MZABT v Minister for Immigration

[2015] FCCA 1727

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZABT v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1727

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – whether Tribunal fell into error in way arising in Appellant S395 of 2002 – whether Tribunal considered if applicant conduced her religion as a result of rear of persecution – whether Tribunal failed to consider an integer of applicant’s case – criticisms of Tribunal’s decision not made out – application dismissed.

Legislation:  
Migration Act 1958, s.36(2)(aa)

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

Applicant: MZABT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 413 of 2014

Judgment of: Judge Burchardt

Hearing date: 28 April 2015

Date of Last Submission: 28 April 2015

Delivered at: Melbourne

Delivered on: 20 July 2015

REPRESENTATION

Counsel for the Applicant: Mr Aleksov

Solicitors for the Applicant: Oboodi Barristers & Solicitors Pty Ltd

Counsel for the First Respondent: Ms Symons

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. The application is dismissed. 

2. The applicant pay the first respondent’s costs. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 413 of 2014

MZABT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) dated 21 February 2014.  The Tribunal affirmed the decision of the delegate of the first respondent not to grant the applicants Protection (Class XA) visas.  It should be noted that the second applicant is the child of the first applicant, and I will refer to the first applicant as the applicant in this decision, as no separate claim is advanced on behalf of her child, who has not, it seems, been allocated a pseudonym in any event. 

2. By an amended application filed 17 March 2015, the applicant presses three grounds of application.  Ground 4 was expressly abandoned by counsel at trial.  Grounds 2 and 3 are interrelated. 

3. Put shortly, the applicant asserts that the Tribunal fell into error in the manner indicated in the case of Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (“Appellant S395”).  Additionally, and this is the second substantive ground, it is submitted that the Tribunal failed to deal with an integer of the applicant’s claim clearly raised on the materials.

4. For the reasons that follow, I do not think that the Tribunal fell into jurisdictional error as alleged and it follows that the application must be dismissed.

The Materials in the Court Book

1. When claims turn at least in part on a detailed analysis of what the Tribunal decided in relation to factual issues, including assertions that matters may not have been dealt with properly or at all, it is in my opinion appropriate to start by looking at the relevant materials in the Court Book (“CB”) that were before the Tribunal.  The applicant’s application for a protection visa is at CB1-75 and the gravamen of her claims is set out at CB23 as follows:

   “I am a devoted local church member and our local family church is banned in China.  If I have to return to China, I can not (sic) give up my religious belief and I will continue with my religious activity, it is likely I can be arrested and detained by the Chinese authority.”

2. At CB71-72 the applicant’s statutory declaration is set out in translation.  She was born on 15 September 1984 in China and is married with a child born 2 January 2013 (the child earlier referred to).  She first arrived in Australia on a student dependent visa in 2008 with her ex-husband but due to difference in religious belief she left him and they were divorced on 12 December 2008.

3. The applicant deposed that she remained in Australia, after her

   
   

   ex-husband left her and went back to China, as she was afraid that as

   
   

   a woman abandoned by her husband she would be humiliated by society in China.  She met her present husband in 2010 and married on 14 May 2012. 

4. The applicant deposed that her family in China consisted of her father, mother and brother who are all local family church members.

5. The applicant deposed that she did not apply for a protection visa at any earlier stage because she was not sure whether she was able to apply for the same as a result of being abandoned by her ex-husband.  She deposed that she had consulted with a migration agent who had told her that it would be extremely difficult to apply for a protection visa.  The applicant deposed:

   “All my family are devoted Christians and we practice at our local family church in China.  Our local family church is not registered with Three Self Patriotic Association is proclaimed “evil Sect” and has been banned from operation in China. 

   
   

   I have been following my parents and have been attending local church gathering from the time I was young and was baptised when I was about fifteen years old.”

6. The applicant went on to depose as to her religious belief and further as to the arrest of her father by the Lianjiang County Public Security Bureau officers on 2 December 2012 while attending a local church gathering.  She deposed that he was detained for seven days during which he was abused, harassed and threatened.  When released he was warned that he should keep away from the local family church and should worship in government approved churches.  He was warned that if he was to be found at the next local family church gathering in the future, he would be sent to jail.

7. The applicant deposed to the inability of her family to relocate in China.  The applicant went on to depose to difficulties in obtaining a passport for her son in Australia and the resultant difficulties this would cause him if he were to be returned to China.  The applicant deposed at paragraphs 12 and 13, CB72:

   “12.  Ever since I arrived in Australia, I have been practising my religious belief at our local family church in Australia.  I am concerned that if I have to return to China with my son in the future, we will still continue with our local family church activities in China, on the other hand since our local family church activities are banned in China, it is likely that we will be discovered by the authority and will be arrested and detained by the authority while attending our local family church activities. 

   13.  We are lodging this protection visa application with the department on the religious grounds and Chinese government’s child policy which stipulate that children born without a permit will not be registered in the household systems and will be declined from welfare entitlement, education and education in the future.”

8. The applicant forwarded to the department a number of further documents in support of her application including at CB114

   
   

   a purported translation of a certificate of release from detention in relation to her father.  This purported to show a term of detention from 2 December 2012 to 8 December 2012. 

9. The applicant’s application was considered by a delegate of the first respondent and the decision is at CB150-165.  It is sufficient for present purposes to note that the delegate took a very dim view of the applicant’s credibility (see, in particular, CB154).  It is not necessary to refer to the delegate’s decision in any detail because the Tribunal came to different conclusions as to some of the important issues of credit in which the applicant was unsuccessful before the delegate.

10. The applicant provided a letter in support of her application to the Tribunal which is at CB172-173.  It repeated the claims that a member of the local church found to be present at a local church gathering would be arrested and detained by authorities, and repeated the claims of her father’s arrest and consequential abuse.  The letter also said:

    “I cannot understand why the delegate stated in the decision letter about me practising at Catholic Church.  I strong belief

    
    

    I did not claim to be a Catholic Church member at any stage. 

    
    

    It is possible that the delegate might have simply copied some contents from another protection visa application who claimed to be a Catholic Church member. (sic)”

11. It should be noted that the delegate characterised the local church to which the applicant belonged as “an underground Catholic church in the PRC” (see CB159).  It is not apparent whether that description emerged from what the applicant said or otherwise, but I note that the delegate clearly referred to the applicant being a member of the local church on a number of occasions. 

12. In my view, these are the relevant extracts from the Court Book.

The Decision of the Tribunal

1. The Tribunal paraphrased the application for the review and the relevant law at CB229-231 in terms of which no criticism has been advanced.  The Tribunal went on to consider that the claims and evidence at CB231-234.  The Tribunal set out the applicant’s statutory declaration in full, noted the certificate of release provided in respect of the applicant’s father and paraphrased the delegate’s decision

   
   

   at paragraphs 25-27 (CB233-234) and noted the further statement

   
   

   to which reference is made above.  The recitation of the claims made is, in my view, an accurate one. 

2. The Tribunal’s findings and reasons occupy the remainder of the decision from CB234-246.  The Tribunal first addressed the applicant’s country of nationality and third country protection.  Nothing turns

   
   

   on these matters.  The Tribunal then set out the applicant’s claims and characterised them at paragraph 34 (CB235) as:

   “The applicant has raised three claims for protection, religion, as a member of a local church in China; membership of

   
   

   a particular social group arising from having a child without permission from her local authorities; and a claim based on her first husband abandoning her.”

3. The Tribunal then paraphrased the applicant’s circumstances in Australia accurately at paragraph 35 and went on to consider the applicant’s religious claims.  At paragraph 36 (CB235), the Tribunal recorded:

   “The applicant claims to be a member of a Local Church in China, has been a member for as long as she can remember, and that all members of her family, her father, mother, and younger brother were all members.  The applicant stated her local church consisted of around 20 to 30 members, who met twice a week, on Sunday 10 - 12, and Wednesday evening from 7 to 9pm.  They had various locations where they met across the village, though they met in secret because the church was illegal, designated an ‘evil cult’ by the authorities.  The applicant stated that the church had been called a derogatory name in China, that translated as ‘the shouters’.”

4. The Tribunal went on at paragraphs 37-38 (CB235-236) to consider the applicant’s understanding of Christianity and was satisfied that the applicant was a practising Christian as her knowledge and understanding of the practices of the church accords with country information available to it.  At paragraphs 39 and following, CB236, the Tribunal recorded:

   “39.  The Tribunal questioned the applicant about her religious practice in China.  The applicant stated that she attended on two occasions per week.  She stated that the practice was held

   
   

   at different locations so that the authorities would not know where they were.  The Tribunal asked if the applicant herself had any difficulties practising her religion.  The applicant stated that nothing had happened to her personally.  The Tribunal noted that given the length of time the applicant had been a part of the church, she had been to thousands of services, and nothing had happened to her.  The applicant agreed with that statement. 

   
   

   The applicant stated that if the authorities were coming she would scatter.  The applicant stated that the authorities had not done very much, so many small churches, the authorities do not have the resources to shut them all down. 

   40.  The Tribunal noted that the applicant’s family had pratised for a significant period of time without any issues. 

   
   

   The applicant stated that her father had been to many religious services, but that in December 2012 he had been arrested at

   
   

   a church service and held for a week.  The applicant stated that her mother was sick at the time, and she did not know why her brother had not attended, perhaps he had stayed at home to look after her mother.  The applicant stated that after being held for

   
   

   a week her father was released.  The Tribunal asked if he had been charged.  The applicant stated that he had been warned that if he continued to practice his religion he would be charged.  The applicant stated that he continued to attend religious services.  The applicant stated that her father has been protected by Christ, he had not had a problem until the arrest, however the protection not necessarily there.  The applicant stated that her mother told her about the arrest.  The applicant provided

   
   

   a document from the Lianjiang County Public Security Bureau regarding the release of her father.  She stated that she got this document to show what had happened to her father. 

   
   

   The Tribunal put country information to the applicant that fraudulent documents are prevalent in China.  The applicant stated it was a genuine document because her father was detained.  The applicant stated that it was like catching a thief, her father was caught, ‘busted’, after many crimes. 

   41.  The Tribunal asked if other members of the congregation had been arrested and charged.  The applicant stated that many others had been arrested but she did not know if they had been charged.  The Tribunal noted that if many others had been arrested, the authorities would have a fairly good idea as to who was a member of the congregation, given that it was a small group of people who attended, 20 to 30 people.  The applicant stated that she had seen many of the raids, seen many people taken away.  People from other villages had been arrested.”

5. The Tribunal then went on to note a discussion had with the applicant at the hearing as to country information.  The Tribunal put country information received from an elder of the local church in Melbourne (paragraph 42) which the applicant said was wrong.  The Tribunal also noted that Fujian Province had a relatively high percentage

   
   

   of Christians and that at least one observer had asserted that local churches now operated legally in a number of rural counties

   
   

   in Zhejiang and Fujian Provinces (paragraph 44, CB237) and information from an Immigration and Refugee Board of Canada Report (paragraph 45).

6. At paragraphs 46 and 47, the Tribunal recorded putting country information to the applicant regarding what might draw the attention of the authorities to arrest or raid local churches in China including information from Brent Fulton, the editor of the ChinaSource website (paragraph 46) and David Schak, an academic (paragraph 47), CB238-239.

7. While there were some differences in emphasis between Mr Fulton and Mr Schak, both emphasised that triggers for likely action against

   
   

   a particular church group included foreign involvement whether real

   
   

   or perceived, the size and scope of the group (small groups being regarded as unlikely to be threatening) and the corruption and/or attitude of local officials.  At paragraphs 48-49, the Tribunal recorded:

   “48.  In response to this information the applicant stated that she did not believe the studies, her church and area were

   
   

   the exception.  The authorities in her area clearly sought

   
   

   to arrest people, like her father, and other members of the congregation. 

   49.  The applicant stated that she feared if she went back

   
   

   to China she would be arrested for attending a Local Church.  The applicant stated she would not be able to participate because it is an illegal activity and because she would

   
   

   be arrested like her father.  She then stated that she would continue to practice her religion and she was worried she would be arrested.  The applicant stated she was concerned because her son was very young.”

8. At paragraphs 50-56, CB239 to 241, the Tribunal recorded:

   “50.  The Tribunal has considered the evidence of the applicant

   
   

   in the context of the country information as discussed with

   
   

   the applicant.  The local church that the applicant has been

   
   

   a practicing member of has been in operation for as long as the applicant can remember, she has been to thousands of events,

   
   

   as has her family.  The applicant herself has never had difficulty at any of these events, aside from her claim that she had

   
   

   to scatter if the authorities were in the vicinity.  The applicant stated that many members of the congregation had been apprehended, the Tribunal noted that on the numbers

   
   

   as provided by the applicant, it would mean most of the 20 or 30 attendees had been apprehended.  The applicant stated that the protection of Jesus had looked after her and her family until the arrest of her father in December 2012. 

   51.  The Tribunal questioned why the authorities would

   
   

   be interested in her church.  The applicant’s response was because it was declared illegal, and this was the response of her local authorities.  The country information about other locations was not relevant to her.

   52.  The Tribunal disagrees with the applicant’s contention regarding the relevance of the country information discussed.  The applicant has described a local church that has remained static in numbers and practice (sic) for a significant period

   
   

   of time.  It has met at regular times over that time, though it has changed locations.  The applicant hand (sic) her family practiced their religion in these circumstances for a significant period of time.  The Tribunal does not accept the contention

   
   

   of the applicant that she and others in the congregation had to flee because of the authorities seeking to stop them practising.  The Tribunal considers that the applicant, her family and the congregation in general were able to practice their religion without difficulty because they did not pose a threat to the authorities.  Considering the information as cited by Fulton and Schak respectively, the applicant’s congregation was small and remained small, the applicant did not note any international involvement, or any political attribution to the service and practice of her religion.  She did state that the authorities in her area were not like other authorities, but also stated that

   
   

   ‘the authorities had not done very much, so many small churches, the authorities do not have the resources to shut them all down.’  The country information regarding Fujian Province shows that there is a high percentage of Christians, most

   
   

   of whom do not identify with the official church or TPSM. 

   
   

   The applicant stated that the treatment of Christians across China was not the same, and the Tribunal agrees with that statement.  It is clear that the treatment of Christians in the area that the applicant comes from is more relaxed than in other areas of China.  The Tribunal does not accept that

   
   

   the authorities could not find the members of the congregation, that she and her family and other practitioners were able

   
   

   to scatter without being caught.  The Tribunal considers that the local authorities, including the Public Services Bureau, could have taken action over the many years of the church’s activities to apprehend and arrest the church if they saw fit to do so, and did not do so because they had no interest in the applicant’s church.

   53.  The Tribunal does not accept that the applicant’s local church was sought out by the local authorities for any penalty because they were practicing as a local church.  The applicant and her family have practiced for many many years without being targeted for any form of religious persecution, while the Church does not have any official sanction, and has chosen not to register, the Tribunal considers that the evidence of the applicant shows that there is no interest in the applicant and her church by the local authorities. 

   54.  The applicant has claimed that her father was arrested by the authorities, held for seven days, and then released with

   
   

   a warning not to continue practicing his religion or he would

   
   

   be charged.  The applicant provided a document that states that her father was held for a period of time but them (sic) released.  The applicant stated that her father has returned to practising his religion and has not had any further difficulty with the authorities. 

   55.  The Tribunal raised with the applicant the prevalence

   
   

   of fraudulent documents from China.  The Tribunal has some doubts over the genuineness of the document as provided by the applicant, given that it does not accept that the authorities have any interest in the applicant’s church.  The Tribunal does not accept that the applicant’s father would be arrested by the authorities, held for seven days, then released without charge, given the relaxed attitude towards the church as displayed over a significant period of time.  The Tribunal considers that the applicant’s father’s continued practice of his religion, as stated by the applicant, to show that he does not have any concern with the authorities about his religious practice.  The Tribunal places no weight on this document. 

   56.  The Tribunal finds that the applicant can return to China and continue practicing her religion with her local church without fear of being harmed.  The applicant can also take her child to this church and include him in her religious practices.”

1. The Tribunal went on at paragraph 57 and 58 to find, accordingly, that the applicant was not a person to whom Australia owes Convention protection and further that the applicant did not face a risk of significant harm (the test arising from s.36(2)(aa) of Migration Act1958 (“the Act”) earlier set out by the Tribunal at paragraph 16, CB231).

2. The remainder of the Tribunal’s decision at CB241-246 is essentially concerned with the now abandoned claims arising as to the membership of a particular social group, (child born without permission) or as an abandoned wife. 

Ground 1

1. The Tribunal failed to apply the correct test in considering the applicant’s claim for protection under s 36 of the Migration Act 1958 (Cth). 

Particulars

i.  The Tribunal found that, if returned, the applicant could continue to practice her religion in China. 

ii. The applicant claimed that she had practiced her religion discretely and in secret. 

iii.    The Tribunal did not consider whether
the applicant practiced her religion in this way because of a fear of persecution, or for other reasons. 

iv.    This gives rise to an inference that the Tribunal misunderstood the test as to what constituted persecution:  Appellant S395/2002 v Minister
for Immigration (2004) 216 CLR 473.

1. In both written and oral submissions, the applicant drew heavily upon the reasoning of the High Court in Appellant S395.  In oral submissions, counsel for the applicant asserted that there had been three aspects to the applicant’s claim before the Tribunal.  The first was her membership of the local church.  The second aspect was what had occurred to the applicant’s father (namely, his detention and abuse as

   
   

   a result) and the third aspect was matters arising out of her son.  Counsel confirmed that the second and third aspects were not pressed in this application. 

2. Counsel submitted that the applicant’s evidence was that the family church was outlawed and that she might face a police crackdown. 

   
   

   He noted that the Tribunal had accepted that there was no harassment in the past by the authorities.  Counsel submitted that the applicant claimed to practice her religion in secret and this engaged Appellant S395.  It was submitted that the Tribunal should have asked itself why the applicant practiced in private but failed to do so. 

3. The second part of the reasoning in support of this ground of the application was that the applicant said that the reason there had been

   
   

   no harassment in the past was a lack of resources on the part of the authorities to do so.  This aspect of the claim was not considered by

   
   

   the Tribunal and was addressed by grounds 2 and 3.  Counsel took the court to paragraph 36 (CB235) of the Tribunal’s decision and emphasised the passage:

   “They had various locations where they met across the village, though they met in secret because the church was illegal.”

4. Counsel also emphasised the passage in paragraph 39, CB236:

   “She stated that the practice was held at different locations

   
   

   so that the authorities would not know where they were.”

5. It was submitted that the applicant was complaining of a subjective fear of harm. 

6. Counsel took the court in some detail to the decision of the High Court in Appellant S395, relevant passages of which were already set out in the applicant’s written submissions. In the joint judgment of McHugh and Kirby JJ, at [40]-[41] and [43], their Honours said:

   “40 The purpose of the Convention is to protect the individuals of every country from persecution on the grounds identified in the Convention whenever their governments wish to inflict,

   
   

   or are powerless to prevent, that persecution.  Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to State sponsored or condoned discrimination in social life and employment.  Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it. 

   
   

   But the persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality.  The Convention would give

   
   

   no protection from persecution for reasons of religion

   
   

   or political opinion if it was a condition of protection that the person affected must take steps – reasonable or otherwise –

   
   

   to avoid offending the wishes of the persecutors.  Nor would

   
   

   it give protection to membership of many a “particular social group” if it were a condition of protection that its members hide their membership or modify some attribute

   
   

   or characteristic of the group to avoid persecution.  Similarly, it would often fail to give protection to people who are persecuted for reasons of race or nationality if it was

   
   

   a condition of protection that they should take steps to conceal their race or nationality. 

   41.    History has long shown that persons holding religious beliefs or political opinions, being members of particular social groups or having particular racial or national origins are especially vulnerable to persecution from their national authorities.  The object of the signatories to the Convention was to protect the holding of such beliefs, opinions, membership and origins by giving the persons concerned refuge in the signatory countries when their country

   
   

   of nationality would not protect them.  It would undermine the object of the Convention if the signatory countries required them to modify their beliefs or opinions or to hide their race, nationality or membership of particular social groups before those countries would give them protection under the Convention.  As Simon Brown LJ stated in Secretary of State for the Home Department v Ahmed (38):

   “It is one thing to say … that it may well be reasonable

   
   

   to require asylum seekers to refrain from certain political

   
   

   or even religious activities to avoid persecution on return.  It is quite another thing to say that, if in fact it appears that the asylum seeker on return would not refrain from such activities – if, in other words, it is established that he would in fact act unreasonably - he is not entitled to refugee status.”

   …

   43.    The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads

   
   

   a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned

   
   

   to the country of nationality.  This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country

   
   

   of nationality or membership of a particular social group. 

   
   

   In cases where the applicant has modified his or her conduct, there is a natural tendency for the Tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future.  The fallacy underlying this approach is the assumption that the conduct

   
   

   of applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted.  In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm.  In such cases, the

   
   

   well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm.  It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct.  To determine the issue of real chance without determining whether the modified conduct was influenced

   
   

   by the threat of harm is to fail to consider the issue properly.”

7. At [50], McHugh and Kirby JJ went on to say that statements that asylum seekers are required, or can be expected, to take reasonable steps to avoid persecutory harm are wrong in principle.  They went on to say at [51]:

   “Central to the Tribunal’s decision was the finding that the appellants had not suffered harm in the past because they had acted discreetly.  Because the Tribunal assumed that it is reasonable for a homosexual person in Bangladesh to conform to the laws of Bangladesh society, the Tribunal failed to determine whether the appellants had acted discreetly only because it was not possible to live openly as a homosexual in Bangladesh.  Because of that failure, the Tribunal, unsurprisingly, failed to give proper attention to what might happen to the appellants if they lived openly in the same way as heterosexual people in Bangladesh live.”

8. Here it was submitted that the Tribunal had failed to determine if the applicant practiced her religion in secret because of fear of persecution if she had not done so. 

9. In both written and oral submissions counsel for the first respondent sought to explain why the decision in Appellant S395 did not produce the result for which the applicant contended.  Counsel submitted that, as McHugh and Kirby JJ have made plain in Appellant S395, the Tribunal is required to consider what the applicant will do if returned

   
   

   to country of origin rather than what they ought to do.  It was submitted that the Tribunal considered the applicant’s claim as put.  It was submitted in particular that the Tribunal’s reason at paragraph [52] (already set out above) made this case a different one from Appellant S395.  The Tribunal did not accept the alleged threat from police action which constituted the kernel of the applicant’s claims as to why she had met in secret and allegedly scattered.

10. Put shortly, I think that the submissions of the first respondent are to

    
    

    be preferred.  The applicant gave a long history of religious observance which had never led to any difficulty for her.  The claims of harm allegedly suffered by her father were not accepted and are not now in any event pressed.

11. The Tribunal did not attribute to the applicant any necessity to worship in secret.  Rather, the Tribunal assessed the applicant’s claims of her conduct as they were in fact articulated.  The finding of the Tribunal that the police could readily have arrested any person in the applicant’s church that they wished to, and the further finding that the absence

    
    

    of such arrest showed a lack of interest on the part of the authorities with the church, shows in my opinion that the Tribunal clearly did not accept the applicant’s assertion that the church met in secret out of fear of a possible persecution or that she had had to scatter from

    
    

    the authorities likewise.  In my opinion the way in which the Tribunal dealt with this aspect of the claim shows a proper appreciation of

    
    

    its task and a proper application to it.

12. Contrary to the submissions of the applicant, it was in my view implicit in what the applicant said that the church had met in secret and scattered because of fear of persecutory harm.  This was, in my view,

    
    

    a sufficiently clearly-articulated matter.  The Tribunal rejected it, and

    
    

    in doing so did not fail to ask itself any question that it should have asked.  As enjoined by the judgment of McHugh and Kirby JJ

    
    

    in Appellant S395, the Tribunal considered what the applicant would do.  It imposed no conditions upon the applicant in the manner which gave rise to the High Court’s decision in Appellant S395.

Grounds 2 and 3

2. The Tribunal failed to consider a claim, or integer thereof, that arose on the materials with respect to the applicant’s claim for protection. 

Particulars

The applicant claimed that the authorities’ relaxed attitude towards their congregation had changed,
for whatever reason, evidenced by the fact that her father was detained.  The Tribunal failed to consider this claim. 

3. The Tribunal failed to consider a claim, or integer thereof, that arose on the materials with respect to the applicant’s claim for protection.

Particulars

i.     The Tribunal accepted country information that indicated that certain risk factors can lead to adverse attention from authorities. 

ii.  Implicitly, the Tribunal accepted that adverse attention from authorities may occur despite the risk factors being absent. 

iii.    The applicant claimed that the authorities’ never had a relaxed attitude toward their congregation,
but had not targeted them because of resourcing limitations.  The Tribunal failed to consider this claim.

1. It is not controversial between the parties that the Tribunal must consider all claims and integers made in support of the application.  Whether a claim is made depends upon whether it has been sufficiently clearly raised in the material before the Tribunal.  The gravamen of the applicant’s submission is set out at paragraph 24 of the written submissions:

   “At no point does the Tribunal consider whether resourcing limitations were the reason why the authorities did not harass or persecute the applicant’s local church.”

2. It is, of course, the case, as the applicant submitted at paragraph 39 CB236, that the applicant told the Tribunal that:

   “The applicant stated that the authorities had not done very much, so many small churches, the authorities do not have the resources to shut them all down.”

3. It was this point that was said not to have been dealt with.  Counsel for the first responded pointed most particularly to paragraph 52 CB240

   
   

   of the decision.  It is already set out above but, for convenience, I will repeat it:

   “The Tribunal disagrees with the applicant’s contention regarding the relevance of the country information discussed. 

   
   

   The applicant has described a local church that has remained static in numbers and practice for a significant period of time.  It has met at regular times over that time, though has changed locations.  The applicant hand (sic) her family practiced their religion in these circumstances for a significant period of time.  The Tribunal does not accept the contention of the applicant that she and others in the congregation had to flee because of the authorities seeking to stop them practising.  The Tribunal considers that the applicant, her family and the congregation

   
   

   in general were able to practice their religion without difficulty because they did not pose a threat to the authorities.  Considering the information as cited by Fulton and Schak respectively, the applicant’s congregation was small and remained small, the applicant did not note any international involvement, or any political attribution to the service and practice of her religion.  She did state that the authorities in her area were not like other authorities, but also stated that

   
   

   ‘the authorities had not done very much, so many small churches, the authorities do not have the resources to shut them all down.’  The country information regarding Fujian Province shows that there is a high percentage of Christians, most

   
   

   of whom do not identify with the official church or TPSM.  The applicant stated that the treatment of Christians across China was not the same, and the Tribunal agrees with that statement.  It is clear that the treatment of Christians in the area that the applicant comes from is more relaxed than in other areas

   
   

   of China.  The Tribunal does not accept that the authorities could not find the members of the congregation, that she and her family and other practitioners were able to scatter without being caught.  The Tribunal considers that the local authorities, including the Public Services Bureau, could have taken action over the many years of the church’s activities to apprehend and arrest the church if they saw fit to do so, and did not do so because they had no interest in the applicant’s church.”

4. Looked at fairly, that passage seems to me a conclusive refutation

   
   

   of the applicant’s assertion that lack of resources played any part in the absence of prior persecution, or for that matter likelihood of future persecution, of the applicant.  These grounds cannot be upheld.

Conclusion

1. For the above reasons, in my opinion, the criticisms made of the Tribunal’s decision are not made out and it follows that the application must be dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  20 July 2015