FEDERAL COURT OF AUSTRALIA SZLOU v Minister for Immigration and Citizenship [2008] FCA 1645 Migration Act 1958 (Cth) ss 91R(3), 424A(1), 425 Abebe v Commonwealth (1999) 197 CLR 510 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZLOU v Minister for Immigration & Anor [2008] FMCA 1052 SZLOU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL NSD 1230 of 2008 MCKERRACHER J 7 NOVEMBER 2008 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1230 of 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZLOU Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: MCKERRACHER J DATE OF ORDER: 7 NOVEMBER 2008 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant do pay the costs of the first respondent fixed at $1,900. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1230 of 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZLOU Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: MCKERRACHER J DATE: 7 NOVEMBER 2008 PLACE: SYDNEY REASONS FOR JUDGMENT INTRODUCTION 1 The appellant is a Chinese citizen. She arrived in Australia on 16 April 2007. On 23 April 2007 she lodged an application for a protection visa with the Department of Immigration and Citizenship (the Department). A delegate of the first respondent refused the application for a protection visa on 19 May 2007. On 15 June 2007 the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. The Tribunal affirmed the decision and the appellant sought judicial review in the Federal Magistrates Court. 2 This appeal is from the judgment of a Federal Magistrate delivered on 17 July 2008 (SZLOU v Minister for Immigration & Anor [2008] FMCA 1052). His Honour dismissed the application for judicial review of the decision of the Tribunal. THE APPELLANT'S CLAIMS 3 The appellant claimed to have a well founded fear of persecution for a convention reason within the meaning of the Convention Relating to the Status of Refugees 1951, amended by the Protocol Relating to the Status of Refugees 1967 (the Convention) due to her practice of Falun Gong. 4 The appellant claimed that she first came to know about Falun Gong in 1996. In October 1999, she was taken to the police station and questioned. She claimed that she was asked to confess but she refused and they subsequently detained her, releasing her once she had signed a confession letter. She said that her house was searched and Falun Gong materials confiscated. She claims she was asked to provide a list of Falun Gong members but she could not and was released once she had signed another confession. 5 In October 2002 the appellant started her own business. She claims that she discussed Falun Gong with people who came into her shop. She also claimed to be practising Falun Gong secretly at home with some of her 'best friends only'. She claimed that in early 2007 the Chinese police asked her to provide a list of names of former members of her Falun Gong practice group. She then decided to flee to Australia. BEFORE THE TRIBUNAL 6 The Tribunal found that the appellant was not a credible witness or a genuine Falun Gong practitioner, noting that her evidence was inconsistent and often not on point. The Tribunal noted that the appellant gave inconsistent evidence about the frequency of her practice of Falun Gong concluding that this indicated she was not speaking from personal experience. 7 In addition, the Tribunal found it implausible that a genuine practitioner would simply observe others over an extended period and never learn the Falun Gong exercises or decline to practice in Australia where she is free to do so. Finally, the Tribunal found that she displayed a complete lack of knowledge about even the most basic aspects of Falun Gong and it was not plausible that a genuine practitioner would not have read any books on the teachings of Falun Gong. The Tribunal was therefore not satisfied that the appellant had a well-founded fear of persecution in China. ON REVIEW BY THE FEDERAL MAGISTRATES COURT 8 Before the Federal Magistrate the appellant claimed that the Tribunal: 1. Failed to comply with its obligations under s 424A(1) of the Migration Act 1958 (Cth) (the Act); and 2. Failed to comply with its obligations under s 425 of the Act. 9 The Federal Magistrate found that the evidence which the appellant gave the Tribunal was information provided by the appellant for the purpose of the review and fell within the exception to s 424A(1) of the Act found in s 424A(3)(b) of the Act. His Honour also noted that the independent country information which the Tribunal sourced was also information which was not required to be notified to the appellant by reason of s 424A(3)(b) of the Act. Further, his Honour stated that Tribunal's conclusions drawn from the material before it is not information for the purposes of s 424A of the Act. 10 The Federal Magistrate found that there was no evidence submitted to the Court to support the appellant's allegations about the standard of interpretation. Further, the Tribunal was not obliged to put to her the doubts it had concerning her evidence. GROUNDS OF APPEAL 11 The notice of appeal raises the following grounds (although described by the appellant as 'particulars'): 1. The Tribunal erred by making a finding based on incorrect information; 2. The Tribunal failed to comply with s 424A(1) of the Act; 3. The Tribunal failed to comply with s 91R(3) of the Act; 4. The Tribunal failed to comply with s 425 of the Act 5. The Tribunal failed to consider the appellant's claims properly and fairly; made its finding based on unwarranted assumptions; ignored or failed to consider the appellant's claims; ignored relevant materials before it; misunderstood the appellant's claim; and made a mistake in relation to an important finding of fact. 12 Although the grounds raised are directed against the Tribunal rather than the Federal Magistrates Court, for the purposes of this appeal, the grounds will be considered as alleging a failure on the part of the Federal Magistrates Court to identify those failures of the Tribunal. 13 At the hearing of the appeal before me the appellant repeated the same submissions, with particular emphasis on inaccurate interpretation of certain technical Falun Gong expressions. ANALYSIS Ground 1 – incorrect information 14 The appellant has not provided any particulars or evidence to support this claim. It is not clear which piece of evidence has been misunderstood by the Tribunal. 15 While the decision-maker must not make unsupported, unreasonable and capricious decisions or conclusions or fail to address significant evidence (NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470), a fair reading of the Tribunal decision reveals no factual basis for any such claim. 16 The Tribunal understood the appellant's claims as demonstrated by its questions and discussions with the appellant. The Tribunal addressed all of the evidence before it, and rather than ignoring evidence, the evidence was rejected or given little weight due to the inconsistencies and implausibility identified by the Tribunal. 17 To engage in fact-finding about the merits of the appellant's case is no part of the function of the Court in dealing with judicial review of an administrative decision: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10. The task of findings of fact, including findings of credibility, is for the Tribunal alone: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547. 18 The Tribunal's adverse credibility finding is not open to review by the Court. 19 The ground is not made out. Ground 2 – s 424A(1) 20 Section 424A(1) of the Act requires the Tribunal to provide the applicant with, in a way it deems appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. The Tribunal must ensure as far as is reasonably practical that the applicant understands why the information is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review. The Tribunal must invite the applicant to comment on or respond to it. 21 Section 424A(3)(a) of the Act provides an exception where the information is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member. Section 424A(3)(b) provides an exemption to the obligation where the information was given by the applicant for the purposes of the review, while s 424A(3)(ba) provides an exception where the information has been given by the applicant during the process that led to the decision that is under review other than information provided orally to the Department. 22 The Tribunal made its decision based on evidence given by the appellant, as well as some independent country information sourced by the Tribunal. The evidence given by the appellant falls within the exception to s 424A(1) contained in s 424(3)(b) of the Act. Further the independent country information sourced falls under the exclusion in s 424(3)(a) being information not specifically about the appellant. 23 This ground also fails. Ground 3 – s 91R(3) 24 Section 91R(3) provides that conduct engaged in by the appellant is to be disregarded unless the decision-maker is satisfied that the person has engaged in the conduct other than for the purpose of strengthening their claim to be a refugee. 25 There is no evidence in the decision of the Tribunal of flaws in its reasoning process. The Tribunal undertook a proper, genuine and realistic consideration of the appellant's claims, which included giving ample opportunity to the appellant for discussion of her evidence. All of the appellant's claims and evidence were considered by the Tribunal before it reached its decision and the conclusions made were open to the Tribunal on the evidence before it. 26 It is not clear how s 91R(3) applies to the appellant's case. Based on the Tribunal's reasons for decision there does not seem to be any reference to the appellant's conduct in Australia. Rather, the Tribunal decision was based on her evidence about her understanding of Falun Gong and her practice in China. No conduct of the appellant was disregarded by the Tribunal. In fact it noted that the appellant had not made contact with Falun Gong practitioners in Australia. 27 I can discern no error of law in the Tribunal decision. The Tribunal found that the appellant was not credible and not a genuine Falun Gong practitioner based on the inconsistencies and implausibility in her evidence as well as her complete lack of knowledge about the basic principles of Falun Gong. The Tribunal set out the relevant law at the beginning of its reasons for decision. A fair reading of the Tribunal's decision makes it clear that the Tribunal applied the correct law to its findings in concluding that it was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason. There is no error on the face of the Tribunal's determination as to the manner in which the Tribunal applied the law to the appellant's claims. 28 The ground is not made out. Ground 4 – s 425 29 This ground was also before the Federal Magistrates Court, where the appellant claimed that she was not afforded a genuine opportunity to present her oral evidence and arguments because the interpreter was unable to translate particular terms of Falun Gong, notably the term 'xinxing'. 30 Under s 425 of the Act the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal will have breached s 425 where it fails to notify the appellant of the determinative issues arising in relation to the decision under review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. 31 If the Tribunal takes no steps to identify the issues which it considers dispositive or determinative, the applicant is entitled to assume that the issues that the delegate considered dispositive or determinative are the issues arising in relation to the decision under review: SZBEL. 32 The learned Federal Magistrate found [at 17] that, without evidence, the allegations concerning the interpreter were only unsubstantiated assertions. His Honour found that without evidence the appellant had not discharged her burden of proof, and found the allegation not proven. 33 There is nothing in the Tribunal decision that indicates the appellant had any trouble with the interpreter. In the absence of the transcript the claim can not be made out. 34 The ground will be dismissed. Ground 5 - fairness 35 This ground makes a number of broad ranging claims without providing any particulars. 36 These claims appear to be requesting a merits review. This is impermissible. The task of findings of fact, including findings of credibility, is for the Tribunal alone: Kopalapillai 86 FCR 547. To establish that there is a legal error in connection with a finding of the Tribunal, the appellant must be able to demonstrate that there was no basis whatsoever for the inference drawn by the Tribunal: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Even if it did make a factual error, that would not constitute a jurisdictional error, because there is no error of law simply in making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 37 There is no evidence of any mistake or error of fact which would constitute jurisdictional error. As mentioned above, the Tribunal found the appellant not to be credible, or a genuine practitioner, based on inconsistencies in her evidence and her complete lack of knowledge of basic Falun Gong principles. The Tribunal has extensively questioned and carefully considered the evidence of the appellant and made findings that were open to it on the evidence before it. It can not be said that there was no basis whatsoever for the inference drawn by the Tribunal. 38 In the absence of any particulars the ground is not made out. 39 In my view, the approach of the Federal Magistrate and his Honour's conclusions were, with respect, entirely correct. CONCLUSION 40 The appeal will be dismissed. The appellant is to pay the costs of the first respondent fixed at $1,900. I certify that the preceding forty (40) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate: Dated: 7 November 2008 The Appellant represented herself Counsel for the First Respondent: P Reynolds Solicitor for the First Respondent: Clayton Utz Date of Hearing: 6 November 2008 Date of Judgment: 7 November 2008