SZUVC v Minister for Immigration

[2015] FCCA 3546

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUVC v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3546

Catchwords:

MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – no arguable case raised for the relief sought – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424AA, 476

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Agar v Hyde [2000] HCA 41; 201 CLR 552
Xie v The Immigration Department [1999] FCA 365
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Minister for Immigration and Citizenship v  Li  [2013] HCA 18; (2013) 249 CLR 332
SZHVL v Minister for Immigration [2008] FCA 356
NAHI  v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Lee v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 464
Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123; (2009) 113 ALD 46

Applicant: SZUVC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2083 of 2014

Judgment of: Judge Nicholls

Hearing date: 9 December 2015

Date of Last Submission: 9 December 2015

Delivered at: Sydney

Delivered on: 9 December 2015

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: Ms H Dejean of Australian Government Solicitor

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 25 July 2014 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs set in the amount of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2083 of 2014

SZUVC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 25 July 2014 seeking review of the decision of the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 27 June 2014, which affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.

Background

1. The Minister has filed a bundle of relevant documents (“the Court Book” – “CB”) which was in evidence before the Court. The following background can be ascertained from those documents.

2. The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 12 June 2007 on a student visa (Subclass TU 571). She was granted a further student visa (Subclass TU 572) on 22 April 2009 (CB 49). She applied for a protection visa on 14 August 2013 (CB 1 to CB 33). The applicant provided supporting documents and a written statement (CB 1 to CB 33).

3. The applicant claimed to be a member of the “Local Church” in China and was introduced to this by her aunt. In a statement in support of her visa application she stated that her family is Buddhist, prefers “sons” over daughters and does not support her religion, arguing that it would affect their “Fengshui”. The applicant claimed that she quarrelled often with her parents. The applicant was a member of the Youth Gospel Group and preached to her classmates. In her second year of middle school, the applicant and three of her classmates went on a “Gospel Mission” to preach in the Jiangxi Province. The applicant claimed that she prayed, raised funds and helped establish “Local Churches” in poverty stricken areas, promising to preach to them regularly (CB 29).

4. The applicant claimed that on her third “Mission Tour” to Jiangxi she was arrested by the police and detained with other participants of the congregation and that their “Recovery Bibles” were confiscated. Further, that at this time she was suffering from malaria and the “maltreatment and insults” from the guards in the detention camp “aggravated her disease”. The applicant claims that she was escorted home by the police (CB 29).

5. The applicant claimed to have been discriminated against while at school in China, criticised by name, and warned “publicly” at a parents meeting. The applicant decided that she needed to study abroad and her parents agreed to this plan, provided she secure employment. The applicant was unable to secure employment in Australia. Her parents agreed to financially support her so that she could continue her studies abroad, provided that she agreed to become engaged in China. The applicant returned to China in 2009 to become engaged (CB 30).

6. The applicant returned to Australia and realised “the value of freedom”, which had become indispensable for her, so she demanded that her parents “cancel the engagement”. Her family disowned her and withdrew their financial support. The applicant “quit” her education. She decided to stay in Australia and claimed that she was “fooled” and “cheated” by others. The applicant met her “boyfriend” and became pregnant, which led her to fall into a state of “melancholy” and “anxiety”. Her boyfriend’s family did not approve of their relationship and they had disagreements, so they eventually broke up. The applicant’s baby was due in January 2014. The applicant claims that she drew strength from the “church fellowship” and had joined a local church in Australia.

7. The applicant claimed that her “friend” returned to a “Gospel Mission” organised by the local church in China and was arrested by the Local government. She claimed that she will have a “bleak and hopeless” future if she returns to China as her family will not support her, and that she will be severely punished and discriminated against for violating the family-planning policy (CB 31).

8. On 26 November 2013, the applicant was invited to attend an interview before the delegate, scheduled for 16 December 2013 (CB 40). I note the evidence in the Court Book, that she was unable to initially attend and, following some adjournment, she ultimately did not attend before the delegate.

9. The delegate refused the applicant the grant of a protection visa on 18 December 2013 (CB 48 to CB 58). Essentially, the delegate was not able to be satisfied that the applicant’s claims were credible, as the applicant had provided “no evidence to substantiate her claims”, and if the applicant had attended the interview, the delegate would have discussed the “applicant’s beliefs and activities in China and Australia” (CB 52).

The Tribunal

1. The applicant applied for review of the delegate’s decision to the Tribunal on 8 January 2014 (CB 59 to CB 64). The applicant attended a hearing before the Tribunal on 25 March 2014 (CB 73 to CB 76).

2. The Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa on 27 June 2014 (CB 86 to CB 99). The Tribunal had “serious concerns” about the applicant’s credibility and the veracity of her claims. Further, that during the hearing the Tribunal found the applicant vague and “non-responsive” in relation to some of her claims, and inconsistent and contradictory in relation to other aspects of her claims. The Tribunal found some of her claims “implausible” ([12] at CB 89). 

3. The Tribunal found the applicant’s claim to have attended church in China for two hours every Sunday from the age of 6 or 7, and to have been baptised against her parents’ wishes, as being “implausible”. Further, that it was “implausible” that someone of that age would have “quarrelled with her parents over her faith”, given that she stated she did not understand the bible as a child ([14] at CB 89 to [15] at CB 90).

4. The applicant provided inconsistent evidence about preaching to her classmates as a child and whether she had a copy of the gospel at that time ([16] at CB 90).  The applicant claimed that it was difficult for her to talk about “the book”, so she told her classmates about the “church experience”. The Tribunal found this implausible when her evidence was that “she did not really understand” (religion) as a child, and that she “liked playing with the other children there” ([17] at CB 90).

5. The applicant provided inconsistent evidence in her written application and at the Tribunal hearing as to her membership of the Youth Gospel Group. The Tribunal found this claim to be “implausible” and to raise concerns as to her credibility ([18] at CB 90).

6. The applicant provided “inconsistent evidence” in relation to her claim to have participated in “gospel missions”. The applicant claimed at the hearing, different to her claims set out in her written visa application, that she had “no role” in the gospel missions, that she was “young and did not understand too much”, that she “did not read the bible during this time” and that she did not “do anything to establish Local Churches”. The Tribunal found that this inconsistent evidence raised concerns as to the applicant’s credibility ([20] at CB 90 to [21] at CB 91).

7. The applicant provided inconsistent evidence as to her claim to have been arrested and detained by local police, or put in a detention camp, and contracting malaria on her third Mission Tour to the Jiangxi province ([22] – [23] at CB 91).

8. The Tribunal found it implausible that the applicant’s parents would have left their 15-16 year old daughter to remain locked up in a police station as “punishment”, even if they were upset with her. Further, that it was “implausible” that the police would have released twenty adults after detaining them for two days, enforcing no punishment and returning them to their homes in the Fujian province after catching them participating in a “banned activity” ([24] – [25] at CB 91).

9. The Tribunal found that the applicant’s claim to have been “discriminated” against by her school, due to her arrest, was inconsistent with a school report provided by the applicant with her application for a student visa, which claimed that she “conducted herself well”, never committed any criminal activity, and “united” her classmates ([26] at CB 91). The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and further stated that the applicant would have been in high school at the time of the arrest (two years before coming to Australia) and not in middle school, as she had previously claimed.

10. The applicant claimed that she “transferred” schools after middle school, that she was discriminated against, and later “believed” in herself, that it is was “normal” to be praised by the school, and that “everyone makes mistakes” ([27] at CB 92). The Tribunal noted that this statement was inconsistent with her written application and the claim that she could not put up with the pressure imposed by school. The Tribunal held that the inconsistencies between her written application, her oral evidence and the letter attached to her student visa application raised concerns as to her credibility ([28] at CB 92).

11. Further, the Tribunal found ([29] at CB 92):

    “…it implausible that, on the one hand, the applicant's parents would leave her locked up in a local police station in another Province to punish her and, on the other hand, agree to her request to go overseas to study in Australia and make and pay for the necessary arrangements for her to do so.”

12. In regard to the applicant’s claim that she was visited by members of the Local Church from China in Australia, the Tribunal found ([31] at CB 92):

    “The inconsistency between the applicant's written claims and her oral evidence in relation to how many members of the church in China visited her in Australia raises concerns in relation to the credibility of her claims. The Tribunal finds it implausible that a member of the Local Church in China would travel to Australia for the purpose of comforting her. The Tribunal also finds it implausible that if the church members were going to send someone to Australia to comfort her they did not send her aunt.”

13. The Tribunal put a number of questions to the applicant in regard of her Christian faith ([32] at CB 92). The Tribunal found that ([33] at CB 93):

    “The Tribunal would expect that if the applicant had been attending the Local Church in China for two hours every Sunday from the age of 6 years or 7 years until the age of 18 years, listening to Bible stories during that time, attending the Local Church in Australia every Sunday since July 2013, had read the Bible and attended Bible study in Australia as claimed, she would have a good knowledge of the Bible and Christianity. Her evidence to the Tribunal demonstrated a superficial and poor knowledge of the Bible and Christianity. When the Tribunal raised this as an issue with the applicant, she responded that she can only remember stories that interest her. The Tribunal does not accept this explanation. The Tribunal is of the view that the applicant's poor knowledge of Christianity is consistent with someone who has only recently been exposed to Christian beliefs.”

14. The applicant claimed that she only joined the Local Church in Australia in July 2013, after arriving in June 2007, because she could not find the “right church”, and that she communicated with church members in China through a social media service. The Tribunal raised with the applicant country information that it had before it which indicated that social media was strictly monitored by Chinese authorities. The applicant stated that it was not a “sensitive issue”, and that the social media service does not have detailed registration, and the Chinese authorities would not find much information about them ([34] at CB 93). The Tribunal did not accept this evidence. The Tribunal held that if “her faith was so important to her”, then she would have attended church in Australia as soon as she arrived, rather than waiting until “one month before she filed her application” ([35] at CB 93). Further that as she had lived, worked and studied here since 2007, she would have had the capacity to make inquiries at an earlier time to find a Local Church ([36] at CB 93 to CB 94).

15. As stated above, the Tribunal found the applicant’s claim to contact members of the Local Church in China through social media over six years inconsistent, and implausible, with country information on the “great firewall of China” ([36] at CB 93 to [37] at CB 94). Further, that it was implausible that she could have used social media for six years without being discovered, particularly, in circumstances where she had been previously detained by the authorities ([37] at CB 94).

16. The Tribunal held that the applicant’s voluntary return to China in 2009 was indicative of the fact that she did not have any fear of persecution if she returns to China because of her membership of the Local Church ([38] at CB 94). The applicant stated that she did not apply for a protection visa sooner as she did not initially know about protection visas. The Tribunal did not accept this explanation and found that the applicant had the capacity to find out about protection visas through sources on the internet and contact with the department in 2009. The Tribunal considered the applicant’s delay in lodging her application for a visa “significant”, and that if she genuinely feared returning to China she would have lodged her protection visa application as soon as possible after arriving in Australia ([39] at CB 94 to [40] at CB 95).

17. The applicant claimed that her son was born on 13 January 2014. The applicant provided inconsistent evidence as to her marital status, claiming that she will be discriminated against because she is an “unwed single mother” who had breached China’s family planning policy, that her family had refused to recognise her marriage and child, and further, at hearing, that she is “not married” and that the child’s father had not seen the baby ([41] – [42] at CB 95).

18. Having regard to country information before it, the Tribunal assessed the applicant’s ability to pay the “social compensation fee” in China. The applicant provided evidence that she is not working and is not financially supported by her family. The applicant provided inconsistent evidence as to when her parents withdrew their financial support for her education, variously, at the beginning of 2009 or 2010. Further, the applicant claimed that her parents had refused to recognise her marriage and child, but they had “seen her child on video”. The applicant claims that friends support her financially, to the amount of 400-500 dollars per week. None of the friends attended the hearing before the Tribunal. The Tribunal found it “implausible” and “highly unlikely” that Chinese students in Australia would have the financial resources to support the applicant and her child ([43] at CB 95 to [53] at CB 97).

19. The Tribunal held ([59] – [60] at CB 98):

    “[59] The Tribunal does not accept that the applicant's family has refused to recognise her marriage as her subsequent evidence is that she is not married. The Tribunal does not accept that the applicant's parents have refused to recognise her child. The Tribunal does not accept that the applicant's family does not support her financially.

    [60] The Tribunal is of the view that the applicant would have to pay a social compensation fee for the child to enable her to register the child and obtain a hukou for the child. The Tribunal is of the view that if the applicant's family are supporting her and her child in Australia to the extent of $400.00 to $500.00 per week they would have the financial capacity to pay the social compensation fee (see p.44) for the child. The Tribunal accepts that the applicant may face some discrimination as an unwed single mother. The Tribunal does not accept that this would amount to persecution.”

20. Considering all the evidence, the Tribunal found that the applicant was not a witness of truth and had fabricated her claims for the purpose of obtaining a protection visa ([54] at CB 97). Further, the Tribunal found ([61] at CB 98):

    “The Tribunal has considered the applicant's conduct in Australia. The Tribunal accepts that she has been attending church in Australia since July 2013. The Tribunal has found that she is not a credible witness and has rejected the entirety of her claims in relation to the Local Church in China. The Tribunal is of the view that the applicant has been attending the Local Church in Australia for the purpose of supporting her application for a Protection visa. The applicant has not satisfied the Tribunal that she engaged in this activity in Australia otherwise than for the purpose of strengthening her claims to be a refugee. The Tribunal disregards the applicant's conduct in Australia in accordance with s.91R(3) of the Act.”

21. The Tribunal held that the applicant was not a person in respect of whom Australia had protection obligations, and she did not satisfy the criteria set out in s.36(2)(a) and (aa) of the Act for the grant of a protection visa ([62] at CB 98 to [68] at CB 99).

Application Before the Court

1. The grounds of the application before the Court are as follows:

   “1. RRT has prejudice against me, it doesn’t believe whatever I said.

   2. Immigration Department treated me unfair and ask me for interview when I was in labour.

   3. RRT has relied untested information and said that I can find help and just pay 700 RMB to get my child registered, but this is not true in China.

   4. RRT asked some irrelevant questions and said I wouldn’t be able to come to Australia if I was discriminated in school at China. RRT’s reasoning is illogical and irrelevant to my application.”

Before the Court

1. The applicant had appeared before the Court, with the assistance of an interpreter in the Mandarin language, on two previous occasions, at a first Court date on 17 September 2014, and at a callover on 11 March 2015 before a Registrar. The applicant was put on notice at the first Court date that if she did not provide evidence in support of her application, or put any legal arguments before the Court, that the Minister would seek to have the matter dismissed pursuant to Part 44 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).

2. At the next Court event, on 11 March 2015, the Minister maintained his position that the application did not raise an arguable case for the relief sought and the matter was set down for a “show cause” hearing.

3. Before the Court today the applicant appeared in person and was assisted by an interpreter in the Mandarin language. I note that the Minister has filed written submissions in these proceedings.

The Issue

1. The issue before the Court is whether the grounds of the application raise an arguable case for the relief sought. I note in this regard that the applicant seeks orders that the Tribunal’s decision be quashed and returned to it for reconsideration.

2. If the Court cannot be satisfied that an arguable case is raised against the respondent the application will be dismissed. It is the case that the Court’s power should be exercised with great caution. Given the summary nature of any such dismissal, the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] – [6], Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219) or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).

Consideration

1. Before the Court today, the applicant was unable to assist the Court in explaining the grounds of her application.  The applicant said that she wanted to stay in Australia, and then said that if she returned to China that “people would look at [her] funny”. 

2. As to the first statement, as I sought to explain to the applicant, the Court has no power to grant her a protection visa.  The only way that the Court could intervene, is if the Court could see whether the Tribunal had made “some legal error”. In that circumstance, the Court could then consider whether to remit the applicant’s case to the Tribunal for reconsideration.  Given the nature of the hearing today, the applicant would first need to show that the grounds of the application raise some legally arguable case. 

3. The second statement, that people would look at the applicant in a particular way if she were to return to China, is really a statement that goes to the reasons for her not wanting to return to China. Therefore,  it is not a matter that can be properly taken into account by the Court in determining the issue for consideration today. 

4. Ground one of the application appears to be an attempt to assert bias on the part of the Tribunal. This is a very serious allegation to make against an administrative decision-maker. Therefore, the law requires that such claims be clearly made and distinctly proven (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 (2001) 205 CLR 507 at [69] and [127]). The tests for bias are well settled (SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).

5. Looking at the material, the basis for this assertion appears to be the Tribunal’s disbelief of the applicant’s claims. That is, that the applicant claims that the Tribunal was prejudiced against her because it did not believe her.  As I explained to the applicant earlier, such belief, on its own, is not a sufficient basis to say that the Tribunal had bias against the applicant. 

6. No inference of bias is raised in circumstances where this is the only reason given for the allegation of bias that the applicant appears to be making (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [31] – [38] (“SCAA”)). The Tribunal is not required to uncritically accept an applicant’s claims or evidence. It is the case that in this particular matter the Tribunal gave comprehensive reasons, probative of what was put before it, for its disbelief of the applicant’s claims.  The Tribunal’s findings in this regard, and the conclusion which arose from those findings, were reasonably open to it (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332).

7. In any event, it is, as the Minister submits, a rare and exceptional case where bias can be made out simply with reference to the Tribunal’s decision record (SCAA at [38] and SZHVL v Minister for Immigration [2008] FCA 356 at [17]). Despite opportunity, the applicant has not provided any evidence, for example, a transcript of the hearing before the Tribunal, to provide any basis to this allegation.

8. I agree with the Minister that there is nothing in the Tribunal’s decision to even suggest that the Tribunal did not bring an open, and impartial, mind to its task.  Ground one therefore does not raise an arguable case for the relief that the applicant seeks. 

9. Ground two complains that the Minister’s department treated her unfairly because it invited her to an interview while she was giving birth to her child.  The only evidence relevant to this matter is some material that is contained in the Court Book.  That reveals that the applicant’s request to reschedule the interview was refused, subject to the applicant being able to provide a medical certificate in support (CB 41 to CB 43). 

10. As the Minister, in my view, correctly submits, the conduct of the matter before the Tribunal, and the hearing before the Tribunal, was capable of curing any deficiencies with regard to the delegate’s conduct. It is the case that the applicant did attend a hearing before the Tribunal and was given the opportunity to give her evidence. I note that the Tribunal’s decision, and in particular, its adverse findings as to the applicant’s credibility, did not, in any way, depend on the applicant’s non-attendance at the interview with the delegate. Ground two therefore also does not raise an arguable case for the relief that the applicant seeks. 

11. Ground three appears to take issue with the Tribunal’s finding that the applicant would be able to pay the requisite fee to have her child registered on return to China. The complaint is that this finding was based on “untested information”. The applicant did not explain to the Court what this particular information was said to be.  In any event, the Tribunal’s finding as to her capacity to pay the “social compensation fee” arose from the applicant’s own evidence given to the Tribunal and country information that was before the Tribunal. 

12. As stated above, the applicant, before the Court, has not explained what is meant by “untested information”. If this was some attempt to complain about the Tribunal’s use of country information regarding the social compensation fee then this remained unexplained. In any event, the use to which such country information is put, and the weight that is assigned to such country information, is for the Tribunal to determine, and assign, within the proper exercise of its jurisdiction (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ, Lee v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J (as he then was) and Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123; (2009) 113 ALD 46 at [45] per Spender, Moore and Foster JJ).

13. In relation to her own evidence, the Tribunal considered and gave comprehensive reasons for its finding that her evidence was contradictory, and inconsistent, as to the availability of financial support from her parents and the nature of her relationship with her parents. 

14. The Tribunal’s reasoning, in relation to this compensation fee and the applicant’s capacity to pay, was comprehensive of the applicant’s claims and her evidence. The Tribunal’s relevant findings were reasonably open to it and, again, no arguable case is raised. 

15. Ground four asserts that the Tribunal asked some “irrelevant questions”. Ground four also seeks to take issue with what is said to be the Tribunal’s finding that she would not have been able to come to Australia if she had suffered discrimination in China. The ground also makes a general assertion that the decision was illogical and irrelevant to her application. 

16. First, the applicant has not explained what questioning by the Tribunal was said to be irrelevant. In the absence of any particularity, I cannot see that an arguable case is raised in this regard.

17. The applicant’s claim, concerning what she said the Tribunal found regarding discrimination, is a misrepresentation of what the Tribunal relevantly reasoned and found.  I note here what is set out at [26] of the Tribunal’s decision record (at CB 91), where the Tribunal deals with the applicant’s claim of discrimination, and claimed discriminatory attitudes, towards her, in China. The Tribunal found that the information provided by the applicant in her protection visa application was inconsistent with the information that she had provided in her student visa application to come to Australia. Given what was before the Tribunal, and given the Tribunal’s reasoning, this finding was reasonably open to the Tribunal to make on that material. 

18. I should just note that the student visa information does engage the Tribunal’s obligation in s.424A(1) of the Act. However, I am satisfied, on what is before the Court, that the Tribunal discharged its obligation in this regard at the hearing with the applicant by its use of the facility available to it in s.424AA of the Act. Further, the Tribunal’s finding of inconsistency is not, itself, information for the purposes of s.424A(1) of the Act. As I said earlier, on any plain reading of the Tribunal’s decision record, it has provided detailed and comprehensive reasons for its disbelief of the applicant’s claims. In the circumstances presented, I cannot see that any charge of illogicality, or indeed, whatever may be meant by “irrelevancy”, can have any substance, given the Tribunal’s reasoning, which was probative of the evidence and material before it.

19. The claim of the reasoning being “irrelevant”, in the circumstances, can only be seen as a statement of grievance by the applicant with the Tribunal’s findings. No arguable case is raised by ground four.

Conclusion

1. In all, the grounds of the application do not raise an arguable case for the relief sought. It is the case that the FCC Rules provide that at a hearing of an application to show cause (with reference to r.44.12 of the FCC Rules), the applicant is confined to the grounds mentioned in the application to the Court (r.44.13(1) of the FCC Rules). The applicant did not raise anything today that would have made it appropriate to dispense with this rule pursuant to r.1.06 of the FCC Rules.

2. In the circumstances, it is appropriate that the application be dismissed pursuant to r.44.12(1)(a) of the FCC Rules. I will make an order accordingly.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 19 January 2016