SZONA v Minister for Immigration & Anor [2011] FMCA 99 (2 March 2011)

Federal Magistrates Court of Australia

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SZONA v Minister for Immigration & Anor [2011] FMCA 99 (2 March 2011)

Last Updated: 4 March 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZONA v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 99

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) Visa – no reviewable error – application dismissed. The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZONA”.

Migration Act 1958 (Cth), ss.91R(3), 91X, 410-470, 474-484

Jia Le Geng v Minister for Immigration & Multicultural Affairs (1998) 84 FCR 87 Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 Minster for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17 SBBS v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 361 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286

Applicant:

SZONA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1466 of 2010

Judgment of:

Lloyd-Jones FM

Hearing date:

12 November 2010

Date of Last Submission:

18 February 2011

Delivered at:

Sydney

Delivered on:

2 March 2011

REPRESENTATION

The Applicant:

The Applicant appeared in person with the assistance of a Cantonese interpreter.

Advocate for the Respondents:

Mr Baird (solicitor)

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The Application, filed on 5 July 2010, is dismissed.
(2) The Applicant is to pay the First Respondent’s costs and disbursements, of and incidental to the Application.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1466 of 2010

SZONA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In accordance with the Court orders made on 27 July 2010, the solicitor for the Respondent was required to file a folder which was to be indexed, labelled and paginated, containing all of the documents which may be relevant to the hearing. The bundle was not to include country information as this had not been requested by the Applicant. This order was complied with and the volume is identified as Court Book (“CB”). On the date of the hearing, the Court Book was marked Exhibit “A”. This is the only evidence before the Court.
2. The decision, which is subject to this Application for review, was made on 1 June 2010 by Tribunal member Bruce MacCarthy, RRT Case Number 1001443. The decision record appears in the Court Book at 163 – 188.

The proceedings

3. The Applicant, who claims to be a citizen of the Peoples’ Republic of China (PRC), arrived in Australia on 30 May 2008. He applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 22 October 2009. A delegate of the Minister decided to refuse to grant a visa on 31 January 2010 and notified the Applicant of the decision and his rights of review. The delegate refused the visa application on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugee Convention. The Applicant applied to the Refugee Review Tribunal (“the Tribunal”) on 1 March 2010 for review of the delegate’s decision. The Tribunal issued its decision on 1 June 2010.
4. In setting out the following background material, I have either paraphrased or quoted directly from the written submissions prepared and filed by Mr Zac Chami, solicitor for the First Respondent, together with oral submissions of Mr Baird who appeared at the hearing. I have made no further direct attribution as this would make the summary unwieldy. This information is provided to assist in the understanding of the nature of the Application and not to establish any evidentiary point.
5. The Applicant claims to fear harm in China because he was a Falun Gong practitioner. Further, he claims to have a political role as deputy to the People’s Congress and to have had a land dispute with an individual by the name of Jingda Huang, whom he had lent his land to when he first visited Australia between 1989 and 1992. The Applicant claimed that Jingda Huang had government and political connections who refused to return the land to the Applicant when the Applicant returned to China in 1992. The Applicant’s practice of Falun Gong was a ‘weakness’ that Jingda Huang relied upon to deprive the Applicant of his land.
6. In the Applicant’s Protection visa application he submitted a personal statement (CB 28, translation CB 27), which claimed that:
   1. he was fined for breaching the One Child Policy in China;
   2. he had an illness which led him to begin to practice Falun Gong;
   100. in August 2007, he was holding an illegal Falun Gong gathering at his home with friends and was arrested by police; and
   4. he obtained a visitors visa in May 2008 for Australia and left China shortly thereafter.
7. At the departmental interview on 15 January 2010, the Applicant claimed the following.
   1. He never departed China prior to May 2008 when he was granted a visitors visa for Australia. He reneged from this claim once the delegate reminded him of his earlier visit to Australia in 1989.
   2. He was introduced to Falun Gong in 2002 by a friend who was aware that the Applicant suffered lower back pain.
   100. He did not practice Falun Gong upon arrival in Australia for a period of 17 months because he did not know his way around the city or how to use public transport.
8. The Tribunal decision record at [50] (CB 170) records that the Applicant made no claims to the Tribunal and did not comment on the decision under review. However, on 24 May 2010, the Tribunal received a letter, purporting to be from the Applicant but written about him in the third person, and in terms which suggest that it was prepared by a migration agent. The letter enclosed a number of attachments, the first of which was a ‘personal explanation letter’ in Chinese, with translation. In that letter the Applicant claimed that:
   1. he had a political role in China as a Deputy of the People’s Congress;
   2. he failed to mention his role earlier because he was concerned that it would have a negative impact on his relatives in China;
   100. he lent his land to Jingda Huang between 1989 and 1992 during his first visit to Australia;
   4. when the Applicant returned to China, Jingda Huang refused to return the land and this was the only source of income of the Applicant and his family;
   5. Jingda Huang had superior government and political connections;
   6. he was mentally and physically exhausted from the conflict between Jingda Huang and himself and ‘by accident’ commenced practicing Falun Gong; and
   7. his Falun Gong practice was used against him by Jingda Huang to deprive the Applicant of his land.
9. At the Tribunal hearing, the Applicant expanded and discussed his claims (decision record at [81] – [119], CB 175 – 182).

The Tribunal decision

10. I have again relied upon the written submissions prepared by the solicitor for the Respondent and relied upon them in the same manner as referred to above (at [4]).
11. The Tribunal found that the Applicant’s claims regarding his Falun Gong practice in China were not credible. It accepted that the Applicant had a land dispute with an individual by the name of Jingda Huang but found no link between that dispute and any persecution for a Convention reason.
12. In the Tribunal decision under the heading ‘findings and reasons’ at [122] – [124] (CB 182-186), it examined the Applicant’s claim regarding his breach of the ‘one child policy’ and found the following.
    1. The Applicant provided conflicting information regarding the number of children he had and there was no documentary evidence to support the claim that he had three children, or that he experienced any difficulties as a result of the ‘one child policy’.
    2. The Applicant was elected as People’s Representative of the People’s Congress in 1995, 1998 and 2001 and accepted the Applicant’s documents as genuine in this respect. The Applicant was therefore viewed favourably in his locality and was not regarded adversely by local authorities because of any violation of China’s one child policy.
    100. Even if the Applicant had been regarded adversely by local authorities during his time of his appointment as a People’s Representative, the Applicant acknowledged that he did not currently face any personal harm for any such breach as his children were now adults.
13. Under the heading ‘Claims about the land dispute’ at [125] – [130], the Tribunal discussed the Applicant’s claims in relation to the land dispute and found that:
    1. the Applicant had been involved in a lengthy dispute with Jingda Huang regarding the use of his land and accepted the various documents submitted in support are genuine;
    2. none of the documents suggested that the dispute arose out of any Convention reason;
    100. there is no indication that the dispute was related to political opinion, despite the fact that the Applicant’s opponent may have had strong political connections; and
    4. for the reasons referred to below, the Tribunal did not accept that the Applicant was a practitioner of Falun Gong and consequently did not accept that Falun Gong was a factor in the land dispute.
14. Under the heading ‘Claims regarding Falun Gong’ at [131] – [142], the Tribunal described the Applicant’s Falun Gong claims and found the following.
    1. If the Applicant faced arrest in China because of his involvement in Falun Gong, the Tribunal would have expected the Applicant to have sought protection soon after he arrived in Australia in May 2008;
    2. If the Applicant was a genuine Falun Gong practitioner, the Tribunal would have expected him to have sought to practice it soon after he arrived in Australia in May 2008. However, the Applicant did not practice Falun Gong until October 2009, just prior to filing his protection visa application. He also did not acquire a copy of the basic Falun Gong text until two days before he was interviewed by the delegate.
    100. He provided inconsistent evidence about when he was allegedly arrested.
    4. Falun Gong practitioners did not have membership cards and therefore, did not accept that the Applicant would have had a membership card that was confiscated.
    5. The Applicant had limited knowledge of the concepts of Falun Gong.

Grounds of review

15. At the First Court Date directions hearing, the Applicant expressed the desire to participate in the pilot RRT Legal Advice Scheme (NSW) and the scheme coordinator was advised of this request. A panel advisor was allocated to the Applicant during a conference and supported by written advice. In the certificate issued by the panel advisor, he indicates that he did not provide the Applicant with an Amended Application.
16. The grounds of review contained in the original Application are as follows:
    • 1. The Tribunal and the primary decision maker erred in failing to recognise the principle of non-refoulment contained in Article 33 of the 1951 Convention relating to the Status of Refugees (the Convention).
    • 2. The Tribunal and the primary decision maker erred in finding that a finding of a lack of bona fides must necessarily be based upon the Tribunal acting with a closed mind or proceeding on the basis that it was seeking reasons to decide against the application rather than considering on the basis of all evidence put before it whether or not it could be satisfied of the Applicant’s claims of refugee status and the Tribunal failed to consider whether any other motives could ground a finding of lack of bona fides.
    • 3. The Tribunal and the primary decision maker erred in finding that the general attack on the Applicant’s credit as an element of a failure to make a bona fide consideration of the Applicant.
    • 4. The Tribunal member and the primary decision maker erred in their construction of the Migration Regulation 1958 (the Act) Part 8.
17. At the First Court Date directions hearing, the Applicant was also granted leave to file an Amended Application and was advised that he should do this after he has received legal advice from the panel advisor. The Applicant has not availed himself of this opportunity, nor has he provided any written submissions in accordance with the directions made that he must file and serve, in the Registry, a short written outline of submissions and a list of authorities 14 days before the hearing. This direction was not complied with.

Consideration

18. The Applicant confirmed that he had not prepared or filed any written submissions and indicated that he did not wish to make any oral submissions, however he did have some information with him. He indicated that this information was about the land which was in dispute between him and Jingda Huang. He stated that he was a member of the Peoples’ Congress and that he knew some inside stories. He states that he knows about the inside story of corruption. When asked whether the information he was referring to was brought to the Tribunal’s attention, he confirmed that it was, but the Tribunal member did not understand what the Applicant was attempting to convey. When questioned, the Applicant confirmed that the information that he was referring to was also contained in the Court Book.
19. The Applicant was asked, in addition to this information, if there anything else that he wanted to say in support of his application of the review of the Tribunal decision. Then the following exchange took place:
    • THE APPLICANT VIA THE INTERPRETER: I do not agree with them, because they are not really listening to me. Like what my elder brother has written on the letter here, they don’t really understand. It’s issues regarding the land.
    • HIS HONOUR: Well, what’s the reason you say that they don’t understand you?
    • THE APPLICANT VIA THE INTERPRETER: Not that they don’t understand, but they do not accept my story. It was the wise mayor of the city that was involved here in this case, and everyone involved in this case was working under him, and they do not accept me.
    • HIS HONOUR: Yes, anything else?
    • THE APPLICANT VIA THE INTERPRETER: And regarding Falun Gong, yes, I did practice Falun Gong. In fact in my home town people come to my place for gathering. I told them but they do not believe me. If I knew that I wouldn’t have signed a document at the Department of Immigration and I wouldn’t have my pictures been taken. And because I didn’t speak – because I don’t speak English, so only until later on that I realised there was a bunch of petitioners over that and practising, and that’s why I was following them, to practice as well. And for the land it was the same issues, I’m still the one paying tax and also paying for the land rent. If the Australian Government would force me to go back, I would rather die than going back, because if I go back I know I’m going to die. I feel very chaotic now and I’m having headache.

Primary decision maker

20. In each of the four grounds pleaded by the Applicant, he alleges error on the part of the primary decision maker. This aspect of each ground cannot be sustained because this Court does not have the jurisdiction to review a decision made by the primary decision maker. Section 476(2) of the Migration Act 1958 (Cth) (“the Act”) states:
    • (2) The Federal Magistrates Court has no jurisdiction in relation to the following decisions:
    • (a) a primary decision;
    • (b) a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;
    • (c) a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C;
    • (d) a privative clause decision or purported privative clause decision mentioned in subsection 474(7).
21. Consequently, any further reference to the primary decision will be ignored for the purposes of this review.

Ground 1

22. This ground alleges that the Tribunal failed to recognise the principle of non-refoulment contained in Article 33 of the 1951 Convention. In the decision record under the heading ‘Relevant Law’ (at 4-15, CB 164-166), the Tribunal outlines the relevant law surrounding the grant of Protection visas. In accordance with these statements and the supporting lines of authority, the Tribunal member clearly understood that if an Applicant satisfied certain criteria Australia had to offer protection.
23. At [9] – [10] the Tribunal sets out the following:
    • [9] There are four key elements to the Convention definition. First, an Applicant must be outside his country. Second, an Applicant must fear persecution. Under s.91R(1) of the Act, persecution must involve “serious harm” to the Applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). The expression “serious harm” includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the Applicant’s capacity to subsist: s.91R(2) of the Act.
    • [10] The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the Applicant from persecution. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. However, the motivation need not be one of enmity, malignity or other antipathy towards the victim on the part of the persecutor.
24. Article 33(1) of the Refugees Convention imposes an obligation on the contracting States not to expel or return a refugee to a territory where his or her life or freedom would be threatened for a Convention reason. However, in this instance, the Applicant was found not to be a refugee.
25. The Applicant’s allegation that the Tribunal failed to recognise the principle of non-refoulment depends on the Tribunal having found that the Applicant had a well founded fear of persecution for a convention reason in the People’s Republic of China. However, it made no such finding. Rather, the Tribunal rejected the Applicant’s essential claims, concluding that his alleged practice of Falun Gong lacked credibility. The Tribunal formed the view that there was no plausible evidence before it that the Applicant had suffered or would suffer persecution in China for any Convention reason were he to return there. In such circumstances, there was no cause for the Tribunal to consider Australia’s non-refoulment obligations beyond its discussion of Australia’s protection obligations in the early part of the decision which are referred to above. Consequently, this ground cannot be sustained.

Ground 2

26. Ground 2 is an allegation of bias which is not particularised or supported by any form of evidence. The broad allegation is that the Tribunal member acted with a closed mind, or alternatively, proceeded on the basis of seeking reasons to decide against the Applicant.
27. A party alleging actual bias on a decision maker’s part carries a heavy onus and it must be clearly proved: Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17. His Honour Callihan J at [228] referred to French J (as he was then) in Jia Le Geng v Minister for Immigration & Multicultural Affairs (1998) 84 FCR 87 at 106 where his Honour states:
    • The onus of demonstrating actual bias lies upon an Applicant for judicial review and it is a heavy onus. The fact that an Applicant may have demonstrated that on the decision-maker's provisional views he has an uphill job to persuade him away from those views is not enough to demonstrate actual bias.
28. The existence of actual bias may be inferred from facts and circumstances, but caution should be exercised, in the absence of evidence of partisanship or hostility, before inferring actual bias from factual errors or faulty reasoning on behalf of the Tribunal member: SBBS v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 361 per Tamberlin, Mansfield and Jacobson JJ at [44]:
    • [44] The fifth proposition is that the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme. This is especially so where all that the Applicant relies upon is the written reasons for the decision under review; SBAU at [28] citing SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547 per Mansfied J at [35] and SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J.
29. A case of actual bias is seldom made out by reference solely to the reasons for decision and no inference or bias or prejudgment can be drawn from the mere fact of adverse findings in the Tribunal’s reasons: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286 at [3].
30. The Applicant has not particularised his claim, filed any affidavit evidence or made oral submissions supporting his contention of bias. I acknowledge that the Applicant is a self-represented litigant. However, on a fair reading of the Tribunal decision, it is not apparent from the face of the decision record that the Tribunal member recorded anything in that document that could support a claim of bias. In the circumstances, this ground of review cannot be sustained.

Ground 3

31. This ground takes issue with the Tribunal’s credibility finding. The Tribunal, under the heading ‘Relevant law’ included a section on credibility in the following form:
    • [14] When determining whether a particular Applicant is entitled to protection in Australia, the Tribunal must first make findings of fact pm the claims he has made. This may involve an assessment of the credibility of the Applicant. When assessing credibility, the Tribunal should recognise the difficulties often faced by asylum seekers in providing supporting evidence and should give the benefit of the doubt to an Applicant who is generally credible but unable to substantiate all of his claims. However, it is not required to accept uncritically each and every assertion made by an Applicant. Further, the Tribunal need not have rebutting evidence available to it before it can find that a particular factual assertion by an Applicant has not been made out. Nor is it obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the Applicant’s country of nationality. See Randhawa v MILGEA [1994] FCA 1253; (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor [1994] FCA 1105; (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 54.
    • [15] If the Tribunal were to make an adverse finding in relation to a material claim made by an Applicant but were to find itself unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true (See MIMA v Rajalingam (1999) FCR 220) (CB 165-166).
32. In the Tribunal’s ‘Findings and Reasons’, it makes the following findings in respect of credibility:
    • [139] In all the circumstances, the Tribunal finds that the Applicant’s claims regarding his alleged Gong in China lack credibility. It finds that he was not a Falun Gong practitioner in China. It follows from this finding that the Tribunal does not accept that the Applicant came to the adverse attention of the PRC authorities because of any involvement in Falun Gong and it does not accept that he was arrested and warned not to practice. It finds in particular that he was not arrested and warned not to practise. It finds in particular that he was not arrested because he was a “People’s Representative who was practicing Falun Gong”. The Tribunal does not accept that the outcome of the Applicant’s land dispute was influenced by anything to do with Falun Gong.
    • [140] Further, given that the Applicant’s long delay after his arrival in Australia in doing anything about Falun Gong, and its finding above that his claims regarding his alleged practice of Falun Gong in China lack credibility, the Tribunal is not satisfied that his conduct in Australia, in making contact with Falun Gong practitioners, in participating in Falun Gong practice and information sessions, and in purchasing a Falun Gong text, was engaged in otherwise than for the purpose of strengthening his claim to be a refugee. Given this, the Tribunal is obliged by the provisions of s.91R(3) to disregard this conduct.
    • [141] Having so disregarded this conduct, there is nothing before the Tribunal which would suggest that the Applicant would be adversely regarded by PRC authorities were he to return to China in the foreseeable future. (CB 185)
33. The Tribunal’s adverse credibility finding and consequent rejection of the Applicant’s claims, is a matter for the Tribunal par excellence: Minster for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67] where his Honour said:

[67]...a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.

34. I am satisfied that the Tribunal’s findings in this respect were open to it on rational grounds on the material before it, and it discloses no error of treatment of the Applicant’s credibility: Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547. The Tribunal’s reasons, which is the only evidence before the Court in relation to the conduct of the hearing, indicates the concern it had about aspects of the Applicant’s evidence which it raised with him during the hearing. The Applicant was unsuccessful because of the view the Tribunal took of the facts and in particular the finding that he was not credible. This ground cannot be sustained.

Ground 4

35. This ground alleges that the Tribunal erred in its construction of Part 8 of the Migration Regulations 1994 (Cth). This is clearly a misunderstanding, an error, as the Migration Regulations were introduced in 1994 and it is not set out in parts, but rather schedules. I assume the Applicant is referring to the Migration Act 1958 which is divided into parts and divisions, and Part 8 covers judicial review in ss.474 - 484. As the Applicant is a self-represented litigant and appears to be relying upon some unidentified third party for assistance, who obviously has only a limited understanding of the structure and operation of the Act, I will assume that the Applicant was intending to refer to Part 7 – Review of Protection Visa Decisions [ss. 410 – 473]. Divisions 2, 3, 4, 5 of this Part refer to reviews conducted by the Tribunal. In the Tribunal decision at paras.[4] – [15], the Tribunal set out the relevant law that applied to the decision and this clearly confirms that the Tribunal member was complying with this provision of the Act.
36. The problem with this ground is that it is unparticularised and there are no oral or written submissions that specify the nature of the complaint being brought by the Applicant. There is no apparent error by the Tribunal in respect to its operation by the Act. On a fair reading of the decision, it is not apparent that the Tribunal has not operated within the confines of the provisions of the Act. Consequently, this ground cannot be sustained.

Issue of corruption

37. This was not raised by the Applicant in his Application or subsequently in oral submissions, however, the Minister acting as a model litigant, brought this to the Court’s attention. Mr Baird indicated at paras.[143] – [144] of the Tribunal’s decision (CB 186), the Tribunal dealt with the issue of corruption. The Applicant claimed to, himself, be politically involved for a lengthy period up until 2004 and the Tribunal accepted that claim. However, the Tribunal found that in the four years between 2004 and the Applicant departing China in 2008, there had been no persecution against him, and the Tribunal found that the Applicant had not pursued the issue of official corruption and that he did not intend to do so further.
38. Mr Baird contends that the Tribunal understood the Applicant’s claim regarding corruption and potential political persecution. It addressed those claims and there was an evidentiary basis for its finding that the Applicant did not have a well founded fear of persecution arising out of those claims. The Tribunal also dealt with the issue of official corruption at para.130 (CB 183). This was in the context of the Applicant’s claim to have been involved in a long running dispute over the loss of his land, and to have lost that dispute. At para.[130], the Tribunal noted the Applicant’s claim that his lack of success in that dispute was in part due to his opponent’s better political connection. However, the Tribunal found there was no Convention nexus to that claim as it related only to the issue of official corruption, rather than targeting any political reason. I accept Mr Baird’s submission that there is no jurisdictional error in that finding.
39. The remainder of the Applicant’s claims related to his practice of Falun Gong. The Applicant claimed that his practice of Falun Gong was another factor which led to his lack of success in the land dispute and also that he was arrested on one occasion. At paras. [131] – [142] of the decision (CB 184 - 185), the Tribunal set out a number of reasons why it rejected the Applicant’s claim to have ever practiced Falun Gong in China. Those included the Applicant’s failure to pursue protection in Australia, or to practise Falun Gong in Australia for some 17 months after his arrival. Inconsistencies appeared in the Applicant’s evidence about the alleged arrest and that he had been caught out because of his Falun Gong membership card. The Tribunal found that there was no such thing as a Falun Gong membership card on the basis of independent country information.
40. The Applicant’s knowledge of Falun Gong demonstrated at the interview with the delegate was also a concern to the Tribunal. This was something that was the subject of an invitation under s.424AA of the Act during the Tribunal hearing. Having regard to the Tribunal’s rejection of the Applicant’s claim to have practised Falun Gong in China, the Tribunal applied s.91R(3) of the Act and disregarded the Applicant’s practice of Falun Gong in Australia. I accept Mr Baird’s submission that the Tribunal correctly understood the Applicant’s Falun Gong related claims. It addressed them and its findings were open on that evidence. The Tribunal afforded the Applicant a fair opportunity at the hearing to address all of those issues on which it based its adverse findings. I am satisfied, in addition to the pleaded grounds, that there is no apparent error on the face of the Tribunal decision and that the Application cannot be sustained.

Conclusion

41. Although the Applicant is a self-represented litigant, he has received assistance from a legally qualified panel advisor to assist in preparing his case. It was apparent at the hearing that the Applicant did not comprehend the nature of these proceedings and the issues being ventilated. The only submission made by him was a further attempt to put new information before the Court in support of his Protection visa application.
42. On a fair reading of the Court Book and the Tribunal decision it is not apparent, on the face of those documents, that any jurisdictional error is apparent. Consequently, the Application should be dismissed.

I certify that the preceding 42Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !forty-twoforty-two (42) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Date: 2 March 2011