SZSFG v Minister for Immigration and Border Protection

[2014] FCCA 236

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSFG v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 236

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal considered all claims made by the applicant – whether the Refugee Review Tribunal provided a fair opportunity to the applicant to be heard – whether the Refugee Review Tribunal relied only on country information in rejecting the applicant’s claims – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 424A, 424AA, 425, 474,
Migration Regulations 1994 (Cth) reg.2.01.

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29

Applicant: SZSFG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2664 of 2012

Judgment of: Judge Emmett

Hearing date: 14 February 2014

Date of Last Submission: 14 February 2014

Delivered at: Sydney

Delivered on: 14 February 2014

REPRESENTATION

The applicant appeared in person with the assistance of a Mandarin interpreter

Solicitor for the Respondents: Ms Michelle Stone
(DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2664 of 2012

SZSFG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 22 October 2012, and handed down on 23 October 2012 (“the RRT”).

2. The applicant claims to be a citizen of the People’s Republic of China, of Mormon faith and Han ethnicity, who fears harm from Chinese authorities in Qinghai Province in China due to her Mormon faith.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.

Background

1. The applicant arrived in Australia on 13 July 2007 having departed legally from China on a passport issued in her own name and a Student visa.

2. On 13 March 2012, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 16 July 2012, the Delegate refused the applicant’s application for a protection visa.

4. On 10 August 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

5. On 22 October 2012, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 16 November 2012, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

7. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite Applicant to appear

   (1)  The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

8. Section 424AA of the Act permits the RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

9. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

1. The applicant provided a statement in support of her protection visa application which detailed the following:

   a)As a young child, the applicant’s grandmother, who was a practising Mormon, would bring her to unauthorised Mormon services.

   b)Whilst in primary school, the applicant’s attendance at the Mormon services ceased after her grandmother was arrested due to “her underground religious practice.”

   c)On October 1 2006, the applicant’s grandmother was arrested again on similar charges and detained for one day.

   d)The applicant would assist her grandmother in the participation in the unauthorised Mormon services by copying hymns, readings, and DVDs “in relation to preaching of foreign churches.”

   e)On one occasion, the police came to the applicant’s house to question her about her grandmother and caught her with the copied materials. The applicant was arrested but was released with a warning not to continue interaction with the Mormon services.

   f)After this arrest, the applicant was dismissed from her job and had difficulty finding employment.

   g)In 2007, the applicant’s parents sent her to Australia to study with a stern warning that she focus only on her study and to stay away from church activities or she would not be accepted as their daughter.

   h)After a bout of depression following a car accident, the applicant ceased contact with her family.

   i)In 2011, the applicant met a Mormon missionary who persuaded her to resume contact with her family.

   j)Upon resuming contact with her family, the applicant discovered that they had separated and were unable to continue financially supporting her.

   k)In 2011, the applicant discovered a Chinese congregation of Mormons in Sydney and was baptised. The applicant did not inform her parents of the baptism. The applicant expressed the wish to be a missionary.

   l)The applicant commenced contact with a former classmate in China who had attended the same unauthorised Mormon service as her grandmother. They communicated online and exchanged ideas and materials via a blog.

   m)In late December 2011, the applicant’s former classmate and grandmother were arrested by police and, after investigating their practices, discovered the blog and communications with the applicant.

   n)The applicant has a strong fear of returning to China where she will be “deprived of religious freedom.”

The Delegate’s decision

1. On 16 July 2012, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

2. The Delegate found that the applicant’s claimed fear was not well-founded.

3. In light of country information before it, the Delegate found that the Mormon Church does not support proselytising in China and that the Church’s leaders have issued many statements to their faithful not to seek converts in China. Country information indicated that the Chinese government does not persecute Mormons who practise their faith in China.

4. The Delegate found that returned Chinese nationals who converted to a religion whilst overseas were free to openly practise their faith in China.

The RRT’s review and decision

1. On 10 August 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

2. On 21 September 2012, the RRT wrote to the applicant informing her that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 18 October 2012 to give oral evidence and present arguments.

3. At the hearing, the applicant provided her passport and a Psychological Report, dated 24 March 2011, in support of her review application.

4. The RRT explored the applicant’s claims with her in some detail at the hearing and put to her concerns it had about her evidence, noting her responses. The RRT identified with particularity the country information to which it had regard. The RRT put to the applicant country information for comment.

5. The RRT also found that there was a six-month delay between the applicant applying for a protection visa and when she received notification that her application for review of a decision cancelling her Student visa. The RRT noted that this delay is inconsistent with someone who has a genuine fear of persecution.

6. The RRT found two key areas of the applicant’s statement of concern;

   1)The applicant only joined the Mormons after she found out about her application to the Migration Review Tribunal was unsuccessful.

   2)The lack of evidence regarding the religious blog site she and her classmate used to communicate on religious topics and exchange religious materials.

7. The applicant consistently asserted that Mormons are persecuted by Chinese authorities, and, as a Mormon, she will face persecution and harm if she returned to China. In light of the country information put to the applicant that the Chinese authorities do not persecute Mormons, the RRT found the applicant’s story lacked internal logic and credibility.

8. Whilst the RRT accepted that the applicant was baptised and was now a practising Mormon, the RRT was not satisfied that the applicant had engaged in those religious activities in Australia otherwise than for the purpose of strengthening her claim to be a refugee. Accordingly, pursuant to s.91R(3) of the Act, the RRT disregarded that conduct.

9. Ultimately, the RRT found the applicant was not a witness of truth and that the applicant fabricated her claims for the purpose of applying for a protection visa.

10. Having considered the applicant’s claims, the RRT found that there was no evidence to support a finding that the applicant would suffer harm for a Convention-related reason were she to return to China, that the applicant did not have a well-founded fear of persecution in China, and for this reason the applicant was not a person to whom Australia owed protection obligations.

11. The RRT also considered whether the applicants met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that they did not. The RRT found that there was no credible evidence before it that the applicant would suffer persecution for reason of being a Mormon. Accordingly, the RRT found that there are not substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that the applicants would suffer significant harm.

12. Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the RRT affirmed the decision under review.

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter. 

2. On 22 February 2013, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.

3. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to her if a costs order was made against her. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.

4. The applicant confirmed that she wished to continue with the application for judicial review. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript or recording of the RRT hearing, as well as submissions in support.

5. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translating services, in documents headed in his own language. The applicant also elected to participate in the Court’s legal advice scheme, and received free legal advice in accordance with that scheme on 19 March 2013.

6. At the commencement of today’s hearing, the applicant confirmed that she has not filed any amended application, evidence or submissions in support of her application and that she has no further documents to present to the Court this morning in support of her.

7. The applicant confirmed that she relied on the grounds contained in the application filed on 16 November 2012 as follows:

   “1) the RRT ignored my commitment and genuine practice of Mormon faith and the fact that my wellbeing roots in faith and will die without healthy growing of Holy Spirit, regular church practice and preaching, and all these can never happen in China. The RRT also failed to thoroughly consider my family background affected my religion.

   2) The RRT failed to take into account my risk of return to origin due to my passion in church practice especially my commitment of preaching wherever I go, ignoring Chinese government’s constant policy repressing Mormon.

   3) The RRT member failed to well consider my explanation, in particular failed to give me enough time and a fair chance to respond to questions at hearing, and apparently shown impatience by constantly watching the time and interrupting me during the hearing.

   4) The RRT judged the case simply by taking reference of country information however failed to carefully consider various situations in my country.”

8. Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

Ground 1

1. Ground 1 asserts that the RRT ignored the applicant’s claims to be a genuine Mormon and failed to thoroughly consider her family background and religion.

2. In support of ground 1, the applicant said that she had told everything to the RRT on oath and that she did not lie. She said her words were not well organised and she did not know that she needed help to make her statement more logical. None of those complaints identifies any error on the part of the RRT.

3. To the extent that ground 1, as written, asserts that the RRT ignored the applicant’s claims, ignored the applicant’s claims to be a genuine Mormon and failed to consider parts of her claims, a fair reading of the RRT’s decision record does not support those assertions.  The RRT commenced its decision record by identifying the relevant law and considering whether the applicant has a well-founded fear of persecution for a Convention related reason or whether the applicant is at risk of harm if returned to China.

4. The RRT noted that the applicant confirmed that she had prepared her protection visa application by herself, although had some help from a friend in translating her statement. The applicant confirmed that she understood the contents of her protection visa application and that they were true.

5. The RRT had regard to the psychologist’s report provided by the applicant in relation to her depression. The RRT noted that it put to the applicant that the psychological report did not refer to the applicant’s claimed detention or the detention of her grandmother in China, or their involvement in any religious activity. The RRT noted that the psychologist’s report was prepared in support of the applicant’s application for renewal of her student visa. Ultimately, the RRT did not accept the applicant’s various explanations for why the report did not refer to her claims of harm in China. The RRT found that the description of the applicant’s background in China as a “problem free existence” before a car accident in 2009 reflected adversely on the applicant’s credibility.

1. The RRT’s decision record makes clear that the RRT explored the applicant’s claims with her in significant detail and put to her concerns it had about the truthfulness of her evidence as well as particular concerns about various claims made by the applicant.

2. The RRT also put to the applicant its concerns about the timing of the applicant’s attendance at the Mormon Church in Australia, that being after the applicant discovered that her renewal application for a student visa had been refused. The RRT did not accept the applicant’s explanation that she had looked for a church on her arrival in Australia in 2007, but was unable to find one. The RRT found the applicant’s various explanations for the delay in seeking protection in Australia to be inconsistent with a genuine fear of persecution in China.

3. Ultimately, the RRT comprehensively rejected the applicant’s claims to have been a Mormon in China or suffered harm in China as claimed, including any harm to her grandmother, and found her claims to have been fabricated. The RRT stated as follows:

   “I found the applicant not to be a person of credibility and that she has had no involvement in, and no commitment to, the LDS Church and Mormon faith. I found that the applicant has fabricated her claims of past harm in China in their entirety for the purpose of applying for a Protection visa.”

4. The RRT considered whether the applicant met the complementary protection criterion. However, in light of the RRT’s rejection of the applicant’s claims to be a genuine Mormon or have suffered past harm in China, coupled with the RRT’s finding that the applicant would not engage in religious activities in China, the RRT was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm.

5. A fair reading of the RRT’s decision record as a whole makes clear that the RRT did not ignore the applicant’s claims to be a genuine Mormon or claims of past harm in China. The RRT did not accept those claims as truthful.

6. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

7. The RRT’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.”  (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547)

8. In the circumstances, ground 1 does not identify any jurisdictional error on the part of the RRT and appears more to be a disagreement with the findings and conclusions of the RRT. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by North, Lander and Katzmann JJ:

   “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

9. Accordingly, ground 1 is not made out.

Ground 2

1. The applicant had nothing to say in support of ground 2. Ground 2 asserts that the RRT failed to take into account the applicant’s risk of return to China given her commitment to preach in China as a Mormon.

2. For the reasons referred to in ground 1, such a claim is not made out. The RRT rejected the applicant’s claims to be a genuine Mormon practitioner. The RRT specifically considered the applicant’s claims to preach the Mormon gospel in China and rejected that claim.

3. The RRT also considered whether the applicant would engage in religious activities in China and, based on the evidence before it, found that she would not.

4. Accordingly, the RRT found that the applicant did not meet the refugee criterion in s.36(2)(a) of the Act or the alternative complementary protection criterion in s.36(2)(aa) of the Act.

5. As stated above, the RRT’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings.

6. In the circumstances, ground 2 is no more than a disagreement with the findings and conclusions of the RRT. As stated above, this Court has no jurisdiction to engage in merits review.

7. Accordingly, ground 2 is not made out.

Ground 3

1. Ground 3 appears to make complaints about the conduct of the RRT’s hearing. In support, the applicant said that she was not given enough time to answer questions and that the RRT Member seemed to be very impatient and constantly interrupted her after the fifteen minute break. The applicant’s claims are not supported by any evidence.

2. There was no transcript of the RRT hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the RRT’s decision record is not accurate. At the directions hearing on 22 February 2013, the applicant was given an opportunity to file evidence including a transcript of the RRT hearing. The applicant was also directed to give notice if she wished to rely on recordings of the hearing. However, no step was taken by the applicant to rely on any such evidence.

3. In the circumstances, the Court accepts as accurate the RRT’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the RRT hearing. The Court is entitled to accept the RRT’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

4. A fair reading of the RRT’s decision does not suggest that the RRT approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the RRT, might reasonably apprehend that the RRT may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).

5. There is nothing on the face of the RRT’s decision record to suggest that there was any request for additional time or that the applicant had any difficulty in understanding the RRT’s questions or in responding to those questions. The RRT hearing lasted from 10:25am to 1:11pm with a 15 minute break, some two-and-a-half hours.

6. In the absence of any evidence to the contrary, I am not satisfied that the complaints made by the applicant are borne out on the face of the RRT’s decision record. In the circumstances, I do not accept that the applicant was not given sufficient time to answer questions. The applicant’s assertion that the RRT Member seemed very impatient and was constantly interrupting her is entirely unsupported by any evidence. As stated above, there is nothing on the face of the decision record to suggest any difficulty suffered by the applicant, either in understanding or answering questions or of any particular request or comment made by the applicant relating to any difficulties she may have been having. In such circumstances, the applicant’s complaints do not disclose any jurisdictional error on the part of the RRT in the conduct of its hearing.

7. Accordingly, ground 3 is not made out.

Ground 4

1. Ground 4 asserts that the RRT judged the applicant’s case solely by reference to country information and failed to carefully consider the situation in the applicant’s country.

2. In support, the applicant said that the RRT had relied only on country information and that what had happened to her and her grandmother were different experiences to those referred to in the country information.

3. A fair reading of the RRT’s decision record does not support such an assertion. True it is that the RRT referred to particular country information that it found to be inconsistent with the applicant’s claims of a fear of harm in China by reason of being a Mormon and involved in the LDS Church in China.

4. However, it is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

5. Further, the country information that was inconsistent with the applicant’s claims was not the only matter relied on by the RRT in rejecting the applicant’s claims. The RRT found the applicant’s evidence to be internally illogical, inconsistent and uncompelling resulting in the RRT’s rejection of the applicant’s claims to be of Mormon faith or to participate in religious activities in the future in China.

6. Accordingly, ground 4 is not made out.

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT also put to the applicant independent country information before it and invited the applicant to comment upon it.

2. The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:    14 February 2014