SZNQX v Minister for Immigration & Citizenship

the tribunal decision 7 On 5 May 2009 the Tribunal affirmed the decision of the delegate not to grant the appellant a protection (Class XA) visa. The Tribunal found the appellant was not a credible witness as she was inconsistent, confused, and non-responsive in the way direct questions were answered. Detailed reasons in support of this conclusion were given. It did not, in particular, accept her confused and contradictory evidence that she had been or was liable to be targeted for physical harm or death by gangsters employed by a Construction Company. 8 When the Tribunal asked about the charge that she had practised and been involved in Falun Gong, the appellant said that she only practised it twice in 1997 and had not done so since because Falun Gong was banned. She said shedid not practise Fulan Gong in Australia but stated that she would read the book and practise it when she returned to China. The Tribunal did not accept that the appellant is a Falun Gong or that she would be perceived to be Falun Gong, or that she would practise Falun Gong if she returned to China. 9 The relevant reasons of the Tribunal included the following: 89. The applicant has been unable to explain to the satisfaction of the Tribunal why the Construction Company, the gangsters or the authorities accepting bribes and in the employment of the Construction Company took such steps as detaining the applicant, beating her and her husband and continuing to threaten the applicant when her husband and son continue to live peacefully in China on the proceeds of the compensation they were paid. 93. The applicant initially stated that the police went to her home after her arrival in Australia five times to issue threats against her but when the Tribunal asked her to expand on the threats made and how she knew the details she changed her evidence and stated that she too was visited and that was how she knew that she was the only one targeted and not her family. The applicant gave a highly confused and nonsensical explanation as to whether she was able to move to another area and why the gangsters would only target her including one response due to the gangster's virtue. 10 The Tribunal considered the appellant's ability to depart the country on her own passport to be inconsistent with her claimed detention and continued threats and harassment that is condoned by the authorities. 11 Accordingly, the Tribunal did not accept the appellant's claims and concluded: For these reasons, and the Tribunal's finding about the applicant's general lack of credibility, apparent from the applicant's evasiveness, lack of detail, inconsistency and ineffective response to Tribunal's questions, the Tribunal finds that the applicant has been untruthful in her claims to the Tribunal. The Tribunal rejects the applicant's claims. 12 After considering the appellant's claims individually and on a cumulative basis, the Tribunal found that if she returned to China in the reasonably foreseeable future, there was no real chance that she would be persecuted for the reason of her political opinion, membership of a particular social group or for any other Convention reason. The Tribunal therefore affirmed the decision of the delegate not to grant the appellant a protection (Class XA) visa.

PROCEEDINGS in THE FEDERAL MAGISTRATES COURT 13 On 9 June 2009 the appellant applied to the Federal Magistrates Court for review of the Tribunal's decision. The appellant claimed: 1. that a breach of the rules of natural justice occurred in connection with the making of the Decision. 2. that the decision involved an error of law. 3. that the Tribunal could not make the decision without further evidence or information 14 The Federal Magistrate found no jurisdictional error in the decision of the Tribunal and dismissed the application.

the present APPEAL 15 The appellant filed a notice of appeal on 22 September 2009. The notice of appeal raises the same grounds as were before the Court below. The appellant did not provide particulars in support of these grounds. 16 At the hearing of the appeal before me the appellant appeared in person with the assistance of a Mandarin speaking interpreter. The appellant was invited to but declined to make any oral submissions.

Ground 1: breach of natural justice 17 The primary reason for the Tribunal's decision was that it disbelieved the appellant's claims in their entirety. The credibility, or otherwise, of an applicant, is the function of the primary decision-maker, in this case, the Tribunal: Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. 18 Section 422B of the Migration Act 1958 (Cth) (the Act) provides that the provisions of Division 4 of Part 7 of the Act are an exhaustive statement of the natural justice hearing rule. His Honour below correctly found that the Tribunal had complied with its obligations in this regard; in particular, ss 424A and 425 of the Act. Before the Federal Magistrate the appellant stated that the procedure adopted by the Tribunal was unfair because she gave the member a truthful account of her experiences. She considered that the Tribunal should have made a finding that allowed her to stay in Australia, even if only temporarily. 19 The Federal Magistrate correctly found that the Tribunal's obligations under s 424A were not enlivened as the material put to the appellant arose either from her own claims or from independent country information, and those matters were excluded from the operation of sub‑s 424A(1) by sub‑s 424A(3). The section 424A letter did refer to the potential application of s 91R(3) of the Act. However his Honour referred to SZLSM v Minister for Immigration and Citizenship [2009] FCA 537 at [41] per Cowdroy J and noted that no consequences flowed from the fact that the Tribunal referred in its s 424A letter to certain matters, when it was not, in fact, obliged to do so. 20 His Honour was satisfied, upon reasonable grounds, that the appellant was given a fair hearing. The Tribunal wrote to the appellant and invited her to attend a hearing, which complied with the requirements of s 425A of the Act. The appellant attended the hearing, and was provided with the services of an interpreter in the Mandarin language. The appellant was clearly put on notice that her credibility was in issue as required by s 425 of the Act, in the sense referred to by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at [47]. 21 No error of law can be found in the above reasoning of the Federal Magistrate.

Issue 2: failure to obtain further evidence or information 22 It is well accepted, as the Court below observed, that there is no general obligation on the Tribunal to make its own inquiries (see Minister for Immigration and Citizenship v SGLB (2004) 207 ALR 12 at [43]), and that it is not the task of the Tribunal to make out an applicant's case for him or her: Kioa v West (1985) 159 CLR 550 per Mason J at 587. 23 No error of law emerges from the reasoning of the Federal Magistrate in this respect.

Issue 3: error of law 24 The appellant when asked below what was the error of law which she relied upon she was unable to do so. Nonetheless the Court below was taken by counsel for the first respondent to the provisions of s 91R(3) although this section had not been raised by the appellant. The Federal Magistrate correctly accepted the submission of the first respondent that the Tribunal did not breach s 91R(3) by having regard to the appellant's absence of Falun Gong practice in Australia, in support of its finding that the appellant would not practice Falun Gong if she were to return to China. Section 91R(3) is only enlivened where an applicant seeks to rely on conduct in Australia to support a claim to have a well-founded fear of persecution: SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 per Jacobson J at [30]. Here, there was no relevant conduct. 25 No error of law is discernable in the reasoning of the Federal Magistrate. The High Court has recently endorsed the approach the Federal Magistrate took in relation to s 91R(3): Minister for Immigration and Citizenship v SZJGV (2009) 259 ALR 595.

conclusion 26 His Honour correctly concluded that the Tribunal decision is a privative clause decision for the purposes of s 474(2) of the Act and accordingly not susceptible to orders in the nature of certiorari or mandamus which in effect the appellant sought below. No jurisdictional error on the part of the Federal Magistrate has been made out. The appeal ought be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate: Dated: 18 November 2009 Counsel for the Appellant: Appellant appeared for herself