WZANJ v Minister for Immigration & Anor - [2009] FMCA 396

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZANJ v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 396

MIGRATION – Protection visa application – whether well founded fear of persecution – alleged Falun Gong member – knowledge of practices and beliefs – circumstances of departure from China and Malaysia – credibility – whether Tribunal properly considered claims – whether denial of procedural fairness or natural justice – whether jurisdictional error.

Migration Act 1958 (Cth), ss.36(2), 65, 65(1), 422B, 424A, 424A(3)(a), 474, 476
Migration Regulations 1994 (Cth), Schedule 2, Part 866

Minister for Immigration and Multicultural Affairs v Eshutu & Anor (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v VSAF [2005] FCAFC 73
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
Saeed v Minister for Immigration and Citizenship [2009] FCAFC 41
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
SZGZQ v Minister for Immigration and Multicultural Affairs [2007] FCA 62
SZJAO v Minister for Immigration & Anor [2007] FMCA 1102
SZJEH v Minister for Immigration and Citizenship [2007] FCA 1706
SZKHV & Anor v Minister for Immigration & Anor [2009] FMCA 264
SZMWT v Minister for Immigration & Anor [2009] FMCA 254
WZANE v Minister for Immigration & Anor [2008] FMCA 1520

Applicant:

WZANJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

PEG 168 of 2008

Judgment of:

Lucev FM

Hearing date:

22 April 2009

Date of Last Submission:

22 April 2009

Delivered at:

Perth

Delivered on:

8 May 2009

REPRESENTATION

Applicant:

In person

Counsel for the First Respondent:

Mr S Thackrah

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 168 of 2008

WZANJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a Chinese national who arrived in Australia on 24 March 2008.[1] She entered Australia on a false Malaysian passport under another name,[2] having initially departed China for Malaysia on 14 March 2008 using a valid Chinese passport in her own name.[3]
[1] Court Book (“CB”) 17, 18 and 61.
[2] CB 13-15.
[3] CB 64. The applicant’s Malaysia entry visa, in her own name is at CB 65.
The applicant applied for a protection (Class XA) visa[4] on 6 May 2008.[5] The delegate of the first respondent refused to grant the applicant a visa on 7 June 2008.[6] The applicant applied to the Refugee Review Tribunal[7] on 10 July 2008 for review of the Delegate’s Decision.[8] On 7 October 2008 the Tribunal affirmed the Delegate’s Decision not to grant the applicant a protection visa.[9]
[4] “protection visa”.
[5] CB 1-31.
[6] “Delegate’s Decision”. CB 39-42
[7] “Tribunal”.
[8] CB 43-46.
[9] “Tribunal Decision”. CB 67-86.
On 7 November 2008 the applicant filed an application with this Court on under s.476 of the Migration Act 1958 (Cth)[10] seeking orders that the Tribunal decision be set aside and that the Tribunal review her application for a protection visa. The grounds for that application appear below.[11]
[10] “Migration Act”.
[11] See para.5 below.

Issue

The issue is whether the Tribunal committed jurisdictional error on the grounds alleged in the application, or whether the decision is a privative clause decision in relation to which the Court has no jurisdiction.[12]
[12] Migration Act, ss.474 and 476.

Grounds of application and orders and relief sought

The grounds of the applicant’s application filed in this Court on 7 November 2008 are:
1.Jurisdictional error has bee made. RRT did not make fair decision for me.
2.Procedural Fairness has been denied. RRT did not use favorable cases to my application. RRT failed to consider the risk for me to go back. I am Falun Gong practioner. I will be put in jail if I return to China.[13]
[13] Transcribed from applicant’s application without amendment.
The orders sought by the applicant are:
1.Order to set aside RRT’s decision.
2.Review my case by RRT again.[14]
[14] Transcribed from applicant’s application without amendment.

Applicant’s affidavit

On 7 November 2008 the applicant filed an affidavit sworn 5 November 2008 in support of her application, stating:
1.I arrived in Australia in March 2008. I was born in China. I refused to go back to China as Chinese Government forbids me to practice Falun Gong.
2.I am Falun Gong practitioner. Chinese Government persecutes Falun Gong practitioners. I will be put in jail if I return to China and practise Falun Gong.[15]

Tribunal Decision

[15] “Applicant’s Affidavit”. Transcribed from applicant’s affidavit without amendment.

Issue identified

The issue identified in the Tribunal Decision was whether under s.65 of the Migration Act the decision-maker (the delegate) was satisfied that the prescribed criteria for the grant of a visa had been met.[16] The Tribunal referred to the relevant criterion under s.36(2) of the Migration Act for the grant of a class XA protection visa as being whether the Minister (the first respondent) was satisfied that Australia had protection obligations towards the applicant, and the further criteria for the grant of a protection visa as set out in Part 866 of Schedule 2 to the Migration Regulations 1994 (Cth).[17] The Tribunal identified the relevant elements of the Convention definition of “refugee”,[18] and identified that there was a question as to whether the applicant had a well-founded fear of persecution.[19]
[16] CB 68.
[17] CB 68. “Migration Regulations”.
[18] CB 68-69.
[19] CB 69-70 and 84-86.

Applicant’s statement

The Tribunal set out most of the applicant’s statement attached to the protection visa application, as follows:
My husband started to practice Falun Gong in 1997. He is a senior Falun Gong member. We got married in August 2006, and I started to practice Falun Gong from him. After the birth of my child, my health became very bad and I had to practice Falun Gong every day at our home. Sometime[s] I went out to meet other Falun Gong members and practiced Falun Gong with them. My health gradually recovered, I kept a very close relationship with these people. I met them every week. In January 2008, when I was at a member’s home having a meeting with other Falun Gong members, police arrested us. [W]e were sent to [the] police station for questioning. Some of them were released after being warned and fined I was detained for [five] days for questioning. [T]hey suspected my husband’s [role] with Falun Gong. They tried to get more information about my husband and our branch. They tortured me mentally and physically???. I was beaten by [the] police, and I could not see my husband and my son. As they got evidence that I was practising Falun Gong at the member’s home, they wanted to put me in jail. My husband used all our family’s savings to bribe some government offices to secure my release. We also borrowed [a] large sum of money to secure my arrival to Australia. We ended up with [a] large debt, and I had to leave my son [and] my husband to come to Australia. I cannot return to China, I will face severe persecution from [the] Chinese Government. I hope that I can save my husband and son. People were chasing money from him….[20]
[20] CB 71. The slight amendments and interpolations, which were made by the Tribunal, make, in the Court’s view, no difference to the sense of the applicant’s statement. The unamended applicant’s statement is at CB 30.

At the hearing

At the hearing the Tribunal asked the applicant how she came to prepare her protection visa application, completed in English, given that she asserted she could not read English. The applicant said that when she got off the aeroplane she met a person in the street who spoke English and Mandarin and that person assisted her with the documentation and in contacting the Department of Immigration and Citizenship. The applicant said she had arrived in Perth, and then gone to Sydney, where she met the person who assisted her. The applicant did not know where the person who assisted her is now, as she “‘came to know this person in the street’”[21]
[21] CB 72.
Although not noted by the Tribunal it is relevant to observe that:
a)the protection visa application says that no assistance was received in completing the form in English,[22] but that the applicant would require the services of an interpreter because she only spoke, read and wrote Mandarin;[23]
b)the application and relevant declaration were completed in Perth, Western Australia on 5 May 2008, and signed before an unnamed person who cited their profession as “solicitor”, but gave an Auburn, New South Wales residential address and an Elizabeth Street, Surry Hills, New South Wales postal address;[24] and
c)no translator’s jurat or affidavit was completed or attached to the visa application.
[22] CB 9.
[23] CB 16.
[24] CB 28 and 17. See also para.20 below.
Because the applicant also claimed to have been detained by Chinese authorities and said that she had difficulty obtaining a Chinese passport because of an adverse interest in her, the Tribunal considered that she may have used the false Malaysian passport to leave China. However the Tribunal noted that the applicant left China on her own Chinese passport, giving rise to doubts about her alleged treatment in China. The applicant also stated “Chinese officials accepted bribes. The snakehead arranged everything” and that “everything was done by the snakehead.” [25]
[25] CB 72-73. The identity of the “snakehead” did not emerge in the course of the Tribunal hearing. It is well known that “snakeheads” are Chinese gangs that smuggle people to other countries for a fee using stolen or altered passports, improperly obtained visas and bribes to move people across national borders: The facts here are analogous to those described in an essay by P R Keefe; “The Snakehead. The criminal odyssey of Chinatown’s Sister Ping”, The New Yorker (24 April 2006), describing the account of Chen, a talented Chinese teenager sent by his parents to the USA:
The Tribunal noted the inconsistencies in relation to the applicant’s responses to questions regarding her use of a false passport to enter Australia on 24 March 2008 and the prior use of a Chinese passport to enter Malaysia on 14 March 2008. The applicant’s response was that “friends helped me to arrange it” and that as she had been focusing on her travel she “didn’t pay much attention”. In relation to the question as to why the applicant didn’t travel to Australia on a Chinese passport the applicant said that she “couldn’t travel to Australia…she could only leave it to the snakehead to organise.” The applicant agreed with the assertion by the Tribunal that she had used the Malaysian passport to travel to Australia because the “snakehead” had told her to do so. The applicant also stated that due to her persecution in China “her friend had arranged for the snakehead to organise for her to come to Australia”.[26]
[26] CB 72-73.
The applicant told the Tribunal that she did not know she was coming to Australia at the time she left China and only knew of her travel to Australia once she arrived in Malaysia and that she was given the Malaysian passport after she arrived in Malaysia when “a good friend entrusted the help of a snake head who had arranged everything.”[27]
[27] CB 73.
In response to a question by the Tribunal that the applicant could have sought protection in Malaysia, the applicant stated that she had thought about it but “because Australia has protection for ‘safety for life’ that Malaysia does not” she decided to come to Australia.[28]
[28] CB 74.
The Tribunal asked the applicant to explain how she was able to leave China in view of China’s exit policies if she had been detained as she had claimed, because this issue raised questions about her credibility. The applicant responded that she wasn’t sure and that the details were organised by the “snakehead”. She also stated that her husband was “an important Falun Gong practitioner. She did not know how he had become known to the PSB.”[29]
[29] CB 74.
The applicant said that she had been arrested in China by the police on 10 January 2008 and that “her husband had bribed the police for her release. She said that she was detained for five days and then she was interrogated, then she was detained again ‘for almost two months’”. In response to the Tribunal’s question as to why she was detained the second time and why this was not included in her written statement or her protection visa application the applicant replied that “because inside the prison she had suffered mentally and physically and because she was hit”. The Tribunal also asked the applicant why she had not mentioned the claim of being detained for a further period of nearly two months at the beginning of the hearing when asked if she wanted to add anything. The applicant replied “I didn’t add or change anything, because that’s the truth” and that “I didn’t specify how many days I spent in prison.” The Tribunal stated that the five days’ detention mentioned in her written statement was fairly specific to which the applicant stated that she “spent five days in prison before interrogation and after interrogation she was put into prison again.”[30] The Tribunal also referred to the applicant’s written statement where she claimed that she had been “tortured mentally and physically” to which the applicant replied that she was “hit and tortured physically and spiritually. She was not allowed to sleep. They made noises. They also hit her.”[31]
[30] CB 74.
[31] CB 74-75.
In response to questions by the Tribunal the applicant:
a)said she had been detained because of her practise of Falun Gong and “They wanted to squeeze me for information about my husband. He is a loyal Falun Gong practitioner”;[32]
[32] CB 75.
b)said she started to practise Falun Gong after she got married (August 2006);[33]
[33] CB 75.
c)said she was detained because her husband was a Falun Gong member and she was one too;[34]
[34] CB 75.
d)said her home was searched on a day that she was not home as she was at a friend’s home and that “The police came in and all the (Falun Gong) members were taken to the PSB (Public Security Bureau)…some of the members were cautioned, fined and released…the applicant was put in detention for five days…because ‘they considered [her] husband was important and they wanted to know about [her] husband’”;[35]
[35] CB 75.
e)said she did not know how the police knew that her husband was practising Falun Gong or why they wanted to know more about him or what made him important apart from his “passion about Falun Gong and that ‘everything he has is based on Falun Gong’”;[36]
[36] CB 75.
f)said she began practising Falun Gong when she got married in August 2006 (agreeing with the Tribunal that that was at a time when it was illegal) acknowledging that the “crackdown was in 1999”[37] and that she practised because she believed in Falun Gong and that “all my life I have Falun Gong on me and this is the same case as my husband”;[38]
[37] The “crackdown” against Falun Gong in China in 1999 is described by the Tribunal at CB 78-80.
[38] CB 75.
g)confirmed that she claimed she had believed in Falun Gong “all her life” but also stated that she began it in 2006, and explained this by saying that “...in her life she would only like to practise Falun Gong and she wanted to continue with it” and that before she married she ‘did not know of the importance of Falun Gong’ but that after her marriage “and being educated by her husband, she came to know”;[39]
[39] CB 76.
h)said that since arriving in Australia, she had practised Falun Gong “near Parramatta railway station” but not frequently and she could not remember if she had practised anywhere else because of her “messy” mind;[40]
[40] CB 76.
i)said that since arriving in Australia she had practised “‘two times’… with others together and that she ‘got involved with activities’”;[41]
[41] CB 76.
j)explained that her description of Falun Gong activities “involved the practice, how to behave, how to tell the truth, how to help people”;[42]
k)said that on the two occasions that she had practised Falun Gong since arriving in Australia “I listened and practiced and handed out leaflets”;[43]
l)when explaining what practising involved she said she “learnt to practise with others”;[44]
m)said that the practise of Falun Gong involved sets of Falun Gong exercises and provided the names of three sets of such exercises and said that two sets of exercises were done standing up;[45]
n)correctly described when Li Hongzhi founded Falun Gong and drew a reasonable approximation of the Falun Gong symbol;[46]
o)said that the Falun (or wheel) was placed in one’s heart, and then said that it was placed throughout the entire human body including the heart, the foot and the hand;[47]
p)named “Falun Gong Stands Practice” as a book written by Li Hongzhi, but was unable to name any other books written by him;[48]
q)when asked to describe the Falun Gong attitude to karma and the colour of karma indicated that she was not up to that level or that level in terms of her reading, and when the Tribunal expressed surprise at this given the alleged senior nature of her husband’s membership of Falun Gong, said that she had only learnt Falun Gong since they were married in August 2006;[49]
r)said that Falun Gong’s attitude to eating meat was that it was “okay”;[50] and
s)said she did not practise Falun Gong whilst in Malaysia because she did not know where the Falun Gong sites were.[51]
[42] CB 76.
[43] CB 76.
[44] CB 76.
[45] CB 76.
[46] CB 76. The applicant’s drawing of the Falun Gong symbol is at CB 60.
[47] CB 77.
[48] CB 77.
[49] CB 77.
[50] CB 77.
[51] CB 77.
The applicant was asked why she had delayed applying for her protection visa application until she had been in Australia for six weeks. She responded that “she had not known what to do as she did not speak English.” When the Tribunal pointed out that there were people in Sydney, particularly in Chinatown, who spoke Mandarin, the applicant said that she was not aware of this.[52]
[52] CB 77.
The Tribunal noted that the application was lodged in Sydney on 6 May 2008, and that the applicant had stated that she had lived in Sydney since March 2008. The applicant said that she could not remember the exact date she came to Sydney in May 2008 but that she lived in Perth for less than two months.[53] The Tribunal pointed out that the address for correspondence in the protection visa application was Elizabeth Street, Surry Hills, which was close to Chinatown.[54]
[53] CB 78. The protection visa application was signed in Perth on 5 May 2008 : see para.11(b) above, a day before it was lodged in Sydney.
[54] CB 78. See also para.11 above. This case raises, yet again, the issues referred to by this Court in a number of cases, but most recently, SZMWT v Minister for Immigration & Anor [2009] FMCA 254 at paras.33-34 per Raphael FM where the Court said:
33.I cannot leave this judgment without expressing the concern that I have previously expressed in other decisions; SZMRU v Minister for Immigration [2009] FMCA 87; SZIHI & Ors v Minister for Immigration [2007] FMCA 1332; SZIJY v Minister for Immigration [2007] FMCA 1823, about the practices apparently adopted by DIAC in relation to the completion of application forms. I hold the strong view that if appropriate measures were taken in relation to application forms many of the “grounds of application” that are seen in this court and considered on appeal by the Federal Court would not be available even to be made. The forms that are to be completed are in English. This is understandable although, of course, most of the people who complete the forms do not speak English. Many of them cannot write and certainly cannot write in English. The department clearly recognises these difficulties because at question 15 the form asks:
“Did you receive assistance in completing this form?”
If the answer is yes, details of that person are required to be provided. There is then a question about migration agents and whether the applicant’s migration agent is registered with MARA. Question 15 is invariably answered in the negative. Therefore, there is no necessity for question 16 to be responded to. At 29 of the form there is the following:
“If an interpreter was used in the preparation of this application, the interpreter must complete this declaration.”
There follows a perfectly reasonable declaration for an interpreter to make and a requirement that the interpreter gives some personal details of his name and address. This part of the form is also invariably not completed. The form is then signed by an applicant. If the applicant is from a country whose alphabet is not the Roman or Latin alphabet used in this country, they would sign the form in their own script. This would seem to me to be a clear indication that the person who has completed the form does not understand English and in all probability completed the form with the aid of a “friend”. The department’s suspicions on this subject could be confirmed by the invariable completion of the request for an interpreter, which is also contained in the form.
34.Given the above information, it would not seem to be a particularly onerous task to require the officer receiving the application to check it at the time so as to ensure that the applicant indeed does, as he has acknowledged in the declaration which he signed, understand the form and the claims made. If, as the court understands is a common practice, a person other than the applicant submits the form, then the department should decline to receive it on the grounds that it cannot be satisfied that it has been properly completed where there is a denial of help, no interpreter, no interpreter’s certificate and a request for an interpreter at any hearing. If DIAC, in this way, ensure that applications are actually made by applicants and have been properly translated to them, claims such as the one that appeared in this case, in the others that I have referred to, in many to come before my colleagues and those that are required to go on appeal could not be brought on those grounds.
35.

The Tribunal put it squarely to the applicant that “it appeared she did not know very much about Falun Gong”.[55] The Tribunal pointed out that four of the five exercises in Falun Gong were usually done standing up and that the two most important Falun Gong books were “Zhuan Falun” and “Falun Gong”, and that the applicant had not named either of these books.[56]
[55] CB 77.
[56] CB 78.
The Tribunal also discussed with the applicant her views on eating meat, karma, the issue of illness and healing in Falun Gong. The applicant was asked whether she wished to comment on the issues raised by the Tribunal. The applicant said that she had not been here long and was “not familiar” and that she did not know where she should or should not go. The Tribunal pointed out the view expressed by the applicant about eating meat was not the same as the view expressed by Falun Gong’s founder. The Tribunal also pointed out that there was information in Mandarin about Falun Gong practice publicly available in Chinatown.[57]
[57] CB 78.

Independent information concerning Falun Gong

The Tribunal set out extensive information concerning the founding and history of Falun Gong, with particular reference to the treatment of Falun Gong practitioners in China between 1999 and 2005.[58]
[58] CB 78-80.
The Tribunal also set out extensive information concerning the practice and beliefs of Falun Gong.[59]
[59] CB 80-82.
The Tribunal noted that according to the Australian Falun Dafa Information Centre website the main principles are explained in their entirety in the book “Zhuan Falun” and in the beginner’s text “Falun Gong”, both written by Li Hongzhi, and quoted from the website that “essential to the practice are the five gentle exercises”.[60]
[60] CB 81.
The Tribunal referred to the text “Zhuan Falun” which is considered to be the essential text for Falun Gong and the discussion in it of many aspects of Falun Gong including the emblem, the view of karma, drinking alcohol and eating meat.[61]
[61] CB 81.
The Tribunal also referred to independent information from the Department of Foreign Affairs and Trade and the Immigration and Refugee Board of Canada which indicates that a person who has been imprisoned as a dissident or activist may, but not necessarily, find it difficult to obtain a passport or to leave China.[62]
[62] CB 82-83.
The fact that the applicant left China using her Chinese passport and only entered Australia using her false Malaysian passport was squarely put by the Tribunal to the applicant.[63]
[63] CB 72.
In its findings, the Tribunal concluded that the independent country information regarding China's exit policies "indicates that the applicant may have experienced difficulty leaving China legally, if she had in fact been detained as she had claimed".[64] The Tribunal had previously told the applicant "that given her claims, it found it very unusual that she had used a valid Chinese passport to leave China, and a false passport to come to Australia".[65]
[64] CB 85.
[65] CB 73.

Findings and reasons

The Tribunal noted that the applicant:
a)claimed to fear persecution because of her “being a Falun Gong ‘member’”;[66]
b)claimed to have been detained for five days in January 2008 because of her “practice of Falun Gong”, and then for a further two months shortly thereafter;[67] and
c)claimed that her “husband is a ‘senior Falun Gong member’”.[68]
[66] CB 84.
[67] CB 84.
[68] CB 84.
The Tribunal found that:
a)the applicant’s evidence was unconvincing because of her inability to explain satisfactorily “the core aspects of Falun Gong” having claimed to have been “a Falun Gong practitioner for the past two years, having been taught by her husband who is a ‘senior’ Falun Gong member”; and
b)it “could reasonably expect that someone in this position would be familiar with the core aspects of Falun Gong. This is not the case with the applicant, who demonstrated a poor knowledge of Falun Gong practices and beliefs.” [69]
[69] CB 84.
The Tribunal set out in some detail the poor knowledge of Falun Gong practices and beliefs attributed to the applicant. It noted that apart from naming the founder and volunteering the names of three of the five sets of Falun Gong exercises, that the applicant had difficulty discussing other aspects of Falun Gong practice. She described Falun Gong practices and activities in the most general way, and:
a)she was unable to name either of the main texts;[70]
b)she was not able to describe the Falun Gong attitude to karma or to the cause of illness;[71]
c)she was not able to describe the Falun Gong attitude to the eating of meat in any meaningful detail, and when told of that attitude by the Tribunal then claimed to have given the correct answer, which was not, in the Tribunal’s view, the case;[72]
d)she did not know where the Falun Gong wheel was located in the practitioner’s body as described by Falun Gong’s founder;[73] and
e)she was unable to describe which of the exercises were usually done standing.[74]
[70] CB 84.
[71] CB 84.
[72] CB 84.
[73] CB 84-85.
[74] CB 85.
Given the adverse credibility findings the Tribunal concluded that:
a)the applicant was not a genuine Falun Gong practitioner;
b)the applicant had not practised Falun Gong in the past;
c)the applicant’s claims about her husband’s practice of and profile in Falun Gong should be rejected; and
d)the applicant did not have difficulty obtaining a Chinese passport on the basis of any Falun Gong activity by her or her husband.[75]
The Tribunal therefore considered that the authorities in China would not perceive her to be involved with Falun Gong, and therefore the applicant would not have a fear of persecution if she returned to China.[76]
[75] CB 85-86.
[76] CB 86.
The Tribunal also dealt with the manner of the applicant’s departure from China, and her arrival and departure from Malaysia. The Tribunal noted that the applicant made a claim to have used a false passport to leave China to escape persecution, and confirmed that evidence when asked. However, her Chinese passport, produced in evidence for the Tribunal, indicated that she exited China on that valid Chinese passport issued in her own name. She failed to offer any coherent explanation for that inconsistency, saying that the “snakehead” had organised everything and that she did not pay much attention to her travel. The Tribunal observed that if she was fleeing China because of persecution she would have had to have paid attention to the question of whether or not to use a Chinese or the false Malaysian passport, and was further unable to explain why she had used the false Malaysian passport to enter Australia.[77]
[77] CB 85.
The Tribunal did observe that the protection visa application indicated that the applicant had some difficulty obtaining a passport in China and that she stated that a friend had assisted her and that she had used extra money to obtain the passport. However in the hearing she was unable to provide any details about that difficulty other than saying that Chinese officials could be corrupted and bribed and that the snakehead had arranged everything. The Tribunal observed that she claimed to have had no difficulty in leaving China on a Chinese passport issued in her correct name, but that Chinese exit policies were such that she was a person who may have experienced difficulty leaving China legally, particularly if she had in fact been detained as she had claimed.[78]
[78] CB 85.
The Tribunal noted the evidentiary concerns, and went on to find that on a consideration of the evidence as a whole, that the applicant was not a credible witness and had fabricated her claims in order to support her application for a protection visa.[79]
[79] CB 85.
The Tribunal was not satisfied that the applicant had suffered any Convention-related harm, or that there was a real chance of such harm occurring to her in the reasonably foreseeable future. Therefore the Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention-related reason.[80]
[80] CB 86.

Submissions to the Court

The applicant, contrary to the Court’s orders of 1 December 2008, did not file any written submissions.
The applicant made brief oral submissions to the Court.[81] At hearing the applicant said that she sought review of the Tribunal’s Decision because when she had the hearing before the Tribunal:
a)she had a bad memory because of persecution;
b)she was not very educated; and
c)her English was “very poor”.[82]
[81] Transcript at pages 2-3 and 5-6.
[82] Transcript at page 2.
Expanding on those matters the applicant says that she did not think that the Tribunal gave her a fair judgment and because she could not afford a solicitor she had “no idea whether [the Tribunal] has considered … all my reasons and my education and I didn’t know whether [the Tribunal] has made right decision or not.”[83]
[83] Transcript at page 2.
The applicant also indicated that she considered Falun Gong was a great belief and that she would continue to practise Falun Gong, and that if she was not a Falun Gong member she would not have left China, her husband and her two year old child behind.[84]
[84] Transcript at pages 2 and 5.
The applicant raised a question as to whether or not the proceedings before the Tribunal had been usefully interpreted or not and said that she was unable to tell whether that was the case.[85] Save for the interpretation issue, the oral submissions were consistent with the grounds of application set out below which assert that the decision was not fair, the Tribunal failed to consider favourable cases in relation to the application and failed to consider the risk of the applicant going back to China.[86]

Consideration

[85] Transcript at page 2.

[86] See para.45 below.

Jurisdictional error

A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[87]
[87] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; [2003] HCA 2 at paras.76-77 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.
An error by an administrative tribunal, such as the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal's exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[88]
[88] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ; WZANE v Minister for Immigration & Anor [2008] FMCA 1520 at para.32 per Lucev FM.

Grounds of application

The applicant has raised two grounds of application:
a)the first ground alleges that the Tribunal made a jurisdictional error and "did not make fair decision for me"; and
b)the second ground alleges that there was a denial of procedural fairness by the Tribunal, in particular that the Tribunal "did not use favourable cases to my application" and "failed to consider the risk for me to go back".
Doing the best it can the Court considers that the two grounds of application and the oral submissions of the applicant referred to above,[89] raise the following issues:
a)that the Tribunal failed to consider all of the applicant’s claims and the risk of persecution if the applicant returned to China; and
b)that the Tribunal did not comply with the requirements of natural justice, including within that issue the allegation concerning the interpretation.
[89] See paras.39-41 above.

Credibility

The Tribunal’s reasons for decision were ultimately based on its finding that the applicant’s claims were not credible.
In SZJEH v Minister for Immigration and Citizenship,[90] the Court said that:
a)“disagreement with findings of fact made by a Tribunal does not support a contention that the Tribunal failed to consider the evidence properly or fairly”;[91] and
b)“it is well established that findings of credit are a matter for the Tribunal and absent some error going to the jurisdiction of the Tribunal, the decision of the Tribunal is not open to judicial review”.[92]
[90] [2007] FCA 1706 (“SZJEH”).
[91] SZJEH at para.14 per Jacobson J.
[92] SZJEH at para.17 per Jacobson J.
As is often said “[c]redibility findings are a matter par excellence for the Tribunal”.[93]
[93] SZKHV & Anor v Minister for Immigration & Anor [2009] FMCA 264 at para.56 per Emmett FM, citing Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J; [2000] HCA 1 at para.67 per McHugh J.
The applicant’s credibility was tested by the Tribunal in two particularly relevant areas, her knowledge of Falun Gong practices and the circumstances of her departure from China.

Knowledge of Falun Gong practices

At hearing the Tribunal invited the applicant to comment on the adverse information regarding her knowledge of Falun Gong practices that formed the basis for its adverse credibility finding, for example:
a)her attitude towards karma;
b)her poor general knowledge of Falun Gong, and lack of knowledge of Falun Gong texts; and
c)her attitude towards eating of meat.[94]
[94] CB 77.
The Tribunal noted that it "asked the applicant if she wished to comment on issues raised by the Tribunal".[95] The applicant's responses were taken into account when the Tribunal made its ultimate finding on credibility.
[95] CB 78.
The Tribunal found that the applicant had a poor knowledge of Falun Gong practices, given her claim to have been a practitioner for almost two years, since August 2006. Although at the hearing she could draw a reasonable approximation of the Falun Gong emblem, she had difficulty discussing other aspects of Falun Gong practice. She was unable to name the standard texts, correctly describe the Falun Gong attitude towards eating meat or correctly locate where the Falun (wheel) was placed in the practitioner's body.[96]
[96] CB 77.
The findings made by the Tribunal as to the applicant’s knowledge of Falun Gong practices were open to be made on the evidence.

Circumstances of departure from China

A further ground upon which the Tribunal based its adverse credibility finding was the inconsistent information given by the applicant regarding the circumstances of her departure from China.
The applicant initially claimed that she left China on her false Malaysian passport.[97]
[97] CB 72, paragraph 45.
The fact that she left China using her Chinese passport and only entered Australia using her false Malaysian passport was squarely put by the Tribunal to the applicant.[98]
[98] CB 72-73.
In its findings, the Tribunal concluded that the independent country information regarding China's exit policies "indicates that the applicant may have experienced difficulty leaving China legally, if she had in fact been detained as she had claimed".[99] The Tribunal had previously told the applicant "that given her claims, it found it very unusual that she had used a valid Chinese passport to leave China, and a false passport to come to Australia".[100] The applicant’s responses were taken into account when the Tribunal made its ultimate finding on credibility.
[99] CB 85.
[100] CB 73.
The findings made by the Tribunal as to the circumstances of the applicant’s departure from China were open to be made on the evidence.

Risk of return to China

The Tribunal clearly turned its mind to the risk to the applicant of being returned to China. Its finding that the applicant would not be subject to persecution was based on its previous finding that the applicant was not, and had never been, a Falun Gong practitioner. This conclusion in turn was based on the Tribunal's adverse credibility finding, and thus open to be made by the Tribunal.

Requirements of natural justice

Section 422B of the Migration Act provides that Division 4 of Part 7 "is taken to be an exhaustive statement of the requirements of the natural justice rule". Section 422B of the Migration Act thereby excludes the common law principles of natural justice.[101]
[101] Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 at 225 per Heerey, Conti and Jacobson JJ; [2006] FCAFC 61 at paras.60 and 66 per Heerey, Conti and Jacobson JJ, followed in Saeed v Minister for Immigration and Citizenship [2009] FCAFC 41 at para.46 per Spender, Buchanan and Logan JJ (see also paras. 29-32 and 42-45).
The Tribunal duly complied with the procedural fairness provisions. The Tribunal ensured that the applicant was aware of all of the Tribunal's concerns, and during the hearing, gave the applicant an opportunity to comment on its doubts about the credibility of her account.
Although the country information that casts doubt on her claim to have been detained was not put to the applicant, the Tribunal did put to her how unusual it was to be able to leave the country on a Chinese passport in light of her claims. In any case, s.424A of the Migration Act does not require the Tribunal to give to the applicant information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member"[102]. Thus, the failure of the Tribunal to provide the country information to the applicant did not breach section 424A of the Migration Act.
[102] Migration Act, s424A(3)(a).
The applicant raised a question as to whether or not the proceedings before the Tribunal had been usefully interpreted or not and said that she was unable to tell whether that was the case. The applicant took that matter no further, and there is nothing on the face of the record of the Tribunal’s proceedings which would indicate that there was any difficulty with the interpretation of the proceedings. No breach of natural justice arises from this issue.
Accordingly, the Tribunal complied with the requirements of natural justice as set out in the Migration Act.

Conclusion on grounds of application, findings and Tribunal’s approach

All of the Tribunal's findings were open to it on the information before it and no criticism can be made of the approach it took. The Tribunal approached its task correctly and had regard to relevant material.
The Tribunal found that the applicant had not been truthful in her claims and accordingly rejected them. That finding is factual and was open on the information and evidence before the Tribunal. It cannot be challenged in judicial review proceedings.[103]
[103] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at para.10 per Gray, Tamberlin and Lander JJ.
The Tribunal complied with the natural justice provisions of the Migration Act and ensured that the applicant was aware of all of the Tribunal's concerns. The Tribunal gave the applicant an opportunity to comment on any possible adverse view the Tribunal had about the credibility of her account.
The applicant advanced no arguable grounds of jurisdictional error in the application, or her oral submissions. The applicant asserts little but that she deserves protection because the Tribunal rejected her claimed involvement in Falun Gong in China. Essentially, on the material provided by the applicant, the Court is asked to make a merits judgment, or at least review the merits of the Tribunal Decision in relation to the facts. That is not the Court’s function.
The Tribunal considered the ultimate question of satisfaction: namely, whether it was satisfied that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal considered the ultimate question in proper form, having regard to:
a)the prescribed criteria;
b)sections 36(2) and 65(1) of the Migration Act and Part 866 of Schedule 2 to the Migration Regulations;
c)the definition of “refugee”; and
d)that element of the definition of “refugee” as to whether there was a well-founded fear based on a “real chance” of persecution for a Convention reason.[104]
[104] Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 274-275 per Brennan CJ, Toohey, McHugh and Gummow JJ. See also Minister for Immigration and Multicultural Affairs v Eshutu & Anor (1999) 197 CLR 611 at 650-651 per Gummow J; [1999] HCA 21 at paras.128, 130 and 131 per Gummow J; Minister for Immigration and Multicultural Affairs v VSAF [2005] FCAFC 73 at para.17 per Black CJ, Sundberg and Bennett JJ; SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at para. 15 per Ryan, Jacobson and Lander JJ; SZGZQ v Minister for Immigration and Multicultural Affairs [2007] FCA 62 at paras.13-14 per Greenwood J; SZJAO v Minister for Immigration & Anor [2007] FMCA 1102 at paras. 28-30 per Lucev FM.

The Tribunal considered the applicant’s claims based on all of the information available, and in particular the written information and oral testimony of the applicant. The Tribunal was not satisfied that the facts required to be established to satisfy the criteria for the grant of the protection visa had been established because it did not believe the applicant had been truthful in her claims. That is a factual finding as to credibility. It does not amount to a jurisdictional error. The Tribunal was therefore entitled to reject the applicant’s claims. In the absence of jurisdictional error it is not the task of this Court to review the merits of the Tribunal Decision.

Conclusion

The Tribunal:
a)considered all elements of the applicant’s claim; and
b)complied with the requirements of natural justice as set out in the Migration Act.
The Tribunal’s decision did not involve any jurisdictional error and was a privative clause decision under s.474 of the Migration Act, which the Court has no jurisdiction to review.
The application will therefore be dismissed.
The Court will hear the parties as to costs.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate: Sandra Gough

Date: 8 May 2009

“The total fee was thirty thousand dollars, with the balance due upon Chen’s safe arrival in America. Chinese snakeheads had Bangkok immigration officials on the payroll, and furnished their clients with “photo-sub” passports, which required only the substitution of the passenger’s picture. “They told us, ‘Easy: you just go on the bus, or motorcycle to Thailand,’” Chen told me with a bitter smile. “‘In Thailand, maybe one week or two weeks, they will arrange you by plane to the U.S.A.’”