FEDERAL COURT OF AUSTRALIA

DUA17 v Minister for Immigration and Border Protection [2019] FCA 2110

ORDERS

THE COURT ORDERS THAT:

1.    Appeal dismissed.

2.    The appellants pay the first respondent's costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The appellants are citizens of the People's Republic of China. The first appellant arrived in Australia in 2009 on a temporary work visa which expired in October 2013. The second appellant is her husband, and the third and fourth appellants are their children.

2    Between July 2010 and April 2013 the first appellant made four trips between Australia and China, each for approximately one month.

3    In June 2013 the first appellant applied for a protection visa. The second to fourth appellants were included in that application as members of her family group who do not have protection claims of their own.

Procedural history

4    The Minister's delegate rejected the appellants' application and they sought review from the Tribunal. The first decision of the Tribunal affirming the delegate's decision was quashed and on remittal the Tribunal again affirmed the delegate's decision.

5    The Federal Circuit Court of Australia dismissed the appellants' judicial review application of the Tribunal decision on the remittal, and the appellants appeal from that dismissal.

The first appellant's protection claims

6    The first appellant's protection claims can be summarised as follows:

(1)    Before coming to Australia, the first appellant worked as a primary school teacher in China for nearly 19 years.

(2)    The first appellant resented and was opposed to the Communist Party of China's 'Young Pioneers' program, a political organisation under the leadership of the Communist Party with the purpose of instilling communist ideology into school-age children, as she believes that children should be given basic education with no political colour.

(3)    Along with two other teachers, in February 2007 the first appellant set up an informal group named 'the Society of Primary Education' (Society) for the purpose of expressing dissatisfaction with the Young Pioneers program and the system in which primary school teachers were forced to work.

(4)    The first appellant left China for Australia in June 2009. She learned from the Australian primary school system and made several trips back to China to introduce the Australian system to the Society. By 2013, the Society had grown to 67 members.

(5)    During the last of these trips, on 28 April 2013, the first appellant was informed by a city official that certain members of the Society had been blacklisted by the Communist Party's Public Security Bureau (PSB) as the Society was an anti-communist organisation and key members had been arrested. The first appellant changed her schedule and was able to leave China the next day to avoid arrest, as the PSB did not know of her involvement in the Society.

(6)    In May 2013, the PSB interrogated key members of the Society and learned of the first appellant's involvement as founder of the Society. The first appellant's father was later subject to interrogation and mistreatment by the PSB, whilst her brother and sister were also subject to investigation.

(7)    The first appellant therefore believes that she will be subject to persecution upon return to China.

The Tribunal's reasons

7    This appeal involves numerous grounds and particulars. In order to sensibly address all of the matters that are raised, it is appropriate to reproduce various paragraphs of the Tribunal's reasons under this heading, rather than under the individual appeal grounds.

8    Further, it should be noted that before the delegate and before the first Tribunal, the first appellant's credibility was in issue. It is therefore not surprising that on the remittal the Tribunal commenced with a detailed consideration of her credibility, before moving to the specific claims as to the formation and existence of the Society, the claim that her involvement with the Society had been exposed in China and the evidence as to her political views.

Credibility

9    The Tribunal found that although the first appellant's claims were detailed and consistent, her claims were narrowly-defined and appeared rehearsed, and she struggled to provide meaningful detail and context. It found that her evidence became vague, hesitant and uncertain when asked about matters that might establish inconsistencies in evidence. It stated:

30.    However, [the Tribunal] has broad concerns about the applicant's claims and supporting evidence, and ultimately her credibility. At hearing, she recounted the details of her claims, and described at length and in an animated fashion her criticisms of the Chinese education and political system. However, the Tribunal considers that her claims were narrowly defined, and appeared rehearsed. In its view, she struggled to provide meaningful detail and context. For instance, when asked about her first disclosure to her husband of her dissident activities and the details of her (claimed) hurried departure from China during her last visit- issues which the Tribunal flagged its interest in also taking separate evidence from her husband - the applicant's evidence became vague, hesitant and uncertain. Of particular concern is the applicant's evidence about her immediate response after the PRC authorities allegedly arrested her colleagues, and her hurried departure from China.

31.    The Tribunal took evidence from the applicant separately from the second-named applicant, with a view to testing the consistency of their accounts. As noted above, the applicant's evidence on these matters was hesitant, vague and ambiguous. She appeared not to be recalling her lived personal experiences, but rather giving generalised answers, consciously trying to avoid precise information that might lead the Tribunal to identify inconsistencies in their evidence. In the end, the Tribunal found this evidence to be of low probative value, due to its general nature. It therefore places minimal weight on those points which were consistency, and draws no adverse inferences from the minor inconsistencies that became apparent in the applicant parents' evidence.

32.    Overall, the Tribunal formed the impression that the applicant gave detailed, consistent evidence in relation to her stated claims, but this appeared to be rehearsed, lacking in context and somewhat contrived.

Existence of the Society

10    The Tribunal noted that a significant concern was whether the Society actually existed at all. It noted that the documents purporting to be an organisational chart and principles of the Society were printed on plain paper without indication of their provenance. It did not accept that a society, which was secretive, had less than 20 members in 2009 and had the immediate purpose of meeting in person and expressing views on education reform, would require an organisational chart or guiding principles including the exact time of monthly meetings and listing all the Society's leaders. The Tribunal noted that such documents would be needlessly risky to maintain and that the first appellant could not explain how she accessed the documents in Australia. In light of these factors, the Tribunal considered that the first appellant produced the documents for the purpose of the application and so considered that the only persuasive evidence available to it was the first appellant's own statements.

11    The Tribunal found the first appellant's evidence as to her role in the Society to be unconvincing. Relevantly it found:

57.    The Tribunal has significant doubts about the applicant's claim to have been active in such a group from the time she first left China for Australia, in April 2009.

•    As an initial comment, it is difficult to imagine what kind of role the applicant, now resident in Australia, was able to provide to this small dissident group, particularly given (a) the Society's pressing need for secrecy, (b) its work in recruiting new members, and (c) the need for such a leader to keep abreast of local developments (such as changes in education policies and personnel, and political changes).

•    In terms of her contribution to the group, the applicant said that, in her honorary role as the group's founder and an external consultant, she obtained useful information about primary education in Australia. The Tribunal found it difficult to elicit details of what exactly the applicant was providing to her colleagues. When asked what materials she took back to China during her return visits, she spoke vaguely about photographs, craft items, and various notes and reports. The Tribunal does not accept at face value that any of these items were linked with the applicant's claimed dissident activities.

…

•    The Tribunal explored with the applicant whether the Society made contact with any likeminded groups outside Shijiazhuang, and whether she had engaged in political activities in Australia. In both instances, the applicant replied briefly 'no'.

-    The Tribunal is concerned that a dissident group, which had allegedly been set up in 2007, grew rapidly and had broad objectives for education and political reform at a national level - such as abolishing the Young Pioneers and reforming the Chinese political system, had not at least considered or explored what likeminded groups might exist outside Shijiazhuang, and given thought to possible links. It was apparent at hearing that the applicant had not turned her mind to this.

-    Similarly, the applicant appears to have had many opportunities in Australia to explore whether there are like-minded people in Australia or China (apart from the Society itself); to discover whether others share her objectives; and even discuss political activities. Again, the Tribunal formed the impression that the applicant had not turned her mind to these matters. This adds to its doubts about her claims.

•    Finally, the Tribunal queried what precautions the applicant took when returning to China regularly, particularly in light of the group's secretive nature and rapid growth, and hence the ever-present risk that the authorities would discover it. She replied that she did not take precautions. In exploring this, the Tribunal had no fixed idea of what precautions a person involved in a dissident group might contemplate, but the applicant's response added to the impression that she was not in fact part of any dissident group, and had not turned her mind to the need for contingency plans or similar.

58.    The above concerns - taken together with the Tribunal's doubts about whether the Society exists and whether the applicant engaged in any political activities while still living in China - lead the Tribunal to disbelieve that she was involved in the Society or any such group, at any time. The Tribunal finds that the applicant's claims lack credibility as a whole. It concludes that there was in fact no Society, and that the applicant was not engaged in any activities promoting (primary school) education or broader political reform in China.

Authorities' alleged interest in the first appellant

12    Having found that the Society was a fabrication, the Tribunal noted that it had strong grounds to disbelieve all related claims but addressed them regardless.

13    The Tribunal considered that, even putting aside its finding that the Society did not exist, the first appellant's account of the events leading her to realise that the Society had been discovered were 'curious'. It held:

62.    At the hearing, the applicant explained that a city official tipped her off about the PSB's discovery of the Society. This person was not a member of the Society, but had been a classmate at the teachers college (at Hebei Normal University) and knew that she was close friends with the people who had been arrested (ZZ, TL and MZ). Even if the Tribunal were to take this claim in isolation, it is highly problematic. The applicant claimed that the city official took the initiative to alert her of the arrests, solely on the basis that s/he knew that they had been close friends during the teacher training course, almost ten years earlier, from 2000 to 2004. This leaves many loose ends - such as how the city official knew of their ongoing friendship, if the applicant and the other Society members met in secret; how s/he had the applicant's current contact details (she had left China some four years earlier); and why, if the official was not a member of the Society and did not know of the applicant's involvement, s/he would risk alerting the applicant about the PSB's investigations.

14    The Tribunal further noted the following concerns about the first appellant's account:

66.    At the hearing; the applicant essentially repeated her written claims. She said that her sister had telephoned her on 28 March 2013, after their father had been released, to inform her about her father's arrest and detention for one week, due to her (the applicant's) suspected involvement in the Society. The police had interrogated and tortured her father, pressuring him to help them find the applicant. Her sister told the applicant that the police showed her father the records of their interviews with ZZ and MT, thereby confirming that they had disclosed to the police the applicant's role in the Society. The Tribunal flagged a number of concerns about this account.

•    There is no apparent reason why the police would show her father any interview records or name their sources. The applicant did not respond directly, but instead repeated that the police told him that [other Society members] had informed them about the Society, and they warned him not to hide the applicant.

•    The Tribunal also queried why the police would not already know that she had left China, given her residency in Australia over the past four years and her departure through the airport. Again, she did not respond directly, but instead commented that they tortured her father, causing him to go deaf in one ear, and that they later interrogated her brother and sister.

•    The Tribunal asked the applicant to describe the exact circumstances in which she received the news from China about her father's detention - that is, where she and her husband were, and what they were doing. She replied vaguely that she could not recall. In his oral evidence, the applicant husband said that his wife got the news from her sister, and that he was there at the time. The Tribunal found it odd that the applicant wife could not recall the details of when she received such startling news (for instance, whether she was alone at the time). The applicant husband's later evidence does not resolve the Tribunal's concerns.

•    The PRC authorities' discovery of the applicant's involvement in the Society goes to the heart of her protection claims. Against a background of already serious credibility concerns, the Tribunal finds it difficult to believe that the applicant has been able to piece together the chain of events that explain the authorities' discovery of her role, and what led them to her father and siblings. It is concerned that this account did not emerge as a result of communications from her sister, and of what the police revealed to her father during his interrogation, but rather that the applicant (and others) mapped it out to form the basis for her protection claims and eventual permanent residency.

15    Accordingly, the Tribunal found:

67.    In light of these concerns, the Tribunal does not accept that the PRC authorities have enquired about the applicant's departure, harassed or mistreated family members, or signalled their intention to pursue the applicant. This follows in large part from its adverse view of the applicant's credibility, and rejection above of her previous claims - that she was involved in the Society or similar dissident activities, that the PRC authorities discovered this, and that they arrested the applicant's political colleagues. Additionally, the Tribunal disbelieves the applicant's account of her father's interrogation, which in its view was crafted for the purpose of bolstering her protection claims, and not based on real events. This reinforces the Tribunal's conclusion that the applicant's departure from China in April 2013 has not resulted in any adverse incidents, such as the interrogation or harassment of family members.

First appellant's political views

16    The Tribunal then considered the first appellant's political views. It wrote:

73.    The Tribunal has significant concerns, however, as to whether the applicant holds a political opinion that motivated her to engage in activism in the past, or that forms part of an ongoing political interest. The applicant's conduct, viewed objectively, gives no hint of her being a person who has political differences with the PRC authorities. For instance, she worked as a teacher right up to the time of her departure; it was her husband (rather than she) who started to prepare for the family's travel to Australia in mid-2007, and who then first travelled here in early 2009; and the applicant herself returned to China on four separate occasions. The lodgement of the protection visa application only in June 2013 - after the PRC authorities signalled their adverse interest in her because of the Society (a claim the Tribunal has now rejected) - further suggests that she has no strong political opinion that causes her to fear persecution or significant harm (or which she needs to suppress in order to avoid such harm). Finally, there is no persuasive evidence that the applicant has engaged in any political activities, relating to education reform in China or broader political issues, apart from her claimed work with the Society. Even when the Tribunal asked the applicant about the materials that she took back to China during her visits, she referred to photographs of children, craft items, school reports and notices, and some news items. The Tribunal is not satisfied, from this description, that they involved any material that was political in nature, or would be perceived as such.

17    Given its overall assessments of her activities and adverse view of her credibility, the Tribunal did not accept that the first appellant had a political opinion about the Chinese primary education system that warranted protection.

Conclusion

18    Having rejected all claims based on involvement in the Society, and given that the first appellant advanced no claims on the basis of her ethnic or religious background, the Tribunal found that the appellants did not satisfy either the refugee criteria or the complementary protection criteria. It therefore affirmed the delegate's decision to refuse the appellants' protection visa application.

Before the Federal Circuit Court

19    The appellants raised four grounds of appeal before the Federal Circuit Court. Three are relevant to this appeal.

20    The first claim was that the Tribunal breached its obligation under s 425(1) of the Migration Act 1958 (Cth) (Act) to provide a real and meaningful hearing, in that it failed to disclose to the first appellant issues that arose on the review, being whether she had considered whether there were other groups in China or Australia with objectives similar to the Society. The first appellant relied upon an absence of direct questioning. The primary judge found that the Tribunal had asked the first appellant the question of whether the Society had ever reached out and made contact with other groups in China or Australia that might be interested in discussing education reform in primary school. His Honour held that taking into account that the question of credibility was expressly raised with the first appellant, it could not be said that she was not on notice of the relevance of whether or not she had explored connections with other groups.

21    The second claim was that the Tribunal had misunderstood parts of the first appellant's evidence. The primary judge stepped through the alleged misunderstandings in turn, and found that each of the impugned conclusions was open to the Tribunal on the evidence before it and did not reflect any misunderstanding of the first appellant's evidence.

22    The third claim (numbered four before the primary judge) was that various findings relating to the first appellant's credibility were legally unreasonable. The appellants referred to some 11 findings. The primary judge considered each of these in turn with reference to the transcript of proceedings before the Tribunal, and found that no jurisdictional error was made out. The particulars of unreasonableness upon which the appellants relied are essentially repeated in the appeal before this Court and are set out below.

Grounds of appeal before this Court

23    The appellants rely on three corresponding grounds of appeal in this Court.

Ground 1

24    The first ground is as follows:

(1)    The Court erred in finding that the second respondent (the Tribunal) did not act in breach of s. 425(1) of the Migration Act.

Particulars

(a)    Error in finding that there was no failure on the part of the second respondent (the Tribunal) to disclose to the applicant an issue that arose on the review, being whether she had considered whether there were other groups in China with objectives similar to the Society for Primary Education (the Society).

(b)    Error in finding that there was no failure on the part of the Tribunal to disclose to the applicant an issue that arose on the review, being whether she had considered whether there were groups in Australia with objectives similar to the Society.

25    The appellants contend that whilst the Tribunal raised the general issue of credit with the first appellant, it did not ask about specific aspects of the first appellant's claims that were in issue, being whether the members of the Society had ever thought about reaching out to similar groups in China or Australia, and whether the first appellant had ever considered whether there were like-minded groups in Australia.

26    The appellants acknowledge that the Tribunal asked whether the Society had ever reached out and made contact with other groups of people in other parts of China who might also have similar objectives to the Society. However, they submit that this is a distinct issue to whether the first appellant had ever considered doing so. They say that no question was asked as to whether there were groups in Australia with objectives similar to that of the Society, and thus there was no basis for finding that the first appellant had not considered whether there were like-minded groups in Australia.

27    The appellants submit that therefore the Tribunal committed a jurisdictional error of the kind identified in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. The High Court in SZBEL wrote:

[47]    First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

28    The appellants also rely on statements in SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1 and ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 at [25]-[33] as to the identification of an 'issue' that should be brought to the attention of an applicant in order to accord procedural fairness. In SZHKA, Besanko J (at [115]) referred to issues as 'matters that are not of an insubstantial nature'. In ABV16, Bromberg J collected a number of authorities, including SZHKA, and observed that the critical issues that are to be considered needed to be identified at a level of specificity which gave meaning to the opportunity to respond (at [27]).

29    I was provided with a copy of the transcript of the Tribunal proceedings on the remittal, which took place on 27 March 2017. The Minister referred to various extracts from the transcript:

THE MEMBER: Did your society ever reach out and make contacts with other groups of people in other parts of China who might also be interested in discussing about education in form or primary schools?

THE INTERPRETER: No.

…

THE MEMBER: In Australia - you've been in Australia now for - let's have a look - '09, 2009, '10, '11, '12, '13, '14, '15, '16, '17 - so almost eight years. I'm sorry, seven years. So apart from your activities when you go back to China, have you got any examples of having participated in discussions here, or contributed to any - you know, any exchanges in the Chinese community in Australia, or was your only activity when you went back to China and spoke with your group of friends there?

THE INTERPRETER: Even though sometimes I was not in China, I still participated in discussions about some activities of the societies through video chatting.

THE MEMBER: I see. So the answer to that is that you - your political opinion or your views on this, you expressed them in the QQ or social media that you - the evidence of which you destroyed, but that you have not got other evidence of being - of expressing your political opinion here in Australia.

THE INTERPRETER: No. I don't have any other evidence to prove this.

30    The Minister also referred to the following statement by the Tribunal member, made prior to the exchanges above, which reveals the member explained clearly that credibility was in issue:

THE MEMBER: So just to say that we just talked about the definition that will apply in your case and it's the definition of a refugee that applied at the time when you applied for refugee status. Now I just want to make a few observations that might help focus our discussion a little bit. So as you understand - you will know from both the department person and from the first tribunal member, a really important part of this decision will be credibility. That is, you've made a lot of claims about your experiences so I have to make a determination of what I believe and accept and what I don't believe. When I make that, I do have a lot of - I've received the updated country information about the human rights and - the human rights situation in China and, of course, that forms important background information for me.

31    In my view, this statement made it abundantly clear that the credibility of the first appellant's account was the central issue of the proceedings. It cannot be said that the first appellant was not on notice of the importance of her credibility in light of such a clear statement. The previous Tribunal made an express finding that it was not satisfied the Society actually existed. This would indicate to the appellant that everything she said in support of the application was in issue, especially in matters relating to whether the Society existed. On that basis, it ought to have been apparent to the first appellant that perfunctory responses to the questions about exchanges with the Chinese community in Australia or China or whether she voiced political opinions could count against her credibility (I also note that the consideration of her political opinion was a matter that loomed large in the successful appeal from the first Tribunal decision).

32    However, the question is whether, even allowing for the fact that the issue of credibility was clearly exposed to the first appellant, the matter of whether she considered whether there were groups in Australia or China with objectives similar to the Society was a discrete and substantial issue that needed to be identified at a more specific level with the first appellant.

33    I consider the appellants' asserted distinction between whether the first appellant considered whether there were such groups as against whether she in fact reached is artificial. The questioning was clearly aimed at eliciting any evidence from the first appellant as to steps taken by her within Australia or China that might support her claim as to the existence of the Society such as any external corroboration of such steps. To that end, mere consideration is part of the process that might manifest in external corroborative conduct, but of itself is not a discrete issue that required separate identification by the Tribunal. It is subsumed by the broader issue of the first appellant's conduct that might support her claims as to the existence of the Society and the basis upon which she might be exposed or identified as holding political opinions because of her role in the Society.

34    In my view the Tribunal satisfied its obligations as explained in SZBEL. The Tribunal's finding that neither the Society nor the first appellant had considered contacting like-minded groups was based on the first appellant's brief replies to the Tribunal's questioning on these points. The Tribunal's reasons record that it considered it 'apparent' at the hearing that the first appellant had not considered contacting groups in China, and that it 'formed the impression that the [first appellant] had not turned her mind to these matters'. It ought to have been apparent to the first appellant that such an impression might be formed from the brief and uninformative responses to the questioning and, in any event, the Tribunal is not obliged to give an applicant a running commentary upon what it thinks about the evidence that is given: SZBEL at [48]. It was open to the first appellant to provide additional context or evidence of consideration to strengthen her case on this point but she did not do so.

35    I do not consider any lack of procedural fairness is established and no error is disclosed in the decision of the primary judge to dismiss the matters the subject of ground 1. Ground 1 must be dismissed.

Ground 2

36    This ground asserts as follows (a third particular was not pressed):

The Court erred in finding that the Tribunal did not misunderstand and that it lawfully considered important parts of the appellant's evidence about:

(a)    The nature and purpose of documents and materials that the first appellant claimed to have brought back to China to show her colleagues in [the Society].

(b)    The circumstances of the Appellant being told of the Public Security Bureau's discovery of the Society.

37    The appellants relied on the authorities to the effect that if a tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued, its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63].

38    The authorities also establish that:

(a)    the misconstrued claim must be a substantial, clearly articulated argument relying upon established facts in order to cause jurisdictional error: NABE at [55] and [68], citing Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24].

(b)    the Tribunal's reasons should not be scrutinised minutely and finely with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [30].

(c)    an error of fact will not cause jurisdictional error if it is of no consequence to the outcome because it is subsumed in findings of greater generality or because there is a factual premise upon which the contention rests which has been rejected: NABE at [63], citing Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47].

39    The Minister's position is that there was no misunderstanding about the facts as alleged.

The purpose of the documents obtained in Australia

40    The Tribunal considered at para 73 whether the first appellant held a political opinion that would expose her to relevant harm on her return to China. In that context it referred to the materials the first appellant claimed she took back to China.

41    The appellants submitted that it was not claimed that the materials the first appellant brought back to China were in themselves subversive: rather, they were educational materials to provide her colleagues with information about primary education in Australia.

42    The Tribunal's finding on this point does not demonstrate a misunderstanding of the submission. The Tribunal did not assert that the materials were subversive, or that the first appellant claimed that they were subversive. Rather, it is apparent from the reasons that the Tribunal sought to investigate whether there was any evidence that might support the first appellant's claim as to her political opinion and its potential exposure and so had regard to the materials taken to China in that context.

The circumstances in which the first appellant was told of the PSB's discovery of the Society

43     The appellants refer to the Tribunal's findings at para 62, where it stated, amongst other things, that the first appellant had claimed that 'the city official took the initiative to alert her of the arrests, solely on the basis that s/he knew that they had been close friends during the teacher training course …'.

44    The appellants submitted that during the hearing before the Tribunal, the first appellant also stated that she had a 'very close-ish' relationship with the official and that the classmate (the official) 'knew almost all of my friends', and so the Tribunal was in error when it found that the official alerted her 'solely' on the basis that he or she knew that the first appellant used to be close friends with the arrested people.

45    Such a submission descends into a dissection and parsing of words that is inappropriate when considering the reasons of a Tribunal. Clearly the Tribunal's statement, when the paragraph is read as a whole, reflects that the official also spoke to the first named appellant. The Tribunal was clearly on notice of the claim that the first appellant knew the relevant official. The appellants place an artificial weight on use of the word 'solely'. The Tribunal was concerned as to how the official had knowledge of her ongoing relationship with those arrested, particularly in circumstances where there was considerable secrecy as to the members purportedly meeting together. It was open to the Tribunal to find that the question of how the classmate would have been aware of the nature of the first appellant's ongoing relationships with members of the Society was left unanswered.

46    The Tribunal adequately dealt with the first appellant's representation in this case and did not misunderstand the evidence, and it was open to the Tribunal to find that the first appellant's statements during the hearing failed to dispel its concerns as to how the official allegedly obtained relevant information.

47    I would not uphold ground 2.

Ground 3

48    Ground 3 is based on an allegation that the Tribunal's decision was, in effect, littered with findings that indicate unreasonableness on its part. The appellants rely on a long list of particulars:

Particulars

(a)    In finding that the Appellant's claims were 'narrowly defined' and that her evidence was rehearsed and contrived (AB 509-10 [30], [32]) the Tribunal ignored the following which would have been evident to any reasonable Tribunal;

(i)    The claims were that she had been an instigator and leader of what was basically a discussion group. They were by their nature narrowly defined.

(ii)    That the first applicant had given the same evidence twice before, to the Minister's delegate and to the first Tribunal, so that it had been rehearsed.

(iii)    It was only sensible for a person who was to appear before the Tribunal to prepare beforehand.

(b)    The finding that the applicant's evidence was 'vague, hesitant and uncertain' (AB 509 [30]) was not open on the evidence.

(c)    The finding that the applicant's account of the goals of the 'Society for Primary Education' (the Society) was generalised and repetitive (AB 511 [46]) was not open on the evidence.

(d)    The Tribunal's statement, at AB 518 [73], that it found it difficult to elicit details of the materials that the applicant was providing to her colleagues in China was made in the face of the applicant having fully engaged with questions which were asked of her at hearing.

(e)    The Tribunal made an adverse credit finding on the basis of questions that were not asked, that finding being at AB 515 to the effect that the applicant had not at least considered whether there were other groups in China with objectives similar to the Society.

(f)    The Tribunal drew an adverse inference as to credit on the basis of questions that were not asked, at AB 515 to the effect that the applicant had not at least considered whether there were groups in Australia with objectives similar to the Society.

(g)    There was no rational basis for the conclusion drawn by the Tribunal at AB 515, that the failure of the applicant to take unspecified 'precautions' on her return to China on several occasions, at times when her evidence was that she did not consider herself in danger, added to the Tribunal's impression that she was not part of a dissident group.

(h)    The Tribunal, at AB 517 [66] stated that it queried why the police did not know why the applicant had left China when it was claimed that her father had been interrogated and erroneously stated that she did not respond directly. She had said, directly, that the police would know that she had left China. The Tribunal acted on evidence which was not given, and did not exist.

(i)    The Tribunal, at AB 517 stated that it asked the applicant to describe the exact circumstances in which she had received news of her father's detention, and observed 'vaguely' that she could not recall. In fact the question was not asked and the Tribunal acted on evidence which was not given, and did not exist.

(j)    It was not open for the Tribunal at AB 517 to reach adverse findings on the applicant's credit to find, on the basis that the applicant had, it said, been able to piece together the chain of events that explained the authorities' discovery of her role in the Society rather than learn this from her relatives.

(k)     The Tribunal's findings about the applicant's political views, at AB 518-9 [73]-[74] were arbitrary and unreasonable.

49    The principles relating to legal unreasonableness were the subject of detailed analysis in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1, and were relevantly collected in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [58]-[65].

50    The appellants submit that various findings by the Tribunal were unreasonable in that the Tribunal reached a decision which no rational or logical decision-maker could reach on the same evidence: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130] (Crennan and Bell JJ). The appellants also submit that the findings lacked evident and intelligible justification, as explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ). The appellants also refer to the statement in Eden that:

[63]    The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at 445[42].

51    A mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or demonstrates that the Tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error. Courts should be slow to make such a finding: Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10 at [35].

Particular (a): The Tribunal erred in finding that the claims were 'narrowly defined' and 'apparently rehearsed'

52    The appellants refer to paras 30 and 32 of the credibility findings made by the Tribunal and submit that it was arbitrary and unreasonable for the Tribunal to draw a negative inference from the first appellant's claims. The appellants submitted that the claims were by their nature narrowly defined, being that the first appellant 'initiated and participated in what was basically a discussion group', and that it was to be expected that the claims appeared rehearsed because the first appellant had given the same evidence on three other occasions prior to giving evidence before the second Tribunal.

53    As to the claims being 'narrowly defined', it is clear when the reasons are read as a whole that the Tribunal sought to evince further evidence of context and detail beyond the information repeated by the first appellant and was not satisfied that the first appellant was able to provide such information. The Tribunal provided specific examples: see para 30 included above. The Tribunal took into account that there was consistent evidence, but there is no error in also taking into account that the consistency appeared to be limited to a stated or narrow case and did not extend to any further context. There is no unreasonableness disclosed by the Tribunal's reasoning in this regard.

54    As to the finding that evidence appeared rehearsed, it should be noted that the other occasions on which the evidence was presented were some time prior to the hearing before the Tribunal on the remittal. The first appellant was interviewed by the Minister's delegate on 11 December 2013, and by the first Tribunal on 16 October 2014 and 4 November 2014. The hearing before the second Tribunal was undertaken on 27 March 2017. When the first appellant gave evidence before the Tribunal on the remittal, it had been over two years since she had last given evidence. In such circumstances I do not accept that it would follow that her claims would appear rehearsed. It was open to the Tribunal to find that the claims appeared rehearsed, particularly as the Tribunal member had the advantage of witnessing the first appellant give her evidence.

55    Counsel for the appellants also made an oral submission to the effect that because the first appellant was speaking through an interpreter, it would be difficult as a matter of practical reality to take body language or demeanour into account. The presence of an interpreter can create difficulty: SAAK v Minister for Immigration and Multicultural Affairs [2002] FCAFC 86; (2002) 121 FCR 185 at [21]-[31].

56    However, the Tribunal was entitled to have regard to and base findings on the first appellant's demeanour while giving evidence: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [34]. The fact that the Tribunal took the first appellant's demeanour into account does not itself constitute jurisdictional error, especially given that the Tribunal also made its findings having regard to inconsistencies in the first appellant's case and her inability to articulate important aspects of her evidence.

57    I do not consider a case for unreasonableness with respect to particular (a) is made out.

Particular (b): The Tribunal erred in finding that the first appellant's evidence was 'vague, hesitant and uncertain'

58    The appellants refer to para 30 of the Tribunal's reasons, reproduced above.

59    The Tribunal flagged during the hearing that it would raise certain issues separately with the first appellant's husband. Those issues included the circumstances of her first disclosure of her dissident activities to him and her hurried departure from China. It was with respect to such matters that the Tribunal found the first appellant's evidence was then 'vague, hesitant and uncertain'.

60    The appellants submitted that the finding about the first appellant's evidence is contradicted by the transcript. They refer to particular pages from the transcript and note that the questions asked were answered in a straightforward way.

61    Having reviewed the transcript, there are a number of occasions during the hearing where the first appellant's response could be characterised as vague, hesitant and uncertain. The examples referred to include evidence given after the Tribunal member asked the second appellant to leave the hearing room. In particular, there are passages where the Tribunal member clearly had difficulty eliciting a straightforward response as to whether the second appellant had met the first appellant's friends who allegedly established the Society with her, and as to how often and where the Society members met. Having regard to those parts of the transcript and recognising the inherent advantage available to the Tribunal in the assessment of the first appellant's demeanour, I do not consider that the Tribunal's finding was reached in the absence of an evident and intelligible justification.

Particular (c): The Tribunal erred in finding that the first appellant's account of the goals of the Society were 'generalised and repetitive'

62    The appellants submitted that the Tribunal did not provide any justification for why it found the first appellant's account of the goals of the Society 'generalised and repetitive', and that this finding is inconsistent with the evidence provided by the transcript. Additionally, the appellants submitted that the Tribunal did not ask questions on how the objectives of the Society were to be achieved.

63    However, a review of the transcript reveals that the Tribunal asked the first appellant for specific examples of what the Society wanted to achieve and how. The first appellant responded at the highest level of generality.

64    The Minister referred to the following example of an exchange from the transcript:

THE MEMBER: So [the Appellant], I would now like to talk to you - talk about your claims that you set up the society. So when did you do that and why did you decide to do that?

THE INTERPRETER: I established the society at February 2007.

THE MEMBER: And what was the reason?

THE INTERPRETER: Like I said, I have long been unsatisfied with a lot of rules and regulations about the school management and the Young Pioneer group but I was angry without having the opportunity to say something about it and then after the death of the student I had a very strong wish to - I had a very strong desire to establish an organisation of my own as then I established this society to promote our own teaching methods and allocation ideologies and also I hoped that I could recruit more people to join our society so that we can turn over the - so that we can turn over the Young Pioneer group.

THE MEMBER: Just explain to me, please, when you say 'to promote my ideology' and as I understand from what you've said so far you simply don't agree with the Young Pioneers being in schools and ultimately the Young Pioneers are part of the - an instrument of the Community Party, so really it's just you don't agree with the Communist Party propaganda as in to young children? Is that it or was there something else that your society was trying to promote, maybe an alternative or something more precise or was it simply opposition to the Young Pioneers?

THE INTERPRETER: In fact, our main purpose is to turn over this Young Pioneer group in schools and we also have other purposes. For example, we would like to promote and enhance the reform of our education system in China because we have found that there are some corruptions and the very unfair events in our teaching and education systems.

THE MEMBER: Can you be more - can you give me a precise -1 don't know- you know, again, that's a problem that the Chinese government experiences at all levels, so can you just give me one concrete example of the kind of corruption of that you were thinking - or, you know, of what your group was planning to do?

THE INTERPRETER: So I can give some examples of the corruption in primary school.

THE MEMBER: No. I'm not asking you about examples of corruption, sorry. Just to clarify, I'm asking for an example of what your group intended to do?

THE INTERPRETER: For example, we would have some meetings and share our teaching experience and our teaching thoughts with each other, especially some experience from other countries, particularly about human rights and freedom.

THE MEMBER: And so the plan was to have discussions groups. Was there anything apart from discussion groups?

THE INTERPRETER: And then we discuss about how to - how we can turn over the Young Pioneer group.

THE MEMBER: Okay. And what- but help me understand what that means because you could try overturning the Communist Party, you could try overturning the Young Pioneers and what was your group hoping to achieve, a small group of people apart from having some nice discussions?

THE INTERPRETER: As for some specific plan, in April 2013 we drafted an initiative and we sent these initiatives to the department of education in Hubei Province.

THE MEMBER: Do you have a copy of that initiative?

THE INTERPRETER: I do have the copy of these initiative but - because it was drafted by another two - the other two officers in our society but all the society members discussed and - discussed about the content of these initiatives and we together made a plan.

65    It is apparent from this exchange that the Tribunal did attempt to elicit from the first appellant concrete examples of what the Society's objectives were and how they were to be achieved. The appellants' contention in this regard is not supported.

66    I also consider that the first appellant's answers to the Tribunal's questioning can reasonably be characterised as 'generalised and repetitive'. In the example above the Tribunal, having heard that the overarching goal of the Society was to overturn the Young Pioneers group and reduce corruption in the Chinese education system, asked for 'one concrete example' of what the group was planning to do to achieve those goals. In response, it was said that the group met to 'discuss about how to … turn over the Young Pioneer group'. Such responses do nothing to provide specificity on the Society's objectives and how they were to be achieved. It seems to me there is a proper basis for the Tribunal's reasoning. I do not consider that the Tribunal's findings on this point can be said to lack an evident or intelligible justification.

Particular (d): The Tribunal erred in finding that it was difficult to elicit details of what the first appellant provided to her colleagues in China

67    The appellants refer to this statement of the Tribunal:

57    The Tribunal found it difficult to elicit details of what exactly the applicant was providing to her colleagues. When asked what materials she took back to China during her return visits, she spoke vaguely about photographs, craft items, and various notes and reports.

68    Both the appellants and the Minister rely on the following extract from the transcript:

THE MEMBER: And can you tell me exactly, please, what items were you taking back into China? You said, 'Generally I took back items on an education in Australia or human rights,' or so. What exactly were you carrying back into China?

THE INTERPRETER: The materials include photos of the children at the school where I taught Chinese, and there's some hand - some craft made by children; reports from teachers in schools, and notices issued by schools; and some news about education that I just cut out from the newspaper.

THE MEMBER: And were these Chinese or English language materials?

THE INTERPRETER: Some are in Chinese and some are in English; for example, the news scraps from the newspaper - they were from Chinese newspapers, and for other materials from the schools were mainly in English, but I would ask my daughter to translate the materials thoroughly, so I could tell - I could tell my members about the contents.

69    The appellants submit that when the Tribunal asked what materials she provided to her colleagues in China, she answered the question directly and described those items in detail and the Tribunal did not follow up its question in any substantive way.

70    To my mind, having regard to the reference to the first appellant speaking vaguely and the descriptions of items given, it was not unreasonable for the Tribunal to form the view that it did. It had to ask for specific details. References to 'notices' and 'news' were general in their nature and did not disclose any relevant content. Having asked for 'exact' details as to what items the first appellant took back to China, I consider that the first appellant's answer was one that could reasonably be described as general. Whether the description of materials was sufficiently precise is a matter on which reasonable minds may differ, but that does not justify a finding of unreasonableness.

71    Nor do I consider that the Tribunal acted unreasonably in not seeking further elaboration on the first appellant's answers. It asked for exact details following a general answer. The Tribunal was not obliged to press the first appellant until she provided an answer that met the requisite level of specificity. This is especially so where the first appellant was clearly on notice as to the importance of her credibility. It was open for the Tribunal to give the first appellant an opportunity to give further detail and, not being satisfied with the level of detail provided, move on to the next inquiry.

Particulars (e) and (f): The Tribunal erred in finding that the first appellant, or the Society, had not considered whether there were like-minded groups in Australia or China

72    The appellants submitted that the Tribunal erred in reaching these findings, as no question was asked on either topic and it was unreasonable for the Tribunal to draw an adverse inference on an issue where no question was asked. The appellants draw a distinction between the act of reaching out, as to which questions were posed and answered, and the act of considering whether to reach out, as to which it was submitted no questions were asked.

73    These grounds are substantially the same as the issues raised in ground 1 of this appeal. I would dismiss these grounds for the same reasons I have given at [25]-[35] above. No unreasonableness is established.

Particular (g): The Tribunal erred in drawing an adverse inference from the first appellant's evidence that she took no precautions when returning to China

74    The appellants refer to the Tribunal's finding at para 57 that the first appellant did not take any precautions or consider taking such precautions when returning to China. The appellants say that the first appellant gave evidence that she did not consider herself in danger before the Society was discovered by the PSB and that she did not carry subversive materials when travelling. The appellants submitted that any adverse inference would have no rational basis.

75    However, the Tribunal noted that the first appellant's failure to take precautions had to be viewed in the context of the first appellant's other evidence that she was part of a dangerous, secretive dissident group which had grown rapidly, creating a risk that the authorities would discover it, a risk that motivated the family's travel to Australia for safety. The Minister referred to the first appellant's evidence that the second appellant started to make preparations to leave China in the middle of 2007, having learned that his wife was part of a secret society. The first appellant said her husband hoped she would quit the Society if she came to Australia.

76    Having regard to that other evidence, it was not unreasonable for the Tribunal to expect that the first appellant might have taken precautions of some kind.

Particular (h): The Tribunal erred when it queried why the police would not know she had left China at the time of her father's arrest, and stated that she did not respond directly.

77    The context of this finding was that the first appellant gave evidence that after she was in Australia, the police asked her father not to hide her. The Tribunal then queried why the police would not already know that the first appellant had left China. This concern formed part of the Tribunal's reasoning for disbelieving that the first appellant's father had been interrogated or tortured.

78    The appellants submitted that contrary to the Tribunal's finding, the issue was addressed directly by the first appellant, referring to the following extract from the transcript:

MR SILVA: Yes. Why - why did they show your father - I - I understand the police might have told your father - but - but why would they show your father an interview record. I - I don't understand why they would want to do that.

THE INTERPRETER: The police shows the interview records to my father and it just tells my father that they have already told the … about the society and about me, and asking my father not to hide me.

MR SILVA: So but the police would have realised you were in Australia, wouldn't they?

THE INTERPRETER: Yes.

MR SILVA: Yes. So did they - during that week, did they do anything apart from just talk to your father? Have they done anything else to him, or have they done anything to other family members?

THE INTERPRETER: During the seven days, they tortured my father both mentally and physically, and they beat my father, and caused the deafness in his right ear, and after releasing my father, the police also interviewed my brother and sister.

79    The appellants submitted that the Tribunal's question was simple and called for a direct answer, and that was provided. However, the submission ignores the context in which the question was asked. It is apparent from the rest of para 66, and the questions posed in the extract above, that the Tribunal was not concerned with the factual question as to whether the police knew that she had left China. Clearly a direct answer ('yes') was given to that specific question. Rather, the Tribunal's concern was why the Chinese authorities would have asked the first appellant's father not to hide her when they already knew that she had left China. The first appellant did not provide any real explanation as to that aspect of her evidence. To my mind, it was a legitimate line of questioning and no real answer was directed to it.

80    The Tribunal referred to this exchange as but one of the reasons why it had concerns about the first appellant's account of the police interrogation. I am not satisfied that unreasonableness is disclosed by the Tribunal's conduct in taking that exchange into account in assessing the first appellant's credibility.

Particular (i): The Tribunal erred in stating that the first appellant could not recall the circumstances in which she learned of her father's detention.

81    The appellants refer to that part of the reasons that states:

66.    The Tribunal asked the applicant to describe the exact circumstances in which she received the news from China about her father's detention - that is, where she and her husband were, and what they were doing. She replied vaguely that she could not recall. In his oral evidence, the applicant husband said that his wife got the news from her sister, and that he was there at the time. The Tribunal found it odd that the applicant wife could not recall the details of when she received such startling news (for instance, whether she was alone at the time). The applicant husband's later evidence does not resolve the Tribunal's concerns.

82    In rejecting any basis for impugning this part of the reasons, the primary judge referred to the following extract from the transcript:

MR SILVA: Where exactly was your husband when he - when you told him or when he learned that your father and your siblings had been mistreated?

THE INTERPRETER: In Australia.

MR SILVA: No. I know what country he was in. I'm asking - tell me the exact situation. Did you tell him one evening over dinner, or did you telephone him at work and say, 'Oh, my God, my father has' - how did you tell him?

THE INTERPRETER: On 28 May, after I got a call from my sister, I told my husband about the mistreat of my father and the brother and sister, and also I told my husband that my father was beaten and - which caused the deafness in his ear.

MR SILVA: Okay. And where exactly was - you said 'I told my husband'. I'm asking for specifics if possible, so did you telephone him? Did you speak in person? Where exactly were you? I would like you to give me some specific information, please - not general, but specific.

THE INTERPRETER: At home, and I spoke to him in person.

MR SILVA: Okay. Was he at home when you received the call from your sister?

THE INTERPRETER: I can't remember quite clearly. Maybe when I got the call from my sister, my husband wasn't at home. And my sister - actually my sister called me.

MR SILVA: Yes. I - I know your sister - you've said your sister called you. What I'm after - I'm trying to find out exactly how your husband discovered - - -

THE INTERPRETER: I told him in person.

83    Counsel for the appellants contended that the Tribunal's statement was flawed for three reasons. First, it was submitted that the question actually posed by the Tribunal - what the exact situation was when the first appellant's husband learned of her family's mistreatment - was different to that upon which it made its finding. To my mind that is matter of semantics. The substance of the questioning and the evidence that followed addressed where both the first and second appellant were and how they received the relevant news. In that context, it cannot be said that the Tribunal's questioning during the hearing dealt with a different event to that upon which it made findings in its reasons.

84    Second, the appellants submitted that a number of specific details were directly provided and so the question was directly answered: specifically, the second appellant's location in Australia, the date of 28 May, and that the first appellant was at home when she learned of her father's detention.

85    However, it is apparent that other aspects of the first appellant's evidence were less clear. For example, the Minister refers to the first appellant's evidence that 'maybe when I got the call from my sister, my husband wasn't at home. And my sister - actually my sister called me'. I consider that it was objectively open to the Tribunal to describe the first appellant's responses to its questioning as 'vague' on this point.

86    Third, the appellants contend that the first appellant did not say that she 'could not recall' details as to the circumstances in which she received news of her father's detention. The transcript demonstrates that this submission is incorrect. The first appellant responded to a question asking whether her husband was at home when she received the news with the statement 'I can't remember quite clearly.' The first appellant may not have used the exact words attributed to her by the Tribunal but the words used were to the same effect.

87    In my view there is no unreasonableness disclosed by the Tribunals' description of this evidence. Its reliance on this evidence as a matter that caused it concern was objectively open to it.

Particular (j): The Tribunal erred in making an adverse finding that the first appellant 'pieced together' the chain of events that explain the authorities' discovery of her role.

88    The appellants refer to the Tribunal's findings at para 66 that it considered it 'difficult to believe' that the first appellant 'has been able to piece together' the chain of events that explain the authorities' discovery of her role from what the police allegedly revealed to her father during interrogation, and that this suggested that she had instead 'mapped out' the events to form the basis of her claim.

89    The appellants submit that the Court below erred in the manner in which it dismissed this particular. The primary judge dismissed this particular on the following basis:

[61]    In relation to ground 4(j), [counsel for the appellants] sought to take issue with the Tribunal's finding in relation to finding it difficult to believe that the first applicant had been able to piece together the chain of events that explain the authority's discovery of her role in the society and what led them to her father and siblings. That was an adverse finding that was open to the Tribunal. It cannot be said to be illogical or unreasonable. In that context, the Tribunal had raised concerns regarding why the authorities would reveal records and interviews and in relation to the question raised in respect of questioning the father in circumstances where she had already left China. There is no illogicality or unreasonableness as alleged in ground 4(j). No jurisdictional error as alleged in ground 4(j) is made out.

90    The appellants submit that the primary judge's reasons do not relate to the validity of the Tribunal's finding on this point. They submit that the issue in dispute was the fact that the first appellant had to piece together information rather than find it out from her family, and the primary judge's finding does not address this issue.

91    I do not accept this submission. The Tribunal's finding discloses a concern that it would be illogical for the police to reveal sufficient information to the first appellant's father for her to then piece together the relevant chain of events, and therefore that the narrative may have been constructed. It is to be recalled that the first appellant claimed that the police had showed her father interview records with her colleagues that confirmed her involvement in the Society. The Tribunal considered there was no apparent reason why the police would disclose such information, a matter flagged with the first appellant. The Tribunal's concern was not whether the first appellant had pieced the chain of events together herself or with the help of her family - it was a concern that, given that it would be illogical for her or her family to be told of the events by police, she had in fact concocted the story. In that context, the primary judge was correct to note the Tribunal's concerns as to why the authorities would reveal records and interviews during an interrogation, and to hold that this adverse finding was open to the Tribunal. I do not consider that there was error on the part of the primary judge on this point.

92    The appellants also submit that no questions were posed to the first appellant on this point. However, it is apparent that the Tribunal raised the question during the hearing as to why the police would show her father interview records. It was clear from the Tribunal's questioning that it had doubts as to how the first appellant had been identified as having a role in the Society. As discussed above, the first appellant was clearly on notice that her credibility was in issue in the proceedings and that she had not documented or substantiated her claims. The Tribunal gave the first appellant opportunities to comment on inconsistencies and instances of illogicality in her evidence, and highlighted its concerns with her at the hearing. I do not consider that the appellants have established unreasonableness on the part of the Tribunal in the manner in which it made its credibility findings.

Particular (k): The Tribunal erred in finding that the first appellant's conduct was not indicative of political differences with the Chinese authorities.

93    The appellants refer to the Tribunal's findings at para 73 that the first appellant's conduct, viewed objectively, gave no hint of her being a person holding political differences with Chinese authorities.

94    They submit that each of the examples of conduct raised has an innocuous explanation: for instance, they submit that the fact that the second appellant started to prepare for the family's travel does not demonstrate any lack of political difference, but rather that the second appellant was merely more timid than the first appellant and wished to leave China sooner. Consequently, they submit that the Tribunal erred in reaching an adverse conclusion based on this material and evidence.

95    Counsel for the appellants submitted at the hearing that the Tribunal was unreasonable in reaching an adverse conclusion based on the absence of evidence, as one 'wouldn't expect persuasive evidence of membership of a covert society in an oppressive country'. He further submitted that the Tribunal dismissed the first appellant's claim that she had strongly-held political views essentially for those reasons alone.

96    Regardless of whether the conduct referred to may have an innocuous explanation, the Tribunal's findings demonstrate a concern that the first appellant had not adduced any evidence or acted in a way that supported her claims to hold an adverse political opinion, in circumstances where it had already rejected her claims to have been involved in the Society. As para 73 of its reasons indicate, the Tribunal went to some effort to ascertain whether there was evidence that might support the first appellant's claims.

97    It is also clear that the Tribunal was well aware and took into account that, when considering the existence of an allegedly covert or secretive organisation, there may be an absence of documentary or corroborative evidence. That follows from the nature of such organisations. It expressly addressed this issue as part of its credibility finding. It did not do so merely by way of lip-service. It carefully considered credibility even having regard to an absence of corroborative evidence. It did not dismiss the first appellant's claims on the basis of a lack of corroborative evidence alone, but because of a number of matters that led to its adverse credibility finding. It is axiomatic that the Tribunal's reasons are to be read as a whole.

98    I do not consider that the Tribunal's findings relied upon for particular (k) were arbitrary or capricious as alleged.

Conclusion as to ground 3

99    Practically speaking, the appellants did not seek to address in any detail the reasons of the primary judge but rather re-argued the matters the subject of the particulars. Regardless, I have considered the reasons of the primary judge in order to ascertain if error is disclosed. To my mind, having carefully considered all of the particulars relied upon, the primary judge's reasons and the reasons of the Tribunal, no error is disclosed in the determination of the primary judge to dismiss the matters the subject of this ground when they were before his Honour.

Conclusion

100    None of the grounds advanced by the appellants demonstrate error on the part of the primary judge or the Tribunal.

101    It follows that the appeal is dismissed.

Associate:

Dated:    16 December 2019