SZUJI v Minister for Immigration

[2016] FCCA 773

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUJI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 773

Catchwords:
MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) affirming the decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa – alleged failure by Tribunal to accord procedural fairness to applicant - whether Tribunal conducted hearing in a way that prevented the applicant from answering or fully answering questions put to the applicant by the Tribunal – Tribunal did not so conduct the hearing – no denial of procedural fairness – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.425

Applicant: SZUJI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1380 of 2014

Judgment of: Judge Manousaridis

Hearing date: 18 March 2015

Delivered at: Sydney

Delivered on: 8 April 2016

REPRESENTATION

Solicitors for the Applicant:

Mr F Wang of

Wang Fang & Co Legal Pty Ltd

Solicitors for the First Respondent:

Ms A Wong of

DLA Piper

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1380 of 2014

SZUJI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In this application for judicial review, the applicant, who is a citizen of the Peoples’ Republic of China, claims the second respondent (Tribunal) denied the applicant procedural fairness. The applicant claims the Tribunal denied the applicant procedural fairness because the Tribunal member:

   a)“rushed through her questions to the applicant, and before the applicant could barely answer the previous question, the Member asked the second question”;

   b)did not give the applicant enough time to recall certain events or dates “before the Member moved on to ask the second question”; and

   c)did not give the applicant “a chance to correct or contradict statement made by the Member which is prejudicial to the applicant”.

2. Before I consider these claims, it will be necessary to set out the applicant’s claims for protection before the Tribunal, and the Tribunal’s reasons for not accepting those claims.

Applicant’s claims for protection

1. The asserted facts on which the applicant relied for her application for protection were as follows.[1] The applicant’s mother operated a retail clothing shop on premises that she rented in a clothing wholesale market. In 1992 the applicant began to help her mother in that business.

   [1] CB77-79

2. In 1996 the applicant’s mother participated in a Falun Dafa class and started to practice Falun Gong. Before she practiced Falun Gong, the applicant’s mother suffered from severe high blood pressure and neurasthenia, and she could only sleep two to three hours every day. After she practiced Falun Gong, the applicant’s mother regained her sleep and normal blood pressure.

3. From July 1999 Falun Gong was “being restricted and persecuted”. The applicant’s mother went to Beijing to petition with other Falun Gong practitioners. That occurred twice in late 1999 and in the beginning of 2000. The applicant’s mother was detained twice “and forced to have brain washing”. After her release, the applicant’s mother ceased propagating Falun Dafa[2] in public, but she secretly continued practising it. The shop the applicant’s mother rented “was one of Falungong’s material preparing sites”. The applicant sometimes helped her mother and other Falun Gong practitioners to deliver propaganda materials in the middle of the night.

   [2] The applicant used “Falun Gong” and “Falun Dafa” interchangeably.

4. During one evening in December 2009, a few police cars stopped in front of the applicant’s mother’s shop. The police found and took away books, DVDs, two computers, one printer, propaganda materials relating to Falun Gong and emails with overseas Falun Gong practitioners. The applicant’s mother was detained for three months, and then sentenced to three years in a labour camp.

5. During the first year of the applicant’s mother’s detention, the applicant was not allowed to visit her mother. In 2011 the applicant was called to visit her mother to persuade her to give up her belief in Falun Dafa. The applicant’s mother refused to admit she had done anything wrong, and she refused to “write repentance”. The applicant’s mother had suffered continuous torture and ill treatment “from bad guards and bad prisoners”.

6. In 2012 the labour camp notified the applicant that her mother had a stroke and would be released early. The labour camp requested the applicant take her mother home and “continue her medical treatment”. The applicant took her mother to the hospital where the applicant’s mother was found to have had “3 fractures on her ribs and many scars on her body”, and she had severe kidney failure. “Overload labour, brutal torture and severe malnutrition took away” the applicant’s mother’s health, and she died.

7. The applicant took her mother’s corpse to the gate of the labour camp and requested that the labour camp “punish the beating murderers”. The applicant, however, was taken away by policemen, and detained by the Public Security Bureau for seven days. At the end of the seven days, the applicant was told to collect her mother’s “bone ash” at a particular crematorium. After 49 days the applicant buried her mother’s “bone ash” at a cemetery. The applicant “sweared to” her mother that she will practice Falun Dafa. The applicant said she “must alive and watch this villain government being overthrown by people, watch all the villains who persecuting Falun Gong practitioners being punished”. In September 2012 the applicant “found the way to go to Australia”.

Tribunal’s reasons

1. The Tribunal considered the applicant had “manufactured the totality of her claims to fear harm in China”.[3] The Tribunal did not accept the applicant was a Falun Gong practitioner or supporter, or that the applicant’s mother was a Falun Gong practitioner, or that the applicant intended to practice Falun Gong if she were to return to China.[4] The Tribunal was not satisfied, therefore, the applicant had a well-founded fear of persecution in China for any Convention reason,[5] or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk the applicant will suffer significant harm.[6]

   [3] CB186, [32]

   [4] CB186, [32]

   [5] The reference to the Convention being a reference to the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967, Article 1A(2)

   [6] CB187, [37]

2. The Tribunal relied on a number of matters.

   a)Although the applicant claimed she had promised her mother she would practice Falun Gong, the applicant was unable to locate Falun Gong practitioners some five months after her arrival in Australia.[7]

   b)The applicant confirmed she does not practice Falun Gong, and that she does not know the exercises and cannot say any of the verses.[8]

   c)The Tribunal considered the applicant gave inconsistent evidence about her exposure to Falun Gong. Before the delegate the applicant said she did not read Falun Gong material in China, whereas she told the Tribunal that she read Falun Dafa at home.[9]

   d)The dates the applicant gave to the Tribunal of her mother’s arrests and detention in the labour camp were different to the dates the applicant gave in her protection visa application.[10]

   e)The Tribunal was concerned with the applicant’s evidence that the applicant and her mother continued to hold and operate the shop despite the applicant’s evidence that her mother had been arrested and detained in 1999, 2000, and 2009 due to her Falun Gong practices, and that she had produced Falun Gong material in the shop and was caught.[11]

   f)The evidence the applicant gave about the size of her mother’s shop suggested to the Tribunal that it was too small to have been used for the printing of Falun Gong material. The Tribunal did not accept as plausible the evidence that the applicant’s mother downloaded the Falun Gong material from the Internet.[12]

   g)The Tribunal considered the applicant gave vague and unreliable evidence about other shop owners in the market, and whether there was any concern these shop owners might be aware the applicant’s mother was producing Falun Gong material.[13]

   h)The Tribunal found implausible the applicant’s evidence that she took her mother’s corpse to the gates of the labour camp.[14]

   [7] CB183, [19]

   [8] CB183, [20]

   [9] CB184, [21]

   [10] CB184, [22]

   [11] CB184, [24]

   [12] CB185, [26]

   [13] CB185, [27]

   [14] CB185-186, [29]

The applicant’s submissions

1. The applicant was represented at the hearing by Mr Wang. Mr Wang made no substantive submissions apart from stating that the applicant relied on written submissions that he had filed on behalf of the applicant before the hearing. The submissions make general claims which are not supported by any particulars. Thus, it is submitted that the Tribunal member did not allow the applicant sufficient time to recall and answer questions, the Tribunal member rushed through questions and jumped to the next question before the applicant could answer the previous question. These submissions only repeat what is contained in the application. The submissions further state that the applicant relies on two affidavits the applicant filed. In those affidavits, the applicant makes a number of submissions. I will deal with each affidavit separately.

Submissions made in affidavit of 11 September 2014

1. The first affidavit to which I will refer is that made on 11 September 2014 (September 2014 affidavit). In that affidavit, the applicant annexes a transcript of the hearing before the Tribunal. In her affidavit, the applicant identifies sections of the transcript, and makes submissions in relation to the sections she identifies. I will deal with each section of the transcript on which the applicant relies and the submissions the applicant makes on the basis of each section of the transcript.

First submission

1. The first section from the transcript on which the applicant relies is from line 14 on page 17 to line 19 on page 19. The applicant submits:

   [T]he Member did not ask me questions clearly, and mixed up the times. First, she asked me about the time when the shop first opened when I was 20, and then she somehow changed the subject to the time before I went overseas when I was 39. This has negatively affected my evidence resulting in the Member finding my evidence to be “vague and unreliable” on Paragraph 27 of the Decision of the Tribunal.

2. The transcript reveals that, in response to the Tribunal’s question, the applicant said she started working at her mother’s shop when she was around 20 years of age.[15] A little later the Tribunal member asked whether any of the other business owners in the market were Falun Gong practitioners. The applicant said some of them were Falun Gong practitioners and, when asked how many, the applicant said she did not know “exactly how many”, stating that at “that time I was young but I know that my mother’s friends, three or four of them”.[16] At that point, the Tribunal member said that the applicant was not that young because she was 39 years of age when she stopped working with her mother. The applicant said she did not understand the Tribunal member’s question. She said she did not know “whether you were asking me right now do I know anyone practiced Falun Gong or when I was young 20 years old did I know anyone practiced Falun Gong”.[17] The Tribunal member then clarified her question, and the following exchange occurred:[18]

   [15] T17.25

   [16] T18.10-15

   [17] T18.25-30

   [18] T18.35-T19.20

   TRIBUNAL MEMBER: . . . Before you left China, when you were working in the shop when you were 39 years old, how many Falun Gong practitioners were there in the market?

   THE INTERPRETER: The exact number I don’t know.

   TRIBUNAL MEMBER: Were there one or 10 or, you know, roughly how many were there?

   THE INTERPRETER: Because ….. Falun Gong was, kind of, like in secret. Now is not really over in the public.

   TRIBUNAL MEMBER: But you’ve been saying that your mother was a strong advocate of Falun Gong, that she was promoting it, so it wasn’t – it doesn’t sound like she was keeping it a secret.

   THE INTERPRETER: No, after 2005 it wasn’t secret.

   TRIBUNAL MEMBER: What year did she start?

   THE INTERPRETER: My mother was in 1996.

   TRIBUNAL MEMBER: Well, why would I have been asking you about 1993 when you were 20? You said earlier I thought you were talking about when I was 20 and then I was too young to know but your mother hadn’t started practicing [sic] then.

   THE INTERPRETER: No, I totally ---

   TRIBUNAL MEMBER: Wait:

   THE INTERPRETER: I totally didn’t understand what you were talking about.

   TRIBUNAL MEMBER: All right. . . .

3. The applicant’s characterising the Tribunal member’s “somehow chang[ing] the subject” implies that the Tribunal member suddenly and unfairly changed the subject of the questions it was asking, thus confusing the applicant. That is not a fair characterisation of this part of the hearing. The Tribunal did not specifically ask the applicant whether, at the age of 20, she was aware of how many other business owners were Falun Gong practitioners. The question was opened ended. It was only after the applicant said she was young at the time that the Tribunal put to the applicant that by the time she had stopped working at the shop and left China, she was 39 years of age. Whatever misunderstanding may have arisen about the age at which the applicant knew how many people in the market were Falun Gong practitioners, that misunderstanding was cleared-up by the Tribunal asking the applicant whether, when she was 39 years of age, the applicant knew how many Falun Gong practitioners there were in the market.

4. In any event, the applicant informed the Tribunal she did not initially understand the Tribunal’s questions. Whether or not the Tribunal accepted the applicant’s evidence was a matter for the Tribunal. It was reasonably open to the Tribunal not to have accepted the applicant’s explanation that she had misunderstood the Tribunal’s questions, and to have characterised this part of the applicant’s evidence as vague and unreliable.

Second submission

1. The second section of the transcript on which the applicant relies is from lines 3 to 23 of page 23. The applicant submits:

   [T]he Member rushed through her questions, to which I could barely provide a complete answer. The subjectiveness and indignation on the part of the Member has led to the arbitrary conclusion against me by the Member on [sic] Paragraphs 22 and 23 of the Decision.

2. The passage on which the applicant relies is as follows:

   TRIBUNAL MEMBER: . . . You paid the fine in 1999 and then what happened?

   THE INTERPRETER: I don’t know what you want to ask me.

   TRIBUNAL MEMBER: Well, you said before they didn’t take it very seriously in 1999 but then I know in 2005 my mother started practicing [sic] secretly. So was everything okay from 1999 until 2005?

   THE INTERPRETER: A lot of things happened.

   TRIBUNAL MEMBER: Well, tell me what they were?

   THE INTERPRETER: Well, I remember in 2000 they went to appeal again.

   TRIBUNAL MEMBER: Well, why is it when I said before what happened then you said I don’t know?

   THE INTERPRETER: I didn’t know exactly what you were asking, whether you were asking about my mother coming home, whether she was sad or whether she cried or anything happened at home.

   TRIBUNAL MEMBER: Okay. . . .

3. There is nothing in this passage that could reasonably suggest the Tribunal rushed through its questions, or did not provide the applicant with an opportunity to provide complete answers. Given the applicant gave evidence through an interpreter, it is difficult to imagine how the Tribunal could have rushed through its questions. The passage also does not indicate any “subjectiveness and indignation”. Further, it is not possible to infer from this passage that it formed the basis of the Tribunal’s findings in paragraphs 22 and 23 of its reasons for decision. It is clear from those paragraphs that the Tribunal relied on other evidence the applicant gave.

Third submission

1. The third section of the transcript on which the applicant relies is from lines 35 to 41 of page 23. The applicant submits:

   I was not given any chance to talk about the second arrest of my mother, yet the Member arbitrarily concluded that my mother went to Beijing only once in her decision on [sic] Paragraphs 22 and 23 of the Decision.

2. The passage on which the applicant relies is as follows:

   TRIBUNAL MEMBER: . . . . Before you said she went to Beijing once. Earlier in your evidence you said she went to Beijing once.

   THE INTERPRETER: Well, I didn’t say that just once. Maybe some misunderstanding. I’m not saying that the interpreter is not good just speak too fast and some of the questions I haven’t finished my answers and then we moved on. I actually wanted to say the second sentence or the third sentence.

3. This passage does not reveal the Tribunal member denied the applicant an opportunity to give evidence about the second arrest of her mother. Further, towards the end of the hearing, the Tribunal asked the applicant whether there was “anything else you want to tell me that you haven’t told me today”.[19] The applicant took up that offer, and made a number of statements. None of the statements related to the applicant’s mother’s second arrest, although she did say that she previously wanted to say something, but could not now remember.[20] There is no doubt the applicant was given an opportunity to say what she wished to say about her mother’s second arrest or about any other matter.

   [19] T47.30-35

   [20] T48.10-20

Fourth submission

1. The fourth passage from the transcript on which the applicant relies is from line 40 on page 19 to line 15 on page 20. The applicant submits:

   [W]hen I mentioned my mother’s second arrest in the year 2000, the Member stopped asking along this line [sic], therefore, I did not have the chance to elaborate on the details about the second arrest. However, the Member referred to my not providing these details as her basis of dismissal of my appeal on [sic] Paragraphs 22 and 23 of the Decision.

2. The passage from the transcript is as follows:

   TRIBUNAL MEMBER: Right. And when was her next detention?

   THE INTERPRETER: Soon after that. It should be the beginning of 2000.

   TRIBUNAL MEMBER: And who was she detained with that time; the second time?

   THE INTERPRETER: Some Falun Gong people who went to Beijing to appear with her.

   TRIBUNAL MEMBER: When did she go to Beijing?

   THE INTERPRTER: She went there once in 1999.

   TRIBUNAL MEMBER: So why was she detained the second time?

   THE INTERPRETER: I don’t think it is called being detained. Just when she [sic] brain washing class.

   TRIBUNAL MEMBER: Right. So in 1999 what month did she go to Beijing?

   THE INTERPRETER: Should be the end of the year. The end of the year. Just last several months of that year. I really can’t really – I really can’t remember but in 1999.

   TRIBUNAL MEMBER: Right. Sorry, how long – how long was she in Beijing?

   THE INTERPRETER: How long was she in Beijing? I didn’t accompany her. I don’t know how many days she spent there.

3. The applicant’s submission is that the Tribunal somehow denied the applicant an opportunity to give evidence about the applicant’s mother’s second arrest. The passage does not bear out this submission. The Tribunal asked the applicant why the applicant’s mother had been detained the second time. In any event, as I have already noted, towards the end of the hearing, the applicant was asked whether she had anything else she wanted to tell the Tribunal, yet the applicant made no statement about her mother’s second arrest.

Fifth submission

1. The fourth passage from the transcript on which the applicant relies is from line 25 on page 46 to line 6 on page 47. The applicant submits:

   [T]he Member asked questions quickly, and without waiting for me to provide a full answer to the first question, she would interrupt me in my answering the first question and ask the next question.

2. The passage from the transcript is as follows:

   THE INTERPRETER: And because we’re talking too fast, I can’t remember, and I already said I got mental issues. Like last night, I couldn’t really sleep. And my memory, if I can calm down, and if it can be quieter, then maybe I can remember a lot of things. But if we are going really fast and if I feel nervous, then maybe I can’t remember anything. And next week, I would see doctors and I would have certificate for that.

   TRIBUNAL MEMBER: Well, I may find that if you really did have a problem with your health, given you’ve got a registered migration agent, that you would have had that medical evidence for the hearing. Mr [T], are you a registered migration agent?

   MR T: Yes, I am.

   TRIBUNAL MEMBER: Have you made a note of the questions that I haven’t given [the applicant] time to answer?

   MR T: No, I – not specifically.

   TRIBUNAL MEMBER: Right. So what was the issue that I had talked to you about that you didn’t get to answer?

   THE INTERPRETER: I can’t remember. Sorry, I can’t gather what she’s talking about. Well, I won’t say that I can remember the three previous questions because it’s too fast. And the previous three questions and the member was talking and then the interpreter was talking, then the member talked again. And I think the member said things on three occasions, and then the interpreter ….. three occasions, and then the fourth question stopped ….. and I feel like it’s a machine and wouldn’t give me a bit of a time for me to think, and I – then I have to answer it immediately. I can’t remember anything.

3. There is nothing in this passage that could reasonably suggest the Tribunal asked questions quickly and without waiting for the applicant to give a complete answer. The submission the applicant makes in her affidavit only repeats the assertion the applicant made to the Tribunal.

4. The applicant does not rely on the passage that immediately follows the passages on which the applicant does rely:[21]

   TRIBUNAL MEMBER: This hearing has been going for nearly three hours now, and I’ve asked you a number of questions. You’ve indicated a few times that there were three questions that you didn’t get to answer.

   THE INTERPRETER: Well, yes, I want to say that the pace is too fast, and I already said I got mental – I got psychological issues. I didn’t sleep at all last night.

   TRIBUNAL MEMBER: Well, I understand that when people come to a hearing, they’re nervous, and they may not sleep well the night before the hearing. And I certainly take that into account when I’m considering your evidence.

   THE INTERPRETER: Well, but I want to say that even if I don’t have to come here to see member and during normal days, I would still have insomnia. And I got a psychological syndrome.

   TRIBUNAL MEMBER: Have you seen a doctor in Sydney since you’ve been here?

   THE INTERPRETER: Not here. In China. But I plan to see one.

   [21] T47.5-T47.20

5. This passage indicates the Tribunal explored with the applicant the very complaint she now makes on this application for judicial review. The applicant was unable to identify to the Tribunal the questions she claimed she was prevented from answering, or answering in full because of the Tribunal’s quick questioning; and the applicant has not identified in her affidavit the questions she was unable to answer or answer in full. Instead, before the Tribunal, the applicant relied on claims she suffered from insomnia, nervousness and a psychological syndrome. The Tribunal addressed those matters in its reasons for decision, and concluded it was not satisfied the applicant was unable to give her evidence and present arguments effectively because of any medical condition.[22] It was reasonably open to the Tribunal to so conclude. The applicant has not adduced any medical evidence in her application for judicial review that suggests that she in fact suffered from a medical condition that prevented her from effectively participating in the hearing before the Tribunal.

   [22] CB182-183, [17]

Sixth submission

1. The applicant submits, on the basis of line 14 of page 48 of the transcript, that the Tribunal member “has been indignant to me throughout the hearing, which caused me nervous and failing to recall some events and dates in my answering the questions”. Line 14 of page 48 is part of what the applicant stated to the Tribunal immediately after the Tribunal asked whether there was anything else the applicant wished to say. That does not indicate the Tribunal manifested any indignity towards the applicant or her claims.

Submissions made in affidavit of 21 May 2014

1. In this affidavit, the applicant makes a number of submissions by reference to the audio recording of the hearing before the Tribunal. The audio recording, however, is not in evidence. At the hearing, I asked Mr Wang whether he proposed to tender the recording, but he said he did not intend to do so. It appears that the September 2014 affidavit was intended to substitute at least some of the matters the applicant addressed in her 21 May 2014 affidavit. I will nevertheless deal with the matters submitted in the applicant’s affidavit of 21 May 2014.

2. The first matter the applicant submits is that the Tribunal member “was indignant to me”, and she asked questions quickly, without waiting for the applicant to provide a full answer to the first question, and would interrupt the applicant in her answering the first question and ask the next question. The applicant further submits that the Tribunal’s conduct made the applicant nervous, resulting in her being unable to recall some events and dates.

3. I do not accept these submissions. There is nothing in the particular parts of the transcript on which the applicant has relied, or in any other part of the transcript, that could reasonably support the applicant’s submission that the Tribunal interrupted the applicant and prevented her from completing or answering questions. Further, as I have already noted, the applicant did mention to the Tribunal that she was nervous, but the Tribunal dealt with that matter in its reasons for decision in a manner that it was reasonably open for it to decide.

4. The applicant’s second submission relates to evidence the applicant gave at 57:44 and 01:09:17 into the audio recording of the hearing before the Tribunal. The applicant claims that, before the applicant could give answers about her mother’s second trip to Beijing, the Tribunal asked other questions before the applicant finished her answers. This appears to be the same complaint that is the subject of what I have identified as the third submission the applicant made in the September 2014 affidavit. I do not accept this part of the applicant’s claims for the reasons I have given for not accepting the applicant’s third submission made in the September 2014 affidavit.

5. The applicant further submits that “[s]imilar situation happened repeatedly during the hearing”. The applicant does not identify in her 21 May 2014 affidavit the situations the applicant has in mind. I assume that the applicant identified each of the situations on which she intends to rely in her affidavit of September 2014, which I have already considered. The applicant also submits the Tribunal formed an arbitrary view that the applicant’s oral evidence was inconsistent with her written evidence, and that that was “inequitable and unfair to me”. I do not accept the Tribunal formed any arbitrary view of the applicant’s oral evidence.

6. The third submission relates to the Tribunal’s findings in paragraph 20 of its reasons for decision. In that paragraph, the Tribunal refers to a number of matters on the basis of which the Tribunal found there were serious doubts about the applicant’s claims that her mother was a devoted Falun Gong practitioner since 1996. These included the applicant’s not practising Falun Gong in Australia, and the applicant’s not knowing the Falun Gong exercises or any of the verses. The applicant submits she was not given a chance “to fully explain before the Tribunal member came to the conclusion that” the applicant’s “mother was not a devoted Falun Gong practitioner”. I do not accept that submission. The applicant was given an opportunity to present her case.

7. The applicant’s fourth submission is that the applicant was not given a chance to “fully explain the difference between “reading” and “studying” before the Member arbitrarily formed the view that I manufactured explanation”. The applicant does not identify the relevant part of the hearing in which this aspect of the applicant’s claims was the subject of questions from the Tribunal. For that reason alone, this submission cannot be made out. In any event, there is nothing in the transcript that could reasonably suggest the applicant had not been given a reasonable chance to say what she wished to say in support of her claims.

8. The applicant’s fifth submission relates to paragraphs 22 and 23 of the Tribunal’s reasons for decision. Paragraph 22 records the Tribunal’s putting to the applicant its concerns that the dates the applicant had given in her oral evidence about her “mother’s arrests and detention in the labour camp” were inconsistent with the dates she provided in her written claims, and its concerns that the applicant could not remember how long her mother was in Beijing and how many people were arrested with her. Paragraph 23 records the Tribunal having put to the applicant that her written claims contained quite detailed information yet she was unable to provide detailed oral evidence. The applicant submits she did not fully understand the questions and “before I was able to provide full answers, the member interrupted my answering by asking new questions”. I do not accept this submission. The applicant has not identified where the Tribunal acted in the manner the applicant submits it did. In any event, as I have already concluded, there is nothing in the transcript that could reasonably suggest the Tribunal interrupted the applicant when she was answering questions, or otherwise.

9. The applicant’s sixth submission relates to paragraphs 25 and 26 of the Tribunal’s reasons. There is no need to set out what is contained in those paragraphs of the Tribunal’s reasons, because the applicant makes the submission that the Tribunal did not give her “a chance to fully answer the questions”, and the Tribunal “arbitrarily formed the view against” the applicant. The applicant does not particularise these allegations. In any event, there is nothing in the transcript that could reasonably suggest the Tribunal did not give the applicant a chance to fully answer questions that were asked of her; and I do not accept the Tribunal’s findings in relation to the applicant were arbitrary.

10. The applicant’s seventh submission relates to paragraph 27 of the Tribunal’s reasons for decision. That paragraph records the applicant’s answers to questions about whether there was concern that other shop owners might be aware that the applicant’s mother was producing Falun Gong material in the shop which the Tribunal found to be vague, unreliable, and lacking in detail. The applicant submits she did not quite understand “the question” and mistakenly answered “the question”, and that it was arbitrary for the Tribunal member to form the view the applicant was not reliable in answering “the question” by not repeating her question or clarifying “the question”. I do not accept these submissions. As I have already noted in paragraph 15 of these reasons, the applicant informed the Tribunal she understood the Tribunal to be asking about what the applicant knew when she was 20 years. The Tribunal then asked what the applicant knew when she was 39 years of age. As I also already noted in paragraph 17, the applicant informed the Tribunal she did not initially understand the Tribunal’s questions. Whether or not the Tribunal accepted the applicant’s evidence was a matter for the Tribunal. It was reasonably open to the Tribunal not to have accepted the applicant’s explanation that she had misunderstood the Tribunal’s questions, and to have characterised this part of the applicant’s evidence as vague and unreliable.

Other matters

1. In her written submissions, the applicant submits the Tribunal “member was prejudicial in making her decision against the applicant by choosing to listen to answers of her choice”. The submission is not particularised, and for that reason alone has no substance. In any event, there is nothing in the material before the Court that could reasonably suggest the Tribunal brought anything but an open mind to the consideration and determination of the applicant’s case.

Conclusions

1. There is nothing in any part of any of the passages of the transcript the applicant has identified that could reasonably suggest the Tribunal did not accord procedural fairness to the applicant. There is nothing in the transcript as a whole that could reasonably suggest the Tribunal did not afford the applicant an opportunity to fully answer questions asked of her, or to say whatever else she wished to say in support of her claims. I therefore do not accept the applicant’s claims that the Tribunal did any of the things stated in the application for review, or that the Tribunal denied the applicant procedural fairness. The Tribunal complied with its obligations under s.425 of the Migration Act 1958 (Cth) to provide to the applicant an opportunity to give evidence and present arguments.

2. I propose, therefore, to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  8 April 2016