SZLJB v Minister for Immigration & Citizenship

6 The following passage records the Tribunal's other reasons for rejecting the whole of the claim: In sum, the Tribunal considered the evidence cumulatively and finds the applicant's lack of knowledge and lack of confidence when discussing Falun Gong, his description of his practice and experiences in China, and his description of his practice in Australia shows he is not a Fulun Gong practitioner. The Tribunal does not accept that the applicant is a Falun Gong practitioner, or has any association with the movement. The Tribunal does not accept that the applicant will be perceived as a Falun Gong practitioner by anyone. The Tribunal does not accept that the Chinese authorities are interested in him because he is a Falun Gong practitioner or for any other Convention reason. The Tribunal finds that the applicant has fabricated this claim to establish a basis for refugee status. 7 The Tribunal's conclusions record that it comprehensively rejected the various claims made of the applicant's involvement in Falun Gong in China. Decision of the Federal Magistrate 8 The appellant essentially raised four grounds of review on his application before the Federal Magistrate. He claimed that the Tribunal was biased against him and that it failed to assess the chance of his persecution on return to China. He also relied upon a breach of s 424A of the Migration Act 1968 (Cth). In addition, he claimed that the Tribunal failed to carry out its statutory duty in various ways particularized and repeated at [41] of the reasons of the Federal Magistrate. 9 The Federal Magistrate referred to the relevant authorities on the question of actual bias and also on the question of apprehended bias. It is unnecessary to repeat what her Honour said but she came to the view as fully set out at [53]ff and following that the claims of actual and apprehended bias were not made out. 10 Her Honour was also of the view that the claim based on s 424A of the Act could not succeed. She referred to the decision of the High Court in SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18] and observed that the section does not extend to the Tribunal's subjective thought processes or appraisals of the evidence before it. Her Honour was of the view that none of the other alleged grounds of jurisdictional error were made out. The Notice of Appeal 11 The Notice of Appeal is in similar terms to the claims made in the application in the Federal Magistrates Court. The appellant asserts in his grounds of appeal that the Tribunal failed to consider his claims and that it was biased against him. He also asserts that the Tribunal failed to comply with s 424A of the Act and that the decision was not "supported by materials." 12 The appellant appeared this afternoon without legal representation. He was assisted by a Mandarin interpreter. He repeated the claim of bias and also referred to the factual matters which he had relied upon in support of his claim. In particular, he said that he had followed his uncle to practice Falun Gong and that his uncle was sent to prison for three years as a result of this. In addition he said he had been mistreated in China by reason of his adherence to the practice of Falun Gong. 13 I am satisfied that each of the grounds of appeal set out in the Notice of Appeal cannot be supported. It is unnecessary to refer to the principles stated by the learned Federal Magistrate on the question of actual and apprehended bias. It is sufficient to say that, in my view, the Federal Magistrate correctly applied the principles stated by the High Court in the authorities to which he referred. As von Doussa J said in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38], it is a rare and exceptional case where actual bias is demonstrated solely from the published reasons for the decision Moreover, there was nothing on the face of the Tribunal decision record to suggest actual or apprehended bias within the principles stated in the authorities. 14 As to the ground of appeal that the Tribunal did not consider the appellant's claims, this is unsupported by the terms of the Tribunal's decision record. It is plain that the Tribunal considered the appellant's claims, found them unconvincing and rejected them. It was entitled to do so and it was not required to refer to any other "materials" in doing so. 15 Nor can the ground of appeal based on s 424A succeed. As the learned Federal Magistrate observed, the High Court in SZBYR at [18] stated that the section does not encompass the Tribunal's subjective appraisals, thought processes or determinations. In the present case the appellant's claim rises no higher than a complaint that the Tribunal ought to have notified him of its subjective thought processes before rejecting his application. Section 91R(3) of the Migration Act 16 Counsel for the Minister, Mr Kennett, has fairly raised another aspect of the matter which was not referred to by the Federal Magistrate. Mr Kennett has referred me to the provisions of s 91R(3) of the Act. It is unnecessary to repeat the section. It is sufficient to say that in determining whether a person has a well-founded fear of persecution, the Tribunal is bound by that subsection to disregard any conduct engaged in by the person in Australia, unless the person satisfies the Minister that he or she engaged in the conduct "otherwise than for the purpose of strengthening that person's claim to be a refugee." 17 In SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105, a Full Court considered the proper construction of s 91R(3). Their Honours observed that the subsection can only be applied once primary findings of fact have been made. They said at [22] that the Tribunal must first decide whether or not conduct has been engaged in in Australia which causes the person to fear persecution if returned to his or her country of origin. If the conduct has not occurred, then there will be nothing to disregard. 18 In the present case, the appellant did claim before the Tribunal that he had engaged in conduct in Australia by attending Falun Gong meetings in Campsie and in the City of Sydney. He apparently made those claims in support of his claimed fear of persecution if he returned to China. However, the Tribunal found that the appellant had not attended those meetings with Falu.n Gong practitioners in Australia. It seems to me that, having found that the conduct relied upon did not occur, there was nothing for the Tribunal to disregard. That is what the Full Court said at [22] in SZJGV. 19 It is true that the Full Court said in SZJGV in the last sentence of [22] that inaction can constitute conduct within the meaning of s 91R(3). It might therefore be said that what was taken into account by the Tribunal was the appellant's failure to engage in particular activities that may have strengthened his claim for a protection visa. However, even if that is so, the Tribunal's finding that he did not attend the meetings cannot be said to have been conduct that could have been engaged in for the purpose of strengthening his claim to be a refugee. 20 It follows that on any view s 91R(3) was not enlivened and I accept the Minister's submission that the section did not require the conduct to be disregarded. Accordingly, there was no jurisdictional error on that basis. Conclusion and Orders 21 In my view it follows that the appeal must be dismissed and I will so order. I order the appellant to pay the costs of appeal. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Solicitor for the Respondent: DLA Phillips Fox

Date of Hearing: 11 August 2008

Date of Judgment: 11 August 2008