review by the federal magistrates court
29 Federal Magistrate Nicholls said, at [34] of his reasons for judgment (SZCOV & Anor v Minister for Immigration and Citizenship & Anor [2008] FMCA 1171):
At the hearing, the applicant husband confirmed that his complaints about the Tribunal decision were that the Tribunal treated him unfairly and unreasonably, that it did not comply with s.424AA of the Act, nor with s.424A(1) of the Act, that the "decision was biased", and that the Tribunal did not take account of his practice of Falun Gong in Australia because of s.91R(3) of the Act, even though there was evidence provided by two witnesses who supported his claims in that regard.
30 His Honour continued, under the heading "Further Written Submissions", at [35]:
Following the hearing of this matter, and just before handing down judgement in this matter, the Full Federal Court handed down its judgement in SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ("SZJGV") which dealt with the understanding and application of s.91R(3) of the Act. In view of the Tribunal's use and reliance on this section, I subsequently gave both parties the opportunity to make further written submissions. Both parties have filed supplementary submissions in relation to this issue.
31 In "Ground One - Bias and Apprehended Bias" Nicholls FM concluded that the fact that the Tribunal rejected the applicant's claim to have supported Falun Gong in China was open to it, and was not demonstrative of bias, saying in [43]:
The Tribunal's findings complained of now by the applicants were clearly findings that were open to the Tribunal to make on the material before it, and for which it gave extensive and cogent reasons. In all the circumstances, I cannot see that the applicants' complaint of an apprehension of bias or bias is made out.
32 Federal Magistrate Nicholls concluded that the applicants were seeking to re-agitate before the Court claims and explanations made before the Tribunal, and thus were seeking impermissible merits review (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
33 With regard to the applicants' claim that the Tribunal's finding is "obviously illogical", Nicholls FM could not discern any illogicality in the approach of the Tribunal. Moreover, his Honour questioned whether any such claimed illogicality could found jurisdictional error.
34 Federal Magistrate Nicholls rejected complaints that there had been a failure to comply with s 424A(1) and a failure to comply with s 424AA of the Act. His Honour said at [80] of his reasons:
… I did consider during the hearing, and raised with Ms Clegg [counsel for the Minister], whether there was any failure of procedural fairness in relation to s.425 of the Act, bearing in mind SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. …
35 Federal Magistrate Nicholls continued, at [81]:
However, any plain reading of the Tribunal's account of what occurred at the hearing (unchallenged by any evidence to the contrary) reveals that the Tribunal did more than sufficiently indicate to the applicants the issues relevant to the review (with reference to SZBEL at [47]). As already set out above (see [42]) of this judgment), the Tribunal plainly, and squarely, put to the applicants its concerns with their claims, and evidence, and gave them the opportunity to address these matters at the hearing.
36 No error has been demonstrated in the rejection by Nicholls FM of the above claims.
37 The one aspect of this appeal which requires detailed consideration is whether the Tribunal was in breach of the requirement of s 91R(3) of the Act in its consideration of the evidence of the first appellant's practice of Falun Gong in Australia, in the light of the judgment of the Full Court of the Federal Court in SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 (SZJGV).
38 Section 91R(3) provides:
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
39 The point which the appellant seeks to make is neatly set out in Ground 4 of the Notice of Appeal filed 18 September 2008.
4. The learned Federal Magistrates made incorrect findings. As a matter of fact, the Tribunal erred in law in assessing my evidences in relation to my active involvement in Falun Gong in Australia according to s.91R(3) of the Migration Act 1958 ("the Act") (subject to the decision of the Full Federal Court in SZJGV v Minister for Immigration & Citizenship [2009] FCAFC 105). In my case, the Tribunal, on one hand, has regarded my involvement in Falun Gong activities in Australia, as a reason or part of reason to assess my credibility or my fear of being persecuted on return. For example,
Secondly, his initial application for a protection visa was lodged, as he has since claimed, some 19 months after he first took up the practice of Falungong in Australia and 10 months after sending Falungong materials into China with Ms. Cui. However in written submissions to the Department he did not refer to having any personal involvement in Falungong in Australia, in terms of practice or association with it, in any way. Given the significance of the claims he has since made about taking up Falungong practice here (note: it obviously means in Australia) and sending Falungong materials back to China in that period, his failure to do so casts serious doubt on his claim that he had been doing these things.
But, on the other hand, the Tribunal stated that:
The Tribunal considers that the two witnesses at the most recent hearing, Mr. Lin Zheng and Ms. Juan Xu, were people of integrity who gave truthful evidence, and who genuinely believe [the first appellant] to be a Falungong practitioner, as does Mr. John Deller. The Tribunal is satisfied that [the first appellant] has been attending Falungong practice sessions and doing Falungong study in Australia since at least 2005, and possibly (as he has claimed) earlier. It is generally accepted that a person can acquire refugee status sur place where he or she has a well-founded fear of persecution as a consequence of events that have happened since he or she left his or her country. However, this is subjected to s.91R(3) of the Act which provides that any conduct engaged in by the applicant in Australia must be disregarded in determining whether he or she has a well-founded fear of being persecuted for one or more of the Convention reasons unless the applicant satisfied the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claims to be a refugee within the meaning of Convention. [The first appellant] has not satisfied the Tribunal that he engaged in Falungong practice or protest activities in Australia other than for that purpose. Therefore, the Tribunal disregarded that conduct in coming to its decision.
Obviously, having regard to the Tribunal's reasons as a whole, the Tribunal in fact did not disregard my conducts in Australia in assessing my credibility of my claim to have suffered persecution for my support to the Falungong movement in China. It thereby made a jurisdictional error. The Tribunal thereby contravened s 91R(3). In doing so it made a jurisdictional error.
40 It might be thought anomalous or inconsistent that the Tribunal should, on the one hand, note that no reference to the practice of Falun Gong in Australia was made in the initial application for a protection visa, and, on the other hand, find that he engaged in the practice of Falun Gong in Australia for the purpose of strengthening his claims to be a refugee within the meaning of the Convention.
41 If the appellant's conduct in practising Falun Gong in Australia was engaged in for the purpose only of strengthening his claim for a protection visa, why was there no reference to that conduct in his application for a protection visa?
42 The explanation, it seems to me, is to be found in when the appellant commenced attending Falun Gong practice sessions and studying Falun Gong in Australia.
43 The Tribunal accepted the evidence of two witnesses in concluding that it was satisfied that the first appellant had been attending Falun Gong practice sessions and studying Falun Gong in Australia since at least 2005 and possibly (as he has claimed) earlier.
44 That finding is not necessarily inconsistent with the finding that the first appellant has not satisfied the Tribunal that he engaged in Falun Gong practice and protest activities in Australia other than for the purpose of strengthening his claim to be a refugee within the meaning of the Convention. Nor is it inconsistent with the finding that the Tribunal was:
… satisfied that their reasons for leaving [China], and for lodging the protection visa applications in 2002, are unrelated to involvement in Falungong.
45 The first appellant claimed that his Falun Gong practice in Australia commenced some 19 months before his initial application for a protection visa. Yet, that application made no reference to his practice of Falun Gong in Australia. That absence, said the Tribunal, caused it to "cast serious doubt on his claim that he had been doing these things."
46 In my opinion, the omission of any claim to practising Falun Gong in Australia in his initial application for a protection visa was viewed by the Tribunal as demonstrating that his claim that he commenced practising Falun Gong nineteen months before was false, and there was no practice by the first appellant of Falun Gong in Australia prior to the making of the initial application for a protection visa. This, in my opinion, is what the Tribunal was seeking to say in the last sentence of the paragraph of its reasons, which commences "Secondly …" set out in [23] above.
47 When the Tribunal expresses its view that the failure to mention two identified instances of the first appellant's conduct in the written submissions to the Department "casts serious doubts on his claim that he had been doing these things", in my opinion, the Tribunal in fact is saying that "these things did not happen."
48 This meaning, and with it, the pusillanimous lack of precision of expression used by the Tribunal (which may be born out of a misplaced kindness not to label a person as a liar, when that is what in fact the Tribunal finds) is confirmed by the observations that introduce the "five factors", of which this is the second: "There are a number of other factors that contribute to the Tribunal's conclusion that they have not been truthful about key aspects of their account." (Emphasis added).
49 It was open to the Tribunal to conclude that the attendance at Falun Gong practice sessions and studying Falun Gong in Australia (which the Tribunal accepted) had commenced after the filing of the initial application for a protection visa (which is why it was not referred to in that application), and was conduct engaged in only for the purpose of strengthening his claim for a protection visa.
50 Concerning the claim that the first appellant had asked people to carry Falun Gong material to China, the Tribunal found that such conduct had not occurred, finding that the first appellant's oral evidence on the point was "vague" and "contradictory". Further, the Tribunal did not consider the evidence from people who supported the first appellant in his claim "to be reliable".
51 If the claim that he had asked people to carry Falun Gong material to China occurred as he said, 10 months before his initial application for a protection visa, it is a curious circumstance indeed that it was not contained in that initial application. That omission provides a basis on which the Tribunal could conclude, as it did, that that conduct had not occurred. That claimed conduct on the part of the first appellant did not, and does not, engage s 91R(3) because the Tribunal found, as a finding of fact, that that conduct had not happened.
52 The same reasoning informs the Tribunal's conclusion that the first appellant's practice of Falun Gong in Australia "did not happen" prior to the initial application. The claim by the first appellant that it had is the basis for the Tribunal's credibility finding. That claim does not engage s 91R(3), because the Tribunal found as a fact that that conduct had not happened. Further, the Tribunal was not satisfied by the first appellant that his practice of Falun Gong in Australia (which occurred after the initial written submissions to the Department) was engaged in other than for the purpose of strengthening his claim to be a refugee within the meaning of the Convention. That conduct was disregarded, as required by s 91R(3).
53 Federal Magistrate Nicholls was correct to find that there had been no breach by the Tribunal of the requirements of s 91R(3).
54 There is no error shown in the judgment of Nicholls FM.
55 The appeal should be dismissed with costs, which I fix in the sum of $4000.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.