NAEB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 719 (11 July 2003)

Last Updated: 14 July 2003

FEDERAL COURT OF AUSTRALIA

NAEB v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 719

MIGRATION - procedural fairness - whether the Refugee Review Tribunal's findings were open to it - whether Refugee Review Tribunal required to assist applicant to make out their case or claim - whether the Refugee Review Tribunal put fairly to the applicant matters adverse to him - whether the approach or conclusion of the Refugee Review Tribunal was arbitrary, irrational or unreasonable.

Evidence Act 1995 (Cth)

Kioa v West [1985] HCA 81; (1985) 159 CLR 550 referred to

Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 referred to

VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 referred to

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 applied

Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 76 ALJR 966 referred to

SBBA v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 90 referred to

Minister for Immigration & Multicultural Affairs v Islam [2001] FCA 1681 referred to

Parra v Minister for Immigration & Multicultural Affairs [2000] FCA 85 referred to

Attorney-General for the State of New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1 referred to

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 referred to

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 referred to

Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 76 ALJR 1048 referred to

NAEB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1198 of 2002

JACOBSON J

11 JULY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1198 of 2002

BETWEEN:	NAEB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	11 JULY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. Costs reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1198 of 2002

BETWEEN:	NAEB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	11 JULY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction:

1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("the RRT") handed down on 17 October 2002 affirming a decision of a delegate of the Minister. The delegate refused to grant the applicants protection visas on 13 September 2001.

2 Although the decision of the RRT dealt with an application by a husband and wife, only the husband ("the applicant") has applied to this Court for review of that decision.

3 The applicant is a citizen of the Peoples Republic of China. The applicant claimed to be a practitioner of Falun Gong and, for that reason, to have a well-founded fear of persecution on the ground of imputed political opinion or membership of a particular social group.

4 The RRT was prepared to accept that the applicant had some involvement with Falun Gong but it did not accept that he was a dedicated, committed or regular practitioner.

5 The applicant claims judicial review principally on the ground that the RRT's findings of fact were not open to it and in particular upon the ground that he was denied procedural fairness in the conduct of the hearing.

6 The applicant relied upon a transcript of the hearing before the RRT to make good these submissions. It will be necessary for me to refer to the transcript in some detail in the course of my judgment.

7 The applicant also relied upon certain items of country information, which he said were not put to him in accordance with the RRT's obligations of procedural fairness. He also said that the country information was inconsistent with the RRT's findings.

8 There were other grounds set out in an amended application and I will deal with those grounds later in my judgment.

The Claims and the Evidence

9 The applicant claimed at the hearing before the RRT that he become involved in Falun Gong in 1994 when he attended a class organised by Master Li who is the founder of the Falun Gong movement.

10 The RRT noted that the applicant had not mentioned in his statement filed in support of his protection visa that he had attended a Falun Gong session organised by Master Li. The RRT recorded the applicant's response was that he did not know what was in the statement.

11 The applicant's written statement claimed that he took up Falun Gong in 1995 and that since then he had practiced three times a week. However he said that in 1997 the Chinese Government banned the practice of Falun Gong and he was no longer allowed to practice at a cultural centre in China where he had previously practiced.

12 The RRT noted that there was a discrepancy between the applicant's written and oral evidence as to the date on which the applicant was forbidden to practice at the cultural centre. In his statement he said it was in 1997 but in his oral evidence he said that it was in late 1998 or 1999.

13 The applicant's written statement described an incident when he was practicing in a park in China and he was put in a police van along with seven or eight other Falun Gong practitioners.

14 The RRT noted that the applicant did not mention this at the hearing and, indeed, had stated that he had never been arrested and had not practiced in public after it was banned.

15 The RRT recorded that the applicant's response was that he could not tell the RRT everything at the hearing and that the RRT member had told him not to talk in long sentences.

16 The applicant claimed that he was dismissed from his job in China in 1997 because he was spending too much time "propagating" Falun Gong instead of working.

17 The applicant arrived in Australia in July 2000 and told the RRT that he practiced Falun Gong in Sydney at the Chinese Garden at Darling Harbour. He said that the last time he had practiced there before the hearing was about three months ago.

18 He was asked why he had not been to Darling Harbour for three months and he replied that the could not afford the train fare. He said that there were sessions at the Blacktown centre which were closer to his home but they were irregular. As a result, the applicant said he practiced Falun Gong at home.

19 The RRT asked the applicant to provide a letter from the Darling Harbour practice group confirming he attended that group on a regular basis. The applicant said the Falun Gong is not an organisation like that which can provide letters but the RRT member told him that she had seen such letters from other practice groups. The applicant was given a week to provide a letter but no letter was received.

20 The applicant claimed to have received a letter from the Chinese Public Security Bureau ("PSB") in October 1999, asking him to report to the police station. He said that the letter was sent to an old address but the house had been demolished and although he had received the letter the police were not able to find him.

21 He claimed that if he had reported to the police he would have been asked to renounce Falun Gong. He claimed that his wife had a relative in the PSB and that the relative told them to leave China because he might be in trouble if he continued to practice Falun Gong.

22 The RRT asked the applicant why he had delayed his departure until July 2000 if he had received the letter from the PSB in October 1999 since he already had a passport at that time. The applicant said he wanted to settle things at his place of work where he was under investigation for corruption.

23 The RRT referred to independent country information about the situation of Falun Gong practitioners in the Peoples Republic of China which the RRT took into account when reaching its decision.

24 One of the sources was the US Department of State Country Reports on Human Rights Practices for China for 2000 and 2001, released by the Bureau of Democracy, Human Rights and Labor. Those reports stated that since the Falun Gong was banned in July 1999, mere belief in the discipline had been sufficient grounds for severe punishment. Indeed, since January 2001, belief in Falun Gong without any public manifestation of its tenets was a sufficient ground for punishment.

25 The US Department of State Country Reports were cited as authority for the statement that many thousands of Falun Gong practitioners were serving sentences in re-education through labour camps. Also there were numerous reports of police involvement in torture and approximately 200 Falun Gong were said to have died in police custody since 1997.

26 Reference was also made to a Department of Foreign Affairs and Trade ("DFAT") Country Information Report called `Falun Gong Practitioners' (No 136/02, 27 May 2002) which stated that "core" Falun Gong members were more likely to be subjected to penalties and that the authorities were less likely to consider individuals who practiced in private as core practitioners.

Transcript of the RRT Hearing

27 I will set out the principal passages of the transcript on which the applicant relied. I will also set out the passages which bear upon the findings which the RRT made.

28 The following passage dealt with the question of whether the applicant practiced Falun Gong regularly in Australia:-

"How often do you take the train to come to city to practice Falun Gong?

If I feel fine, I will come almost everyday. From Monday to Friday, sometimes we go to the Chinese Garden in Darling Harbour. And then we have changed the days into Saturdays and Sundays.

Do you practice Falun Gong exercises anywhere else besides Darling Harbour?

No, nowhere else. But also at home.

Normally they come out ... six

It is not definite that we have to do all the five sets of exercises. If there is relevant exercises we want to do, we can just do one or two of them.

It's quite a long way from Blacktown to Darling Harbour, isn't it?

Yes.

Is there nowhere closer that you can practice Falun Gong?

At that time, that organiser always not ... at that time.

Sometimes it as 10 o'clock, sometimes it was eleven. Sometimes he go to the demonstration in front of the consulate in the city.

Who does?

Mr Zhuo. He always goes to the Chinese consulate. I have contacted him, but he was busy doing the demonstration outside the Chinese consulate. That is why we didn't go to the Blacktown. I have constantly getting information from a website called Minghui Net. If I didn't go to get them, then they would post the information from the net. These are some of them."

29 The RRT asked the applicant to slow down and answer its questions as follows:

"... I want you to slow down and pay careful attention to the question that I am asking you.

You were not directly answering the questions that I'm asking you."

30 The RRT asked the applicant about his public practice of Falun Gong. The questions and answers were as follows:-

"So what is it that spinning in your tummy?

The Falun that is protecting us there. We've got Falun there protecting us.

Protecting you from what?

Protecting our health. Originally we've got a black point which is not good, by the spinning of the Falun it can evolve into a white point which is good.

I'd just like to go back to China now.

After Falun Gong was banned by the government, did you continue to practice?

We practiced at home. But if you were seen outside, you would be arrested. Normally, we just read some books and materials. The truth of whether I was genuinely practicing Falun Gong or not, people can come to my house and get information on Falun Gong from me.

Did you ever practice Falun Gong outside after it was banned?

Sometimes I was sitting on a rock practicing Falun Gong, this rock was outside our old house, and my wife wanted me to get inside because I would be arrested.

You said before that in 1997, you were stopped from practicing Falun Gong at the cultural centre?

Right, we were then prohibited from practicing Falun Gong.

Where did you practice after that?

We did it at people's home. We were practicing Falun Gong as well as reading the scriptures.

So after 1997 you have never practiced outside in public place?

No, in 1997 I was still practicing at the cultural centre. At that time it was classified as a cult then. It was later on labelled as a cult and we were banned from practicing it."

31 The following passage dealt with the question of whether he was arrested after the Falun Gong was banned:-

"And after Falun Gong was banned as a cult, were you or were you not arrested by the authority?

I told you that they informed me to go there but I didn't go and I told you that my house was demolished.

Could you please answer this in Yes or No. After Falun Gong was banned as a cult, were you or were you not arrested by the authority?

No. That was true."

32 The question of whether the applicant received a letter from the PSB in October 1999 included the following exchanges:-

"I was afraid to talk to the other people in the PSB. We have received a notice from the PSB requesting us to go there. But we didn't go. There were only two options. One was to write a self-confession letter; another was to be arrested.

When did you receive this notice from the PSB?

In October 1999. They wanted us to confess ourselves and to write a confession letter. To change our religious belief.

How do you know that they wanted all these?

Because everyone who were called in had to do this. If you didn't write that guarantee letter, you would be detained right away.

So what did you do when you got the notice from PSB?

Originally, I was staying with a friend. But after I received the notice, I ran away. They couldn't find me.

Where was the notice sent to?

There was a place selling garment. And this place was outside the house I was living in.

So how did you get the notice?

Where was the notice sent to?

I wasn't home then, and my friend got it for me.

Where was the notice sent to?

Fuzhou City Taijiang District Xuejin Rd, No 5 Chuanchen Li. This is a temporary residence address. Our street number ... this is the area where we were living, and along this line there were these garment shop.

Was the notice sent to the address of the house that was demolished?

Yes, No. 5 Chuanchen Li.

So the notice from the PSB was sent to the address of the house that was demolished?

Right. Because we were temporarily staying there.

What do you mean you were temporarily staying there. That was normal place of residence, wasn't it?

Originally, I was living here. But then all these were got demolished. The street was called Shangye St

...

So the letter from PSD [sic] was sent to your usual house?

Yes.

And how did you get the letter?

There was a letter box, and it got our street number.

After you received the letter from the PSB, you went away to live somewhere else?

I moved out right away. Because at that time there were over a thousand of temporary residencies there. Some were demolished and they had difficulty in finding me. The house was completed this year. It had been under construction for 6 years.

In October 1999, when you received this letter from the PSB, you already have your passport?

Yes.

Why did you delay your departure from China until July the following year?

I wanted to settle things in the work unit first.

How did you settle things in the work place?

Our work unit had an investigation on me. And later on after the approval letter, I was able to leave. They had investigated me to see during the course of my job whether I had breached any law or not; whether I had committed corruption or not."

33 The RRT told the applicant to keep his answers simple in the following passage:-

"... it would help the interpreter to do her job if you try not to say too much all at once.

I want to hear everything that you have to say but try to break it into short portions.

Could you also listen very carefully to my questions and answer them as simply as possible. If possible could you answer with yes or no."

34 The following passage dealt with the applicant's failure to mention in his statement that his first contact was with Master Li:-

"For example you told me today that you first took up Falun Gong after you listen to Master Li give a speech?

Yes.

And you said that was in 1994?

In your statement you said that in 1995 you went to the cultural centre and saw a lot of people practicing Falun Gong.

That was the last class organised by Master Li.

In this statement you didn't mention Master Li at all.

He didn't show it to me. I didn't know.

Who didn't show what to you?

That statement he just read it out to me. After he had written down what I said, he just repeated what I said, but he didn't show me the statement.

Well there would be no point in him showing you the statement because it's in English.

Right, so I had no idea whether it was right or wrong in that statement.

Well that's why I asked you, did he read the statement back to you and you said he did.

Yes, he had read it to me, but whether I understand it or not is another issue.

Well why wouldn't you understand it, you said he spoke Mandarin.

I just told him what had happened, I didn't listen to him attentively. I just told him what had happened. We can't comprehend what process he would take."

35 The RRT dealt again with the question of whether the applicant was arrested in the following exchange:-

"I asked you before whether you have ever being arrested, you said no.

You shouldn't regard it as an arrest. They didn't want us to practice there because we were obstructing other practitioners.

What happened after you being taken to the police station?

I was told not to practice at that location. And then they released me.

You were told not to practice at that location?

Right.

Were you allowed to practice at other locations?

They didn't say things like that. At that time, it wasn't that clear whether we can practice or not.

When was this incident?

I think it was in November 1997.

So it was before Falun Gong was banned?

Right, it was before it was banned. At that time they had not yet branded it as a cult. They just said that ´you can't practice it here.'"

36 The RRT member put to the applicant her doubts about whether he had received the letter from the PSB in the following passage:-

"Well I have to say I have some doubts about the claim that this letter was sent to you.

Why?

Well one reason is that it was not mentioned in your statement.

But I don't think it is a big issue so I didn't mention it. So initially I was thinking I was a genuine Falun Gong practitioner, and at this time they are still cracking down Falun Gong, so I was thinking if I could be protected here for a period of time until the situation is better in China, then I am most willing to go back. The reason that I didn't apply for refugee status right away after my arrival, was because I was till [sic] hoping the Chinese Government would be kinder to the Falun Gong practitioners and they would not be that tight against us. However, things have happened to the contrary of what I have been hoping."

37 The RRT member also put to the applicant her doubts that he was a committed Falun Gong practitioner as follows:-

"I have to tell you that I also have some doubts about your claim to be a genuine and committed Falun Gong practitioner.

I can swear if I am not a genuine Falun Gong practitioner, you can punish me with your law.

Well it's not a question of punishing you. Can I just explain to you why I do have some doubts about your commitment?

I just want to tell you that I swear if I am not a genuine Falun Gong practitioner, I am willing to be detained in a jail here.

When I asked you questions about Falun Gong and what its beliefs are I have to say that I find your answers a bit vague.

What were vague. I had try my best to express my concept and my belief to you.

I understand that it is difficult to do that when you are speaking through an interpreter.

Sometimes I can't express myself directly. Whether you want to give me the visa or not is another issue. I just want to stay here for a period of time until it's safer there in China, then I am most willing to go back.

I also have doubts about your commitment because of your statement that you have not practiced at Darling Harbour for some weeks now.

But I have no money, and I have told you before. I had to spend ten dollars per day to go outside and I am not making any money at the moment.

There are Falun Gong exercise sessions all over Sydney. I just can't accept that there isn't one closer to you at Blacktown.

I can show you that I have been there practicing.

At Darling Harbour?

Yes.

That's what I was asking you to do when I ask you to get this letter."

The Decision of the RRT

38 The RRT accepted, on the basis of the independent material, that some Falun Gong practitioners in the Peoples Republic of China faced serious human rights abuses. However, the RRT stated that, in order to determine whether the applicant had a well-founded fear, it was necessary to assess his account of his past and present involvement in the Falun Gong movement.

39 The substance of the RRT's reasons for dismissing the application is to be found in the following passage:-

"I did not consider the applicant to be a reliable witness. As noted above, there were a number of significant discrepancies between the statement submitted with his protection visa application, and his oral evidence. These included his failure to mention in the statement that his first contact with the practice of Falun Gong was in an exercise session run by the founder of the movement, Master Li himself, a fact which the Tribunal considers too significant to have been overlooked or mistaken, if it were true; his failure to mention in the statement the claim made in his oral evidence that he had received, in about October 1999, a letter from the PSB asking him to report to the police station in relation to his practice of Falun Gong; and his failure to mention in his oral evidence the incident referred to in the statement which he claimed took place in 1997, when he was arrested along with several others practising Falun Gong and taken to the police station."

40 The RRT did not consider that the applicant's explanations for these discrepancies were satisfactory. It found that he was an unreliable witness who had not told the truth about his circumstances.

41 As I said in the introduction, the RRT did not accept that the applicant was a dedicated practitioner of Falun Gong. It came to this view because of its overall impression as to the applicant's credibility and because he had failed to attend public practice sessions for over three months. The RRT did not accept that, if he were a dedicated follower of Falun Gong, he would not be able to find an exercise group closer to home which he could have afforded to attend regularly.

42 The RRT was of the view that the applicant's answers to questions about his beliefs in Falun Gong were vague but it did not attach great weight to these answers.

43 The RRT did not accept that the applicant had ever been arrested or taken to a police station in a police van. The RRT was of the view that in his written statement this incident was presented as having occurred after the banning of the Falun Gong in July 1999 even though in his statement the applicant said that he had been told `[a]fter 1997' that Falun Gong was illegal.

44 The RRT was of the view that the applicant's claim at the hearing that the incident occurred in 1997 was an attempt by him to explain away his failure to mention it in his oral evidence.

45 The RRT also concluded that the applicant's oral account of the incident as having occurred in 1997 was an attempt to explain away his contradictory claim at the hearing that he had never been arrested or publicly practiced Falun Gong after it was banned.

46 Nor did the RRT accept that the applicant received a letter from the PSB in October 1999. The RRT's view was that the applicant would not have failed to mention such a critical incident in his protection visa application if it had in fact occurred.

47 Further, the RRT did not accept that the applicant had been dismissed from his work unit because of his Falun Gong activities.

48 The RRT was of the view that if the applicant were to return to the Peoples Republic of China the most serious consequence he would suffer would be a request to renounce his belief in Falun Gong. Since the RRT did not accept that he was a dedicated follower of Falun Gong, it did not consider that such a request would amount to persecution.

49 In any event, the RRT found that independent evidence suggested that the applicant would be able to continue to carry out his exercises in private as he had done for the three months prior to the hearing.

Procedural Fairness in the Conduct of the Hearing

50 Counsel for the applicant addressed me at considerable length as to why he said the applicant had been denied procedural fairness in the conduct of the hearing.

51 His principal submission was that the RRT had not put fairly to the applicant the matters on which it relied in order to make adverse findings as to his credibility. Indeed, he said that the RRT denied the applicant a fair opportunity to respond to adverse matters by the way in which the questions were asked and by directing the applicant to answer the questions shortly in a yes or no response.

52 It is well accepted that a decision-maker who is subject to the rules of procedural fairness must bring to a person's attention the critical issue or factor on which the decision is likely to turn so that he or she may have an opportunity to deal with it; see Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 587 per Mason J; see also at 628 where Brennan J referred to the need to provide an opportunity to deal with relevant matters adverse to his or her interests; see also Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 at [99] per Gaudron J; see also VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 at [27].

53 The critical factors on which the RRT's decision turned were the three discrepancies which were identified in the passage set out at [39] above.

54 The first was that the applicant had failed to mention in his written statement that this initial contact in the practice of Falun Gong was in an exercise session conducted by Master Li. The RRT considered this too significant to have been overlooked or mistaken.

55 The proposition that the applicant did not mention Master Li in his initial statement was put to him by the RRT in the passage from the transcript which I have set out at [34]. In the same passage the RRT asked him a series of questions to test his explanation for why there was no reference to Master Li in the statement. In particular, the RRT asked him why he would not have understood the written statement which had been read to him in Mandarin.

56 In my opinion, it is clear from the passage at [34] that the RRT sufficiently put the first proposition on which it relied to the applicant. It is also clear in my opinion that in asking the questions which it did about his understanding of the written statement, the RRT gave him sufficient opportunity to deal with his omission to refer to it in the statement.

57 It is true that the RRT did not put to the applicant that his contact with Master Li was too significant to have been overlooked or mistaken. However, I do not see that there was any obligation of procedural fairness to put that to him. It was the omission to mention his contact with Master Li in the statement which was the critical factor and, as I have said, that proposition was put.

58 The statement which the RRT made in its decision about the significance of the omission was a matter for it to determine. The authorities have made it plain on numerous occasions that the question of fact finding and the weight to be given to an applicant's answers are a matter for the RRT and not for the courts. As Kirby J said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291-292, the weight to be given to material before a decision-maker is reserved for that person so long as he or she applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review.

59 Kirby J continued with the following remarks at 292:-

"The decision-maker will usually have advantages over the reviewing judge in evaluating evidence and submissions. Those advantages will include the conventional ones of seeing any parties and witnesses who are heard and having time to reflect upon all of the material. But there are additional reasons for restraint and resistance to any temptation to turn a case of judicial review into, effectively, a reconsideration of the merits. Often, the decision-maker will have more experience in the consistent application of applicable administrative rules to achieve fairness to a wider range of people than typically come before the courts."

60 The second factor was that the applicant failed to mention in his written statement the claim that he had received a letter from the PSB in October 1999. This proposition was put to the applicant quite plainly in the passage at [36]. The RRT provided him with an opportunity to deal with it and he did so by stating that he did not think it was a big issue and so he did not mention it in the statement.

61 The third factor was that the applicant failed to mention in his oral evidence the indicent which he described in his written statement as an arrest in 1997 when he and seven or eight other Falun Gong practitioners were taken to the police station.

62 The RRT asked the applicant whether he had been arrested after the Falun Gong was banned in the passage at [31]. It asked him about the same subject matter at [35]. The RRT did not specifically put to him that he failed to mention the arrest in his oral evidence but in my view that was unnecessary. It was for the applicant to make out his own claim; procedural fairness did not require the RRT to assist him to make his case; Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 76 ALJR 966 at [265] - [266] per Hayne J; SBBA v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 90; Minister for Immigration & Multicultural Affairs v Islam [2001] FCA 1681 at [17]- [18]; Parra v Minister for Immigration & Multicultural Affairs [2000] FCA 85 at [13].

63 In my view, the RRT sufficiently complied with its obligations of procedural fairness on the "arrest" issue by asking the questions as to whether he had been arrested which I have set out in the passages at [31] and [35]. The subject matter was raised in plain terms. The applicant was given an opportunity to deal with it. The weight to be given to his answers was a matter for the RRT.

64 Nor in my view can the applicant sustain the submission that the RRT denied him procedural fairness in directing him to keep his answers to questions short and to answer them yes or no if possible. I have set out the relevant passages at [29] and [33].

65 In the first of those passages, at [29], the RRT was endeavouring to assist the applicant by telling him to slow down and answer the question. In the second passage, at [33], the RRT was again doing no more than trying to assist the applicant to give responsive answers in a way which could be captured and understood by the interpreter and the RRT.

66 There was nothing in these passages, or indeed anywhere else in the transcript, to suggest that the RRT prevented the applicant from saying all that he wished in answer to the RRT's questions. Remarks of this kind are commonly made to witnesses of fact in curial proceedings. I do not see how they can be objectionable on a fair consideration of the whole of the transcript when made by a decision-maker in an administrative tribunal.

Whether the RRT's findings were open to it

67 The applicant's counsel submitted that the finding which the RRT made that the applicant was not a witness of truth was not open to it. This finding was made upon the basis of the applicant's attempts to explain the three "discrepancies" set forth in the passage at [39].

68 The finding that the applicant had not told the truth was one which the RRT made by evaluating the answers which the applicant gave at the hearing. The warnings which Kirby J gave in Wu Shan Liang in the passage which I set out at [59] are apt.

69 Of course, the decision would be open to attack if the RRT committed jurisdictional error in making its findings. But it is necessary to bear in mind the remarks of Brennan J in Attorney-General for the State of New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36 that the merits of administrative action are for the repository of the relevant power; see also Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 347 - 348, [73] - [74] per McHugh, Gummow and Hayne JJ.

70 To say that it was not open to the RRT to make the impugned finding against the applicant is to submit that there was no probative material whatsoever from which the RRT could infer that the applicant was not telling the truth.

71 In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356, Mason CJ said:-

"So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place."

72 Deane J at 367 said:-

"If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. ... When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision."

73 This passage was referred to with approval by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 76 ALJR 1048.

74 In my view, the finding which the RRT made that the applicant was not truthful was open to it on the answers which the applicant gave to the questions which the RRT asked about each of the critical factors identified in the passage at [39]. I referred to the questions and answers in dealing with the submissions on procedural fairness and it is unnecessary to repeat them.

75 Each of those answers provided the RRT with probative material which supported its finding. There was nothing arbitrary, irrational or unreasonable about the conclusion which the RRT reached.

76 The applicant's counsel made much of the fact that the three factors set out in the passage at [39] were described by the RRT as "discrepancies" or "inconsistencies". He submitted that these were inappropriate descriptions.

77 But in my opinion, even if they were, this submission ignores the caveat against overzealous scrutiny referred to in Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ and at 291 per Kirby J.

78 It would be quite wrong to assume that when the RRT referred to "discrepancies" or "inconsistencies" it had in mind the common law test of prior inconsistent statements or the statutory definition of that term in the Evidence Act 1995 (Cth). All that the RRT had in mind was that the applicant's omission to mention the factor, either in his written statement or oral evidence was a form of inconsistency which the RRT considered to reflect adversely on his credit.

79 Nor, in my opinion, was there anything misleading or unfair about the way in which the RRT put its questions to the applicant.

80 Counsel for the applicant attacked most strongly the finding that the applicant was not arrested. He said that this rested upon an equivocal answer, ie "No. That was true" in the passage set out at [31]. He also submitted that in putting further questions to the applicant about this issue as set out at [35] the RRT proceeded upon a false premise, namely that the applicant had denied in his earlier answer that he had been arrested.

81 I accept that the answer "No. That was true" was unclear. But the applicant clarified it in the passage at [35]. Not only did he say that the incident should not be regarded as an arrest, he said it was before the Falun Gong was banned.

82 This evidence was quite different from what he said in his written statement. There he said in plain terms that he had been arrested. Also the arrest was said to have occurred after he was told at the cultural centre that the practice of Falun Gong was illegal.

83 Accordingly, it seems to me that the RRT was entitled to proceed upon the basis that the applicant had not stated in his oral evidence that he was arrested and that this was contrary to what he had said in his written statement. I do not see that there was anything arbitrary, irrational or unreasonable in this approach.

84 The remaining matters which counsel for the applicant attacked were the finding about the level of the applicant's commitment to Falun Gong and the finding that his answers about his beliefs in Falun Gong were vague.

85 There was sufficient probative material in the passages dealing with the applicant's public practice of Falun Gong set out at [28] and [30] to enable the RRT to make a finding that the applicant was not a dedicated follower. The effect of his evidence in those passages was that he did not practice Falun Gong publicly in China after it was banned and he had not practised at Darling Harbour for three months; nor did he go to the Blacktown centre but chose instead to practice in private.

86 Whatever my views as to the merits, this material provided a basis for the finding which the RRT made. At the risk of repetition, there was nothing arbitrary, irrational or unreasonable in it.

87 Similarly, the passage at [30] contained probative material to support a finding that the applicant's evidence as to his beliefs were vague. There was nothing unfair in putting this proposition to him toward the end of his evidence in the passage at [37].

Country Information

88 The applicant's counsel submitted that there were a number of items of country information to which the applicant's attention was not drawn and which would have assisted him.

89 I was taken to three passages in the US Department of State Country Report on Human Rights for 2001. The passages to which I was taken included some of the material to which the RRT referred. I summarised what the RRT said about the Report at [25].

90 It is unnecessary to set out the passages which counsel for the applicant read to me. They do contain remarks which indicate repression of the Falun Gong by the Chinese authorities.

91 But the short answer to this is that the RRT rejected the applicant because it found that he was not a dedicated practitioner of Falun Gong. It found that he had not publicly practiced Falun Gong in China after the Falun Gong was banned in July 1999.

92 In any event, it is clear that procedural fairness did not require the RRT to assist the applicant to make his case. It was for the applicant to make out his own claim; see Muin at [265] - [266] and the authorities set out at [62] above.

93 This is not a case in which the passages contained material adverse to the applicant's interests which the RRT proposed to take into account in deciding to exercise its powers against him. Thus, even if s 424A does not contain an exhaustive statement of the RRT's obligation of procedural fairness, there was no obligation on the RRT to give the applicant an opportunity to comment on those passages.

94 Counsel for the applicant attacked the finding which the RRT made (see [49] above) that independent evidence suggested that the applicant would be able to carry out his exercises in private. He went so far as to submit that a reading of the 2001 Report from beginning to end presented such an horrific picture of the treatment of the Falun Gong that this finding was ludicrous and not supported by the facts.

95 But this submission fails to have regard to the principles stated by Mason CJ, Deane J and Kirby J to which I have referred. Here, there was other evidence apart from that of the US State Department which it was open to the RRT to accept; see the DFAT Country Information Report referred to at [26].

Other grounds referred to in the Amended Application

96 I do not propose to set out each of the grounds. I have covered most of them in what I said above.

97 The claim that the RRT did not provide the applicant with a right to be heard in connection with its proposed findings is without foundation. The applicant was invited to attend and did attend a hearing. The applicant tendered a transcript of the hearing on this application and I have referred to it in some detail.

98 The claim that the RRT asked the applicant "wrong questions" was in effect a submission that the RRT had not put adverse matters fairly to him. For reasons set out above, I reject this submission.

99 There was nothing to suggest that the RRT took into account irrelevant considerations.

100 The claim that the RRT exercised its powers in bad faith was a very serious claim. It did not fall within the well-established principles required to make out such a claim. In my opinion, it was entirely without foundation.

Orders and Costs Questions

101 It follows that the application must be dismissed.

102 At the conclusion of argument I said that on handing down judgment I would reserve costs. This was to enable Ms Hartstein, who appeared for the Minister, to decide whether to make an application for some part of the costs to be paid personally by Mr Brezniak of counsel and/or his instructing solicitor.

103 This related, in particular, to the circumstances in which an adjournment application was made to the Court by Mr Brezniak and his instructing solicitor and to the eventual hearing of it on Friday evening, 28 March 2003.

104 However, the possibility of a personal costs order is not confined to that application.

105 On a number of occasions during the conduct of these proceedings I expressed my concern about the lack of preparation of the case by the applicant's legal advisers.

106 The matter was adjourned twice before the hearing commenced on 1 May 2003. On the second adjournment I made directions for the filing of submissions and any evidence. Those directions were not complied with. Instead, the submissions and an affidavit were delivered to the Minister's representatives on the morning of 1 May 2003.

107 Notwithstanding that the matter had been adjourned twice to enable the applicant's legal advisers to prepare the case, Mr Brezniak made the following statement to me on the morning of 1 May 2003:

"I have prepared, your Honour, submissions which were prepared in the circumstances of my instructions under pressure and late and, accordingly, your Honour the assistance that I will be able to give to the Court is less than I would desire and less in my submission than the Court will find in the circumstances today of greater value."

108 At the conclusion of Mr Brezniak's address on 1 May 2003, Ms Hartstein sought an adjournment to enable her to answer the applicant's case. The matter was therefore adjourned to 4 June 2003.

109 Although I do not have a final view, it seems to me that the need to have a second day of the hearing was caused by the applicant's failure to comply with my directions and by the applicant's counsel or solicitors' lack of preparation.

110 It will be a matter for the Minister to decide what costs application he makes.

111 If no personal order is sought I propose to make the ordinary order that costs follow the event so that the applicant would be ordered to pay the costs of the application.

I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated: 11 July 2003

Counsel for the Applicant:	Mr D Brezniak
Solicitor for the Applicant:	Michaela Byers
Counsel for the Respondent:	Ms V Hartstein
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	24 & 28 March, 1 May, 4 June 2003
Date of Judgment:	11 July 2003