FEDERAL COURT OF AUSTRALIA

SZUUF v Minister for Immigration and Border Protection [2015] FCA 1363

THE COURT ORDERS THAT:

1.    The second respondent be amended to the Administrative Appeals Tribunal.

2.    The application for leave to appeal and the application for an extension of time within which to seek leave to appeal are dismissed.

3.    The applicant is to pay the Minister’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1.    INTRODUCTION

1    This is an application for an extension of time and leave to appeal from the Federal Circuit Court of Australia (the Court below) dismissing a show cause application under r 44.12 of Part 44 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) on the ground that the application did not raise an arguable claim for relief. The application sought judicial review of a decision by the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal). By its decision, the Tribunal affirmed the decision of the Minister’s delegate (the delegate) refusing the grant of a Protection (Class XA) visa.

2    The central issues are whether any appeal would have sufficient merit to warrant a grant of leave to appeal and if substantial injustice would result from the refusal of leave to appeal. If so, the Minister accepts the reasonableness of the applicant’s explanation for delay in instituting proceedings and that an extension of time should be granted.

3    By the draft notice of appeal, the applicant seeks leave to challenge the decision below on two grounds, namely that:

(1)    the Court below acted in breach of procedural fairness or unreasonably in failing to afford the applicant sufficient time within which to prepare for the show cause hearing on 9 July 2015 (as explained in the applicant’s affidavit affirmed on 3 August 2015); and

(2)    the Court below erred in failing to find that “the Tribunal was biased in that it failed to use proper country information and arbitrarily and wrongly set itself up as an arbitrator of knowledge standards required of a Falun Gong Practitioner.”

4    For the reasons below, I accept the Minister’s submission that the application for leave to appeal must be refused as any appeal would lack any reasonable prospects of success and no real injustice would be occasioned by refusing leave to appeal where the proposed appeal cannot succeed. It follows that the application for an extension of time must also be dismissed.

2.    EVIDENCE AND PROCEDURE ON THE APPLICATIONS

5    The applicant was assisted by an interpreter in English and Mandarin at the hearing before me and in the Court below. He did not provide written submissions in advance of the hearing or make any oral submissions at the hearing. However, he confirmed that he had received the Minister’s written submissions which he said had been translated for him before the hearing. The applicant also filed an affidavit affirmed by him on 3 August 2015 in support of the alleged breach of procedural fairness in the Court below and in support of his application for an extension of time. That affidavit was received into evidence save for certain portions the subject of objections upheld by me. Some of the excluded portions of the affidavit were, however, received as submissions, and considered by me as such.

3.    RELEVANT PROVISIONS OF THE MIGRATION ACT

6    The object of the Migration Act 1958 (Cth) (the Act) is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens, that is, persons who do not hold Australian citizenship (s 4(1)). In furtherance of this object, s 29(1) provides that the Minister may grant a non-citizen a visa to travel to and enter Australia, and to remain in Australia.

7    Relevantly, and subject to meeting other criteria specified in s 65 of the Act, the Minister must grant a protection visa under s 65 where the criterion prescribed by s 36(2)(a) is met, namely, where the Minister is satisfied that the person is a person to whom protection obligations are owed under the Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (the Refugee Convention). Article 1A(2) of the Refugee Convention provides, in turn, that a refugee is a person who, relevantly:

…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his [or her] nationality and unable or, owing to such fear, is unwilling to available himself [or herself] of the protection of that country…

8    As the applicant’s protection visa application was made before 16 December 2014, the criteria in s 36(2)(a) of the Act must be read together with s 91R, which was in force at the time. That section provided that the persecution must involve “serious harm to the person”, such as a threat to the person’s life or liberty, and “systemic and discriminatory conduct”.

9    Even if an applicant does not meet the criteria in s 36(2)(a) and subject to certain exceptions, the Minister must grant a protection visa to a non-citizen under s 65 who satisfies the alternative criteria in s 36(2)(aa), namely, the visa applicant is:

a non-citizen in Australia (other than a non-citizen mention in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm…

10    Significant harm is defined in s 36(2A) and includes arbitrary deprivation of life, torture or cruel or inhuman treatment or punishment.

11    The alternative criteria in 36(2)(aa) recognises that a non-citizen who is not entitled to a protection visa because she or he is not a refugee may nonetheless be entitled to protection under other obligations owed by Australia to afford protection, including under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, done at New York on 10 December 1984, and the International Covenant on Civil and Political Rights 1966, done at New York on 16 December 1966: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 (SZQRB) at 522 [70] and 526 [100] (Lander and Gordon JJ), and 558 [300] and 560 [313] (Besanko and Jagot JJ).

4.    BACKGROUND

4.1    The application for a protection visa and the delegate’s decision

12    The applicant is a citizen of China where he was born and educated, and has also spent time working in Korea and Macau. The applicant arrived in Australia on 27 May 2013 on a visitor visa, and applied for a protection visa on 19 August 2013.

13    On 20 December 2013, the Minister’s delegate refused the applicant’s application for a protection visa.

4.2    The decision of the Tribunal

14    The applicant’s claims on his application to the Tribunal for review of the delegate’s decision may be summarised as follows.

(1)    The applicant and his wife were living in China and have been Falun Gong practitioners since about July 2010, as that practice had miraculously cured his wife’s kidney cancer when medical treatment could not. The applicant continued to practise when he worked and lived in Macau from 2011, and his wife practised secretly at home.

(2)    In May 2013, the applicant decided to travel to Australia for a business visit. Before leaving, the applicant returned to his home town in China, where he and his wife decided to promote Falun Gong. The applicant and his wife put up some Falun Gong posters on the walls in a government staff community in the middle of the night, and his wife was captured by security guards.

(3)    The applicant gathered his belongings and left for Australia. The police went to his house and took books, money, his computer and a printer. The police informed the applicant’s neighbours that the applicant deserved punishment and they were told to inform the police if they saw him.

15    On 19 May 2015, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa. The Tribunal disbelieved the applicant’s claim to practise Falun Gong and gave detailed reasons for reaching that view, including his superficial knowledge of Falun Gong, inconsistencies in his evidence, his delay in claiming protection in Australia, the fact that he left his sick wife behind in China to be caught by the authorities, and his willingness to provide false information in a visa application. In so finding, the Tribunal accepted that the applicant had provided some consistent evidence through the process about key events, and may have been nervous at appearing before the Tribunal or in presenting his evidence. However, the Tribunal was not persuaded that these factors could adequately explain the inconsistencies in his evidence.

16    The Tribunal concluded that it did not accept that the applicant had left China due to a fear of persecution or that there was any basis for the applicant’s claims to fear persecution for a Refugee Convention reason and, therefore, the Tribunal was not satisfied that he met the criterion in s 36(2)(a) of the Act. The Tribunal also found with respect to his claim for complementary protection under s 36(2)(aa) that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the applicant will suffer significant harm.

4.3    The application for judicial review in the Federal Circuit Court

4.3.1    The application for judicial review

17    In his application for judicial review with the Federal Circuit Court, the applicant identified three grounds of review, namely, bias by reason of the country information that the Tribunal referenced, a failure to consider reasons why the applicant could not remember details of events occurring a long time ago, and that the Tribunal did not fairly review his case because he had a genuine fear of harm.

4.3.2    The directions hearing on 1 July 2015

18    On 9 June 2015, the applicant filed his application in the Court below seeking judicial review of the Tribunal’s decision. He attended a directions hearing before the Court below on 1 July 2015. While no transcript of the directions hearing was included in the application book, the primary judge described the events at the hearing as follows:

2.    … I explained to the applicant that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT.

3.     I further explained to the applicant that under the Rules of this Court, where the application does not disclose an arguable case for the relief sought, the application may be dismissed forthwith.

4.     At the directions hearing, the applicant was provided with a copy of the applicable cost schedule of the Court and I explained to the applicant the consequences that would flow to him if a costs order was made against him. Namely, that whilst any costs order remained unpaid, it will be a debt owed to the Commonwealth of Australia. As such the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.

5.     The applicant confirmed that he wished to continue with his application for judicial review. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support of his application, by 7 July 2015.

6.     At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

7.     The matter was listed for today [9 July 2015] for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), a copy of which was also given to the applicant.

19    Order 10 of the orders made at the directions hearing set the matter down “for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) on 9 July 2015 at 10:30am…”. The Court orders also stated that, in the event that there is no appearance by or on behalf of the applicant at the time of any scheduled Court event, the application may be dismissed without further notice. Timetabling orders made by the Court below at the same time stated relevantly that:

1.    The first respondent file and serve a bundle of relevant documents (“the Court Book”) by 2 July 2015.

2.    The applicant has leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 7 July 2015.

3.    The applicant must file and serve by way of affidavit any additional evidence to be relied upon, by 7 July 2015.

4.    The applicant must file and serve written submissions by 7 July 2015.

5.    The applicant must serve upon the first respondent at the address identified by the first respondent in the Notice of Address for Service, Australian Government Solicitor, Level 42 MLC Building, 19 Martin Place Sydney, NSW 2000, any document filed by the applicant with the Registry.

6.    The first respondent must file and serve, by way of affidavit, any additional evidence to be relied upon by midday 8 July 2015.

7.    The first respondent must file and serve written submissions by midday 8 July 2015…

8.    All documents in the proceeding must be filed at the Registry of this Court.

NOTE A: The Registry of the Court is now located at Level 17, Law Courts Building, Queens Square, Sydney.

20    In addition, each party was required to have at the hearing copies of any cases or legislation to be relied upon for provision to the Court and the other party.

21    The timetable set by the Court allowed the applicant effectively only four working days within which to prepare, file and serve complete particulars of each ground of review, and to provide any further evidence and submissions in support of his “application”, all of which had to be in English.

4.3.3    Service of relevant documents

22    The solicitor with conduct of the matter on behalf of the Minister, Ms Dejean, gave evidence that she caused to be sent on 1 July 2015 by express post a letter to the applicant enclosing a sealed copy of the Green Book (being the Bundle of Relevant Documents filed on behalf of the Minister in the Court below). The evidence by Ms Dejean does not establish, however, when the letter and the Green Book were delivered to the applicant’s address. Ms Dejean also gave evidence that on 8 July 2015, she caused to be sent by courier a letter to the applicant enclosing a sealed copy of the Minister’s written submissions in the Court below. The evidence annexed to her affidavit establishes delivery of the submissions on 8 July 2015 at 2.28pm. However, the applicant gave evidence that he did not sign the proof of delivery form prepared by the courier and did not know whose signature appears on that document.

23    The applicant deposed in his affidavit that he received the Green Book “around 5th (not 2 July as ordered) and actually I only received the other party’s submission by post on 10th after the case was dismissed.” The 5th of July 2015 was a Sunday. In cross-examination, the applicant said that he received the Green Book in the mailbox at the place where he lived with seven or eight other people but expressed uncertainty as to whether it was only on the Sunday that he had opened the mailbox and picked up the Green Book. While given the opportunity to cross-examine Ms Dejean and the potential consequences of not doing so were explained to the applicant, the applicant elected not to cross-examine Ms Dejean.

24    With the benefit of hindsight, it is questionable whether the respondent should have been permitted to lead evidence on the question of the alleged breach of procedural fairness and to cross-examine the applicant on those issues at this stage of the proceedings. It seems to me that the interlocutory applications for leave under consideration here are not the occasion for final findings of fact to be made on substantive issues which would be raised if leave were granted. Rather, I should consider the applicant’s case at its highest.

4.3.4    The decision of the Federal Circuit Court

25    The application for judicial review was dismissed on 9 July 2015 after the show cause hearing on the ground that the application had raised no arguable case for the relief claimed. The Court below gave ex tempore reasons for its decision.

26    With respect to ground 1, the primary judge found no basis for the allegation of bias. With respect to ground 2, the primary judge found that the applicant’s complaint that the Tribunal had not considered the impact of the passage of time on his capacity to recall details about events occurring a long time ago was not capable of establishing jurisdictional error. Further, contrary to the applicant’s contention, the primary judge found that the Tribunal expressly considered that the applicant may have been nervous in presenting his evidence but was not persuaded that this explained the difficulties in his evidence. Nor, the primary judge found, was there any evidence of any medical condition or other factor which may have affected his memory of events or ability to give evidence. Finally, the primary judge found that ground 3 did no more than impermissibly take issue with the merits of the Tribunal’s decision.

27    The primary judge concluded at [41] that:

While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error and none is apparent on the face of the decision record.

5.    CONSIDERATION

5.1    Relevant principles

28    Leave to appeal is required because the decision below was interlocutory, the application having been dismissed under r 44.12(1)(a) of the FCC Rules on the ground that the Court was not satisfied that the application had raised an arguable case for the relief claimed: see r 44.12(2) of the FCC Rules and s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Relevant factors in deciding whether to grant leave to appeal include: whether in all of the circumstances the decision is attended with sufficient doubt to warrant its reconsideration on appeal; and whether substantial injustice would result if leave were refused, assuming the decision at first instance to be wrong (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (the Court)).

29    Under r 35.13 of the Federal Court Rules 2011 (Cth) (Federal Court Rules), the applicant was required to file any application for leave to appeal from the decision below within 14 days of the date on which judgment was pronounced below on 9 July 2015, that is, by 23 July 2015. The applicant endeavoured to file his application for leave to appeal only on 29 July 2013. As the time within which the application could be made had already expired, the Registry wrote to the applicant advising of the need for him to file an application for an extension of time, together with the application for leave to appeal, which the applicant duly did on 5 August 2015.

30    In determining whether to grant an extension of time, factors to be taken into account include: the extent of, and any explanation for, the delay, any prejudice that the respondents may suffer by reason of the delay, and the merits of the application for leave to appeal: e.g. SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15] – [19] (Murphy J); Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 – 349 (Wilcox J). In addition, I consider that it is relevant that, while oral ex tempore reasons were given at the hearing on 9 July 2015, written reasons were not published until 22 July 2015. As a result, the applicant had written reasons available to him at best only one day before the period within which he could apply for leave to appeal expired. No orders were made when judgment was delivered which, for example, fixed the date on which written reasons were published as the date for the purposes of any application for leave to appeal (as envisaged by r 35.13(b) of the Federal Court Rules): see also SZTQM v Minister for Immigration and Border Protection [2015] FCA 952.

31    The Minister did not take issue with the adequacy of the applicant’s explanation for the delay or contend that he would suffer any prejudice from the grant of an extension of time. As such, as I earlier explained, the Minister accepted that it would be appropriate to grant an extension of time if I was minded to grant leave to appeal.

32    For the reasons set out below, I accept the Minister’s submission that the application for leave to appeal should be refused for the reasons that the appeal has no reasonable prospects of success and there would be no substantial injustice if leave were refused.

5.2    Ground 1 of the proposed notice of appeal

33    The Minister submits that the applicant was given sufficient time within which to prepare for the hearing. The Minister stresses that the hearing set down for 9 July 2015 was of a “show cause” nature, in which it was necessary for the applicant to demonstrate only that he had an arguable case. In this regard, as the Minister points out, under r 44.12(1)(a) of the FCC Rules, the Federal Circuit Court may dismiss the application if not satisfied that the application has raised an arguable case for relief. The Minister also points to the fact that under the FCC Rules, the Federal Circuit Court may proceed under r 44.11(a) at the first court date to an immediate hearing under r 44.12. There is no requirement, in other words, under the FCC Rules to allow any time for an applicant to prepare for a show cause hearing under r 44.12.

34    However, as the Full Court (Mansfield, Tracey and Mortimer JJ) held in Shretha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301 at 310 [52], there is no basis on which to infer from the terms of Part 44 of the FCC Rules any intention to abrogate the Court’s obligation to act fairly in considering, and exercising, the range of powers at its disposal. As their Honours further explained at 310-311 [53]-[54]:

The pressure of high volume decision-making, such as that undertaken by the FCC in the migration jurisdiction, should be recognised. Essential tools in managing high volumes of cases include the show cause process in Pt 44 of the FCC Rules, and the power outside that process, in s 17A of the FCC Act, summarily to dismiss a judicial review application. The existence and utilisation of those processes do not obviate the need to consider the material before the Tribunal (rather than simply its reasons), nor to explain in plain terms to unrepresented applicants that they must identify to the Court why the Tribunal's decision was not made lawfully and by a fair process. Insisting to an unrepresented applicant that she or he identify a “jurisdictional error” is a pointless, and unfair, exercise. Further, the processes in s 17A and Pt 44 do not remove the obligation to give parties, whether represented or unrepresented, some reasonable time to regularise their materials and present their arguments.

It is no fault of an individual litigant in a migration judicial review that there are thousands of other migration cases, nor that there are insufficient resources to provide all impecunious applicants with legal representation. Much is at stake for an individual litigant in the migration jurisdiction in the sense of fundamental rights, including her or his liberty in Australia by reason of the mandatory detention regime in the Act. High volumes of cases should if anything give rise to extra caution to ensure no injustices are being done because of judicial workload pressures.

(Emphasis added.)

35    Secondly, the content of the requirements of procedural fairness may vary according to the circumstances: International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 at 354 [54] (French CJ). In other words, “[t]he rules of procedural fairness do not have immutably fixed content. As Gleeson CJ rightly observed… ‘[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice’”: Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 at 99 [156] (Hayne, Crennan, Kiefel and Bell JJ). It follows that the fact that a show cause application may proceed to an immediate hearing under r 44.12 does not mean that to do so will be procedurally fair having regard to the particular case.

36    In this case, while the primary judge set the matter down for a hearing on 9 July 2015 and explained at the directions hearing on 1 July 2015 that the application may be dismissed forthwith if it did not disclose an arguable case, the orders made did not, with respect, make it clear to the applicant that his submissions were to be limited to the question of whether he had an arguable case. Furthermore, the orders required the applicant to put on all of his evidence. An equivalent timetable for the filing of submissions and evidence was set for the Minister, notwithstanding that it is difficult to see why any evidence from the Minister should be relevant to the question of whether the applicant’s application raised an arguable case.

37    In substance, therefore, the orders afforded the parties a period of less than a week within which to prepare their respective cases as if the matter were proceeding to a final determination on 9 July 2015 of the merits of the applicant’s grounds for judicial review, rather than a consideration of whether he had an arguable case. It is difficult to see, with respect, what benefit was gained in such circumstances from the exercise of the discretion to set the matter down for a hearing under r 44.12 and on such a short timetable. To the contrary, imposing such a tight timeframe within which to prepare effectively as for a final hearing on the substantive merits of the case can plainly act to the disadvantage of an unrepresented applicant who is unlikely to have any familiarity with the Australian legal systems and court processes, does not speak English and must not only prepare all of the documents but also arrange for them to be translated, filed and served. Moreover, an order dismissing the proceedings under r 44.12(1)(a) is interlocutory (r 44.12(2) of the FCC Rules). Thus, the applicant had no right of appeal but required leave to appeal under s 24(1A) of the FCA Act notwithstanding that the practical effect of the approach adopted here was that his case was determined substantively.

38    For these reasons, I am concerned that the applicant may not have been afforded a reasonable period of time within which to prepare his case in circumstances where the timetable effectively required the case to be prepared as if it were proceeding to a final determination of the merits of the application for judicial review on 9 July 2015. I would have the same concerns even if the Minister’s evidence as to the chronology of events after the hearing on 1 July 2015 were accepted.

39    That said, however, I accept the Minister’s submissions that, even when afforded a reasonable period of time within which to prepare for the hearing of these applications, the applicant has not identified any error in the primary judge’s reasons or in those of the Tribunal indicating the existence of an arguable ground of judicial review of the Tribunal’s decision. Even with the benefit of time before the hearing of this application, no ground of challenge to the Tribunal’s decision with any merit is raised; nor am I otherwise able to find error in the Tribunal’s decision or the primary judge’s consideration of the grounds raised in the application for judicial review. It follows that I do not consider that there would be any substantive injustice caused by refusing the grant of leave to appeal.

5.3    Ground 2 of the proposed notice of appeal

40    Relevantly, the draft notice of appeal alleges that the Court below erred in failing to find, first, that the Tribunal was biased in failing to use proper country information and secondly, that the Tribunal wrongly set itself up as an arbitrator of knowledge standards required of a Falun Gong practitioner.

41    The first limb of ground two of the proposed notice of appeal appears to be intended to raise the same issues as those raised by ground one of the application for review before the Federal Circuit Court which alleged that:

RRT was biased during the hearing, the country information that it referenced did not conform to the reality.  Falun Gong is a physical and mental cultivation based on the principal [sic] of truth, compassion and forbearance.  According to ‘2011 Amnesty International (China Chapter)’, ‘2010 human rights report’ by the State Department, ‘Refugee identification and settlement policy’ published in 10 June 2009 by the British Ministry of the interior and the most authoritative reports about human rights can confirmed [sic] that persecution by Chinese government is still in process.  The attitude of government did not change.  However, RRT undervalued the seriousness that I will be persecuted by Chinese government.

42    However, given the Tribunal’s rejection of the applicant’s claim to be a Falun Gong practitioner, there was no obligation on the part of the Tribunal to refer to country information relating to the persecution of Falun Gong practitioners. No bias or apprehended bias can therefore be inferred from its failure to do so. Nor does the fact that the Tribunal made adverse findings against the applicant and did not accept his claim to be a Falun Gong practitioner alone suggest bias or that the Tribunal approached its task otherwise than with a mind open to persuasion: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] (von Doussa J); SZTGU v Minister for Immigration and Border Protection [2014] FCA 859 at [15] (Perry J). It was open to the Tribunal to disbelieve the applicant’s claims on the evidence before it and the Tribunal set out in detail logical and clear reasons for reaching its decision in this respect by reference to the evidence. I agree with the primary judge for the reasons which she gives that nothing in the Tribunal’s reasons nor in its account of the hearing gives rise to any suggestion of bias or apprehended bias.

43    The second limb of the second ground was not raised in the Court below. In effect, the applicant now seeks to contend in effect that the Tribunal applied an arbitrary standard of knowledge of religious doctrine which he was required to meet. The question whether a decision-maker has by such means fallen into jurisdictional error is, as Kenny J said in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 (SZLSP) at 374-375 [37], a “complex one”. Her Honour continued:

37.    …I accept that a Tribunal which relies on the premise that “every believer or follower of [a religion] must have certain knowledge or provide certain answers concerning aspects of that religion” may well fail to engage with the question whether the particular applicant before it is in fact a follower of the religion, and so fall into jurisdictional error. There is, however, a difference between: (a) operating from the premise that all believers will have certain specific knowledge; and (b) concluding, after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant's lack of knowledge indicates that he is not a genuine adherent of a religion. Further, it must be remembered that the Tribunal's written reasons typically represent a Tribunal's concluded view after considering all the evidence. If a Tribunal ultimately finds that an applicant's lack of particular knowledge is a reason to reject his claim, this finding does not necessarily mean that the Tribunal approached the matter from the outset on the a priori basis that the applicant was required to demonstrate that knowledge.

38.     …the Tribunal's reliance on other factors besides its evaluation of an applicant's knowledge will typically be a strong indicator that the Tribunal has conducted a legitimate exploration rather than made a determination by reference to a preconceived minimum standard of knowledge. Even where the Tribunal relies primarily on its evaluation of the applicant's answers, however, it will not necessarily run into jurisdictional error. As the authorities emphasise, there is nothing objectionable in the Tribunal questioning an applicant about his or her beliefs. When the Tribunal does so, it is not prohibited from evaluating the applicant's answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal.

44    In the present case, the Tribunal specifically referred to the decision in SZLSP and said that it was conscious of imposing standards upon an applicant. The Tribunal’s reasons reveal that its finding at [50] that the applicant was not a witness of truth with respect to his claim, relevantly, to be a Falun Gong practitioner was based upon its detailed evaluation of the applicant’s answers, including as to the length of time for which he claimed to have been practising Falun Gong, and probative material, being a report of the Department of Foreign Affairs and Trade (DFAT). Specifically, the Tribunal found:

35.    The Tribunal was concerned about the applicant’s knowledge of Falun Gong. The applicant claimed to have been a Falun Gong practitioner since about July 2010, namely a period of almost 5 years. He claimed that the practice of Falun Gong by both himself and his wife had brought his wife back from the brink of death, and that Falun Gong was his belief system. However, when the Tribunal asked the applicant to explain what Falun Gong meant to him, he was only able to repeat superficial comments, such as it gives him health benefits, it can cure any illness and there is truthfulness which means doing honest things, compassion which means doing everything with kind heart, and forbearance which means you should stand up to difficulties.

36.    The Tribunal put to the applicant that from what he had said, it did not understand how Falun Gong could cure all illnesses; the applicant was unable to explain how this could occur.

37.     When the Tribunal asked the applicant if he could tell it anything else about Falun Gong, he said no. When the Tribunal put the applicant on notice that it did not sound like he knew very much about Falun Gong, and the Tribunal may find that he was not a Falun Gong practitioner, and asked if there was anything else he could tell the Tribunal about Falun Gong, he said there was nothing else he could say.

38.    The Tribunal is aware of the decision in SZSLP [sic], and the reasons for which the decision of the first Tribunal was set aside. The Tribunal is conscious of imposing standards upon an applicant. The Tribunal has also taken into account the DFAT Report, which states that “When asked about the benefits of practicing Falun Gong, practitioners usually try to identify positive physical changes that have taken place within their own bodies”. However, the Tribunal considers that if the applicant was a genuine Falun Gong practitioner who had been practising Falun Gong for five years, he would have been able to tell the Tribunal more about Falun Gong than the superficial comments he provided. The Tribunal considers its remaining concerns about the applicant’s credibility indicate that he is not a witness of truth and not a Falun Gong practitioner, and never has been. The Tribunal considers the applicant’s inability to provide any real details about Falun Gong, despite his claimed practice of Falun Gong for five years, and his claim to have read every day for three years what he considers to be the Falun Gong Bible (Zhuan Falun), reinforces the Tribunal’s concerns in this regard.

45    It follows in my view that the Tribunal’s reasons do not reveal that it set up an arbitrary standard against which the applicant’s knowledge of Falun Gong was measured. There is no merit in ground 2 of the proposed notice of appeal.

6.    CONCLUSION

46    For the reasons set out above, the application for leave to appeal and application for an extension of time within which to seek leave to appeal are dismissed with costs as agreed or assessed.

Associate:

Dated:    4 December 2015