WZANK v Minister for Immigration - [2009] FMCA 430

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZANK v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 430

MIGRATION – Protection visa application – whether well founded fear of persecution – alleged Falun Gong family members – knowledge of Falun Gong practices and beliefs – alleged assaults on police – alleged bribery to obtain passport – circumstances of departure from China – credibility – whether Tribunal properly considered claims – whether denial of procedural fairness – whether jurisdictional error.

Migration Act 1958 (Cth), ss.36(2)(a), 65(1), 424A, 424AA, 476
Migration Regulations 1994 (Cth), Schedule 2, Subclass 866

Minister for Immigration and Multicultural Affairs v Eshetu & Anor (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration and Multicultural Affairs v VSAF [2005] FCAFC 73
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
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
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZGZQ v Minister for Immigration and Multicultural Affairs [2007] FCA 62
SZJAO v Minister for Immigration and Citizenship & Anor [2007] FMCA 1102
SZJEH v Minister for Immigration and Citizenship [2007] FCA 1706
WZANE v Minister for Immigration and Citizenship [2009] FCA 482

Applicant:

WZANK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

PEG 20 of 2009

Judgment of:

Lucev FM

Hearing date:

6 May 2009

Date of Last Submission:

6 May 2009

Delivered at:

Perth

Delivered on:

15 May 2009

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondents:

Mr A Gerrard

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 20 of 2009

WZANK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant has applied to this Court for judicial review of a decision by the Refugee Review Tribunal[1] affirming the decision of a delegate of the first respondent[2] to refuse to grant the applicant a protection visa.
[1] “Tribunal”.
[2] “Delegate’s Decision”.

Background facts

The applicant, who claims to be a citizen of the People's Republic of China,[3] arrived in Australia on 11 July 2008 on a Visitor Visa, and lodged an application for a Protection (Class XA) visa[4] with the Department of Immigration and Citizenship on 14 July 2008.[5]
[3] “China”.
[4] “Protection visa”.
[5] CB 15-35.
In a written submission attached to his protection visa application[6] the applicant claimed that:
[6] CB 30.
a)all of his family members are Falun Gong practitioners “who [have] been tortured by Chinese government”;
b)“everything changed” after July 1999 when the Chinese government began to suppress Falun Gong practitioners;
c)his parents were arrested and detained by Chinese authorities in December 2000, and were tortured while in prison;
d)while his parents were being arrested by the police the applicant “beat” the police;
e)because his parents were Falun Gong practitioners and had been arrested he was discriminated against in high school;
f)his mother was released from prison in December 2002;
g)his father was released from prison in December 2005;
h)he was “doing my own business” in 2005 but was pursued for administrative fees by the authorities because his parents were Falun Gong practitioners;
i)his mother sold their apartment to bribe authorities to obtain his passport to leave China and his Australian visa; and
j)he “don’t want to go back to China” seemingly because “the country been controlled by Chinese commit [Communist] party.[7]
[7] CB 30.
On 30 July 2008, a delegate of the Minister for Immigration and Citizenship[8] invited the applicant to attend an interview to discuss his claims.[9]
[8] “delegate”.
[9] CB 56-59.
On 9 September 2008, the applicant attended an interview with a delegate to discuss his claims.[10]
[10] CB 107.
On 10 September 2008, a delegate decided to refuse to grant the applicant a Protection visa, finding that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention.[11]
[11] CB 61-77 “Delegate’s Decision”.
On 15 October 2008, the applicant applied to the Tribunal for review of the Delegate's Decision.[12]
[12] CB 78-81.
On 30 October 2008, the applicant was invited to attend a hearing before the Tribunal.[13]
[13] CB 85-90.
On 5 November 2008, the applicant responded to the hearing invitation advising that he wanted to attend the hearing.[14]
[14] CB 97.
On 5 November 2008, the Tribunal wrote to the applicant inviting him to comment on information that the Tribunal considered would be the reason for affirming the Delegate's Decision.[15]
[15] CB 91-96; “Invitation to Comment Letter”.
The Invitation to Comment Letter invited the applicant to comment on the following information:
The particulars of the information are:
In your protection visa at Question 35 you stated that you had lived at the same place since 1998 until you left china in 2008.
At Question 39 you state that you had continuous employment from 2004 till you left China in June 2008.
Why is this relevant?
This may indicate that your fear is not well-founded as you stayed at the same address for ten years during the period you say you and your family were suffering harassment and discrimination.
You left China in July 2008 yet in your statement you outline the events that occurred to cause you fear. These events happened in 2000-2005.
Why is this relevant?
Your delay in leaving China when you had a passport issued in April 2007 may indicate that your fear is not genuine and well founded.
At Question 48 you state that you left China legally. You state in your interview with the Department on 9 September 2008 that you left on your own passport with your name and identifying details in it.
…
Why this above information is relevant to the review.
The fact that you left China on valid travel documents and through an international airport may indicate that your fear was not a genuine fear.
Comment on the above is important as the above information may lead the Tribunal to reject your claim that you are at risk of arrest if you return to China.
In your interview with the Department on 9 September 2008 you stated the following:
That you[r] mother was released from detention in October 2001. You stated that she was released as your family sold your house to get your mother released earlier;
Later in the same interview you stated that your family sold your house so they could arrange for you to get a passport in 2007.
At the interview you stated that only your parents were Falun Gong practitioners.
In your written statement provided to the Tribunal you stated that “all your family members are Falungong practitioners who have been tortured by the Chinese government”.
In your written statement you stated that your mother was released from prison in December 2002.
The inconsistencies outlined above are relevant as they may lead the Tribunal to question the credibility of the evidence given by you which may lead the Tribunal to question the authenticity of your claims.
The letter also stated that:
All of the above is important as it may cause the Tribunal to question whether your claims are genuine and well founded.
You are invited to give comments or respond to the above information in writing … by 28 November 2008.[16]
[16] CB 91 and 95-96.
On 28 November 2008, the applicant's migration agent forwarded submissions in response to the Tribunal’s letter dated 5 November 2008,[17] which state as follows:
[17] CB 98.
…on behalf of my client …I would like to comment on your letter dated 5/11/2008.
“My family had got 2 houses so my mother was released from detention in Oct 2001. Our family sold one of my family’s houses to get my mother release earlier; instead of Dec 2002.”
“In the same interview my family sold one of our houses, so they could arrange for me to get a passport in 2007.
Only my parents are Falungong practitioner not all of my family members are Falungong practitioner. I feel sorry to make 2 mistakes in my written statements.”[18]
[18] CB 98.
On 22 December 2008, the applicant attended the hearing before the Tribunal and gave evidence with the assistance of a Mandarin interpreter.[19]
[19] CB 100.
On 13 January 2009, the Tribunal affirmed the Delegate's Decision to refuse to grant the applicant a protection visa.[20] In summary:
a)the Tribunal found that the applicant's parents were not and are not Falun Gong practitioners, and consequently the applicant did not have a well-founded fear of persecution for a Convention reason if he was returned to China; and[21]
b)the Tribunal’s decision was based on its finding that the applicant's claims lacked credibility and that he had limited knowledge of Falun Gong practices. The credibility findings were in turn based on inconsistencies in the applicant's versions of events.[22]
[20] CB 101-122. “Tribunal Decision”.
[21] CB 119-120.
[22] CB 118-120.
On 18 February 2009 the applicant made an application to this Court for judicial review of the Tribunal Decision.[23]
[23] Migration Act 1958 (Cth), s.476 (“Migration Act”).

Grounds of application and orders and relief sought

The grounds of the application are as follows:
1.The decision involved an important exercise of the power conferred by the Migration Act and Regulations.
2.In paragraph 110 of the decision record, the tribunal member does not accept that I obtained a passport through bribery. But in fact, I did obtain my passport in this way and I believe things like this happen in China.
3.There was no evidence or the other materials to justify the making of the decision.
The orders sought by the applicant in his application are:
1.I am entitled to a protection visa.
2.the decision made by Refugee Review Tribunal be set aside.
3.Refugee Review Tribunal should reconsider the case according to law.

Applicant’s Affidavit

The applicant filed an affidavit in support of his application which stated:
1.I do not want to go back to China.
2.The decision of Refugee Review Tribunal is attached.

Issue

The issue is whether the Tribunal committed jurisdictional error on the grounds alleged in the application, thereby allowing this Court to review the Tribunal Decision, or whether the decision is a privative clause decision, which the Court has no jurisdiction to review.[24]

The Tribunal decision

[24] Migration Act, ss.474 and 476.

Preparation of application

When the Tribunal questioned the applicant as to how he had prepared his application for a Protection visa, the applicant said that “… his agent had spoken to him in Mandarin and he had explained his situation. The applicant indicated that what was in the form had been read back to him and he signed the application. The applicant then indicated that the information and claims in the Application for Protection Visa were correct”.[25]
[25] CB 109.

Protection visa statement

The Tribunal summarised the statement of the applicant which was annexed to his application for a Protection visa, as follows:
“23.All the applicant’s family are Falun Gong practitioners who have been tortured by the Chinese government. When he was in primary school he would go with his parents to a nearby park and watch them practise Falungong.
24.In 2000 the police come into his house and arrested his parents and put them into prison. The applicant tried to get his parents out of the policemen’s hands and beat them, however his grandparents stopped him.
25.The applicant goes to school and he is discriminated against because the teachers know his parents have been arrested. The applicant then goes to Transportation College.
26.The applicant’s mother was released after two years detention in December 2002. The applicant’s father was released in December 2005. The applicant’s mother has been tortured and her left ear went deaf.
27.In 2005 the applicant starts his own business. The applicant is asked to pay administrative fees and when questioned about the fees he is told that they are because his parents are Falun Gong. The applicant could not make a profit out of his business. The applicant’s mother sold their apartment and bribed the authorities so he could get his passport and Australian visa. The applicant does not want to go back to China as the country is controlled by the Chinese Communist party.”[26]
[26] CB 107. The original statement is at CB 30. See also para.3 above.

Tape of interview

The Tribunal also listened to a tape of an interview of the applicant by the Department of Immigration and Citizenship on 9 September 2008 and provided the following summary:
29.At that interview the applicant stated that he entered Australia on a genuine passport. The applicant stated that his earlier passport was cancelled as he was suspected of being a Falungong practitioner. The applicant stated that his mother was released in October 2001 however this was because a bribe was paid. The applicant stated that their house was sold and his Uncle helped bribe the officials for her early release. The applicant stated he obtained his passport by bribing officers. The applicant stated that he had received his earlier passport which his mother applied for in 2001. The applicant stated that he had said on his earlier statement that she was released in 2002 as he was frightened of the government officers. The applicant stated his father was released in 2005 and both his parents are invalids and require constant attention.
30.The applicant stated that he was conducting his own business in 2005; however he could not make a profit as the city administrators always came to the shop and picked faults. In 2007 he had a fight with the local police and a policeman was injured. The applicant claimed he was arrested for attacking a policeman and wanted by them. The applicant did not return home, his grandmother called him and told him not to go home. The applicant then fled to his aunty’s home in Fuquing village. He hid in a small room where crops were stored. The applicant stated that he worked in a mine and hid from the police.
31.In November 2005 he was beaten by policemen and lost his hearing. The applicant’s grandfather was very angry and he went to the hospital. The hospital provided a report and said the injury was minor. The doctor informed him he had lost his hearing.
32.The applicant then gave evidence in relation to the dates of the alleged events. The Department officer then spoke about the applicant leaving China on his own passport and being wanted by the police. The applicant stated that he could not return to China as there is no chance of living none at all.[27]
[27] CB 108-109.

Information requested

On 30 October 2008 the Tribunal requested that the applicant provide any additional information that he wanted the Tribunal to consider. On 5 November 2008 the Tribunal also sent a letter to the applicant requesting that he “comment on inconsistencies which could cause the Tribunal to doubt that his claims are genuine and thereby find him not to be a refugee.”[28] In the applicant’s reply dated 28 November 2008 he “only addressed two of the inconsistencies and stated that his family sold two houses, one to get money for bribes for his mothers release from detention in October 2001 and one to bribe officials so he could get his passport in 2007.”[29]
[28] CB 108. See para.10 above.
[29] CB 108.

Oral evidence summary

The Tribunal noted the following summary of the oral evidence provided by the applicant at the Tribunal hearing on 22 December 2008 which highlights some of the many inconsistencies in the evidence of the applicant:
41.The applicant stated that when he was young his parents were Falun Gong practitioners. The applicant stated that at first his parents did not get along however when they practised Falun Gong their relationship was much better and they did not fight. The applicant estimates they became Falun Gong around 1995-1996. The applicant then stated that the other Falun Gong were like his relatives.
42.The applicant says that around 2000 he and his family were having dinner at home when the police entered his home. Around 6 or 7 police came to his home and arrested his parents.
43.The Tribunal asked the applicant if he was a Falun Gong practitioner. The applicant replied that he is too afraid to practise it and although he knows how to do the exercises he has not practised genuinely. The applicant stated that he had observed Falun Gong meetings since his childhood. The Tribunal asked what happened at the Falun Gong meetings. The applicant stated that they did some exercises, and talked and then had something to eat. The Tribunal asked if there was anything more than exercises, was there any philosophy. The applicant replied that he was not familiar with the philosophy. The applicant stated that his mother told him to believe in Falun Gong and it will protect you and that practising Falun Gong will make you healthy.
44.The applicant stated that he did practise but did not know anything any more. The applicant stated that they practised exercises every morning in the park. The Tribunal asked if there were any beliefs. The Tribunal asked the applicant if he had any knowledge of what the Falun Gong actually was or meant. The applicant replied he was not clear about that as they only taught him Falun Gong was safety and practising it would bring good health
….
51.The applicant stated that he had all the medical documents which stated his ailments however they were all gone because of the legal proceedings….he had been pursuing. The applicant stated that at the time he was beaten up by men for no reason. His friend was helping him pursue a claim. The applicant claims he was given photocopies of the original medical certificates…however the authorities stated they would only deal with original certificates and they took his original certificates and never gave them back to him and that is why he does not have any original documents.
52.…. The applicant stated that in China they will provide just one certificate…The Tribunal stated that it thought the applicant was talking about medical records that prove a court case not work certificates. The applicant replied he did not know about medical records however he was given one original certificate stating all his medical conditions and the original was taken from him and he does not have any original documents.
…
61.The Tribunal then asked the applicant why he could not return to China. The applicant replied because he was on the wanted list and not supposed to have a passport issued. The applicant stated he paid 100,000 yuan to bribe the official.
62.The Tribunal then stated it was concerned about the inconsistencies in his evidence…the applicant had given different dates for different events…
63.…the applicant had told the Department that he was charged by the police and had told the Tribunal he was not charged….stated…that he had been told by his grandmother not to return home and to run away, however to the Tribunal he had stated that he fled to his aunt’s home…stated that his mother was an invalid however…he stated that she stayed home and cared for his grandmother.
64.…the applicant stated he was dismissed in 2004 however in his Application…states he was employed until 2005 when he went into the clothing business…in his application…he states that he was in the same property from June 1998 till he left China in July 2008. In his oral evidence he stated that his home…was sold so he could use the money for bribing an official and his passport was issued in April 2007…it was the same property and because it was sold to his cousin in Japan they have allowed his family to keep living in it even though it was sold.[30]
…
[30] CB 109-110 and 112.

Tribunal findings

The Tribunal set out its essential findings in the following paragraphs:
102.The Tribunal is not satisfied that the applicant is a witness of credit. At the hearing, the Department interview and Application for Protection visa the applicant gave evidence that was inconsistent and implausible. The applicant provided different dates and versions for significant events throughout the hearing. The Tribunal can understand that applicants can be nervous and forget dates; however the Tribunal would expect an applicant to have a good knowledge of events that relate to the arrest and release of his mother, his altercations with the police and authorities, his working and business activities. The Tribunal would also expect an applicant to have good recall of traumatic events such as being beaten and forced to flee. The applicant had said at the hearing he had altercations with the police in 2005, later in oral evidence at the hearing he said 2006 and then 2007. The applicant had said he received a phone call from his grandmother who told him to flee, later in his evidence the applicant stated that he had fled straight to his auntie’s house without talking to his family. When the inconsistency was put to him he confirmed that he was in hiding with his aunt when he called his grandmother who told him to stay away.
103.The applicant gave inconsistent evidence on his mother’s release. When it was put to the applicant that the evidence was inconsistent he then gave differing accounts of why it was inconsistent. He first stated that he had said she was released in 2002 as he was frightened of officials, he then said she was meant to stay until 2002 but was released earlier when his family sold their house as a bribe, he then later said his family sold a house for a bribe to get his passport. When queried that he had earlier said the family sold a house to free his mother he stated that the family had two homes. He claimed that one house was sold for his mother’s early release and the other to arrange his passport. When it was put to him that his evidence was that he had lived in the same house until he left to come to Australia he stated that the house was sold to his cousin in Japan who allowed his family to live in it. The applicant stated that his parents on their release did not recognize him and were in their “dottiness” and were invalids but at the hearing he stated that his mother looks after his grandmother and does housework. The applicant gave evidence at the hearing that he was sacked from his work and discriminated against. When it was put to him that his earlier evidence is that he was in continuous employment from 2004 until he left China he did not reply or later stated that it was just casual work.
104.The applicant was inconsistent at the hearing as to whether he was charged by police. When the Tribunal pointed out Independent Country Information, which had been supplied to him prior to the hearing, indicates that anyone wanted by authorities would have trouble obtaining a passport or then exiting China from an international passport [airport] he stated that it was because he was not charged. When questioned about how he could have suffered at the hands of police and inflicted a serious injury on a policeman and not be charged he stated that he was charged. The applicant at the hearing stated that he was wanted and then later resiled from that and said he could return to China if he wanted but that he wanted to work in Australia and bring his parents out. When the Tribunal sought to clarify the inconsistencies and evidence the applicant was evasive or gave a further inconsistent version or ignored the question and did not reply. The Tribunal has found that the applicant is not a witness of credit. The Tribunal does not accept the applicant’s claims.
105.The applicant claimed that his parents were Falun Gong practitioners and he suffered discrimination at school and at his work due to his connection with his parents. The applicant’s oral evidence was that he had significant contact with Falun Gong members and often watched their activities and knew them very well. When the Tribunal asked the applicant to describe how Falun Gong practiced their activities, he replied they do exercises. The applicant could not elaborate any further. The applicant could not go through any of the belief systems of the Falun Gong. The Tribunal does not accept that the applicant’s parents were or are Falun Gong practitioners.
106.The Tribunal put its concerns to the applicant in a s.424A letter, in that letter it outlined the inconsistencies between the information provided to the Department in the Application for Protection Visa, the attached statement and Information given to the Department at Interview. The applicant responded to that letter and addressed two issues he did not reply to the other issues. He stated that there were inconsistencies in how his mother was released from detention as his family had two houses and one was sold so she could be released. He further stated that only his parents are Falun Gong practitioners and not all his family are Falun Gong. The applicant did not address the other issues in relation to his living at the same place since 1988 until he left China; being in continuous employment since 2004 until he left China; the issuing of a passport when he was in hiding from the police; the evidence in his statement attached to the Protection Visa that the events happened in 2000 to 2005 and he did not leave China until July 2008.[31]
[31] CB 118-120.

Tribunal conclusion

The Tribunal’s conclusion that the applicant did not have a well-founded fear of persecution for a Convention reason if he was returned to China, was based on a number of findings:
a)that the applicant is a citizen of China;[32]
b)that the applicant was not a Falun Gong supporter and would not be imputed to be associated with Falun Gong and consequently, the applicant was not beaten or discriminated against for being the child of Falun Gong practitioners;[33]
c)that the applicant's parents were not detained and tortured by Chinese authorities;[34]
d)that Chinese authorities were not bribed to secure the applicant's mother's release from prison;[35]
e)that the Chinese medical authorities could have provided copies of the applicant's medical records to the applicant;[36]
f)that the applicant was not charged by the Chinese police or on a wanted list in China;[37]
g)that the applicant did not go into hiding;[38] and
h)that the applicant did not obtain his passport to leave China through bribery.[39]
[32] CB 118.
[33] CB 120.
[34] CB 120.
[35] CB 120.
[36] CB 120.
[37] CB 120.
[38] CB 120.
[39] CB 120.
Based on its findings, and conclusion of a lack of a well founded fear of persecution on the part of the applicant, the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Protection visa.[40]
[40] CB 120-121.

Submissions to the Court

The applicant did not file any submissions in support of his application, as ordered by this Court on 16 March 2009. The applicant attended the hearing in this Court in person and was assisted by a Mandarin interpreter. At hearing the applicant:
a)acknowledged that he understood that it was not the role of this Court to review the facts;[41]
b)did not take issue with the Court’s suggestion that he “simply disagree[d] with the facts as they’ve been found by the [T]ribunal on the evidence that it had before it;[42]
c)said that he:
i)was not a Falun Gong practitioner;[43] and
ii)that his previous passport was confiscated and he obtained his present passport by bribery.[44]
[41] Transcript at page 2.
[42] Transcript at page 2.
[43] Transcript at page 2.
[44] Transcript at page 3.
Nothing was put in submissions which:
a)identified any jurisdictional error; or
b)altered the factual matrix before the Tribunal.

Consideration

Jurisdictional error

A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[45]
[45] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at paras.76-77 per Gaudron, McHugh, Gummow, Kirby and Hayne 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.[46]
[46] 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.

Evidence on which to base the findings

The applicant submits that the Tribunal had no evidence on which to base its findings.
The Minister submits that there was sufficient evidence before the Tribunal for it to make the findings.
The Tribunal’s rejection of the applicant's claims was based in part on its conclusion about the applicant's lack of credibility. These conclusions were in turn based on inconsistencies in the applicant's versions of events, including:
a)his account of altercations with Chinese police;[47]
b)the circumstances in which he fled after the altercations;[48]
c)in which house he lived until leaving for Australia, and whether a house was sold to pay for various bribes;[49] and
d)his employment arrangements from 2004 until leaving for Australia.[50]
[47] CB 118.
[48] CB 118.
[49] CB 119.
[50] CB 119.
The balance of the Tribunal’s findings were based on, firstly, independent country information regarding exit procedures[51] and, secondly, evidence of the applicant's knowledge of Falun Gong practices.[52]
[51] CB 119.
[52] CB 119.
The Court finds that there was evidence:
a)in the form of the independent country information on which the Tribunal could base its finding that the applicant did not bribe officials to obtain his passport; and
b)sufficient to form a basis for the other findings of the Tribunal.

Were findings reasonable and open to be made?

The Minister submits that the Tribunal’s findings were reasonable and open to it on the evidence.
The Tribunal noted that:
When the Tribunal asked the applicant to describe how Falun Gong practiced their activities, he replied they do exercises. The applicant could not elaborate any further. The applicant could not go through any of the belief systems of the Falun Gong.[53]
[53] CB 119.
The applicant's knowledge of Falun Gong displayed during the Tribunal hearing was minimal. The Tribunal's finding that the applicant's parents were not Falun Gong practitioners was, therefore, one that was reasonably open. There is no dispute that the applicant is not a Falun Gong practitioner.
The Tribunal’s finding that the applicant was not charged by Chinese police or on a wanted list in China and did not go into hiding, was based on:
a)a lack of medical evidence for the applicant's altercation injuries (which the Tribunal found the applicant should have been in a position to produce);
b)the fact that the claimed assault on police officers would have resulted in the applicant's arrest and charge (or at least being on the wanted list); and
c)independent country information regarding the ability of persons with criminal charges (or at least on the wanted list) to leave China.
The Tribunal’s finding that the applicant was not charged by the Chinese police, not on a wanted list in China, and did not go into hiding was therefore reasonably open.
The Tribunal’s finding that the applicant did not obtain his passport to leave China through bribery was based on the Tribunal’s finding that the applicant was not a witness of credit.[54] Findings of credit are a matter for the Tribunal[55]
[54] CB 120.
[55] SZJEH v Minister for Immigration and Citizenship [2007] FCA 1706 at para.17 per Jacobson J.

Requirements of procedural fairness

Although not expressly a ground of the application for judicial review, the Minister submits that the Tribunal adequately put all relevant issues to the applicant for comment according to Part 7 Division 4 of the Migration Act.
The Tribunal wrote to the applicant on 5 November 2008 outlining the particulars of information that the Tribunal considered might be a reason for affirming the decision, complying with section 424A of the Migration Act. The Tribunal clearly considered the applicant's response dated 28 November 2008.[56] At the hearing, the Tribunal clearly stated to the applicant that it was concerned about the inconsistencies in his evidence[57] and provided the applicant an opportunity to comment on the inconsistencies in his evidence.[58] Having regard to the procedures adopted there is no basis for any finding that there was a denial of procedural fairness.[59]
[56] CB 108 and 119.
[57] CB 112-113.
[58] CB 113.
[59] WZANE v Minister for Immigration and Citizenship [2009] FCA 482 at paras.31-32 per McKerracher J.
The Tribunal’s noting of inconsistencies is not “information” for the purposes of section 424A or 424AA.[60]
[60] SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at 1196 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; [2007] HCA 26 at para.18 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.

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

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 Subclass 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.[61]
[61] 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 Eshetu & 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 and Citizenship & 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 his claims. That is a factual finding as to credibility. It does not amount to a jurisdictional error. In these circumstances, it cannot be challenged in judicial review proceedings.[62] 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.
[62] 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 his account.

Conclusion

The applicant has not made out any of the grounds of the application. The Tribunal complied with the requirements of procedural fairness, and its decision did not involve any jurisdictional error. Accordingly, the application is dismissed.
The Court will hear the parties as to costs.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate: S Gough

Date: 15 May 2009