-link on 9 May 2012 (CB 121). The Applicant’s husband was made available to give oral evidence over the telephone at the Tribunal’s request (CB 121 and 119-120 (Tribunal’s email request and the Applicant’s response). The Tribunal received oral evidence from the Applicant, her husband and one named witness (see CB 117 and CB 171 at [35]). The Applicant provided, at the hearing her passport untranslated documents and photographs (CB 125-143).
On 11 May 2012 the Tribunal sent the applicants an invitation to comment on or respond to information in writing (CB 146). In summary the Tribunal put to the applicants:
a)Inconsistencies in the Applicant’s evidence, including between the Applicant and her husband’s evidence; and
b)That the Applicant raised new claims at the Tribunal hearing concerning discrimination suffered by her son, and a summons served on the Applicant in relation to her practice of Falun Gong.
The Tribunal noted that the Applicant had not provided the Department of Immigration and Citizenship with a copy of documents the applicant stated were a summons and medical certificate relating to her injuries received following her claimed arrest in November 2009.
The Applicant responded on 20 May 2012 (CB 150). Her response contained what was referred to as a summons with an English translation including a date of November 1999 (CB 153) and medical documents with translations (CB 155).
On 30 May 2012 the Tribunal affirmed the delegate’s decision under review, refusing to grant the applicants Protection visas (CB 164).

The Tribunal’s decision

The Tribunal accepted that the Applicant had practised Falun Gong exercises for health reasons until around August or September 1999, when doing so became illegal, because this claim was supported by a third party witness (at CB 183 [84]).
The Tribunal did not find the Applicant or her husband, the second named applicant, to be credible witnesses (CB 184 at [86]). In so finding, the Tribunal placed weight on inconsistencies and confusion in the evidence concerning the period of time the applicant practised Falun Gong in China and events claimed to have occurred therein (at CB 184 at [87]-[89] and CB 185-186 [92]-[96]). The Tribunal found medical reports and a summons submitted by the Applicant were not genuine (at CB 185 [90] and [91], respectively).
The Tribunal was not satisfied that the Applicant ever suffered harm in China for reason of her actual or imputed practice of Falun Gong or any association with Falun Gong (at CB 186 at [97]).
The Tribunal disregarded the Applicant’s conduct in Australia pursuant to s.91R(3) of the Migration Act, as it was not satisfied the Applicant was involved in Falun Gong for any other reasons than to establish a claim for refugee status (at CB 186 at [96]).

Application before the Court

The applicants commenced proceedings by application filed on 26 June 2012. On 17 July 2012, the Court directed, inter alia, that the Applicant’s husband and son be added to the proceedings as the second and third named applicants and be given the pseudonyms SZQRL and SZQRM.
The applicants relied on an amended application filed on 27 August 2012. No written submissions or affidavit evidence were filed by the applicants.
The Amended Application sought the following orders:
An order that the decision of the tribunal or Minister be quashed.
A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.
The grounds of the Amended Application are as follows:
1. The Refugee Review Tribunal has ignored relevant considerations in making the decision.
2. In paragraph 87 of the decision, the Tribunal found there is “considerable variation and confusion surrounding the evidence about the period of the applicant practices Falun Gong in China.” The Tribunal failed to consider the actual reason why the answers provided by my husband were different from mine. When RRT member asked my husband when I started to practice Falun Gong, my husband answered 1998. Later RRT member asked my husband how long I have been practicing Falun Gong. My husband said it’s more than ten years, which is from 1998 until now. When interpreter translated this to RRT member, interpreter said it’s around ten years. This misleading translation caused confusion. RRT member didn’t accept my explanation of this inconsistency. Then, based on this inconsistency, RRT member reached the conclusion that things including my arrest, Chinese police’s interrogation against me, my injury and the period I stayed in hospital are all false.
3. In paragraph 88 of the RRT decision record, the inconsistency of the answers between my husband and I was mentioned. RRT member didn’t consider that my husband was in Europe for many years. We were separated during that period. After many years passes, my husband forgot about many things that happened to me in the past. I think this is human nature. I enclosed my husband’s passport copy as evidence of his period of stay in Europe.
4. The Refugee Review Tribunal rejected the applicant’s claimed involvement in Falun Gong in China without considering the all of information the applicant provided.
5. Paragraph 89 of the decision record, RRT member mentioned that I said I was sent to hospital by police. My husband said I left from the hospital gate. The reason my husband said that was because my mother told him so. My mother didn’t want my husband to know I was tortured by police to a severe level. My mother didn’t want my husband to worry about me too much. RRT member didn’t ask about the reason why my mother made this up. I said my skin was burnt by cigarette. My husband said I was scalded by boiling water. RRT member didn’t consider the photo I provided. The scar on the photo is definitely from a cigarette burn. RRT member didn’t consider that my husband was in Europe for many years. We were separated during that period. After many years passed, my husband forgot about many things that happened to me in the past. RRT member mentioned that the doctor certificate I provided stated that my injury was caused by boiling water. But RRT member didn’t consider that doctor’s report was written under Police’s order. The scar on my body is the truth. I have enclosed the photo of my scar. I can show you my scar if necessary.
6. The Tribunal made its decision relied on the information which is incorrect. The translation provided by my previous migration agent was wrong. This misleading information caused RRT member to have wrong judgement of me. In paragraph 90 of the decision record, RRT member pointed out that I was treated fir 23 days in hospital according to medical report, which I was hospitalised on 11 November 1999 and released from hospital on 23 November 1999, I have the correct translation enclosed.
7. In paragraph 91 of the decision record, RRT member mentioned that I didn’t provide the summons to immigration department. When I lodged application to immigration, I have provided the summons to my previous migration agent, but that migration agent didn’t provide it to immigration department.
8. In paragraph 92, RRT mentioned “the Tribunal considers that it is implausible that the police would interrogate her harshly but take her to hospital because they were afraid of being held responsible.” But no matter what Tribunal considers, that was the truth.
9. In paragraph 93 of the decision record, RRT member writes: “The Tribunal also considers that the applicant’s claims regarding the requirement to report are highly inconsistent between the department and the Tribunal.” In its decision record: “at the hearing the applicant claims that she was required to report to police every 3 days for 6 months after the incident in November 1999 and then as requested but at least once a month until she came to Australia in July 2011.” But during the interview with immigration department officer, this matter was not mentioned by immigration officer. The duration of immigration’s interview was much shorter than Refugee Review Tribunal’s hearing and the questions asked were different. I am sure there are many questions asked by Immigration officer are not same as Tribunal member asked.

Applicant’s Submissions

At the First Court Date directions hearing before Smith FM on 17 July 2012 an order was made that the applicants must file and serve in the Court’s Registry a short written outline of submissions and list of authorities seven working days before the hearing. This order was not complied with, however, the Applicant, at the hearing, sought to hand up written submissions in Mandarin without an English translation. The course that was adopted was that the interpreter read the submissions to the Court. The interpreter indicated that the task was made more difficult because the written submissions were in a formal written language and not in the normal oral form suitable for oral presentation. With that difficulty noted the interpreter proceeded to read the Applicant’s written submissions. The bulk of the material was, in effect, a restatement of the Amended Application with some additional comments to elaborate the Applicant’s point. The contents of these grounds are addressed in the section headed “Consideration”, set out below.
After Ms Hooper indicated to the Court that she relied upon her written submissions and responded orally to new points raised by the Applicant’s oral submissions, the Applicant was asked whether she wished to respond to either the written or oral submissions made on behalf of the Minister. The subsequent response appears to be a misunderstanding on the part of the Applicant, when she raised the complaint that Ms Hooper had made reference to cases involving applicants other than her. It was indicated to the applicant that the matters that Ms Hooper was referring to were authorities that this Court was bound to follow.

The Minister’s Submissions

The Minister, in its written submissions prepared for it by DLA Piper, submits that [1] of the Amended Application asserts that the Tribunal ignored a ‘relevant consideration’. At [2], the applicants allege that the Tribunal failed to consider the ‘actual reason’ for inconsistent evidence given by the Applicant and her husband, which they appear to attribute to an error on the part of the interpreter:
a)The Tribunal put to the Applicant and her husband at [64] (CB 176) a number of relatively significant inconsistencies in their evidence. In response, the Applicant did not suggest any fault by the interpreter or otherwise suggest any confusion.
b)The Tribunal also invited the Applicant’s comment on the inconsistencies between the Applicant’s and her husband’s evidence in its post-hearing s.424A letter. In response to the s.424A letter, the Applicant claimed that there were errors made by the interpreter (CB 151), however, not in relation to the specific inconsistency referred to at [2] of the Amended Application, being the inconsistent evidence as to the period of time the Applicant practiced Falun Gong in China.
c)The Tribunal did not fail to consider any mandatory relevant consideration, nor is there any evidence of a breach of s.425 owing to a material error in interpretation: see generally Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [17].
At [3] of the Amended Application, the applicants refer to [88] (CB 184) of the Tribunal’s decision and allege that the Tribunal did not consider that the Applicant’s husband was in Europe for many years and purport to explain the husband’s forgetfulness. The Tribunal noted, at [58], the husband’s evidence that he lived in Europe for eight years. The Tribunal considered the explanations in fact advanced by the Applicant as to the inconsistencies between her and her husband’s evidence, see for example from [72] (CB 180-181) and, specifically, [87] (CB 184). No jurisdictional error is demonstrated.
At [4] of the Amended Application, the applicants assert that the Tribunal failed to consider all of the information the applicants provided. At [5] of the Amended Application, the applicants refer to [89] of the Tribunal’s decision, and a photograph and doctor’s certificate. The Tribunal referred to photos, including of scars, at [67] (CB 177) of its summary of the hearing. It referred to the medical reports at [89]-[90] (CB 184-185) of its findings, and was ultimately not satisfied the Applicant had ever suffered any harm in China for reason of her actual or imputed Falun Gong practice (CB 187 at [97]). The applicants have not established that any item of evidence was overlooked so as to establish jurisdictional error.

At [6] of the Amended Application, the applicants assert that the Tribunal made its decision relying on wrong information which is incorrect. The applicants refer to an incorrect translation, and purport to enclose a correct translation, citing [90] of the Tribunal’s decision:
a)The document at p.6 of the Amended Application is similar, but plainly not identical to a document appearing in the Court Book at p.136 and 160. A translation of this document (CB 136 and 160) is said to appear at p.156 of the Court Book. The document at Court Book p.156 refers to the applicant entering hospital on 11 November, leaving on 23 November and spending a total of 23 days in hospital;
b)The document at p.5 of the Amended Application (being a translation, as the Minister understands it, of p.6 of the Amended Application) is formatted differently, but, save for the calculation of total days in hospital, contains substantially the same information as the translation at p.156 of the Court Book;
c)In any event, the document at p.5 of the Amended Application was not before the Tribunal and any application to tender it in these proceedings is therefore opposed. The Tribunal cannot be said to have erred by reference to a document it did not have before it; and
d)The Minister similarly opposes any application to tender any of the additional documents attached to the Amended Application which were not before the Tribunal. The Minister contends that the entirety of the attachments to the Amended Application is relied on by the applicants in an attempt to engage the Court in impermissible merits review of the Tribunal’s findings of fact.
At [7] of their Amended Application, the applicants cite the Tribunal at [91] and indicate that the omission to provide a summons to the Department of Immigration and Citizenship was the fault of their migration agent. The Applicant never raised this as an explanation, when the failure to provide the summons to the Department was put to her. The explanation, in fact advanced by the Applicant, was considered and rejected by the Tribunal at [91] (CB 185).
At [8] of the Amended Application, the applicants dispute a finding of fact.
At [9] of the Amended Application, the applicants cite the Tribunal at [93] and suggest that there was no inconsistency between the Applicant’s evidence to the Tribunal and the delegate, as relied on by the Tribunal at [93] (CB 185):
a)The Tribunal raised these particular inconsistencies with the Applicant at the hearing as noted at [48] of the Decision Record. The Tribunal records the Applicant’s evidence to the delegate, relevantly, at CB 170 in the final two dot points on the page (p.7 of the Tribunal decision, see further the delegate’s decision at CB 79); and
b)The Tribunal further raised these inconsistencies with the applicants, in its post hearing s.424A letter. The Applicant purported to address these matters in her response at CB 151-152. The Tribunal considered the response in fact advanced by the applicant, see for example from [72] and specifically from [88] of the Decision Record. It was open to the Tribunal to find the Applicant provided inconsistent evidence as to the claimed subsequent reporting requirements, as it did at [93].
The Minister submits, independently of the applicants’ pleaded grounds, that the Tribunal complied with the requirements of Division 4 of Part 7 of the Migration Act.
Specifically as to s.425 of the Migration Act, the Tribunal was not obliged to invite the applicants to a further hearing to foreshadow its factual findings in relation to the Applicant’s summons and medical documents.
The documents in issue were submitted at the Tribunal hearing in a foreign language, and later submitted in English. The Tribunal found that they were manufactured to assist the applicants’ application.
The Tribunal was not obliged to raise the genuineness of these documents as a discrete issue, in terms, where that issue flowed naturally from what was raised expressly with the Applicant at the hearing: see WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 at [37]. The documents in issue were before the Tribunal at the time of the hearing and the Tribunal put its doubts about the substantive factual issues to the Applicant.
In Minister for Immigration and Citizenship v SZMOK & Ors (2009) 257 ALR 427, the Tribunal had rejected the authenticity of impugned documents based on its findings of adverse credibility (see [48]). The Full Court set out relevant principles from [60] onwards.
Further, it is noted by the Minister that this is a case in which the Minister’s delegate rejected the entirety of the Applicant’s material claims. In the course of her decision record, the delegate relevantly noted that the Applicant was asked during her interview why she did not include the details of her alleged arrests and her hospitalisation in her written claims (CB 79). These arrests included the arrest of November 1999, which the delegate referred to immediately prior to making the above remark.
The Minister’s delegate went on to find that she had serious concerns with the veracity of the Applicant’s claims. The delegate stated that the Applicant had not provided any form of evidence to support any of the claimed periods of arrest and had not provided any medical or hospital reports to support her claims of injuries resulting in admissions to hospital (CB 80). The delegate squarely raised the absence of evidence corroborating the Applicant’s claimed arrest and injury, and the veracity of the claimed arrest and injury generally.
As to the proceedings before the Tribunal at [48] (CB 174) it records that it put to the Applicant the inconsistencies in her evidence, including that, with respect to the November 1999 arrest, the Applicant had not mentioned the summons and did not take it to the Departmental interview with her. The Tribunal also asked the Applicant about other documents she apparently referred to in the course of her evidence, and the Applicant said these were medical documents.
In the “Findings and Reasons” with respect to medical documents, the Tribunal:
a)Noted that the contents of the medical reports were inconsistent with the Applicant’s claims as to the cause of her injuries (although consistent with her husband’s evidence) (CB 184 at [89]); and
b)Specified other deficiencies with the reports, including that they were titled outpatients records, but referred to treatment in hospital. The Tribunal found the deficiencies it identified, together with the fact that the documents were not provided at the Departmental interview, led it to the conclusion that the medical documents were not genuine documents and were manufactured to support the applicants’ application (CB 185 at [90]).
With respect to the summons relating to the November 1999 incident, the Tribunal noted that this document was not provided to the Minister’s delegate and did not accept the Applicant’s explanation for why that was so (at [91]). The Tribunal found that this delay in lodging the document created doubt as to its authenticity and led the Tribunal to find it was manufactured to support the application (CB 185 at [91]).
It is argued that the Tribunal clearly put the applicants on notice of its concern as to the late provision of the summons at its s.425 hearing. Although the Tribunal did not foreshadow its findings that either the summons or the medical documents were non-genuine, it was not obliged to. The Applicant ought to have been on notice by reference to the delegate’s decision and matters traversed generally at the Tribunal hearing that her substantive claims to have been arrested in November 1999, and to have been injured and hospitalised as a result of treatment occasioned during her arrest and/or detention, were in issue. The Applicant’s post-hearing tender of the translated documents ought to be examined in this context. She was not entitled to assume that the veracity of those documents would be accepted.
The Minister submits that the ‘issue’ for the purposes of s.425 was whether the Applicant had been arrested and injured, and hospitalised as a result. The evidence provided later by the Applicant and/or the Tribunal’s perceptions of its genuineness was not a fresh issue. It was just a part of the issue that had been raised at the hearing, at which the foreign language documents were themselves provided. The Applicant was not entitled to a further hearing to discuss whether each item of evidence would be accepted as genuine or not. This would be akin to a running commentary on evidence, which is not required: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at [48]; and see further SZJKH v Minister for Immigration & Anor [2007] FMCA 1899 at [20]-[26] and SZLBC v Minister for Immigration [2008] FMCA 181 at [13], appeal dismissed SZLBC v Minister for Immigration and Citizenship [2008] FCA 728, see [10].

Consideration

At the First Court Date directions hearing the Applicant expressed the desire to participate in the RRT Legal Advice Scheme NSW. At the final hearing the Applicant indicated that she had received that advice from the panel advisor allocated to her. The Applicant was also granted leave to file an amended application and did so on 27 August 2012. It is noted that the Amended Application was not drafted by the Panel Advisor, however, the Amended Application has been substantially expanded from the original application. The Amended Application merged grounds and particulars where, in effect, there are three grounds, being [1], [4] and [6] with the balance being particulars supporting these grounds. In the applicants’ Amended Application, there are notionally three broad grounds of review, which have been addressed in the written submissions prepared on behalf of the Minister.
At the hearing the Applicant had a document, hand written in Chinese, that she wished the Court to consider. The interpreter read out the contents of that document which were taken to be the Applicant’s oral submissions. Essentially, the Applicant had elaborated or repeated the grounds as pleaded in the Amended Application.
Ms Hooper, representing the Minister, argued that for the most part the Applicant advanced matters that she did not put to the Tribunal either at the hearing or in her response to the s.424A letter. Ms Hooper argued that each of the paragraphs that the Applicant took the Court to, the Tribunal did consider the explanations put to it by her and did not accept them.
First, the Applicant took the Court to [87] of the Tribunal’s Decision Record, which states:
87. The Tribunal notes that there is considerable variation and confusion surrounding the evidence about the period the applicant practiced Falun Gong in China. At the hearing the applicant gave evidence that she practiced Falun Gong for 1.5-2 years, starting in 1998 and finishing in 1999 when she found it was illegal… whereas her husband gave evidence that said she practiced Falun Gong in China for 10 years. The Tribunal does not accept the explanation for this inconsistency as being because her husband was referring to the period she starting practicing Falun Gong until when they departed China firstly because this would have been 13 years and secondly because it seems a very contrived explanation to respond in such a way to question asked…
(CB 184)
The Applicant stated that the difference in evidence was essentially due to a misunderstanding of the question. The Applicant submits that she intended to inform the Tribunal the time frame of persecution for practicing Falun Gong, being 1998-1999, while her husband informed the Tribunal of the time frame from which she starting practicing Falun Gong. The Tribunal identifies the discrepancy in the time frames of the Applicant practicing Falun Gong and found that the inconsistencies were indicative that the applicant’s claims are not true.
The Applicant then took the Court to [88] of the Decision Record where the Tribunal notes that there were a number of inconsistencies in the evidence that she gave at the Departmental interview and at the hearing that of her husband. The Tribunal noted that the Applicant stated that interpreting errors accounted for the discrepancies. The Tribunal noted at [88] that:
…the applicant has not provided an authorised transcript to support the assertions she has made in this regard. The Tribunal might accept that interpreting may have been imprecise such that ‘slapped in the head’ may have be interpreted as ‘head injuries’, however the Tribunal does not accept that the applicant’s claims that other discrepancies can be explained in this way and has not basis to conclude that that the standard of interpreting compromised the applicant’s ability to present her case.
(CB 184)
Before the Court, the Applicant did not raise the issue of interpreting errors, instead, she adduced additional claims about the inconsistencies in and between her and her husband’s evidence. The Applicant stated that her husband lived in Europe for many years and that she did not want to burden him with her suffering. The Applicant also stated that her husband was a bus driver and was responsible for the lives of many families, and that the Applicant’s mother did not tell the husband “all the truth” (Transcript, 15 March 2013; p.5). The Applicant did not pursue the misinterpretation argument. Instead of an interpreting error it appears that the Applicant is attempting to explain the inconsistencies in evidence before the Tribunal as due to lack of understanding or lack of information on her husband’s behalf.
The applicant then took the Court to [89] of the Decision Record, where the Tribunal notes that there are a number of discrepancies between the Applicant’s and her husband’s evidence, specifically in regards to an incident in China in November 1999 where the Applicant claimed to be burned by cigarettes. The Applicant’s husband referred to the Applicant as having been burned by boiling water. The Tribunal noted:
…Her explanation for this inconsistency was that her husband thought her injuries looked like boiling water. The Tribunal notes that the applicant has provided medical reports claimed to relate to the injuries she sustained in November 1999. These reports also refer to being scalded by boiling water which is inconsistent with the applicant’s claims that she was burnt by cigarettes but consistent with her husband’s evidence.
(CB 184-185)
The Applicant blamed the inconsistency on second-hand information the Applicant’s husband received from the Applicant’s mother. The applicant also claimed falsification of the medical report on behalf of the hospital, “The medical reports from the hospital are controlled by the government, by the police… We could not be respected. We didn’t have the human rights… the Chinese Government wrote the medical report saying that I was burnt by the hot water… The medical report is not real reliable evidence” (Transcript 15 March 2013; p.6). This is addressed at [90] of the Decision Record, which states:
…These discrepancies together with the fact that they were not provided at the departmental interview, lead the Tribunal to the conclusion that they are not genuine documents and have been manufactured to support the applicant’s application and reflect adversely on the applicant’s credibility.
(CB 185)
As argued by the Minister at [36] above, the Tribunal was not obliged to raise the genuineness of these documents as a discrete issue, in terms, where that issue flowed naturally from what was raised expressly with the Applicant at the hearing: see WAGU v Minister for Immigration and Multicultural and Indigenous Affairs (supra) at [36]-[38].
The Applicant briefly took the Court to [90], [91] and [93] of the Decision Record. The Applicant essentially repeated the claims made in [6], [7] and [9] of the Amended Application.
The Applicant also took the Court to [92] of the Decision Record where the Tribunal states:
…the Tribunal considers that the applicant’s account taken at its best is confusing and implausible. The Tribunal considers that it is implausible that the police would interrogate her harshly but take her to hospital because they were afraid of being held responsible…
(CB 185)
The Applicant submits that it was international pressure from foreign media that ensured that the Applicant was sent to the hospital after mistreating her at the interrogation.
Ms Hooper brought to the Court’s attention to where a tribunal has before it certain documents and asks an applicant questions going to the factual matters, those documents are said to demonstrate that it will not be necessary for the Tribunal to put to the applicant in terms a possible finding that those documents were not genuine. In WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87 their Honours Carr and Tamberlin JJ (with Lee J dissenting) were considering a case where a particular letter from the visa applicant’s mother had been found to be a fabrication. At [59] their Honours state:
59… In our view, what sort of fabrication the Tribunal meant was not to the point. The question for the Tribunal was to assess whether the events recited in the Letter occurred. In our opinion, in the light of the other evidence before it, it was open to the Tribunal to reject the contents of the Letter. We do not see its conclusion as involving a credibility finding against the appellant. The events purportedly described in the Letter all occurred after he had left Afghanistan. The Tribunal put to the appellant its concerns about the claims made in the Letter and gave him an opportunity to respond. It must have been obvious from that exchange that there was a prospect that the Tribunal was not going to believe what was in the Letter. We do not see any relevant difference between a finding that the Letter was full of lies and the finding that it was a fabrication. The essential question, which the Tribunal understood and answered, was whether the appellant faced a real chance of persecution if returned to Afghanistan.
The Minister submits that in WAHP (supra), at the hearing, the Tribunal had put to the applicant its concerns about claims made in that letter and gave him the opportunity to respond to that. Their Honours at [62] found that the Tribunal had made it clear to the visa applicant that it had difficulty accepting the factual claims made in the letter. In those circumstances as the Tribunal had raised with the visa applicant the critical issue, it was not required to put in terms its finding that the letter was a fabrication. The Minister submits that case is on point with the current matter, where the Tribunal raised with the Applicant the concerns as to her factual claims, which her medical documents and summons ultimately went to.
In respect of the pleaded grounds in the Amended Application, I am satisfied that the written submissions prepared and relied upon by Ms Hooper adequately and competently respond to these claims and need no further consideration.
In the Tribunal’s “Findings and Reasons” the Tribunal Member makes the following findings:
84. The Tribunal accepts that the applicant practised Falun Gong exercises for health reasons until August/ September 1999 when it became illegal as this is supported by evidence from Ms Yan.
85. In considering the relevant and material facts in this matter the Tribunal has assessed the credibility of the applicant taking into account the difficulties often faced by refugee applicants noting that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all of their claims.
86. However, the Tribunal is not required to accept uncritically any and all allegations made by the applicant. In addition, the Tribunal is not required to have rebutting evidence available before it can find that a particular factual assertion by an applicant has not been made out. The Tribunal is not obliged to accept claims, which may be plausible and coherent, but are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey and Kopalapillai v MIMA (1998) 86 FCR 547.) The Tribunal did not find the applicant or her husband to be credible witnesses.
(CB 183-184)

In the following paragraphs the Tribunal Member identified and comments upon the various elements of evidence that support this view in respect to the applicant’s credibility and are briefly summarised as follows:
87.…considerable variation and confusion surrounding evidence about the period the applicant practiced Falun Gong in China.
88. … the applicant’s explanation for a number of inconsistencies in the evidence that she gave at the Departmental interview and at the hearing and between her evidence and her husband’s evidence.
89. The Tribunal notes that there are several other significant discrepancies, in particular that at the hearing the applicant said that the police took her to hospital after the incident in November 1999, whereas her husband said that she was left at the door of the police station…
90. In a post hearing submission the applicant provided medical reports. The reports are entitled ‘outpatient reports’, but refer to treatment in the hospital; that the report refers to treatment being for (sic) 23 days when the date of admittance is claimed to be 11 November 1999 and the date of discharge is 23 November 1999…
92. In relation to the incident in July 1999, the Tribunal considers that the applicant’s account taken at its best is confusing and implausible…
93. … the applicant’s claims regarding the requirement to report are highly inconsistent between the Department and the Tribunal.
The Tribunal’s adverse credibility finding and consequential rejection of the Applicant’s claims are a matter for the Tribunal par excellence: see Re Minster for Immigration and Multicultural Affairs: Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]. I am satisfied that the Tribunal’s findings in this respect were open to it on rational grounds on the material before it and that no error is disclosed in its treatment of the Applicant’s credibility: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547. The Tribunal detailed at length the vagueness, inconsistencies, confusion and unrealities of the Applicant’s evidence in a number of respects.
An additional issue is whether Australia owes the applicant complementary protection under s.36(2)(aa) of the Migration Act. A convenient summary of the new provisions of the Migration Act is contained in the then Bill’s Second Reading Speech on 24 February 2011. The speech indicates that the new provision establish criteria to grant the Protection visa in circumstances that engages Australia’s non-refoulement obligations under the Human Rights treaties and other Refugee Conventions:
Australia will not return a person to a place where there is a real risk that a person will suffer particular types of significant harm contained in the relevant human rights treaties, namely:
· the arbitrarily deprivation of life;
·having the death penalty carried out;
·being subjected to torture;
·being subjected to cruel or inhuman treatment or punishment; or
·being subjected to degrading treatment or punishment.
(Hansard, 24 February 2011)
As discussed above, the claims advanced by the Applicant to seek protection from persecution, as described in the Refugees Convention, were rejected by the Tribunal. They were rejected primarily on the basis of credibility and, secondly, on the basis the Tribunal did not accept that the applicant had any further involvement in Falun Gong after it was banned in China in 1999. On the Applicant’s own evidence, she only practised the exercises for health reasons. In respect of the applicant’s claims to have practised Falun Gong in Australia, the Tribunal found that the only reason that this was pursued was to establish a claim for refugee status in Australia in accordance with s.91R(3) of the Migration Act. This section states that the Tribunal must disregard the Applicant’s limited involvement in Falun Gong in Australia. In these circumstances, none of the issues raised in the complementary protection criteria of the Migration Act are relevant. None of the complementary protection criteria were raised by the Applicant in her claim, but this is understandable in the case of an unrepresented litigant, unfamiliar with the language and legal administration of this country, having very limited opportunity to avail herself of the knowledge or assistance.
The Tribunal addressed this criteria at [98] of the Decision Record in the following terms:
98. The Tribunal has considered the alternative criteria in s.36(2)(aa). The Tribunal has disregarded the applicant’s limited involvement in Falun Gong whilst she has been in Australia pursuant to s.91R(3). The Tribunal notes that this provision does not apply to the Complementary Protection provisions and has, therefore, considered whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm in China as a result of her involvement in Falun Gong activities in Australia. The Tribunal has found above that the applicant’s involvement in Falun Gong activities in Australia is very limited and had not accepted her claims that either she is a genuine Falun Gong practitioner or that the applicant has had any difficulties in China for this reason. The applicant has not claimed and the Tribunal is also not satisfied that the applicant will suffer significant harm upon her return to China. The Tribunal accepts that the applicant does nor wish to return to China and wished to remain in Australia with her son and husband, However, the Tribunal is not satisfied that there is any evidence that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk that the applicant will suffer significant harm/ The Tribunal is not, therefore, satisfied that the applicant meets the alternative provisions in s.36(2)(aa).
(CB 187)

Conclusion

On the material before the Court I am satisfied the Amended Application cannot be sustained and should be dismissed with costs awarded to the Minister by the first and second applicants.

I certify that the preceding sixty-six (66) paragraphs are true copy of the reasons for judgment of Lloyd-Jones

Associate:

Date: 2 August 2013