Buv18 BY His Litigation Guardian (Personal Identifier: Pid0077567911) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCCA 3649

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUV18 BY HIS LITIGATION GUARDIAN (PERSONAL IDENTIFIER: PID0077567911) v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR [2019] FCCA 3649

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal failed to complete its exercise of discretion – whether Administrative Appeals Tribunal failed to consider issues that arose on the claims, submissions and evidence before it – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5J, 31, 36, 65, 411, 422B, 474,

Migration Regulations 1994 (Cth), reg.2.01.

Treaties:

Convention relating to the Status of Refugees, opened for signature 28 July

1951, 189 UNTS 137 (entered into force 22 April 1954), Art 1A.

Protocol Relating to the Status of Refugees, opened for signature 31 January

1967 (entered into force 4 October 1967).

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Wang v Minister For Immigration and Multicultural Affairs (2000) 105 FCR

548

WAEE v Minister for Immigration & Multicultural & Indigenous Affairs

(2003) 236 FCR 593

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2

Minister for Immigration and Citizenship v MZYTS (2013) 230 FCR 431

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

FCAFC 10

Applicant: BUV18 BY HIS LITIGATION GUARDIAN (PERSONAL IDENTIFIER: PID0077567911)

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number:   SYG 1002 of 2018

Judgment of: Judge Emmett

Hearing date: 28 November 2019

Date of Last Submission: 28 November 2019

Delivered at: Sydney

Delivered on: 13 December 2019

REPRESENTATION

Counsel for the Applicant: Mr Leonard Karp

Solicitors for the Applicant: Kinslor Prince Lawyers

Counsel for the Respondents: Mr Thomas Liu

Solicitors for the Respondents: Australian Government Solicitor

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1002 of 2018

BUV18 BY HIS LITIGATION GUARDIAN (PERSONAL IDENTIFIER: PID0077567911)

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 21 March 2018 (“the Tribunal”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 29 September 2015 refusing the applicant a Protection (Class XA) visa (“Protection Visa”).

2. The applicant is a citizen of China. The applicant is a minor and the second of two children. The applicant’s father was appointed as his litigation guardian at a directions hearing before registrar of this Court on 3 May 2018. The applicant’s application asserts that he fears harm from the Chinese Government and local authorities in China by reason of the one child policy and because of his parents claimed Catholicism.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of the Delegate, and a summary of the Tribunal’s review and decision.

Background

1. On 3 November 2014, the applicant lodged an application for a Protection Visa with the Department of Home Affairs (“the Department”).

2. On 29 September 2015, the Delegate refused the applicant’s application for a Protection Visa.

3. On 26 September 2015, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

4. On 21 March 2018, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a Protection Visa.

5. On 11 April 2018, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative Framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection Visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

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

6. Sections 36(2A) and 5 of the Act defines “significant harm.”

7. Section 5J of the Act is as follows:

   “Meaning of well-founded fear of persecution

   (1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c) the real chance of persecution relates to all areas of a receiving country.

   Note: For membership of a particular social group, see sections 5K and 5L.

   (2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note: For effective protection measures, see section 5LA.

   (3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a) conflict with a characteristic that is fundamental to the person's identity or conscience; or

   (b) conceal an innate or immutable characteristic of the person; or

   (c) without limiting paragraph (a) or (b), require the person to do any of the following:

   (i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii) conceal his or her true race, ethnicity, nationality or country of origin;

   (iii) alter his or her political beliefs or conceal his or her true political beliefs;

   (iv) conceal a physical, psychological or intellectual disability;

   (v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b) the persecution must involve serious harm to the person; and

   (c) the persecution must involve systematic and discriminatory conduct.

   (5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a) a threat to the person's life or liberty;

   (b) significant physical harassment of the person;

   (c) significant physical ill-treatment of the person;

   (d) significant economic hardship that threatens the person's capacity to subsist;

   (e) denial of access to basic services, where the denial threatens the person's capacity to subsist;

   (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

   (6) In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.”

8. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

9. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act).

10. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a Protection Visa

1. The applicant’s claims for protection were summarised by the Tribunal as follows:

   “• His parents are citizens of China. They arrived in Australia on 24 November 2007 and meet here in January 2011. He has a brother, [Z], who was born in Australia.

   • As his parents are Chinese citizens he is also a citizen of China. He believes that he will be deprived of his basic human rights and subject to persecution if he goes to China. He is seeking protection in Australia.

   • As he is a second child, his parents will be forced to pay a social compensation fee because of the birth control laws in China. There are two issues in relation to how much the social compensation fee will be and whether his parents can afford to pay it.

   • His parents have both lodged applications for Protection visas in the past and his brother was included in the applications. Their applications were reviewed by the then Refugee Review Tribunal (RRT) and refused. He believes the RRT decision is wrong as it failed to consider the actual situation in China. The social compensation fee is decided by local officials instead of the law such as the ‘Population and Family Planning Regulation of Fujian Province’. His maternal grandparents were cheated by the local authorities and made to pay a large amount of money for breaching the birth control policy. Although this happened many years ago, things have not changed since then. On the contrary, the government and in particular local officials have become more and more corrupt and greedy. His parents believe that they would be forced to pay at least 200,000 RMB.

   • The RRT did not accept that his parents would be unable to pay the social compensation fee because his parents could raise $7,000.00 from the sale of their car or pay the fee by instalments. The RRT failed to consider changes to his parents’ circumstances. His mother is in poor health and has to look after him and his brother. His father is the holder of a Bridging visa and has difficulties finding work. His family’s living costs have increased with the birth of him and his brother and his family has not had any income for a whole week on many occasions. His parents have borrowed money or sought help from friends frequently. They are in debt.

   • The payment of the social compensation fee by instalments has to be approved by the local authorities. He believes his parents will never get this approval because of corrupt and greedy local officials in China. His parents will not be able to afford the social compensation fee. As a result he will become a “black child” without a Hukou (household registration) and will not be entitled to government funded public education or subsidised health care. The RRT found that his parents might be able to arrange attendance at a private school. As his parents are subject to serious financial hardship they are unable to afford the cost of private schools or private health providers. His basic human rights, in particular his health, will be threatened seriously from time to time and it will be impossible for him to survive in China.

   • His parents are devout Roman Catholics. His brother has also been baptised. His parents will arrange for him to be baptised shortly. He believes that if he goes to China he will be subjected to persecution because of his parents’ Roman Catholic beliefs. He will be unable to practice his religion safely and freely.

   • He believes the RRT had prejudged his parents’ application prior to the hearing and failed to consider the evidence given by a registered psychologist in relation to his mother’s health. The RRT accepted that his mother was a Roman Catholic in China and has been attending the Catholic Church since soon after her arrival in Australia and that his father and brother are also Roman Catholics and have been attending the Catholic Church. The RRT failed to consider the evidence of his parents that the official Church in China is not the genuine Roman Catholic Church and that his parents will not attend the official Church. The RRT ignored their basic human rights and suggested that they should surrender to the Communist dictatorship and attend the official Churches. This is unacceptable to his parents.

   • Even if the Chinese authorities tolerate some activities of unofficial Churches in Fujian Province, it does not mean that genuine Roman Catholics like his parents will not be in danger in China. Based on the Chinese Constitution, “religious bodies and religious affairs are not subject to any foreign denomination.” The Roman Catholic Church, like the underground Church in China, must be dominated by the Roman Curia and Roman Catholics must be under the leadership of the Holy See. Attending the underground Church is a violation against the Constitution in China and is subject to prosecution.”

The Delegate’s decision

1. On 17 August 2017, the applicant, his parents and his older brother attended an interview with the Delegate. As the applicant was only 1 year old at the time, his father gave evidence on his behalf.

2. The Delegate considered the claim, advanced by the applicant’s father, that he and his mother would be arrested in China due to being Catholic and that there would be no one to care for the applicant. The Delegate considered country information on Christians and Catholics in China that indicated that they were able to safely practice their religion through registered churches. The Delegate referred to further country information that suggested that the applicant’s parent’s province, Fujian, is rarely mentioned in reports on breaches of religious freedom. The applicant’s father contended that the country information was incorrect and inaccurate, however, the Delegate considered that the country information did not support the claim that the applicant’s parents would be arrested.

3. A claim was advanced that the applicant would be deprived of his basic human rights as a result of being a second born child and the family planning laws in China. The Delegate noted that the family planning laws in China are laws of general application and directed at achieving a legitimate state objective. The Delegate reasoned that the enforcement of such laws does not ordinarily constitute discrimination. The Delegate considered various pieces of country information on the issue and summarised that the information indicated the applicant did not face a real chance of persecution for that reason.

4. The Delegate was not satisfied on the available evidence that the applicant faced a real chance of persecution in the foreseeable future.

5. On 29 September 2015, the Delegate refused the applicant’s application for a Protection Visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

The Tribunal’s review and decision

1. On 26 October 2015, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. On 9 January 2018, the applicant’s representative, along with his father and a witness, Father Paul McGee, attended the Tribunal hearing and gave evidence. The Tribunal hearing was conducted with the assistance of a Mandarin interpreter.

3. The Tribunal summarised the applicant’s claims and noted various letters of support provided by the applicant to the Delegate, including several letters from Father Paul McGee.

4. The Tribunal noted that the applicant’s father gave evidence before the Delegate and made a new claim on behalf of the applicant that the applicant’s parents would be arrested because of their religious beliefs, thereby leaving the applicant without a carer.

5. The Tribunal then identified further material provided to it by the applicant including more letters of support and a statutory declaration dated 18 December 2017 from the applicant’s father indicating that the applicant’s father maintained all claims mentioned in the visa application.

6. The Tribunal gave the applicant additional time to provide further evidence following the hearing. As a result, the applicant’s father provided another statutory declaration date 17 January 2018, and a Department of Foreign Affairs and Trade (“DFAT”) Country Information Report on China dated 21 December 2017. The Tribunal summarised exchanges that it had with the applicant’s father at the hearing and identified DFAT information to which it had regard and which it discussed with the applicant’s father. The Tribunal found the DFAT country information to indicate that in Fujian Province the Provincial Government is implementing a liberal interpretation of new laws.

7. The Tribunal noted the applicant’s father’s claim that he would have to pay a Social Compensation Fee in respect of the applicant, although he did not provide any country information to support this claim. In light of country information before it the Tribunal did not accept that evidence and found that as a result of changes in the Family Planning Laws, household registration is no longer linked to the payment of a Social Compensation Fee.

8. The Tribunal noted the applicant’s father’s claim that if he continued to attend the underground church he would not be given household registration. However, the applicant’s father did not provide any country information to support this claim and the Tribunal found the applicant’s father’s view to be “mere speculation on his part”.

1. The Tribunal noted the applicant’s father’s evidence that the applicant has now been baptised. The applicant’s father told the Tribunal that if he returned to China he would practice his religion in an underground church and he and his whole family would be persecuted. The Tribunal asked the applicant’s father how the applicant would be persecuted and noted the father’s response that he and his wife may be arrested and the applicant would be sent to an institution where he would be persecuted. The Tribunal noted that during his interview with the Delegate, the applicant’s father made a similar claim that he and his wife may be arrested because of their religious beliefs and the applicant would be left without a carer. The Tribunal raised its concerns about that claim with the applicant’s father and found the likelihood of that happening to be remote.

2. The Tribunal then identified with specificity DFAT country information in relation to restricted religious freedom in China and discussed it in detail with the applicant’s father. The Tribunal noted the applicant’s father’s response that he would practice Catholicism in an unregistered underground church. The Tribunal referred to DFAT country information in relation to unregistered churches particularly in the Fujian Province which suggested that local authorities in Fujian tolerate the discreet operations of unregistered churches.

3. When the Tribunal discussed this country information with the applicant’s father, the father stated that he believed the situation for underground churches would become stricter after new religious regulation legislation and that there is zero tolerance by the Chinese government of unregistered churches.

4. The Tribunal noted that DFAT country information indicated that open criticism of the government about its regulation of religious practice was more likely to affect leaders of unregistered churches rather than individual workers. The Tribunal found that there was no evidence before it to indicate that the applicant’s father or the applicant’s mother are leaders in the Catholic Church and found it unlikely that they or the applicant would come to the adverse attention of the Chinese authorities.

5. Father McGee also gave evidence before the Tribunal and provided country information to it. The Tribunal summarised the country information provided by Father McGee. The Tribunal also had regard to country information provided by the applicant’s father after the hearing. However, the Tribunal was unable to find any country information on the implementation of new religious regulation laws and, accordingly, found any impact to be speculative.

6. The Tribunal did not accept that the applicant would not be able to practice Catholicism in an underground church in Fujian if he wished to do so and was not satisfied that the new religious regulation laws would prevent the applicant from practicing Catholicism in an unregistered church in Fujian. The Tribunal did not accept that the applicant’s parent’s practice of Catholicism in an unregistered church in Fujian province would result in the applicant being sent to an institution where he would be persecuted or left without a carer.

7. The Tribunal was not satisfied that the applicant was at risk of serious or significant harm for any of the reasons claimed if he was returned to China now or in the reasonably foreseeable future. The Tribunal found that the applicant did not satisfy the criteria in s.36(2)(a) of the Act or the complementary criterion in s.36(2)(aa) of the Act.

The proceeding before this Court

1. The applicant was represented before this Court, by Mr Leonard Karp of counsel.

2. By consent, leave was granted to the applicant to rely on the grounds contained in the Amended Application, filed in Court today, as follows:

   1. The Second Respondent ("the Tribunal") failed to complete the exercise of its jurisdiction in that it failed to address the following issues that arose on the claims, submissions and evidence before it;

   a) Whether deprivation or substantial deprivation of capacity of a child to learn about his religion so he or she can better follow it may, in the present circumstances, be persecutory?

   b) Whether it would be persecutory for the applicant who is a child, to be deprived of the care of his parents in the event that they were arrested or detained for following what they see as their religious obligations?

   c) Whether, alternatively to (b) above, if the applicant were to adopt his parents' religion, would restriction on his ability to worship in an "underground" Catholic Church, and to proselytize, be persecutory?

   2. The Tribunal failed to complete the exercise of its jurisdiction in that it failed to assess, in a real and active way, the evidence and submissions before it.

   Particulars

   (a) The evidence and submissions that there was a progressive tightening of restrictions affecting free religious worship and religious education, combined with,

   (b) The equivocal nature of the evidence obtained by the Tribunal under s. 424 of the Migration Act.”

Ground 1 (a)

1. Ground 1(a) asserts that the Tribunal failed to consider whether being wholly or substantively deprived of being able to learn about a person’s religion is persecutory.

2. Counsel for the applicant referred to the Tribunal’s finding that the applicant would not be prevented from practicing Catholicism should he wish to do so.

3. Counsel for the applicant referred the Court to s.5J of the Act as giving rise to a question to whether restrictions on the practice of religion may be persecutory for the purposes of Article 1A(2) of the Convention. Counsel for the applicant submitted that in failing to address that question, the Tribunal failed to complete the exercise of its jurisdiction.

4. In support, counsel for the applicant referred to Wang v Minister For Immigration and Multicultural Affairs (2000) 105 FCR 548 at 564 per Merkel J where his Honour stated that the fact that persecution as a result of religious practice might occur indirectly through a government regulatory regime does result in it falling outside the protection of the Convention. Justice Merkel noted that religious practice has not been treated as being confined to personal religious worship.

5. However, a fair reading of the Tribunal’s reasoning must take into account its detailed analysis of the applicant’s evidence as well as country information. The Tribunal rejected the applicant’s claim that he would experience religious persecution as a Roman Catholic and did not accept any claim that the applicant’s religious education may be significantly inhibited or prevented. The Tribunal referred in detail to the applicant’s father’s submission arising from the material provided by Father McGee.

6. The Tribunal referred to DFAT country information provided by the applicant’s father in relation to new religious regulation laws, noting that unregistered Christian churches were likely to be affected. However, the Tribunal found that the impact on unregistered Catholic churches, particularly in Fujian Province, was speculative. I accept the first respondent’s submission that that finding formed an important part of the Tribunal’s analysis of the future risk of harm to the applicant. Moreover, that finding underpinned the Tribunal’s conclusion that it did not accept that the applicant would not be able to practice Catholicism in an unregistered church in Fujian Province if he wished to do so.

7. The Tribunal’s finding that the impact of the religious regulatory laws on unregistered Catholic churches was speculative, was a rejection of the applicant’s claim of religious persecution. That finding subsumes any purported claim concerning deprivation of the applicant’s ability to learn about his religion (see WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at [47]). The Tribunal found that the applicant would reside in Fujian Province which had traditionally been very tolerant in relation to the practice of Christianity in unregistered churches.

8. In the circumstances, it was open to the Tribunal to find that any adverse impact on the applicant arising from changes to religious laws in China, was speculative. That finding was based on rational grounds and arrived at after considering those factors that were logically probative of the applicant’s claim. That finding was made in a procedurally fair manner and was not without and intelligible foundation (see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[38] per McKerracher, Griffiths and Rangiah JJ; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry and Bromwich JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ).

Grounds 1(b) and (c)

1. Ground 1(b) asserts that the Tribunal’s rejection of the applicant’s claim that his parent’s practice of Catholicism in an unregistered church in Fujian Province would result in the applicant being sent to an institution where he would be persecuted or be left without a carer, leaves open the question of whether the applicant would have the care of relatives if his parents were arrested or whether they would be arrested in the first place. Counsel for the applicant submitted that if the parents were to be arrested for practicing their faith, would not the applicant be persecuted by the deprivation of his parents if the deprivation was carried out for the reason of their religion.

2. By Ground (1)(c), counsel for the applicant also contended that if the applicant’s parents were to be arrested by reason of proselytising their religion with the consequence that if the applicant was to adopt Catholicism he would also be at risk of having to restrict the practice of his religion.

3. Counsel for the applicant submitted that by failing to address these questions the Tribunal failed to complete the exercise of its jurisdiction. 

4. However, as stated above, a fair reading of the Tribunal’s decision record must take account of the Tribunal’s reasons and analysis as whole. This includes the Tribunal’s reference to the applicant’s father’s claim to the Delegate that he and his wife may be arrested because of their religious beliefs with the result that the applicant would be left without a carer.

5. The Tribunal considered that claim but rejected it. The Tribunal did not accept that the applicant would be placed in an institution or left without a carer because his parents would be arrested and that the likelihood of that happening was remote. The Tribunal found that based on country information before it proselytising was more likely to affect leaders of unregistered churches rather than worshippers and that there was no evidence before the Tribunal to indicate that the applicant’s parents were leaders in the Catholic church. The Tribunal found it unlikely that the parents or the applicant would therefore come to adverse attention of the authorities.

6. The findings referred to above supported the Tribunal’s conclusion that it did not accept that the applicant’s parent’s practice of Catholicism in an unregistered church in Fujian Province would result in the applicant being sent to an institution where he would be persecuted or left without a carer.

7. A fair reading of the Tribunal’s reasons, which take into account its detailed analysis of country information and the evidence before it, disclose that there was no issue left unconsidered by the Tribunal in respect of the applicant’s claims.

8. The Tribunal’s findings were open to on the evidence and material before it and for the reasons it gave. Those findings were based on rational grounds and arrived at after considering those factors that were logically probative of the applicant’s claims and were made in a procedurally fair manner. The Tribunal gave the applicant an opportunity to provide post-hearing material to which it gave careful consideration as well as all material provided to it before and during the hearing.

9. There was no failure by the Tribunal to complete the exercise of its discretion.

10. Accordingly, Ground 1 is not made out.

Ground 2

1. Grounds 2(a) and (b) assert that the Tribunal failed to grapple with the evidence and material before it and thereby it failed to assess in a real and active way the evidence, submissions and material before it dealing with the continuing restrictions on religious freedom; and, the equivocal nature of the evidence before it. By failing to do so, the Tribunal failed to complete the exercise of its jurisdiction.

2. In support, the applicant referred to Minister for Immigration and Citizenship v MZYTS (2013) 230 FCR 431 at [37]-[39]. However the Full Court of the Federal Court in MZYTS found that the tribunal’s reasons had disclosed no process of weighing evidence and preferring some over the other and that “the absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.”

3. A fair reading of the Tribunal’s decision record makes clear that none of those criticisms in MZYTS apply to the Tribunal’s reasoning in the present case. The Tribunal identified with particularity and assessed in detail the evidence and country information about the applicant’s claim that his parents would practice Catholicism in an unregistered church. The Tribunal also set out and fairly summarised the 5 articles submitted by Father McGee and had regard to country information provided by the applicant’s father after the hearing. In evaluating that evidence before it, the Tribunal found that, based on the country information and evidence it had previously set out, the “impact” of new regulated religious laws was “speculative”.

4. It was open to the Tribunal to prefer DFAT country information which indicated that Fujian Province had been traditionally very tolerant of unregulated Catholic churches. The Tribunal found that the applicant’s father’s statement that the Chinese government is cracking down on unregistered churches and there is zero tolerance not to be consistent with the country information in relation to Fujian Province where the Tribunal found the applicant will reside.

5. The Tribunal’s findings disclose that it considered all the evidence and country information before it but preferred some over the other. It is well established that the country information to which a tribunal has regard and the weight it gives that information is a matter for the tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] and [13]).

6. Otherwise, as stated above the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave. They were arrived at after a detailed analysis of all the material before the Tribunal, including post-hearing material. In the circumstances, the Tribunal discharged its obligations as a trier of fact and its findings were not without an intelligible justification.

7. Accordingly, Ground 2 is not made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant’s father and his witness at a hearing; and, had regard to all material provided in support, including post-hearing material. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal identified independent country information to which it had regard. The Tribunal also discussed with the applicant country information provided by the applicant’s father and the country information upon which the Tribunal relied.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Deputy Associate:  

Date: 13 December 2019