The appeal
29 The appellant was not legally represented in relation to her appeal. Regrettably, but again understandably, the appellant's grounds of appeal do little more than assert that the Tribunal's decision was unfair and unreasonable and that the Circuit Court did not consider her situation. The appellant did not file any written submissions. At the hearing she did not advance any submissions beyond those contained in the notice of appeal.
30 The appellant's contention that the Tribunal's decision was unfair and unreasonable was considered and rejected by the primary judge. The primary judge was correct to find that the Tribunal's decision and reasoning was not illogical, irrational or unreasonable in the sense that that might support a finding of jurisdictional error.
31 Illogical or irrational reasoning or findings by a Tribunal may lead to a finding of jurisdictional error on the basis of legal unreasonableness. However, the test for illogicality or irrationality involves asking whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648 [131]. For a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, "extreme" illogicality or irrationality must be shown "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds might come to different conclusions": Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148].
32 There are some aspects of the Tribunal's reasoning that on one view are somewhat weak or flimsy. To give but one example, the Tribunal effectively rejected the appellant's evidence concerning the discovery of her Falun Gong activities and subsequent arrest in China simply because it did not "strike the Tribunal as credible" that the appellant would have opened the door to someone she did not know while she was watching a Falun Gong DVD. Yet the appellant's evidence was that she thought that the man was from the water company and was there to check her water meter. She also said that she quickly turned the television off. Not every decision-maker would necessarily view that evidence as being inherently implausible.
33 That finding led the Tribunal to reject the appellant's evidence concerning her arrest. It also led the Tribunal to find that the witness statement that purported to corroborate the appellant's arrest "does not genuinely reflect actual events". There was no other basis for that finding. On one view that reasoning is somewhat circular and unsatisfactory. On one view, at least, it would have been preferable for the Tribunal to have regard to the purported corroborating material in assessing the credibility of the appellant's account, rather than simply rejecting it after having considered the credibility of the appellant's evidence.
34 There is, however, clear authority for the proposition that the Tribunal does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the appellant's credit and then giving attention to the corroborating evidence: SZNSP at 492 [37] (North and Lander JJ, Katzmann J agreeing at 492 [42]); Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 at [35]. The Tribunal would fall into jurisdictional error if after making an adverse credibility finding, it simply refused to consider the corroborative evidence: SZNSP at 492 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 73 ALD 1 at 12 [49] (per McHugh and Gummow JJ). The corroborative evidence must still be assessed and weighed in the balance with all the other evidence.
35 The primary judge found, however, that the Tribunal did not disregard the corroborative evidence. Her Honour found that the Tribunal assessed and considered the weight to be given to the corroborative evidence. Given the brevity of the Tribunal's reasoning concerning the corroborative evidence, that is perhaps a fairly generous reading of the Tribunal's consideration of the witness statements. Nevertheless, the primary judge was correct to reject any suggestion that the Tribunal simply disregarded or ignored the corroborative material.
36 Whilst the Tribunal's reasoning is brief and in parts somewhat unconvincing, it cannot be concluded that its reasoning or decision was irrational, illogical or unreasonable. It cannot be concluded that no rational or reasonable decision-maker could have employed the reasoning, or reached the decision, that the Tribunal did. It was open to the Tribunal, on the material before it, to reject the appellant's evidence concerning her apparent Falun Gong epiphany in New York, the discovery of her Falun Gong activities in China and her arrest and mistreatment in China on account of her practice of Falun Gong.
37 It was equally open to the Tribunal to find that the appellant began practicing Falun Gong in Australia for the purposes of strengthening her protection visa claim based on the Refugee Convention. The Tribunal did not err in applying s 91R(3) of the Act in assessing whether the appellant met the Refugee Convention criterion.
38 As for the Tribunal's assessment of whether the appellant's Falun Gong activities in Australia gave rise to a real risk that the appellant will suffer significant harm if returned to China, it is perhaps again fair to say that some would view the Tribunal's reasoning as somewhat unconvincing. The Tribunal's reasoning hinged on the proposition that if the appellant was questioned by the Chinese authorities about her Falun Gong activities while in Australia, she would simply tell them that she did not intend to practice Falun Gong in China. The Tribunal also did not accept that the appellant would practice Falun Gong in China, either in public or private. Those findings were based on the Tribunal's finding that the appellant does not hold a genuine belief and motivation in the practice of Falun Gong. That finding, in turn, was based essentially on the mere fact that the appellant did not commence her Falun Gong activities in Australia until three months after her arrival.
39 Whilst not every decision-maker would necessarily have employed that reasoning, or arrived at those findings, it does not follow that the reasoning or findings were irrational, illogical or unreasonable. It was at least open to the Tribunal to find that it was not satisfied that there was a real risk that the appellant would suffer significant harm on her return to China as a result of her Falun Gong activities in Australia.
40 The appellant's contention that the Circuit Court did not consider her situation is misconceived. The Circuit Court's jurisdiction in a judicial review application under s 476 of the Act is to determine whether the Tribunal properly exercised its jurisdiction under the Act. It is not for the Circuit Court itself to consider the appellant's "situation" in the sense of whether the appellant was in fact at risk of harm if returned to a receiving country. The primary judge considered the appellant's arguments insofar as they could be characterised as asserting jurisdictional error on the part of the Tribunal. The primary judge was correct to reject those arguments for the reasons already given.