SZUIJ v Minister for Immigration

[2016] FCCA 247

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUIJ v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 247

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal complied with its obligation to afford the applicant a fair hearing pursuant to s.425 of the Migration Act 1958 (Cth) – whether the Administrative Appeals Tribunal contravened s.426 of the Migration Act 1958 (Cth) in failing to obtain evidence from the applicant’s proposed witnesses at the hearing – 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, 426, 474
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
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 at 596
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Chen v Minister for Immigration and Citizenship [2011] FCAFC 56
Minister for Immigration and Border Protection v WZARH [2015] HCA 40
Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118
SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212

Applicant: SZUIJ

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1297 of 2014

Judgment of: Judge Emmett

Hearing date: 10 February 2016

Date of Last Submission: 10 February 2016

Delivered at: Sydney

Delivered on: 23 February 2016

REPRESENTATION

Counsel for the Applicant: Mr Paul Bodisco

Solicitor for the Applicant: Ms Michaela Byers

Solicitor for the Respondents: Ms Louise Buchanan
(Australian Government Solicitor)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 1297 of 2014

SZUIJ

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

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 15 April 2014 and handed down on 16 April 2014 (“the RRT”).

2. The applicant claims to be a citizen of the People’s Republic of China (“China”) and a practitioner and advocate of Falun Gong, who fears harm from the local authorities in China.

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 10 November 2012 having departed legally from China on a passport issued in her own name and a tourist visa issued on 23 October 2012.

2. On 7 February 2013, the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship (“the Department”).

3. On 13 November 2013, the Delegate refused the applicant’s application for a protection visa.

4. On 20 November 2013, the applicant lodged an application for review of the Delegate’s decision by the RRT.

5. On 16 April 2014, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 15 May 2014, 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 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.”

5. Sections 36(2A) and 5 of the Act defines “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, 425 and 426, 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.

   426  Applicant may request Tribunal to call witnesses

   (1) In the notice under section 425A, the Tribunal must notify the applicant:

   (a) that he or she is invited to appear before the Tribunal to give evidence; and

   (b) of the effect of subsection (2) of this section.

   (2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

   (3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.”

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 in which she stated:

   a)She was first introduced to Falun Gong in 2006. Her aunt gave her a book titled ‘Zhuan Falun’ to read in order to improve her health. She subsequently read the book and her health improved.

   b)Falun Gong has since become her “life belief”. She often visited her aunt to study the practice of Falun Gong. She would sometimes visit residential blocks to deliver Falun Gong material such as “truth clarification materials”.

   c)On an evening in July 2008, two male persons and a female person suddenly burst into her home. They claimed they were from the Fengman Public Security Bureau, searched her home, and confiscated her Falun Gong book and the truth clarification materials.

   d)She was then handcuffed and taken to the local detention centre where she was questioned by two police officers. The police officers requested information on fellow believers. When the applicant withheld this information, she was beaten.

   e)Additionally, she was threatened that if she did not make a confession, she would be sent to jail the following day. She was beaten again when she did not sign an undertaking.

   f)The following day, she was forced to watch a “brain washing video”. She was also asked to sign a “statement of remorse”, and was kicked when she refused to do so.

   g)Her father came to the detention centre a week later and paid a security bond of 10,000 yuan. She was then released from detention and was warned that if she continued to practise Falun Gong, she would be sent to jail.

   h)After her release, her parents asked her to give up Falun Gong. However, she did not give up her belief.

   i)She was worried about her son and therefore sent her son to Australia in February 2011 with her husband. Her family was worried about her safety in China. She therefore left her home in China and came to Australia.

   j)She seeks protection from the Australian government.

The Delegate’s decision

1. On 20 May 2013, the applicant attended an interview with the Delegate.

2. For the reasons below, the Delegate found that the information provided by the applicant was not credible. Accordingly, the Delegate did not accept that the applicant was a genuine Falun Gong practitioner.

3. The Delegate did not accept that the applicant would have been released from detention after only a week if she was a genuine believer of Falun Gong. Having regard to country information, the Delegate placed no weight on a copy of a ‘Certificate of Conclude Detention’ submitted by the applicant with her protection visa application.

4. The Delegate also found that the applicant had an opportunity to leave China with her son in 2011, but instead sent her husband to look after her son in Australia. The Delegate further found that the applicant delayed her departure from China, although she had a valid passport issued to her on 28 July 2011. Additionally, the Delegate noted that the applicant remained in China until 10 November 2012 even though her tourist visa to Australia was granted on 23 October 2012. The Delegate found the applicant’s actions in this regard to be at odds with her claim that she feared for her life in China. 

5. Moreover, the Delegate found that the applicant delayed applying for a protection visa until 7 February 2013, three days before her tourist visa was due to expire, even though she had arrived in Australia on 10 November 2012. This conduct suggested to the Delegate that the applicant did not have a genuine fear of persecution in China.

6. In light of the above, on 13 November 2013, 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 did not meet the alternative complementary protection criterion.

The RRT’s review and decision

1. On 20 November 2013, the applicant lodged an application for review of the Delegate’s decision by the RRT.

2. The applicant provided further documents in support of her review application, including a statement from the applicant dated 23 January 2014, a statement from an individual claiming to be a volunteer Falun Gong instructor based in Sydney as well as a statement from a fellow Falun Gong practitioner from Sydney. The applicant also submitted various photographs.

3. On 15 January 2014, 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 3 February 2014 to give oral evidence and present arguments. In her response to this invitation, the applicant requested that three persons be called as witnesses, two of whom provided statements.

4. On 3 February 2014, the applicant attended the RRT hearing and gave evidence. The applicant was represented at the hearing by her registered migration agent. At the outset of the hearing, the two witnesses who had provided statements confirmed to the RRT that they had nothing further to add to their statements.

5. 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 put to the applicant country information for comment. The RRT identified with particularity the country information to which it had regard.

6. The RRT had significant concerns about the credibility and the veracity of the applicant’s claims. The RRT did not find the applicant’s evidence at the hearing to be convincing.

7. At the hearing before the RRT, the applicant’s husband also gave evidence which the RRT found to be inconsistent with the applicant’s evidence. 

8. Those inconsistencies were put to the applicant pursuant to s.424AA of the Act and the applicant responded that her husband was nervous and was not sure. The RRT accepted that the applicant’s husband may have been nervous. However, it did not accept that as the reason for the inconsistencies in the evidence.

9. The RRT also took into account post-hearing submissions made by the applicant’s migration agent that the applicant’s husband was not a reliable witness in relation to the applicant’s practice of Falun Gong in China and Australia as he had shown no interest in the applicant’s Falun Gong activities. The RRT did not accept this submission as it contradicted the applicant’s evidence and an earlier submission that it was the applicant’s husband who had told her that she could practise Falun Gong freely in Australia. 

10. Further, having regard to country information, the RRT found it to be implausible that the applicant would have been released from detention after only a week when she refused to sign the “statement of remorse”, refused to watch the “brainwashing video”, and did not undertake any other action to show that she was “transformed”.

11. The RRT also found it to be implausible that the applicant could have kept practising Falun Gong and distributing the “truth clarification materials” after her release from detention, without being discovered, when country information suggested that persons who are released from detention continue to be monitored by the authorities.

12. Further, the RRT found the applicant’s claimed employment history to be at odds with her claim that she was a Falun Gong practitioner. In this regard, the RRT noted that the applicant claimed to have continued in the same job during and after her week in detention. However, having regard to country information, the RRT found that claim to be implausible.

13. The RRT was also of the view that if the applicant feared harm at the hands of the Chinese authorities, she would have left China as soon as possible, by accompanying her son to Australia as a student guardian instead of her husband doing so. Additionally, the RRT noted that the applicant applied for her tourist visa to Australia approximately a year and two months after she was issued with a passport. The RRT found her delay in applying for a tourist visa to Australia to be inconsistent with her claim to fear harm in China. The RRT did not accept the applicant’s explanation for this delay. Moreover, the RRT did not accept the applicant’s explanation for the further delay of three weeks in travelling to Australia after the tourist visa had been issued.

14. Further, having regard to country information, the RRT had significant concerns regarding the authenticity of the document titled ‘Certificate to Conclude Detention’ submitted by the applicant.

15. The RRT considered photographs provided by the applicant showing the applicant participating in Falun Gong related events in Australia. As stated above, the RRT also considered the two written statements from Falun Gong practitioners in Australia. Whilst the RRT accepted that the applicant may have engaged in Falun Gong related activities in Australia, it found that the applicant participated in these activities for the purpose of her protection visa application. 

16. Having considered the evidence before it, the RRT found that the applicant was not a witness of truth and had fabricated her claims for the purpose of obtaining a protection visa.

17. 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.

18. The RRT also considered whether the applicant met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that she did not. The RRT found that there was no credible evidence before it that the applicant would be at risk of harm from the authorities in China on the grounds of religion or for any other reason. Accordingly, the RRT found that there were no 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.

19. 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 represented before this Court by Mr Paul Bodisco, of counsel.

2. Counsel for the applicant read the affidavit of Jacqueline Zinck, affirmed on 31 July 2014, annexing a transcript of the hearing before the RRT on 3 February 2014.

3. By consent, the applicant was given leave to file in Court and rely upon an Amended Application. The grounds of that Amended Application are as follows:

   “1. The Tribunal made a jurisdictional error in failing to provide an opportunity for a fair hearing in accordance with section 425 and/or section 426 of the Act.

   Particulars

   a. in [50] the Tribunal failed to take evidence from witnesses as requested by the applicant by making a representation that she accepted the applicant attended Falun Gong activities in Australia, then proceeded to rely on section 91R(3) to disregard her activities in Australia”

   (Emphasis in the original).

1. At the heart of the grounds of the Amended Application, is a contention that the RRT committed a jurisdictional error in failing to allow the applicant’s proposed witnesses to give oral evidence at the hearing.

2. Counsel for the applicant tendered a bundle of documents, identified as ‘Relevant Documents’ and filed on 6 August 2014, which was marked Exhibit 1A.

3. Counsel for the applicant referred to a letter dated 15 January 2014, from the RRT to the applicant’s migration agent, contained in Exhibit 1A. That letter invited the applicant to provide a written submission setting out all claims made and maintained. The letter also notified the applicant, that if she was proposing that a witness give evidence at the hearing, then a witness statement should be provided to the RRT by 28 January 2014.

4. In the applicant’s response to the hearing invitation, the applicant identified three persons from whom the applicant requested the RRT to take evidence. However, written statements were only provided to the RRT by two of the proposed witnesses. Both witness statements attested to the applicant’s participation in Falun Gong activities in Australia. In their statements, each witness also stated that in their view, the applicant’s profile as a genuine Falun Gong practitioner would be known to the Chinese Communist Party in China, and she would be persecuted and mistreated upon return to China.

5. In a post-hearing submission, dated 5 February 2014, the applicant’s migration agent stated as follows:

   “7. Failure to take evidence from witnesses

   After the adjournment of the hearing and before the Member telephoned the applicant’s husband, the Member made the finding ‘I accept you have participated in Falun Gong activities in Australia’ and decided not to take evidence from the three witnesses who attended the hearing. However, after questioning the applicant’s husband the Member raised adverse information as the inconsistencies between the applicant and her husband’s evidence as to her practice of Falun Gong in Australia. The three witnesses have been Falun Gong practitioners for many years and were the most appropriate persons to give evidence as to the applicant’s practice of Falun Gong…”

6. Counsel for the applicant also referred to the following extract of the transcript of the RRT hearing:

   “Member: We have three witnesses today. Now these are not the witnesses who put the written statements in are they?

   Representative: So we have [name omitted] and [name omitted]

   Member: So two of them? Okay. Are they going to be saying anything different from what is in their statements?

   Representative: It might be best to ask them, but I don’t think so.

   Witnesses: No.

   …

   Member: And the third witness, what evidence is she giving, Ms Byers?

   …

   Member: I’m not sure if I need to hear from them at this stage, but I will decide in the course of the hearing.”

7. Counsel for the applicant submitted that in the context of the hearing, the RRT misdirected itself regarding its obligations pursuant to s.425 of the Act. Counsel for the applicant also submitted that, in failing to provide the applicant with an opportunity to present evidence from her three witnesses, the RRT denied the applicant a fair hearing.

8. Under the statutory code of procedure in Division 4 Part 7 of the Act, there is no obligation on the RRT to hear from witnesses put forward by the applicant. Section 426 of the Act provides that the applicant may request the RRT to obtain oral evidence. However, s.426(3) specifically states that whilst the RRT must have regard to an applicant’s wishes, it is not required to obtain evidence (orally or otherwise), from a proposed witness.

9. The transcript makes clear that the RRT considered the request by the applicant to take evidence from the applicant’s proposed witnesses. The RRT confirmed with the applicant’s migration agent that the witnesses’ oral testimonies would not depart from their written statements, before declining to hear from those witnesses. The RRT also noted that there was a third proposed witness who had not provided a statement.

10. The RRT stated that it did not obtain oral evidence from the witnesses as it accepted that the applicant had attended various Falun Gong related activities in Australia. The RRT had regard to the written statements from the two witnesses in making that finding. The RRT also stated that it had regard to the post-hearing submission by the applicant’s migration agent, dated 5 February 2014.

11. The RRT’s decision record makes clear that 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, including various inconsistencies that it found to exist with evidence from her husband and also with her own written statement.

12. Ultimately, the RRT found the applicant not to be a witness of truth and found that the applicant had fabricated her claims for the purpose of obtaining a protection visa. The RRT comprehensively rejected the applicant’s claims to have suffered harm in China for the reasons claimed, and rejected the entirety of her claims in relation to participating in Falun Gong related activities in China. The RRT found that the applicant was not a Falun Gong practitioner in China and was not of adverse interest to the Chinese authorities.

13. Whilst the RRT accepted that the applicant had practised Falun Gong and attended Falun Gong classes and related events in Australia, the RRT was not satisfied that the applicant engaged in those activities and events otherwise than for the purpose of strengthening her claims to be a refugee. Accordingly, the RRT disregarded that conduct in accordance with s.91R(3) of the Act.

14. The RRT also found that the applicant would not seek to practise Falun Gong if she returned to China, now or in the reasonably foreseeable future, given that she was not a genuine Falun Gong practitioner.

15. The RRT noted that s.91R(3) of the Act did not apply to its consideration of whether the applicant met the complementary protection criterion in s.36(2)(aa) of the Act. However, having found that the applicant was not of any adverse interest to the Chinese authorities, was not a Falun Gong practitioner and would not seek to practise Falun Gong if she returned to China in the reasonably foreseeable future, the RRT was satisfied that her behaviour on return to China was unlikely to attract the adverse attention of Chinese authorities. Accordingly, the RRT found that there were no substantial grounds for believing that, as a necessary foreseeable consequence of the applicant being removed from Australia to China, there was a real risk that she would suffer significant harm.

16. In all circumstances, the RRT concluded that the applicant did not satisfy either the Convention criterion in s.36(2)(a) of the Act or the complementary protection criterion in s.36(2)(aa) of the Act.

17. 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. Credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

18. It is also well established that the RRT is not required to accept uncritically any and all claims made by an applicant (see 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 per 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 (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

19. Further, in reaching its conclusion, the RRT referred to country information which it identified with specificity. 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 (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

20. The transcript of the hearing makes clear that the RRT had a somewhat lengthy exchange with the applicant’s migration agent at the hearing following the presentation of the applicant’s evidence. At no stage during that exchange did the applicant’s migration agent revisit the applicant’s request for the RRT to take evidence from the applicant’s witnesses. The transcript makes clear that there was every opportunity for the migration agent to do so. The transcript also makes clear that there were no further attempts by the applicant’s migration agent to seek to call oral evidence from the third witness who had not provided a statement. In the circumstances, there can be no error on the part of the RRT in not taking oral evidence from the third witness.

21. In any event, as stated above, the RRT accepted the evidence of the witnesses that the applicant had engaged in Falun Gong related activities in Australia. The belief of the witnesses as to what may happen to the applicant in China was of so little weight, such that the RRT was not bound to have regard to those statements. The RRT’s adverse credibility findings in respect of the applicant’s claimed events in China were not matters on which the witnesses could give evidence. It was the RRT’s ultimate comprehensive adverse findings that led to it affirming the decision under review.

22. A fair reading of the RRT’s decision record and the transcript makes clear that the RRT did genuinely apply its mind to the contents of the applicant’s notice of her request to call oral evidence from the proposed witnesses (see Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 at [16] per Bennett, Nicholas and Yates JJ). The RRT did not decline to allow the applicant to call the two witnesses who provided statements until it had confirmed that there was nothing further they wished to say beyond what was contained in their witness statements. Further, as stated above, the RRT accepted the relevant evidence of those witnesses that the applicant had participated in various Falun Gong related activities in Australia.

23. This is not a case where the RRT promised that it would take evidence from the applicant’s witnesses. The applicant lost no opportunity to advance her case and no practical injustice occurred by reasons of the failure of the RRT to allow the applicant to give oral evidence (see Minister for Immigration and Border Protection v WZARH [2015] HCA 40 at [35]-[36] per Kiefel, Bell and Keane JJ).

24. It is well established that in keeping with the RRT’s inquisitorial nature, the RRT does not commit jurisdictional error if it decides not to obtain oral evidence from an applicant’s witnesses, despite being notified in accordance with the Act of a request to do so. Provided that the RRT has regard to the notice the applicant has given, there is no obligation on the RRT to take oral evidence from anyone other than the applicant (see Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118 at [38] per Kenny and Lander JJ).

25. The RRT’s decision record makes clear that the applicant had a real and fair opportunity to put whatever she wished, and to participate in the hearing, in a way from which it can be concluded that the hearing was fair and thus that administrative justice was done (see SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 at 24 per Allsop CJ).

26. Accordingly, the complaints contained in the grounds of the Amended Application are 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 also heard from the applicant’s husband and her migration agent. The RRT had regard to all material provided in support and considered the request of the applicant to call oral evidence from three witnesses. Having confirmed at the hearing that the witnesses who had provided statements did not intend to give further evidence beyond their statements, the RRT declined to hear from those witnesses. There was no further request that the MRT take oral evidence from the third witness. The RRT accepted the relevant evidence of the two witnesses who provided statements.

2. Further, the RRT put to the applicant matters of concern it had about her evidence and noted the applicant’s responses. The RRT identified independent country information to which it had regard and discussed that information with the applicant.

3. 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.

4. 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.

5. 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.

6. Accordingly, the proceeding before this Court should be dismissed with costs.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 23 February 2016