SZNKG & Anor v Minister for Immigration & Anor [2009] FMCA 709 (23 July 2009)

Last Updated: 4 August 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNKG & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 709

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming persecution in China on the basis of the first applicant’s practice of Falun Gong – second applicant claiming as a member of the family group – first applicant unable to explain delay in leaving China – second applicant not asked – whether the Tribunal should have asked the second applicant considered – observations on the review rights of a second visa applicant.

Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 424AA, 425 Migration Regulations 1994

NAVK v Minister for Immigration [2005] FCAFC 124 Re Minister for Immigration; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 SZBEL v Minister for Immigration [2006] HCA 63; (2006) 228 CLR 152 SZBFM v Minister for Immigration & Anor [2005] FMCA 451 SZIAI v Minister for Immigration [2008] FCA 1372 SZMBE v Minister for Immigration & Anor [2008] FMCA 632 WAEE v Minister for Immigration (2003) 75 ALD 630

First Applicant:

SZNKG

Second Applicant:

SZNKH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 795 of 2009

Judgment of:

Driver FM

Hearing date:

23 July 2009

Delivered at:

Sydney

Delivered on:

23 July 2009

REPRESENTATION

The Applicants appeared in person

Counsel for the Respondents:

Mr G Kennett

Solicitors for the Respondents:

DLA Philliips Fox

ORDERS

(1) The application is dismissed.
(2) The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 795 of 2009

SZNKG

First Applicant

SZNKH
Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 10 March 2009. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicants protection visas. Background facts relating to the applicants' claims and the Tribunal decision on them are briefly summarised in the Minister's written submissions filed on 16 July 2009. I adopt as background for the purposes of this judgment paragraphs 3 through to 6 of those written submissions:
   • The applicants are a married couple. The applicant wife (known in these proceedings as SZNKG) claimed to be a refugee;[1] her husband (SZNKH) applied for a visa on the basis that he was a member of the family unit of SZNKG.[2]
   • SZNKG claimed that she had practised Falun Gong in China. She had been caught, detained and released when her husband paid a bribe. Her husband had then lost his job and his Communist Party membership.[3]
   • Having set out a number of difficulties with SZNKG’s evidence, the Tribunal concluded that she was not a credible witness.[4] Documents which purported to support her claims, and SZNKH’s supportive evidence, did not overcome these problems.[5] The Tribunal therefore did not accept any of the applicant’s claims concerning events in China.[6]
   • SZNKG also provided evidence of involvement in Falun Gong activities in Australia. The Tribunal considered it plausible that she had been involved in Falun Gong in Australia but, having found that she was not a genuine practitioner, it was not satisfied that she had engaged in these activities otherwise than in order to strengthen her refugee claims.[7]
2. These proceedings began with a show cause application filed on 6 April 2009. The applicants continue to rely upon that application. I incorporate in this judgment the three grounds in that application:
   • 1. [Tribunal] did not give me a letter to comment on the doubts. [Tribunal] failed to assess my risk to return to China.
   • 2. I am not satisfied with [Tribunal] decision. It is not fair. They thought I was lack of [credibility] and they thought I got limit knowledge. I am a Falun Gong Practitioner. All I said is true.
   • 3. I have serious heart trouble, I must take some medicine when I have a relapse of heart disease, but [Tribunal] judge did not arrange other date for me and he also did not agree me to have medicine when I was really uncomfortable during the hearing.
3. I considered those grounds at a show cause hearing conducted on 1 June 2009. At that time I saw no substance in the third ground in the application on the basis of my examination of the Tribunal decision. I was satisfied on the basis of the decision that the Tribunal was aware of and had taken into account the applicant's heart condition.
4. In relation to grounds 1 and 2 I required the Minister to show cause why relief should not be granted as if those grounds contained the following particulars:
   • a) At paragraph 65 of its reasons the Tribunal rejected as unconvincing the applicants' explanation for practising Falun Gong on a balcony. The Tribunal may not have understood that the applicant wife asserts that the balcony was enclosed and was protected by a curtain.
   • b) At paragraph 66 of its reasons the Tribunal relied on the applicants’ delay of 2½ weeks of receiving Australian business visas before leaving China and took into account the principal applicant's inability to explain that delay. The principal applicant had said that her husband was responsible for organising “everything” but it does not appear from the record of the Tribunal hearing in its reasons that the applicant husband was given the opportunity to offer his own explanation. This raises the questions whether the Tribunal provided a fair hearing opportunity for the purposes of s.425 of the Migration Act 1958 (Cth) [(“the Migration Act”)] and whether the Tribunal breached an obligation of disclosure pursuant to s.424A or s.424AA of the Migration Act in relation to the business visa information.
5. I have before me as evidence the court book filed on 29 April 2009 which I received at the show cause hearing. The Minister read the affidavit of Emily Baggett filed on 11 June 2009, to which was annexed a transcript of the hearing conducted by the Tribunal on 18 February 2009. I had required the production of that transcript in the orders I made at the show cause hearing. At the show cause hearing I received the applicants’ affidavit filed in support of their show cause application as a submission.
6. The applicants denied receipt of Ms Baggett's affidavit and the transcript. Exhibit R1 is a letter dated 11 June 2009 and sent to the applicants at their postal address, providing an unfiled copy of that affidavit and the transcript. At the first court date hearing on 27 April 2009 the applicants had elected to use their residential address as their address for service, rather than their postal address, which is a post office box controlled by a migration agent who has been assisting the applicants. The Minister's solicitors were in error in directing correspondence to the postal address rather than the address for service adopted at the first court date hearing. I invited the applicants to make submissions on any prejudice they may have suffered as a result of not receiving the affidavit and transcript before today's hearing. The applicant husband told me from the bar table that he did not see any particular problem in the late provision of those documents. He conceded receipt of the Minister's written submissions which had also been seen to the post office box. He said that those submissions had been provided to him and his wife by the migration agent. It appeared that those submissions had also been the subject of discussion as they had been annotated.
7. Both parties made oral submissions at today's hearing. The applicant husband spoke on behalf of himself and his wife. In his submissions the applicant husband reiterated the issues as identified by me at the show cause hearing. The applicants submit that the Tribunal was mistaken in its reasons for disbelieving the principal applicant concerning her asserted practise of Falun Gong on her balcony. The applicants assert that the Tribunal must have misunderstood the physical structure of their home in China as having an enclosed balcony with a curtain.
8. Secondly, the applicants submit that the Tribunal erred in not seeking an explanation from the applicant husband of the reasons for delay in leaving china. The applicant husband told me from the bar table that the reason for that delay was that he and his wife were travelling as part of a group tour organised through a company. I proceed on the basis that that is what he would have told the Tribunal if he had been given the opportunity.
9. The Minister's written submissions address the issues raised by me in the show cause order. I incorporate in this judgment paragraphs 7 through to 28 of those written submissions:
   • The following issues have been identified at the show cause hearing as requiring consideration:
     • (i) whether, in finding that SZNKG’s account of the circumstances in which she was discovered was unconvincing, the Tribunal misunderstood this aspect of her claim; and
     • (ii) whether the Tribunal complied with its obligations under ss 424A and 425 in relation to the Applicants’ delay in leaving China after obtaining business visas to come to Australia.
   • Misunderstanding of the evidence?
   • This issue relates to the circumstances in which, SZNKG claimed, she had been exposed as a Falun Gong practitioner.
   • In her initial written statement SZNKG said that she had been unwell at home and then:
     • I thought of Falun Gong. So I started practising. But I forgot to close the curtain due to the illness. I was living on the 3rd floor. People living opposite on the 4th floor could see my home very clearly. They saw me practise Falun Gong.[8]
   • At the Tribunal hearing, when asked why she had been arrested, she said:
     • ... then I took some tablets, still didn’t feel well, and so I did some Falun Gong exercises and I did it on the balcony with the curtains being drawn, maybe somebody saw me.[9]
   • The presiding member then asked why SZNKG would practise Falun Gong on a balcony where she could be seen by other people.[10] Discussion ensued in which SZNKG explained that the balcony was big and she did not want to dirty the carpet inside; her shower was also on the balcony; and it had a curtain which she put up when having a shower or practising Falun Gong.[11]
   • In its statement of reasons the Tribunal summarised this evidence accurately.[12] Later, in its analysis of the evidence, it said:
     • She said she practised Falun Gong on the balcony of her home but did not draw the curtains on that occasion as she forgot. The Tribunal finds it difficult to accept that the applicant would engage in a banned practice on a balcony where she could be seen by others.[13]
   • Four points should be made about this finding. First, it was not a finding upon which the case turned. It was one of several aspects of SZNKG’s evidence that the Tribunal regarded as unsatisfactory. Each one in isolation, according to the Tribunal, was relatively minor.[14] It was only the combination of all of them that led to an adverse finding on credibility. Further, each finding may well have influenced the others.
   • Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole.[15]
   • It would accordingly be a mistake to isolate a single step in the Tribunal’s expression of its reasoning, and find jurisdictional error on the footing that that step appears unsatisfactory.
   • Secondly, the finding was simply that a part of SZNKG’s evidence was unconvincing. The Tribunal did not require rebutting evidence to reach that conclusion,[16] and was not obliged to give detailed reasons for it.[17] The absence of such reasons provides no basis for inferring error.
   • Thirdly, no misunderstanding of the evidence is apparent. The Tribunal’s short statement of its conclusion can be read as meaning (a) that it was improbable that SZNKG would practise on a balcony where there was a risk of being seen, eg if she forgot to close the curtain, or (b) that it was improbable that she would have practised on the occasion in question without closing the curtain (ie, rejecting her explanation that she forgot because she felt ill). Either conclusion was open to the Tribunal as the finder of fact. In order to construe the Tribunal’s conclusion as indicating some other reasoning (eg that it had failed to appreciate what SZNKG was saying about closing the curtain), it would be necessary to ignore the accurate recitation of her evidence earlier in the statement of reasons.
   • Fourthly, even if the Tribunal did err by failing to appreciate the significance of what SZNKG was saying about closing her curtain, that would be no more than a simple error of fact in weighing up the evidence. It would not go to jurisdiction.
   • SZNKG’s account of where in her home she practised Falun Gong and how she sought to avoid detection was not an ‘integer’ of her claims that required consideration in its own right by the Tribunal. It was not a distinct claim which, if accepted, might lead to the conclusion that she was a refugee. It was no more than a piece of evidence which, if accepted, lent convincing detail to her claims and might have helped them to be accepted.[18]
   • Business visa issues
   • Another of the points which the Tribunal found unsatisfactory, although it evidently carried little weight, was the lack of a real explanation from SZNKG for waiting two and a half weeks before leaving China, after obtaining visas to come to Australia.[19]
   • SZNKG
   • The source of this information was said to be the passport which SZNKG had tendered at the Tribunal hearing.[20] So far as SZNKG was concerned, this was information which she had given to the Tribunal and which therefore came within s 424A(3)(b) of the Migration Act 1958. The Tribunal was not obliged to raise it with her under s 424A(1). If the Applicants’ delay was an ‘issue’ which needed to be canvassed in order to comply with s 425 of the Act (which the Minister does not concede), that was done.[21]
   • SZNKH
   • Any issues concerning the Tribunal’s procedural obligations in relation to this information must therefore relate to SZNKH.
   • It is accepted that SZNKH was a person who had applied for a ‘protection visa’ (see s 36(2)(b) of the Migration Act) and was the subject of a decision refusing to grant that visa.[22] Having been listed in and signed the application for review,[23] he was an ‘applicant’ before the Tribunal. He was therefore entitled to each of the procedural rights which is provided to an ‘applicant’ by Division 4 of Part 7.
   • However, where such rights are defined by reference to the issues for decision before the Tribunal, their content necessarily depends on the criteria that the particular applicant is seeking to satisfy. This is the case under:
     • (a) section 424A(1), which applies only to information that might be part of the reason for affirming the decision under review – ie, the decision relating to the particular applicant; and
     • (b) section 425, as applied in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs,[24] where the obligation to draw matters to an applicant’s attention depends on what are the ‘issues arising in relation to the decision under review’.
   • An applicant in the position of SZNKH (a ‘secondary applicant’) must satisfy the Tribunal that:
     • (i) he or she is the spouse or dependent of another person (the ‘primary applicant’ – here SZNKG); and
     • (ii) that person has been accepted as a refugee and holds (or in practical terms will hold) a protection visa.[25]
   • A secondary applicant has an obvious interest in the outcome of the primary applicant’s review application, but that does not give him or her a right to be heard in that application: the Act grants such rights to the particular applicant, not to interested outsiders. As to the secondary applicant’s own case, the criteria he or she must meet require evidence and submissions about whether the primary applicant has been found to be a refugee; not whether that person should be found to be a refugee. Submissions on the latter issue would not address the visa criteria; they would amount to an attempt to change the state of facts upon which the criteria operate.
   • Accordingly, the issues upon which the secondary applicant has a statutory right to be heard under ss 424A and 425 do not include the plausibility of the primary applicant’s claims to be a refugee. (Of course the secondary applicant will often be an important witness whose evidence is useful in determining the primary applicant’s claims, but that is a different matter.)
   • It follows that, to the extent that the Tribunal had doubts about SZNKG’s claim to be a refugee because of her delay in leaving China (or her lack of an explanation for that delay), it did not breach any obligation to SZNKH by failing to canvass the point separately with him. The fact that he might have been able to shed light on the point means only that he was a witness who might usefully have been called in SZNKG’s case. No error arises from that circumstance.
   • Even if SZNKH did have a right to be heard on the issues relevant to whether SZNKG would succeed or not, no breach of the Tribunal’s duties occurred.
     • (a) Section 424A was not engaged by information which was clear on the face of both applicants’ passports, both of which were tendered at the hearing.[26]
     • (b) As to s 425, SZNKG’s credibility was clearly an ‘issue’, but it did not follow that the Tribunal was obliged to rehearse with SZNKH each one of the problems with SZNKG’s evidence that led it to doubt her claims. In the circumstances SZNKH must have been well and truly on notice that the Tribunal would need to be convinced about the truth of his wife’s claims to have practised Falun Gong, to have been detained and to have fled China as a consequence. Her claims had been comprehensively disbelieved by the delegate;[27] and the presiding member made a number of comments in his presence which signalled a lack of persuasion about the truth of her claims.[28]
10. I accept the Minister's submissions in relation to the first issue. First, the transcript confirms that the Tribunal's record of the discussion on that issue in paragraph 40 of its reasons[29], is accurate. Secondly, the transcript establishes that it was the applicant herself who drew a distinction between the inside of her home and the balcony. If, therefore, the Tribunal was mistaken in drawing that distinction it was a mistake which had been invited from the applicant's evidence. Thirdly, it is not entirely clear from the Tribunal's reasons what particular aspect of the applicants' evidence led the Tribunal to conclude that her account was unconvincing. However, it is apparent that a significant element of the Tribunal's state of disbelief derived from the first applicant's evidence that she practised on her balcony so as not to get the carpet or the interior of the house dirty. The Tribunal was entitled to regard that reason as unconvincing. Finally, I accept that even if the Tribunal did err by failing to appreciate the significance of what the first applicant was saying about closing or not closing the curtain on the balcony it was an error of fact in dealing with her evidence which would not go to jurisdiction. I accept in that regard the material distinction that must be drawn between evidence and integers of claims that was drawn by the Full Federal Court in WAEE v Minister for Immigration [2003] FCAFC 184.
11. In addition, whatever else may be said about the Tribunal's reasoning, in this case the Tribunal did not overlook any aspect of the first applicant's claims or evidence. There is simply some uncertainty as to the Tribunal's grasp of the fine detail of the applicant wife's evidence in relation to her practice of Falun Gong on the critical day on her balcony.
12. The second issue is an issue of somewhat more complexity. The applicants’ position is a simple one. The Tribunal was concerned about their delay in leaving China and sought an explanation from the applicant wife. Her explanation was that she did not know the reason for the delay and that her husband had organised everything. The applicant husband it appears would have been able to give relevant evidence to the Tribunal on that issue and the transcript of the Tribunal hearing confirms both the applicant wife's statements and the failure of the Tribunal to put any questions on that issue to the applicant husband.
13. The transcript also confirms that the applicant husband was required to wait outside the hearing room for a period that included the time when the applicant wife was questioned on the issue of the delay in departing China. He therefore had no reason to know what his wife had been asked and her answer. In my view, this raises a question of the Tribunal's compliance of its obligations under ss.425 and 424A or 424AA of the Migration Act.
14. I accept that in dealing with jurisdictional error in relation to the code of procedure within the Migration Act the Court must look to that code of procedure and not the general law in order to answer the relevant question. In SZIAI v Minister for Immigration [2008] FCA 1372 the Federal Court found error by the Tribunal in failing to inquire about a particular issue. That case leaves open the question of whether that failure may be material both in relation to the Tribunal's review generally and, at least hypothetically, in relation to a particular aspect of the code of procedure under the Migration Act.
15. If the Tribunal regards a particular issue in relation to an applicant's claims as significant to the outcome of the review then the Tribunal must, consistently with s.425, ensure that the applicant understands the significance of that issue. I have held previously that that obligation may be met where a process of oral disclosure is made pursuant to s.424AA of the Migration Act. In such circumstances compliance with s.424AA may serve a dual purpose[30].
16. There is no doubt from the transcript that the principal applicant was put on notice about the essential and significant issues upon which the review would turn. In relation to the delay in departing China, the applicant husband was not. I accept from the Minister's submissions that the applicant husband who made no protection claims of his own but simply claimed as a member of the principal applicant's family group had a more limited interest in the review than his wife. I also accept that, consistently with that more limited interest, there was no general duty on the Tribunal to put to the applicant husband all of the same issues that it put to his wife. I also accept that the applicant husband had not given any relevant adverse information in the course of the review that needed to be put to his wife. Further, I accept that, given his narrow interest in the review, the applicant husband did not need to be told, pursuant to ss.424A or 424AA of his wife's ignorance of the reasons for the delay in departing China.
17. The issue to my mind is whether the process was unfair to the principal applicant, the applicant wife, because of the Tribunal's failure to put the issue to the husband, or give the husband the opportunity to explain the reasons for the delay and departure. Hypothetically, if there is a witness before the Tribunal who is able to address an issue of concern to the Tribunal and it is apparent from the evidence of the principal applicant that only that witness can deal with that issue, a duty to enquire of that witness who is present and available may arise consistently with the reasoning of the Federal Court in SZIAI.
18. I think it is certainly arguable that that error may have occurred in this case if the issue of delay had been relevantly determinative. It is unclear in this case whether the applicant husband was attending the Tribunal hearing as an applicant or as a witness. The transcript[31] indicates that the applicant husband thought that he was there as a witness but that the Tribunal pointed out that he was an applicant as well. The applicant husband accepted an invitation from the Tribunal to give evidence as an applicant.
19. The applicants had been invited to identify any witnesses they proposed to bring in the hearing invitation sent by the Tribunal[32] and their response to the hearing invitation[33] indicated that they both proposed to attend as applicants but without other witnesses. That is also consistent with the Tribunal's hearing record[34]. Nevertheless, it is apparent from the transcript that the questions put by the Tribunal to the applicant husband during the course of the hearing extended well beyond his limited interest in the review as expressed in the Minister's submissions.
20. In particular, the Tribunal addressed issues with the applicant husband bearing on the question of whether his wife should be found to be a refugee. That is a course that is plainly open to the Tribunal whatever may be the legal entitlements of a secondary applicant under the Migration Act. It would be artificial and impracticable for the Tribunal to review the claims of a secondary applicant after the claims of the principal applicant had been dealt with. That, however, would seem to be the logical conclusion as to the proper approach to be followed by the Tribunal if the Minister’s submissions were accepted. That is because the second criterion for a visa that a secondary applicant must meet is that the primary visa applicant has been accepted as a refugee. Logically, that criterion cannot be addressed until the Tribunal has dealt with the claims of the primary visa applicant. While that approach might be logical, it would be highly artificial and could deprive the Tribunal of relevant information bearing upon the claims of the primary visa applicant.
21. This Court in SZBFM v Minister for Immigration & Anor [2005] FMCA 451 at [6] said:
    • I am satisfied from the evidence of the wife that the reference to the “observer” was a reference to her. She was, of course, not an observer at all. She was an applicant. At [CB 112] the Tribunal asked the husband a number of questions about his wife. If the wife had been in the room she would have been able to answer those questions herself. The wife gave evidence that when she arrived at the hearing room she was asked her name and her husband was asked his name. I am satisfied the Tribunal was made aware of who the wife was. I notice from the wife’s cross-examination by Ms Hartstein for the Minister that she did not tell the Tribunal that she wished to speak, although she had told her husband that she wanted to give evidence. She thought that they would both have an opportunity to give evidence. She left the room because she was told to do so. She did not go back and was not present in the room when the actual witness spoke. She waited outside for the whole time that her husband was inside. There was some suggestion that the answers from the husband to questions on the transcripts indicate that the wife was not well. The wife confirmed that she was well during the whole time and I am satisfied that the answers on transcript related to a previous sickness of the wife and not to her condition at the time of the hearing.
22. That decision should, in my view, be read as addressing the problems that may arise where a secondary applicant is not given the opportunity to play a role as a witness that extends beyond their strict entitlement as an applicant. It does not necessarily follow, however, that such problems establish jurisdictional error. I have come to the conclusion that while it would certainly have been preferable if the Tribunal had put to the applicant husband the questions put to his wife concerning the delay in departing China, its failure to do so does not establish jurisdictional error because the issue of that delay was not determinative at the outcome of the review.
23. The Tribunal deals with that issue in its reasons at paragraph 66[35], which I incorporate in this judgment:
    • In the course of the hearing, the Tribunal noted that in the passport that she had provided in the course of the hearing, it is indicated that she was granted the subclass business visa 456 on 2 July 2008. The Tribunal asked her why she would wait for about two and a half weeks to leave China given her claims of fearing persecution. She said she does not know and that her husband had organised everything. Whilst two and a half weeks is not a long period of time, her comment that her husband had organised everything, does not provide an explanation about the period it took her to leave China.
24. Two things are significant in the Tribunal's statements in that paragraph. The first is the Tribunal's acknowledgement that two and a half weeks, which was the period of delay, is not a long period of time. That suggests in the absence of any further comment by the Tribunal that the Tribunal did not consider that the delay itself had a determinative bearing on the outcome of the review. Secondly, the Tribunal's statement that the applicant wife did not provide an explanation about the period of delay suggests that what was of concern to the Tribunal was not the reason for the delay but the applicant's wife's inability to say anything about it. I read the Tribunal's reasons as indicating that the Tribunal considered that if the applicant wife had a genuine fear of persecution she would have taken more interest in the timing of departure in China than she was able to demonstrate.
25. On that basis, any explanation that the applicant husband may have been able to offer may not have made any difference. The issue for the Tribunal was not what the explanation may have been but the applicant's wife's lack of apparent interest in that issue. I also note that this was but a minor element of a range of aspects of the applicant's claims and evidence which caused the Tribunal concern. There were much more significant matters which bore on the outcome of the review.
26. At paragraph 73 of its reasons[36], the Tribunal stated that it appreciated that the evidentiary problems it had noted it considered in isolation would not raise doubts about the veracity of the applicant's claims or her credibility but that when considered cumulatively they did reflect adversely on her credibility.
27. I conclude that the Tribunal's failure to question the applicant husband about the reasons for the applicant's delay in leaving China does not establish jurisdictional error on the part of the Tribunal. I find that the Tribunal decision is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed.
28. The application having been dismissed, costs should follow the event. The Minister seeks scale costs of $5,865. When I invited submissions from the applicants on the issue of costs the applicant husband stated that he would exercise their right of appeal. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 29 July 2009

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[1] court book (CB) 12.
[2] CB 27.
[3] See CB 113-114.
[4] CB 125 [73].
[5] CB 125-126 [74]-[77].
[6] CB 126 [78].
[7] CB 126 [79].
[8] CB 43.
[9] Transcript p 14 line 18.
[10] Transcript p 14 line 41.
[11] Transcript p 14 line 44 – p 15 line 38.
[12] CB 116 [40].
[13] CB 123.
[14] CB 125.
[15] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59, 63 [41] per Gleeson CJ.
[16] NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 124 at [32]- [34].
[17] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, 422-423 [65].
[18] Cf Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630, 641 [46].
[19] CB 123 [66].
[20] See CB 95-99.
[21] Transcript p 20 lines 22-29.
[22] The delegate properly recorded a separate decision in relation to SZNKH (CB 75)
[23] CB 77, 80.
[24] (2006) 228 CLR 152.
[25] See s 36(2)(b) of the Act and cl 866.222 of Schedule 2 to the Migration Regulations.
[26] SZNKH’s passport is at CB 100-106.
[27] CB 72-73.
[28] Transcript p 29 lines 18-25, p 30 lines 4-5, 25-26, 43-45.
[29] CB 116.
[30] SZMBE v Minister for Immigration & Anor [2008] FMCA 632 at [10]
[31] at page 4.
[32] CB 84.
[33] CB 86
[34] CB 92
[35] CB 123
[36] CB 125.