WZARY v Minister for Immigration

[2013] FCCA 1516

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZARY v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1516

Catchwords:
MIGRATION – Application for judicial review of Refugee Review Tribunal finding – interpreter difficulties resolved in unusual ad hoc way – applicant relying on written submissions in any event – grounds of application and matters in applicant’s written submissions not made out – application dismissed.

Legislation:  

Federal Circuit Court Rules 2001 (Cth), r.701
Federal Circuit Court Act 1999 (Cth), s.42
Migration Act 1958 (Cth), ss.91R(1), 91R(2), 424AA, 424A(1), 424AA(3)(a)

Applicant: WZARY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: PEG 288 of 2012

Judgment of: Judge Burchardt

Hearing date: 22 July 2013

Date of Last Submission: 22 July 2013

Delivered at: Melbourne

Delivered on: 8 October 2013

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Mr Alderton

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Pursuant to r.701 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the sum of $5,400.00. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PERTH

PEG 288 of 2012

WZARY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 9 November 2012.  The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa. 

2. The application lists seven grounds to which it will be necessary to return.  The applicant also filed in court by leave a written submission.  It was that latter document in particular upon which she relied. 

3. For the reasons that follow, I do not think that the applicant’s grounds of criticism of the Tribunal’s decision are made out and the application will be dismissed with costs. 

Procedural matter - the question of interpretation

1. The application filed 7 December 2012 is in English and signed in Chinese script by the applicant.  Her affidavit, likewise filed 7 December 2012, is also in English and signed without any jurat for a person who does not speak English.  The applicant does not speak English and it is clear these documents were prepared by others, as were her written submissions filed in court. 

2. There is reference in the Court Book (“CB”) to difficulties of interpretation, and this issue arose at the outset of the proceeding before the Court.

3. The research put into place by my associate in Western Australia had revealed that there were said by ONCALL Interpreting Services to be only two qualified interpreters in Australia capable of interpreting in the Fuqing dialect that the applicant speaks.  It is clear from records of past proceedings that the applicant speaks little, if any, Mandarin and Mandarin interpreters are not likely to have much success.

4. The two Fuqing speaking interpreters are both in New South Wales.  One apparently refused to contact ONCALL Interpreting Services and the other refused either to leave New South Wales or to interpret by telephone, as the matter has been reported to the Court. 

5. When the matter was called I identified the Court-appointed Mandarin speaking interpreter and asked him if he had been able to talk to the applicant.  He said he had no success because the applicant spoke a dialect that he did not speak.

6. Faced with this conundrum, I inquired of two people, who had apparently come with the applicant as friends, to see if they could assist.  There was what appeared to be a young man and a slightly older woman.  It turned out that the older woman, who it eventually emerged was the mother of the younger man, spoke fluent Fuqing, but did not speak English.  The young man did speak English.  Thus, in effect, a convoluted but effective system of interpretation was practicable.  I addressed the young man, he then addressed his mother in Chinese and the mother interpreted to the applicant.  It was clear from the interrelationship between the applicant and the mother that they were both well able to understand one another and clearly comprehensible answers emerged from the applicant. 

7. I confess to being slightly taken aback when the young man (as I had assumed he was) volunteered that he was only 15 years old.  Nonetheless, because the interpretation seemed to be working well, I encouraged him with words of praise to continue.

8. The fact that the matter proceeded in this way arose essentially because once communication was established with the applicant, she immediately sought to tender a written submission (which turned out to be in English) and at the same time communicated that everything she wanted to say was contained in this document. 

9. Given that the applicant had made her position clear, and given that it was available in clearly understandable written form, I took the otherwise most unusual step of allowing matters to proceed as they did.  It might be thought, however, that the matter would have needed to proceed in this fashion in any event.  In circumstances where there was no apparent prospect of ever getting a properly qualified interpreter, able to speak with the applicant, it would scarcely seem an appropriate outcome that there be a perpetual stay of proceedings.  This would be even more so given that such a stay would give the applicant every incentive to be unable to communicate with anybody who did try to interpret. 

10. This Court has an obligation pursuant to s.42 of the Federal Circuit Court Act 1999 to hear matters expeditiously and with as little regard to technicalities as possible.  I consider that the fashion in which I proceeded was consistent with these imperatives. 

The factual background

1. What follows is taken from a combination of the materials in the Court Book and the written submissions of the parties, most particularly those of the first respondent. 

2. The applicant is a citizen of the People’s Republic of China and first arrived in Australia on a Student Guardian visa on 22 April 2008.  She applied to the Department of Immigration and Citizenship for a Protection visa on 28 June 2011.  She had the assistance of an immigration agent.  She claimed to fear harm in China for reasons of her religion, which is Christianity.  She asserted she had been baptised in 1994 and regularly attended a family church prior to coming to Australia.  The applicant’s mother had been a Christian and she was arrested by the authorities when the applicant was a child.  The applicant had been arrested in May 2005 during a raid on an underground church meeting.

3. On 8 September 2011 the applicant attended an interview with a delegate of the Minister.  Concerns were initially expressed as to the quality of interpretation, but subsequently withdrawn.  On 22 September 2011 the delegate made a decision refusing to grant the applicant a Protection visa.  The delegate was not satisfied that the applicant had been denied the right to practice her religion and found that she would be able to continue to do so if she returned to China.  The delegate relied upon country information in this regard.  The delegate also found the applicant’s departure from China on a valid passport indicated she was not of adverse interest to the authorities and, further, that the three year delay in applying for protection after arriving in Australia suggested she did not have a genuine fear of persecution. 

The Tribunal’s decision

1. At CB131-133 the Tribunal set out the nature of the application and the relevant law.  No submission has been advanced that the Tribunal erred in this regard and in my opinion the Tribunal’s recital is an accurate one. 

2. At CB133-136 the Tribunal set out a paraphrase of the applicant’s claims and of the delegate’s findings.  The Tribunal, in my view, fairly characterised the nature of the applicant’s claims and I note that the Tribunal expressly noted at paragraph 30 (CB135) a letter from the Kingsway Methodist Church of Chinese Methodist Church in Australia which certified that the applicant had been attending Sunday services since August 2008. 

3. Likewise, the paraphrase of the delegate’s findings seems to me also to be correct. 

4. At CB136-142 the Tribunal recorded what had occurred at the hearing itself.  It should be noted that the proceeding was conducted with the assistance of a Fuqing speaking interpreter.  This is somewhat at odds with the information now provided to the Court and referred to above.  Nonetheless it seems clear that the applicant was well able to communicate her position to the Tribunal member.  I note that at least one matter in respect of which the Tribunal pressed an inquiry was attributed to difficulties with interpretation (see paragraph 52, CB138).

5. At paragraph 53 (CB138) the Tribunal recorded the following: 

   “The Tribunal explained to the applicant that pursuant to section 424AA of the Migration Act, it was required to explain to her information which would be the reason or part of the reason why it might affirm the decision under review.  The Tribunal also informed the applicant that she had a right to an adjournment if she wanted to take time to consider a response.  The Tribunal went on to refer to the delegate’s decision record which refers to country information available to the delegate, and which is also available to the Tribunal, indicating, amongst other things, that more Chinese are opting to choose their own church despite them being technically illegal and that house churches have been around for decades and that very significant numbers of Chinese worship at such churches.  The Tribunal explained that the country information also indicates that unauthorised churches have operated with little or no government interference in Fujian Province.  The Tribunal explained that subject to the applicant’s response, and subject to whether the Tribunal accepted this information, it may conclude that there is not a real chance that she would be subject to serious harm for reasons of being a follower of the family church in China, and that this in turn may lead the Tribunal to affirm the decision under review.” 

6. I note at paragraph 54-56 (CB138-139):

   “54.  The Tribunal asked the applicant whether she had experienced any trouble or any questioning when she left and subsequently re-entered China in 2008 and 2009.  She said that she experienced no trouble and added that she is not a murderer. 

   55.    The Tribunal asked the applicant whether there was any other reason why she does not want to return to China.  She replied that, no, religion is the only reason, and that she is a good citizen.

   56.    The Tribunal asked the applicant why she waited three years to apply for the protection visa in Australia.  She said that when she first arrived she asked some people who told her that it is not easy to get the visa to remain in Australia.  She said that she was worried that if she applied for a protection visa, her son would be affected.  Asked to explain what she meant by this, she replied that some people told her that if she applied for a protection visa and that if it was refused, then it might affect her son’s visa to study in Australia or to subsequently find work in Australia.”

7. The Tribunal went on to ask questions about the applicant’s son and her former husband, to which it will be necessary to return.  The Tribunal asked questions about the Bible and also again referred the applicant to country information which suggests that the police in Fujian Province are tolerant towards unregistered churches.  The applicant’s response suggested that she did not accept that proposition (see paragraph 61, CB139).

8. The matter continued again before the Tribunal on 19 October 2012, the first hearing having been held on 13 June 2012.  The Tribunal asked further questions, including questions about the applicant’s son (which produced contradictory answers, see paragraphs 71 and 72, CB141) and about her ex-husband. 

9. Pursuant to s.424AA of the Migration Act 1958 (“the Act”), the Tribunal put various matters to the applicant, including that she had remained in China for three years after being detained in 2005, that she had claimed to be a practising Christian for about 30 years and experienced only one detention, that she might be seeking to obtain permanent residence to be with her son in Australia, that there was significant religious tolerance in Fujian and that she had delayed three years before making her application for a Protection visa.  The applicant’s responses are all recorded. 

10. At CB142-158 the Tribunal set out extensive country information and then went on under the heading “Findings and Reasons” to determine the matter at CB158-163. 

11. At CB159, paragraph 114, the Tribunal:

    “...found the applicant to be a credible witness overall, although observed she appeared to be somewhat evasive on questions to do with her ex-husband and also questions about her son who appears, based on the evidence of the applicant, to be in Australia without a current visa.  The Tribunal observed that the applicant appeared to be nervous at the first hearing and appeared to lack confidence in presenting her evidence.  This is part of the reason why the Tribunal held a second hearing.  The Tribunal notes the applicant advised it that she did not attend school and that she is illiterate.  The Tribunal had regard to this vulnerability through the hearings and in making its findings.”

12. The Tribunal accepted that the applicant is a committed practising Christian (paragraph 116, CB160). 

13. The Tribunal considered the applicant’s claim to have been harassed and detained by reason of her religion, in particular on 8 May 2005.  At paragraph 117, CB160, the Tribunal found:

    “The applicant told the Tribunal that she was questioned and held for a few hours.  She told the Tribunal that she was asked who the head of the church was and how many people attended the church.  The applicant told the Tribunal that she was not harmed.  The Tribunal finds that this was an isolated event during a period of some thirty years as a Christian worshipper in China.  Furthermore, the Tribunal finds based on the applicant’s evidence that when she was detained on 8 May 2005 the authorities asked who the leader was, and subsequently released her, that the applicant is not a leader of the church, and nor did she claim to be, and that the authorities did not have an ongoing interest in her activities in respect of the church.  The Tribunal considers this is a relevant and important point in assessing the risk of any future harm for reasons of the applicant’s religious beliefs.  The Tribunal accepts that s.91R(2) clearly provides that a threat to a person’s liberty constitutes ‘serious harm’ for the purposes of assessing s.91R(1).  While the Tribunal accepts that the applicant may have experienced this, based on the country information and on the applicant’s evidence the Tribunal is not satisfied for the reasons set out in this decision that there is a real chance of ‘serious harm’ in the reasonably foreseeable future as claimed by her.” 

14. The Tribunal accepted that the applicant’s mother may have been persecuted when she was alive, but noted that she had died in 2004 and, accordingly, these circumstances were not indicative of the risk of serious harm to the applicant into the reasonably foreseeable future.  This finding was based on country information suggesting a high degree of religious tolerance in Fujian province (paragraph 118, CB160).

15. The Tribunal noted that the arrest in 2005 was the only harm that the applicant has suffered in some 30 years of religious practice.

16. The Tribunal referred at paragraph 119 (CB160-161) to the high degree of religious tolerance in Fujian, noting that that was the province to which the applicant would return, if she returned to China.  The Tribunal found that there was no more than a remote possibility that the applicant would face serious harm for reasons of her belief in Christianity in Fujian. 

17. At paragraph 120 (CB161) the Tribunal dealt with the three year delay between April 2008, when the applicant arrived in Australia, and 28 June 2011, when she applied for a Protection visa.  The Tribunal found at paragraph 120:

    “…the passage of over 3 years between her arrival and the lodgement of the protection visa application in the circumstances of this case is incongruous with the applicant’s claim that she suffers a fear of serious harm if she returns to China now or in the reasonably foreseeable future.  The Tribunal considered the applicant’s response to this matter where she said that she delayed submitting a protection visa application because a friend told her that it may adversely impact on her son’s student visa.  The Tribunal rejects this explanation on the basis that it was put to the Tribunal in a manner which was unconvincing and suggested it was an invention for the purposes of supporting her application for review.  The Tribunal considers the delay in this case is a relevant consideration in determining the genuineness and depth of the fear that the applicant claims to hold.  The Tribunal finds that significant delay in this case demonstrates that the applicant does not fear that she will be seriously harmed if she returns to her home village.” 

18. The Tribunal applied similar reasoning to the three year delay between the 2005 incident and the applicant’s departure from China (paragraph 121, CB161).  The Tribunal dealt with the issues arising from the applicant’s son and husband and found at CB124:

    “…The Tribunal concludes that in the circumstances of this case, the applicant is appearing to utilise the protection visa pathway as a route to secure her permanent residence in Australia so that she can be with her son, and then subsequently sponsor her ex-husband whom she still loves.”

19. The Tribunal went on to affirm the decision under review.  The Tribunal separately addressed the question of the complementary protection claim (paragraphs 126-130, CB162-163). 

The grounds of application

Ground 1 - The Refugee Review Tribunal and the Department of Immigration and Citizenship did not act in a fair and just manner in the assessment and evaluation of my claims independently and separately from other cases. I believe that tt (sic) is contrary to S422B of the Migration Act 1958 or other relevant sections as provided in the Act.

1. The applicant’s written submission filed in court does not particularise this ground in any greater detail.  As the written submissions of the first respondent point out at paragraph 25 “the applicant does not specify what she means by “other cases” and there is no evidence before the Court to support the assertion that the Tribunal in some way relied on “other cases””.

2. In my view the submissions of the first respondent should be accepted. There is nothing in the material before the Court that suggests that the Tribunal failed to conduct its review in a way that was fair and just. To the contrary, the Tribunal’s decision sets out the procedurally fair way in which the Tribunal gave the applicant both information under s.424AA and a fair opportunity to consider her position in response. The passage I have quoted from paragraph 114 (CB159) concludes “The Tribunal had regard to this vulnerability through the hearings and in making its findings.”  It is redolent of a degree of proper sympathy and understanding.  There is nothing in the materials that, in my view, justifies the criticism advanced in this ground. 

Ground 2 - The Refugee Review Tribunal erred in law because it used and applied collective and irrelevant information from other sources to assess my claims of fear of persecution if I go back to “Longtian” in China.  Therefore, the tribunal breaches its obligations and duties to act independently and fairly as required by the Migration Acts 1958. 

1. It is clearly open to the Tribunal to rely upon country information, and I accept the submission of the first respondent at paragraph 30 that “The information relied on by the Tribunal about religious freedom generally in the PRC, and in Fujian province in particular, was clearly relevant to the applicant’s claims in circumstances where the applicant claimed to have suffered past harm for reasons of her religious beliefs in Fujian province and that she had a well founded fear of persecution if she returned there.” 

2. Given that the applicant’s only claimed fear of persecution arose from her religious practice, and her stated intention that Fujian would be the place she would live if she were to return to China, I do not think that the criticisms advanced can be made out.  Furthermore, the Tribunal put the purport of this country information clearly to the applicant at the hearing (see paragraph 78, CB142) and gave the applicant a fair opportunity to consider her position and respond (paragraph 53, CB138).  The first respondent’s written submissions posit the possibility that the applicant might be asserting that the position in Longtian as a separate matter from the position in Fujian province generally.  In my opinion, the applicant never articulated her claim in this fashion and the Tribunal’s finding, which was based upon the entire province of Fujian, clearly is not open to attack on this ground. 

Ground 3 - The Refugee Review Tribunal did not take into factual account that during the interview with the Department of Immigration, the interpreter did not speak my dialect and therefore, a lot of information that were collected and used by the Immigration officer to refuse my original application were incorrect and unreliable.  In fact, the interpreter lied to the immigration officer that he was speaking my dialect.  Nevertheless, the tribunal still used the answers given by the interpreter during the department interview and had query about the “inconsistency” as stated in para.68 of the record of decision.  This “inconsistency” inevitably affected the tribunal to be unbiased and unprejudiced when assessing my claims.  Hence, the tribunal could not act fairly and justly as required by the Migration Acts 1958. 

1. It should be noted that paragraph 68 is one only of the several instances in which the Tribunal discussed matters with the applicant and the applicant responded that the matters of possible inconsistency arose out of failures of interpretation of the hearing before the delegate.  In my view, the Tribunal made no finding adverse to the applicant arising out of these matters. 

2. Read fairly and as a whole, it seems to me that the Tribunal approached the entirety of the proceeding in a fashion that was entirely fair and consistent with its obligation to do so.

Ground 4 - The Tribunal incorrectly linked my son’s current illegal status and my ex-husband to my application and speculated that my application was for staying in Australia to be with my son and subsequently to sponsor my ex-husband to come to Australia.  I consider that my son and my husband are unrelated to my claims for my fear of persecution if I go back to China.  Furthermore, when I applied for protection visa, my son’s student was still valid and if I wanted to be with my son, I could have insisted to include my son in my application.  Regarding my ex-husband, it was a speculation and not a fact.  The tribunal therefore fails to act independently and fairly according to its power within the jurisdiction provided by the Migration Act 1958.

1. It should be noted that the Tribunal was considering the question of the truthfulness or otherwise of the applicant’s claim to fear persecution if she returned to China on the basis of her religious beliefs and practice.  The Tribunal had uncontroversial evidence before it that:

   a)The applicant had been a practising Christian for about 30 years and had suffered only one detention during that time.

   b)The applicant did not leave China for over three years after the detention occurred in 2005.

   c)The applicant had waited three years after her arrival in Australia before applying for a protection visa.

2. The Tribunal also had extensive country information, albeit apparently disputed by the applicant, to the effect that the authorities in Fujian province are particularly liberal in relation to matters of religion and that it was therefore unlikely the applicant would face persecution.

3. In these circumstances, the fact that the Tribunal opined that the applicant might be seeking to stay in Australia with her son and have her husband join her was, as the first respondent submits, clearly open.  At paragraph 64 (CB140) the Tribunal recorded:

   “The Tribunal asked the applicant whether it is her intention to sponsor her ex-husband if she is granted a visa to remain in Australia.  She replied that if she is granted the protection visa she will ask her ex-husband to also come to Australia because he wants to be a Christian too.” 

4. At the resumed hearing on 19 October 2012 the Tribunal asked about the applicant’s relationship with her ex-husband and the applicant replied (paragraph 73, CB141):

   “…The applicant told the Tribunal that although they are divorced they are still husband and wife.  She said it is because his parents did not like her religion and so she and he decided they would divorce only in name.  She said that they are divorced in name only but in their hearts they are still husband and wife.” 

5. The Tribunal did not accept the applicant’s claimed likelihood of persecution and given the materials before it, the findings that the Tribunal made (and the inquiries that led up to it) were clearly properly open to it. 

Ground 5 - None of the country information contained from paragraphs 81 to 110 was related to my home town, “Longtian”.  Also, many of these information was related to Catholic churches and Protestant Christian family churches.  However, although a lot of the information contained in paragraphs 81 to 110 were, in general, in favour of my claims against the treatment of Christians of non-registered family churches in China, I do not find it fair for the tribunal to use and base to assess my claims of fear of persecution because if I go back to China, I have to live in “Longtian” and worship in “Longtian”.  My fear is re4lated (sic) to the local authorities in “Longtian” and the nearby villages.  I cannot move or reside in other parts of China.  Please see paragraph 26 of the tribunal’s decision record.  Therefore, I consider that the tribunal has not acted fairly and justly to meet the obligatory duties as required by the migration acts 1958. 

1. Once again, this matter can be put shortly.  The selection and assessment of country information was a factual matter solely for the Tribunal to determine, as the first respondent’s written submissions assert.  Furthermore, I accept the first respondent’s submission that “at no point did the applicant claim that she feared harm from authorities in her village of Longtiang because they would treat her differently from the rest of the authorities in Fujian province”. 

2. This ground must fail.

Ground 6 - The tribunal member did not tell me all the “country information” that he used to justify his decision during the first and second hearing.  The tribunal also did not write to me about those “country information” to allow me to respond.  This is in contrary to S424A of the migration acts 1958.  I consider that it is not fair for me.

1. As the first respondent’s written submissions correctly submit, there was no obligation on the Tribunal to put the country information to the applicant for comment pursuant to s.424A(1) because of the exception contained in s.424A(3)(a) (at paragraph 41).

2. I further accept the first respondent’s submissions that the Tribunal put to the applicant particulars of information relating to country information before the Tribunal (see paragraph 53, CB138, and 78, CB142). 

3. Furthermore, I do not accept the criticism advanced by the applicant that in some way the Tribunal erred or acted unfairly in considering the applicant’s claims against the country information more generally available.  The weight to be accorded to such information was a matter for the Tribunal, but clearly the country information set out in the decision was capable of being relevant to its considerations as to whether or not the applicant would face persecution in the event that she returned to China. 

Ground 7 - The tribunal accepts that “the tribunal found the applicant to be a credible witness overall” as in paragraph 114; the tribunal is satisfied that the applicant is a committed practising Christian” as in paragraph 116; and in para.117, “the tribunal accepts that the applicant may have experienced this”.  However, the tribunal sued the collective “country information” to disprove my fear of persecution if I go back to “Longtian” of China.  I find this not logical as the tribunal has not provided in any specific evidence to prove that my fear of persecution is not “well founded if I go back to “Longian” of China. 

1. One of the difficulties with the applicant’s ground is that it misconstrues the findings that the Tribunal made.  While the Tribunal did generally find the applicant a credible witness, the Tribunal had real reservations about some aspects of her evidence, most particularly that given in relation to her son and her husband.  Her answers in this regard were described as evasive. 

2. Furthermore, the fact that the Tribunal found the applicant generally credible (and from the findings made this seems to have been a comment predominately about the genuineness of her religious faith, her practice of it and her experiences as a practitioner) the Tribunal still had the unchallenged evidence I have set out above. 

3. The Tribunal was not required uncritically to accept the applicant’s account and assertions and in my view the Tribunal’s findings only go to show some measure of sympathy with the applicant rather than any unfairness in its dealings with her. 

The applicant’s submissions at court

1. As earlier indicated, the applicant indicated, through the somewhat ad hoc interpretation process which the Court adopted, that the written document said everything she wished to say.  It should be noted that the applicant had clearly received and understood the first respondent’s outline of submissions because when presented with a copy she strongly denounced it as being completely untrue. 

2. The first matter asserted at paragraph 3 is, in my view, merely a repeat of the concentration on the credible witness finding with which I have just dealt above. 

3. The written submission asserts at paragraph 3.1 that “the tribunal never said that my fear of persecution for returning to China was not “well founded””.

4. It is certainly the case that the Tribunal did not say in as many words “the applicant’s fear of persecution for returning to China was not well founded”.  The Tribunal did say at paragraph 125 (CB162), however:

   “…The Tribunal therefore finds that the applicant’s fear of persecution for a Convention ground is not well founded.” 

5. The applicant’s assertion at paragraph 3.1 cannot be upheld.

6. The assertion in paragraph 3.2 that “the tribunal never said that I had been dishonest in my claims” is, once again, in substance, a reiteration of the credible witness point already dealt with. 

7. The applicant asserts in paragraph 3.3 that the Tribunal’s finding that any chance of persecution if the applicant returned to China was remote, is “a speculative and subjective guess”.  The fact is that the Tribunal’s findings on this aspect of the matter were well and truly open to it, and in the light of the 30 years of religious practice with one brief period of detention was in my view entirely correct.

8. Paragraph 3.4 of the written submission is yet another reiteration of the credible witness point.  The Tribunal did not in fact, as the applicant asserts, accept her explanation for the three years delay in her application. 

9. Paragraph 3.5 revisits the issue of where the applicant had said her son was.  The applicant’s evidence about this was in my view evasive, as the Tribunal said.

10. The assertion that the materials and country information the Tribunal used are out of date (paragraph 3.6 of the submission) cannot be upheld.  There is no evidence to support the applicant’s assertion to this effect. 

Conclusion

1. In all the circumstances, the applicant’s attacks upon the Tribunal’s decision are not made out and it follows that the application must be dismissed with costs. 

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  8 October 2013