SZRVC v Minister for Immigration
[2013] FMCA 213
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRVC v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 213 |
| MIGRATION – Review of Refugee Review Tribunal decision – Refusal of a Protection (Class XA) visa – No reviewable error – Application dismissed. The Applicant in these proceedings is not to be identified pursuant to s. 91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZRVC. |
| Migration Act 1958 (Cth), ss.36(2), 91R(2), 422B, 424A, 425(1) |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 Khan v Minister for Immigration and Citizenship& Anor (2011) 192 FCR 173 Minister for Aboriginal Affairs v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZJGV & Anor (2009) 238 CLR 642 Minister for Immigration and Citizenship v SZLFX & Anor (2009) 238 CLR 507 Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZJXO v Minister for Immigration and Citizenship & Anor [2007] FMCA 1103 SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 VBAS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 435 VDAU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 32 |
| Applicant: | SZRVC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2099 of 2012 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 21 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 27 March 2013 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the First Respondent: | Mr R White of Sparke Helmore |
| The Second Respondent: | The Second Respondent filed a submitting notice of appearance |
ORDERS
The Application filed 26 September 2012 is dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements of, and incidental to, this Application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2099 of 2012
| SZRVC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the Court’s orders made on 23 October 2012, the solicitors for the first respondent, the Minister for Immigration & 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 order was complied with and the volume of material provided is identified as the Court Book (“CB”), marked Exhibit “A” and is the only evidence before the Court.
At the First Court Date directions hearing the applicant sought to participate in the NSW RRT Legal Advice Scheme. This referral was made and written advice was provided after the applicant’s conference with a Panel Advisor. The applicant was 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 4 December 2012. The applicant elected not to file an amended application.
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”), being RRT Case Number 1205029, a decision of Tribunal Member H. Sanderson dated 28 August 2012, affirming the decision of a delegate of the first respondent, the Minister, to refuse to grant the applicant a Protection (Class XA) visa.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Mr White 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, each item contains a reference for that material.
The applicant is a male citizen of China, born in 1954 and is married with two children, all of whom reside in China. The applicant entered Australia on 2 August 2011 on a subclass 676 Tourist visa valid until 15 June 2012 (CB 12, 42, 77, 86, 103). On 1 November 2011, the applicant lodged a Protection visa application (CB 1-27) and appointed a migration agent to assist him (CB 25-27). The applicant set out his claims in a typed three page statement, submitted with his visa application, of fearing harm in China (CB 28-30).
The applicant claimed that he worked in China as a gardening technician, that he was discriminated against at work and not promoted because the relevant organisations would not assess or appraise his research work (CB 104). He claimed that the Chinese Communist Party (the “CCP”) only recognised those who had a high level of education. The applicant also claimed that he was accused of not following the family planning policy and of demonstrating a low level of political consciousness (CB 104). He claimed further that in 2010, while travelling to Australia and New Zealand for tourism, he was given Falun Gong related material, namely, a copy of “The Epoch Times”. After reading this material and returning to China he resigned from the CCP (CB 104-105). As a result of his resignation, the applicant claimed that he was criticised and warned by the party secretary of his work unit, discriminated against at work and by the authorities. Since arriving in Australia, the applicant claimed that his house had been visited by “two security men”, who told his wife that the property had been forfeited by his employer and his wife was made to move out of the house (CB 28-30; 103-106 at [22]).
The applicant expanded on his claims at an interview before the delegate conducted on 2 March 2012: CB 106-107 at [24]-[38]. At the interview the applicant also claimed to fear persecution in China because he was a Buddhist (CB 107-108 at [38]).
The applicant attended a hearing before the Tribunal conducted on 7 August 2012 to give evidence and present arguments in support of his application (CB 71-74). At this hearing, the applicant confirmed that he was a Buddhist in China but was also a Taoist or a member of Yiguan Tao/Dao (CB 108-110 at [43], [47], [50]).
The delegate’s decision
On 15 March 2012, a delegate of the Minister made a decision refusing to grant the applicant a Protection visa (CB 42-49). The delegate was not satisfied that the applicant had substantiated his claim to have a well-founded fear of persecution (CB 49). In particular, the delegate found that the applicant’s claimed mistreatment at work did not amount to serious harm, pursuant to s.91R(2) of the Migration Act (CB 46). The delegate also found that the applicant’s claimed association with the Falun Gong movement and practice of Buddhism were fabrications, made for the purpose of enhancing his Protection visa application (CB 48).
The delegate was, therefore, not satisfied that the applicant faced a real chance of persecution in China in the reasonably foreseeable future for reasons of his political opinion, religion or any other Convention reason (CB 49).
The Tribunal proceedings
The applicant applied to the Tribunal to review the delegate’s decision on 18 April 2012 (CB 50-56) and a copy of the refusal notification and a copy of the delegate’s decision was attached (CB 57-65).
By a letter dated 5 July 2012, the Tribunal invited the applicant to attend a hearing before the Tribunal, scheduled for 7 August 2012 (CB 68-70). The applicant attended the hearing with his appointed representative (CB 71-74). At the Tribunal hearing, the applicant gave the Tribunal copies of pages from his passport (CB 75-87) and documents from the Tian Yaun Monastery (CB 88-91).
Following the hearing on 17 August 2012, the applicant’s representative sent a fax to the Tribunal (CB 92) attaching a letter dated 16 August 2012, seeking to clarify his evidence at the hearing (CB 93-94), a translation of a letter of certification from Zheng Long Li (CB 95) and a temple member card (CB 96).
The Tribunal’s decision
In its decision dated 28 August 2012, the Tribunal affirmed the Minister’s delegate’s decision to refuse the applicant’s application for a Protection visa (CB 100-123).
In summary, the Tribunal:
a)Found that the applicant’s primary complaint was that he had suffered discrimination at work and was not given recognition by the government in China or his employer for the work and research he had done as a plant technician (CB 115-116 at [72]);
b)Noted that the claimed cause for the applicant’s discrimination was because he did not have higher education which the Tribunal found lacked a requisite Convention nexus (CB 116 at [73]-[75]);
c)Found that, even if the applicant’s claimed harm of not getting appropriate recognition for his work, bonuses or promotions were true, they did not constitute “serious harm” under s.91R of the Migration Act (CB 116 at [76]);
d)Found that the applicant had provided no evidence of serious harm and had continued to work at his place of employment, despite receiving threats and being discriminated against (CB 116 at [77]);
e)Found that the employer’s eviction of the applicant’s wife from their home and withdrawal of a work housing benefit did not constitute “serious harm”. Given the applicant’s evidence that his home was provided as a benefit of his employment, he had no legal title to the property and the applicant had voluntarily stopped working for his employer (CB 116-117 at [78]-[81]);
f)Noted, given the absence of corroborative documents, the Tribunal rejected the applicant’s claim that he had accrued a right to remain in the house and found that his employer’s enquiries as to why the applicant was absent from work were reasonable in the circumstances of his sudden and unexplained absence (CB 116-117 at [78]-[81]);
g)Found that the applicant had not experienced any persecution relating to his work or lack of workplace recognition and faced no future risk of harm in this regard (CB 117 at [82]);
h)Did not accept that the applicant’s resignation from the CCP would lead to persecution and his claims to have since been subjected to discrimination at work did not amount to “serious harm” or threaten his capacity to subsist or to earn a livelihood (CB 117-118 at [83]-[84]);
i)Noted that the applicant’s employer only made enquiries about the applicant’s whereabouts, made the single threat that he would lose his position and later asked his wife to vacate the home after he had been absent from work for months (CB 118 at [85]);
j)Found that the applicant’s ability to depart China on his own passport without difficulty indicated that he was of no adverse interest to the authorities, other than for his failure to attend work (CB 118 at [85]);
k)Did not accept that the conversation between the applicant and the secretary of the CCP after resigning from the party amounted to serious harm (CB 118 at [86]), or that he would experience serious harm as a result of his resignation from the CCP (CB 118 at [86]-[88]);
l)Found that the applicant had given inconsistent claims and evidence about his association with Falun Gong in his visa application before both the delegate and the Tribunal which undermined his credibility and caused the Tribunal to find that his claims were a “recent invention” with “no basis in truth” (CB118-119 at [89]-[92]);
m)Rejected the applicant’s claims to fear harm for reasons of religion, including on the basis of his claimed Buddhist faith or membership of Yiguan Dao, given the changing and expanding nature of his claims in this regard, his “confused explanation as to what he believed in”, the absence of information to suggest he would face harm as a Buddhist, the absence of country information that indicated he would face harm as a Buddhist, and the country information that indicated he would be able to practice as a Buddhist in China (CB 119-120 at [93]-[100]);
n)Found that the applicant would not face a real chance of persecution if he practised Yiguan Dao in China and was not a genuine member of Yiguan Dao, given that he raised this claim late, provided sparse evidence about his practice, beliefs and claimed fear of harm on this basis, as well as the absence of reports in the country information in respect of government crackdowns on Yiguan Dao (CB 120-121 at [101]-[105]).
o)Accepted that the applicant had attended a Yiguan Dao monastery in Australia, but found he only engaged in this conduct to strengthen his refugee claims and properly disregarded this conduct pursuant to s.91R(3) of the Migration Act: Minister for Immigration and Citizenship v SZJGV & Anor (2009) 238 CLR 642; SZJXO v Minister for Immigration and Citizenship & Anor [2007] FMCA 1103 (CB 121 at [105]);
p)Was not satisfied for these reasons that the applicant was a person to whom Australia owed protection obligations and who satisfied the criteria under s.36(2)(a) of the Migration Act (CB 123 at [111]); and
q)Also did not accept that the applicant’s claims about discrimination in the workplace, resignation from the CCP, membership of Falun Gong, practice of the Buddhist faith or Yiguan Dao, and attendance at a Yiguan Dao monastery in Australia constituted substantial grounds for believing he faced a real risk of “significant harm” within the meaning of s.36(2)(aa) of the Migration Act (CB 121-122 at [106]-[109]).
Legislative Framework
The decision of the Tribunal is a privative clause decision as defined by s.474(2) of the Migration Act. Section 474 operates to prevent the judicial review of all decisions under the Migration Act except those vitiated by jurisdictional error.
Proceedings in the Federal Magistrates Court
The applicant filed an application for judicial review in the Federal Magistrates Court on 26 September 2012. Pursuant to the application, the applicant sought the following orders:
1. An order that the decision of the tribunal or Minister be quashed.
2. A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.
The application pleads two grounds:
1. Refugee Review Tribunal denied procedural fairness to me.
2. I have provided evidence to RRT but the RRT ignored my evidence.
The applicant did not file an amended application or written submissions. At the hearing the applicant, when asked if he had any oral submissions to make in support of his claims, reiterated his personal circumstances and factual claims. The applicant claimed that he did not “…have a friend and I do not understand English and nobody is able to read the document to me.” (Transcript 21 February 2013, p.3.25). The Court clarified that the Minister’s submissions were read to the applicant before the hearing had commenced. The applicant stated, “I want to say that if the Australian Government declined to allow me to remain in Australia and so if I returned to China I would die and just no hope” (Transcript 21 February 2013, p.3.40). The applicant’s final statement was “The tribunal is unfair to me – unfair. The tribunal is unfair to me” (Transcript 21 February 2013, p.4.20).
The Minister’s Submissions
The Minister argues that the Tribunal’s findings were open to it for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272, and there is not an error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact (although none are apparent): Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [137].
It is argued that the Tribunal was not obliged to ask any particular question of the applicant and the weight to be given to the applicant’s claims was a matter for the Tribunal to assess as part of its fact-finding function. In determining whether the applicant had a “well-founded” fear of persecution, the Tribunal was entitled to resolve questions of credit, attribute weight to particular evidence and consider the inherent improbability of events: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (supra). The Minister also argues that the question of what constitutes “serious harm” within the meaning of s.91R of the Migration Act is a question of fact and degree for the Tribunal as sole arbiter of the facts: VBAS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 435 at [26]-[28] per Crennan J; VDAU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 32 at [24]; Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559. The choice and assessment of country information is also a factual matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13].
Ground One
The Minister argues that there are no particulars provided to make Ground One meaningful. Nonetheless, the Minister submits that this is a case to which s.422B of the Migration Act applied and the Tribunal was not required to afford the applicant common law natural justice: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62. The applicant was entitled only to the rights afforded to him under Part 7 of the Migration Act, and there is nothing to suggest that there has been any breach of those procedural obligations.
The Minister submits, specifically, that the applicant was invited to and attended a hearing before the Tribunal conducted on 7 August 2012, at which he gave evidence and presented arguments in relation to his case. It is also apparent from the Tribunal’s comprehensive reasons that it raised with the applicant at the hearing the determinative issues arising on the review, namely, the concerns it had with his evidence because it was inconsistent with or not supported by the country information and his claimed fear of persecution did not constitute serious harm (CB 110 at [49]). As the applicant had the opportunity to address these concerns, no breach of s.425(1) is apparent: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [42]-[44].
The Minister contends that, similarly, no obligations arose in respect of s.424A. The information that the Tribunal relied upon in making its decision comprised the applicant’s evidence and country information. Neither of these invoked obligations under s.424A of the Migration Act. The country information relied upon (see CB 118 at [87] and CB 120-121 at [98]-[103]) was not specifically about the applicant and, accordingly, fell within the exception in s.424A(3)(a). The Ministers contends that the Tribunal made some reference to the procedures afforded by s.424AA of the Migration Act (CB 108 and 110 at [42] and [51]), but it was strictly unnecessary for the Tribunal to employ this procedure in connection with general country information.
The Minister submits that the evidence given by the applicant to the Tribunal was also excluded from the ambit of s.424A by s.424A(3)(b). The Tribunal was not required by s.424A to put to the applicant for comment the existence of doubts and inconsistencies in the applicant’s evidence or its conclusions in weighing up the evidence by reference to those gaps: SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609 at [18].
At the hearing, the Tribunal asked the applicant about his Tourist visa application and the applicant gave evidence that the information in the documents submitted with that application were either incorrect or forged (CB 109 at [45]). The Tribunal appears to have accepted the applicant’s explanation about this information because, other than a historical reference to this information in the context of what the delegate had done (CB 107 at [33]), there is no other reference to the applicant’s Tourist visa application in the Tribunal’s decision. There was, therefore, no obligation on the Tribunal to invite the applicant to comment on this information pursuant to s.424A(1) as it was not “a reason, or part of the reason” for the Tribunal’s decision. Relevantly, s.424A speaks of information which “would”, not which “could” or “might”, be the reason or part of the reason for affirming the decision under review: Minister for Immigration and Citizenship v SZLFX & Anor (2009) 238 CLR 507 at [35]. This is to be determined by reference to the time at which the Tribunal became aware of the information and not upon the use that the Tribunal subsequently made of the information, although that may be a relevant consideration in drawing inferences as to the proper characterisation of the information: SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 at [36] per Siopis J; Khan v Minister for Immigration and Citizenship& Anor (2011) 192 FCR 173. It is clear that the Tribunal did not use or otherwise rely upon the information contained in the Tourist visa application in making its decision. Accordingly, the Tribunal was not required to put this information to the applicant under s.424A.
The Minister contends as the Tribunal complied with its procedural obligations under the Act, Ground One is not made out and ought to be dismissed.
Ground Two
The Minister contends that ground two also asserts, without particulars, that the Tribunal ignored evidence the applicant provided to it. The particular evidence that was allegedly ignored is not identified and it is not apparent from the Tribunal’s comprehensive findings and reasons that this has occurred. Even if some evidence was overlooked (which is neither admitted nor apparent), this would not constitute jurisdictional error. It “is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons”: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46] per French J (as he then was), Sackville and Hely JJ. To establish jurisdictional error, the applicant would need to establish that the Tribunal failed to consider the claims or an integer of the applicant’s claims: Minister for Aboriginal Affairs v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [57], citing with approval Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42] per Allsop J (with whom Spender J agreed).
The Minister submits that the applicant’s supporting affidavit, affirmed on 20 September 2012, asserts at [13]-[14] that he gave evidence to the Tribunal he was a Taoist Yiguan Dao, but the Tribunal “did not believe it” and that he “provided further evidence about my Taoist Yiguan Dao belief to the RRT after the hearing”.The Minister argues that these complaints have no proper foundation and cannot succeed. The Tribunal plainly considered the applicant’s claims to fear harm on the basis of his claimed membership and practice of Yiguan Dao (CB 120-121 at [101]-[105]), but did not accept they established basis to indicate that he faced a real chance of serious harm. Also, the Tribunal specifically considered the applicant’s post-hearing submissions about his claimed religious beliefs and practice (CB 112 at [58]; CB 120 at [96]).
The Minister argues that as the Tribunal did consider the evidence provided by the applicant and did not fail to consider and deal with a claim or an integer of his claims, Ground Two must also fail.
The Minister contends that the balance of the applicant’s supporting affidavit restates his factual claims for refugee status and asserts that the Tribunal’s decision is not fair. These complaints do no more than seek impermissible merits review of the Tribunal’s decision. The Minister argues that there is no jurisdictional error in the Tribunal’s decision and the application ought to be dismissed.
Consideration
At the commencement of the hearing, the applicant confirmed that he had received his legal advice and then attempted to explain why he had not elected to file an amended application or written submissions. I indicated to the applicant that I did not wish to hear what advice he had received as that was confidential and should remain between him and his advisor. What was interpreted and recorded in the transcript is ignored. The applicant then proceeded to make a brief statement indicating that he considered the Tribunal’s decision to be unfair and in support of that assertion he restated his personal circumstances and his factual claims for refugee status. This, in effect, is an invitation to the Court to enter into a merits review which is not available: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (supra) per Brennan CJ, Toohey, McHugh and Gummow JJ at [31]. These findings of fact advanced by the applicant are within jurisdiction of the Tribunal and not this Court.
In the grounds of review contained in the application and reproduced at [18] above, the applicant makes two broad and unparticularised claims against the Tribunal. I accept the comprehensive written submissions made by Mr White which are reproduced above at [20]-[31].
The interpreter confirmed at the commencement of the hearing that she had read the respondent’s written submissions to the applicant prior to the hearing. I asked the interpreter whether the applicant understood those submissions and wished to make any submissions in reply. In response the applicant indicated that he did not understand English, nor did he have a friend who could read and interpret documents to him. He acknowledged that the interpreter had read the documents to him, but said his understanding was superficial. The applicant proceeded to repeat his overall claim for protection for himself in Australia, and that his wife and son should be allowed to join him. He stated that his house had been forfeited to the government and if he were to return to China he would have nowhere to live.
It is understandable that the approach adopted by the applicant is to simply restate his personal circumstances and his factual claims for refugee status, given his inability to speak or understand the English language, his lack of legal knowledge and the nature of the proceedings before this Court. Unfortunately, the approach he has adopted in the presentation of his application cannot assist him. The concept that he is required to identify a ground of review in his application, or his amended application if he elected to pursue that course, that identifies a significant legal error undermining the exercise of the decision-maker’s power and the jurisdiction that the Tribunal exercised is clearly not comprehended. It appears that the applicant is under the impression that these proceedings are of a similar format to that of the interview process before the delegate and the hearing before Tribunal.
In preparation to hear this matter, I have reviewed the contents of the Court book and read in detail the Tribunal decision. In the “Findings and Reasons” at [72], it states:
The primary complaint by the applicant in his claim for protection, both in his application and to the Tribunal, was that he was not given recognition by the government in China or his employer for the work and research he had done as a plant technician. He said the despite the fact that he had produced the results from his research in 1984 he had never received the credit of recognition it was due as the Communist Party would only give recognition to those who had higher education. The applicant claimed that he had been suffering from this discrimination since 1984 or 1986 and it had continued after he had resigned his membership of the Communist Party.
(CB 115-116)
Then at [75]:
The only basis upon which the applicant has relied upon is that he suffered discrimination at work because he did not have higher education. The Tribunal does not accept that on this basis the applicant can claim membership of a particular social group.
(CB 116)
Then at [76]:
The harm claimed by the applicant was that he was not given appropriate recognition for his work and was not given bonuses or promotions which he felt he was entitled to. The Tribunal does not accept that the claims by the applicant even if true amount to serious harm to the person as required by s.91R of the Act…
(CB 116)
Then at [77]:
The applicant has not provided any evidence that there has been any threat to his life or liberty, significant physical harassment, ill treatment, economic hardship that threatens his capacity to subsist, or a denial of his capacity to earn a livelihood of any kind. He continued to work at his place of employment after he resigned his membership of the Communist Party and, although he claims that threats were made against him, there was no indication that he was not able to continue this employment into the future if he had continued working there.
(CB 116)
The Tribunal then addressed the issue of Falun Gong at [89], where it states:
The applicant claimed he faced persecution in China as he had been accused of being a member of Falun Gong. At no point has the applicant claimed that he is or ever has been a member of Falun Gong. He based this claim on the fact that when he was in Australia in 2010 he read a copy of The Epoch Times, a paper published by members of Falun Gong. He claimed that it was information in that paper that helped him decide to resign from the Communist Party. In his application he does not claim that he returned to China with the Epoch Times or that he was ever accused of being a member of Falun Going
(CB 119-119)
The Tribunal then addressed the issue of “Buddhism” and “Yiguan Dao” at [93]:
In his application, the applicant refers to the fact that it was the Bodhisattva showing spirit and blessing him that allowed him to come to Australia in August 2011. He does not make any claim in his application that he suffered persecution or discrimination on the basis of any religious belief.
(CB 119)
In conclusion, the Tribunal is satisfied that the applicant does not satisfy the criterion set out in either ss.36(2)(a) or 36(2)(aa) and affirms the decision not to grant the applicant a Protection (Class XA) visa.
On a fair reading of that material, it is not apparent that the Tribunal’s Decision Record contains any jurisdictional error. Consequently, the application should be dismissed costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 27 March 2013
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