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[2010] FCA 531
Federal Court of Australia
2010-05-31
Mr J, Besanko J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an appeal from an order made by the Federal Magistrates Court. On 3 March 2010, the Federal Magistrates Court made an order dismissing the appellant's application for judicial review. The appellant had sought from that Court constitutional writs directed to the Refugee Review Tribunal in relation to a decision made by the Tribunal on 30 September 2009. 2 The appellant is a national of the People's Republic of China. She was born in Ji Lin Province and, prior to leaving China, she worked as a teacher. The appellant came to Australia with her niece on 12 April 2006. She returned to China on 13 November 2006. On 24 December 2006, she returned to Australia and she has been in this country since that date. 3 On 19 March 2009, the appellant lodged an application for a Protection (Class XA) visa. That was some 27 months after she came to Australia on the second occasion. The appellant claimed that she was a practitioner of Falun Gong and that she had a well-founded fear of persecution if she returned to China. 4 On 12 June 2009, a delegate of the Minister for Immigration and Citizenship advised the appellant that her application for a protection visa had been refused. The appellant applied to the Tribunal for a review of the delegate's decision. On 30 September 2009, the Tribunal handed down its decision on the review wherein it affirmed the delegate's decision not to grant a protection visa to the appellant. As I have said, on 3 March 2010 the Federal Magistrates Court made an order dismissing the appellant's application for constitutional writs directed to the Tribunal.
The reasons of the federal magistrate 5 In her application for constitutional writs, the appellant relied on six grounds. However, at the hearing before the Federal Magistrates Court she pursued only four of them. 6 The federal magistrate said that the grounds numbered 1 and 6 were linked, and she dealt with them together. Those grounds were that the Tribunal committed a jurisdictional error in taking irrelevant considerations into account and in failing to take a relevant consideration into account. The federal magistrate summarised the grounds in the following way: "At the heart of grounds 1 and 6, is a complaint about the use made by the Tribunal of the Applicant's answer in her protection visa application to the question, 'Religion (if any)'. The applicant answered, 'Falun Gong'. The Tribunal had regard to country information before it that stated that Falun Gong is not a religion." 7 The facts relevant to these two grounds are as follows. First, in her application for a protection visa, the appellant completed a question as to her religion by answering "Falun Gong". Secondly, the Tribunal member said, in the context of considering that answer, that independent country information before him made it clear that there was no organisation to join, and that Falun Gong was not a religion. He referred to two publications, including one in which the author observed that Falun Gong stresses that it is "not a cult, or a sect, or even a religion". Thirdly, the Tribunal member noted that when the second matter was put to the appellant at the hearing, she said that she knew that Falun Gong was not a religion but said that she saw it as a personal or spiritual pillar, and that she knew the wording she had used was not appropriate. Fourthly, the Tribunal member said that he was satisfied that had the appellant been a genuine Falun Gong practitioner who had been practising in China since 1997, she would not have stated in her protection visa application that her religion was Falun Gong. This, together with other matters, led the Tribunal member to conclude that he could not be satisfied that the appellant was a Falun Gong practitioner in China. 8 The federal magistrate addressed the grounds numbered 1 and 6 comprehensively in her reasons. She said that it was important to have regard to the context in which the Tribunal member's comments were made. She said that in light of the delegate's findings, it was reasonable for the Tribunal to have concerns about how the appellant had completed her protection visa application and to raise those concerns with the appellant. She also said that, on any view, the appellant did not have or provide much information or knowledge about Falun Gong. 9 The federal magistrate rejected a related submission by the appellant to the effect that there was no evidence to support the Tribunal's finding that practitioners of Falun Gong did not regard Falun Gong as a religion. The federal magistrate said that it was plain that the Tribunal had regard to independent country information which was to the effect that Falun Gong is not a religion. 10 In the ground numbered 5, the appellant alleged that the Tribunal had denied her procedural fairness in that it did not disclose to her its concerns about her lack of knowledge of Falun Gong. 11 The federal magistrate rejected this ground, and, in doing so, she made three points. First, she said that it was clear from the delegate's reasons that the appellant's lack of knowledge of Falun Gong was a major consideration. Secondly, she said that the appellant was aware, before the hearing before the Tribunal, that her lack of knowledge of Falun Gong was a major consideration because in a letter to the Tribunal dated 12 August 2009 she said: "The applicant's answers to Falun Gong knowledge are very basic and general. This was because the Department officer spent a lot of time asking me about the information of my family. Regarding the Falun Gong issue, I was only asked: 'What have I done in your Falun Gong practice?'. For this reason, I did not have the opportunity to give the detailed answer." 12 Thirdly, the federal magistrate had regard to the transcript of the hearing before the Tribunal, and she set out part of that transcript in her reasons. The federal magistrate said that it was clear from all of the material that the appellant was given every opportunity to give evidence and present arguments in relation to the issues arising from the decision under review. 13 In the ground numbered 3, the appellant complained about the Tribunal's approach to the documents she presented to it. She alleged that the Tribunal did not approach the documents with an impartial mind and that it made adverse credibility findings before considering the documents. 14 The federal magistrate concluded that there was no error in the Tribunal's approach. She said that the appellant's claims had been discredited by comprehensive findings of dishonesty and untruthfulness. She noted that the Tribunal considered that the delay by the appellant of over two years in applying for a protection visa was a matter of central importance and she said that the Tribunal was entitled to take that approach.
Issues on the appeal 15 The appellant was unrepresented before me. The Notice of Appeal contains four grounds, two of which challenge the decision of the Tribunal, and two of which challenge the decision of the federal magistrate. 16 The appellant sought to tender further evidence on the hearing of the appeal. The evidence consists of an affidavit sworn by the appellant on 14 May 2010 to which a number of documents are attached. The material in the affidavit consists partly of assertions of fact and partly of submissions. In so far as it consists of submissions, I will take those submissions into account in deciding this appeal. In so far as it consists of assertions of fact, I reject the tender of the affidavit because, apart from anything else, the further evidence does not advance the appellant's case. 17 The first ground of appeal is that the Tribunal committed a jurisdictional error in ignoring independent country information to the effect that Falun Gong is a religion. This allegation was not a ground of the application for constitutional writs. As I have said, the appellant did argue before the Federal Magistrates Court that there was no evidence to support the Tribunal's finding that Falun Gong practitioners do not regard Falun Gong as a religion, but the federal magistrate rejected this submission and said that there was independent country information which supported the finding. 18 The appellant did not identify any information which was before the Tribunal, or the Federal Magistrates Court, which supports her assertion that there was independent country information to the effect that Falun Gong is a religion. In her affidavit sworn on 14 May 2010, the appellant refers to information which supports a conclusion that some authorities and writers hold the view that Falun Gong is a religion. However, this does not advance the appellant's case. It is plain that the finding of the Tribunal of which the appellant complains is a finding to the effect that practitioners of Falun Gong do not regard themselves as part of a religion. Indeed, that proposition is supported by some of the information in the appellant's affidavit. The short point is that the further evidence does not lead to the conclusion that the Tribunal's finding was erroneous. 19 In my opinion, leave to raise the first ground of appeal should be refused. (See VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at 177 [26].) 20 The second ground of appeal is that the Tribunal committed a jurisdictional error in making the findings it did in relation to the appellant's credibility. This ground of appeal (as a bald proposition) was not a ground of the application for constitutional writs. It cannot succeed because findings as to credit without more, do not involve questions of jurisdictional error. 21 In my opinion, leave to raise the second ground of appeal should be refused. 22 The third ground of appeal is that the federal magistrate erred in concluding that the appellant's claims had been discredited by comprehensive findings of dishonesty and untruthfulness. The substance of this ground of appeal is that the Tribunal failed to consider material which was corroborative of the appellant's claims. It seems that the corroborative material was a summons, a letter of dismissal from the appellant's school and statements by witnesses in China. The effect of the appellant's submission is that the Tribunal erred by making credibility findings against her without considering the corroborative material. The first respondent helpfully assisted in identifying the appellant's argument by referring me to the decision of the Full Court of this Court in WAIJ v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 568 ("WAIJ") at [26]-[28]. 23 There are two answers to the appellant's submission. First, I think that on a proper reading of the Tribunal's reasons it is clear that it considered the corroborative material in the context of the whole of the evidence and, in particular, in the context of the matters which ultimately led to its findings about the appellant's credit. For example, the Tribunal said ([62]): "While the potential for such documentation to be easily manufactured is a very real, [sic] the Tribunal finds that the evidence is compelling and has not treated this documentation lightly." 24 The Tribunal also said (at [64]): "However, it also put to her that, given what it had just mentioned, the fact that she did not lodge a protection visa application for some time after her first arrival in Australia could be taken to indicate that she did not have a well-founded fear of persecution in China; that she was not in fact a Falun Gong practitioner in China; and that the documentation that she had provided, including the summons, letter of dismissal from her school, and the statement by witnesses in China, were not in fact genuine documents." 25 It seems to me clear from reading paragraphs 64 to 67 of the Tribunal's reasons that the Tribunal did not make the error identified by the Court in WAIJ. 26 Secondly, as the first respondent submits, the alleged error of approach is not present where an applicant's claims have been discredited by comprehensive findings of dishonesty or untruthfulness. That was the case here as was found by the federal magistrate and I see no reason to interfere with her finding. 27 The third ground of appeal is not made out. 28 The fourth ground of appeal is that the federal magistrate erred in law in concluding that the Tribunal did not raise "something different" when it found that Falun Gong was not a religion. The particulars of this ground of appeal are that the delegate is said not to have "disputed" that Falun Gong was a religion and that when the Tribunal raised with the appellant that Falun Gong was not a religion it was raising an issue which was very different from those issues raised by the delegate and one which went to the very core of the appellant's claims. In my opinion, this ground of appeal is not made out. Even if the delegate did proceed on the assumption that the appellant would make out a well-founded fear of persecution for the Convention reason of religion if she established she was a Falun Gong practitioner, the matter relied on by the Tribunal was that Falun Gong practitioners do not regard the practice of Falun Gong as a religion. The course taken by the Tribunal did not engage the principle in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 ("SZBEL") because the matter the Tribunal identified was put to the appellant and, indeed, it was something with which she agreed. 29 The second aspect of the fourth ground of appeal is that the Tribunal did not identify to the appellant an issue on the review, namely, the appellant's lack of knowledge of Falun Gong. Again, it is said by the appellant that the principle in SZBEL is engaged. That argument must be rejected because it is clear from the delegate's decision that the appellant's knowledge of, and involvement in, Falun Gong was an issue. For example, the delegate's reasons contain the following statements: "The applicant's claims are general, sketchy and unsubstantiated both in her statement of claims lodged with her protection visa application as well as in the departmental interview. At the interview she was asked questions in relation to her Falun Gong beliefs and her need for protection from the Chinese government; she was unable to provide any credible details or convincible [sic] reasons in support of her claims." 30 A little later the delegate said: "As noted earlier, there is no credible evidence that the applicant was involved in any Falun Gong related activities in China. Both in her statement of claims and during the departmental interview, her response was vague and brief. She failed to provide any details of such involvement in support of her claims." 31 It is clear enough from the appellant's letter to the Tribunal dated 12 August 2009 (see the reference in [11] above) that she was aware that her lack of knowledge of Falun Gong was an issue. 32 The fourth ground of appeal is not made out.
Conclusion 33 For these reasons, the appeal must be dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.
SZNZV
Minister for Immigration and Citizenship