NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 991

FEDERAL COURT OF AUSTRALIA

NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 991

APPLICANT NADH OF 2001 & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1653 of 2001

WHITLAM J
9 AUGUST 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1653 of 2001

BETWEEN:

APPLICANT NADH of 2001
FIRST APPLICANT

APPLICANT NADI of 2001
SECOND APPLICANT

APPLICANT NADJ of 2001
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

WHITLAM J

DATE OF ORDER:

9 AUGUST 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

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 1653 of 2001

BETWEEN:

APPLICANT NADH of 2001
FIRST APPLICANT

APPLICANT NADI of 2001
SECOND APPLICANT

APPLICANT NADJ of 2001
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	WHITLAM J
DATE:	9 AUGUST 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. This is an application under s 39B of the Judiciary Act 1903 in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 4 December 2001 refusing to grant protection visas to the applicants.

2. The applicants are Chinese nationals.  The first and second applicants are husband and wife.  The third applicant is their son born on 7 May 1988.  The applicants arrived in Australia on 4 July 1999.  Their applications for protection visas were lodged on 12 August 1999.  The first applicant claimed that he and his wife would be persecuted in China on account of their adherence to the Roman Catholic Church. 

3. On 25 October 1999 a delegate of the respondent refused to grant protection visas to the applicants.  He found that, whilst it “could not be fully ascertained whether the [first] applicant belonged to the underground church or to the CPA [Catholic Patriotic Association]-affiliated one”, the first applicant could “practise his religion freely.”  Accordingly the delegate did not accept that the first applicant would be harmed for practising his religion in China and concluded that his fear of persecution was not well-founded.  An application for review was made to the Tribunal, and the first applicant appeared before the Tribunal on 28 April 2000.  The Tribunal affirmed the delegate’s decision on 21 February 2001.  However, on 13 July 2001, by consent, the Tribunal’s decision was set aside and the application for review was remitted to the Tribunal.

4. The Tribunal was reconstituted for the purposes of the review.  The first and second applicants appeared before the Tribunal on 26 September 2001.  Its decision, which is the subject of the present proceeding, was handed down on 4 December 2001.

   The Decision of the Refugee Review Tribunal

5. The Tribunal prepared a forty-page statement under s 430(1) of the Migration Act 1958 (“the Act”).  The boiler-plate under the headings “The Legislation” and “Definition of ‘Refugee’” at the beginning of that statement may be ignored.  However, what the Tribunal said next under the heading “Claims and Evidence” is important.  I shall trace how it referred (at pp 4-14) to the information given by the applicants.

6. The Tribunal began with the visa applications lodged on 12 August 1999.  It noted that the applications were prepared with the help of a migration agent, George Ao.  The Tribunal extracted from the first applicant’s application form his biographical details, and it referred to the fact that the applicants used valid Chinese passports to travel to Australia.  It purported to summarize the first applicant’s reasons for claiming to be a refugee as set out in a three-page typewritten statement.  The Tribunal also specifically referred to two letters from clerics overseas furnished with the applications.

7. Apparently the first applicant was interviewed by an officer of the Department of Immigration and Multicultural Affairs (“the Department”) on 22 October 1999.  The Tribunal noted something the first applicant said at that interview about the church at which he worshipped in China.

8. The Tribunal referred to the application for review of the delegate’s decision, which was lodged with the Tribunal on 22 November 1999.  It noted that Mr Ao continued to act for the applicants in the proceedings before the Tribunal.  The Tribunal described seriatim (at pp 6-8) eleven documents given to it by the applicants with their application for review.  These included statements by both the first and second applicants giving reasons for claiming to be a refugee, which the Tribunal purported to summarize.

9. The first applicant appeared before the Tribunal on 28 April 2000.  The Tribunal recorded that at that hearing the first applicant said he had been arrested and detained for 15 days in March 1999.

10. The Tribunal then identified a number of documents submitted to the Tribunal under cover of a letter dated 17 September 2001 from the applicants’ new migration agent, Ms Diana Tong.  These included a fresh statement from the first applicant dated 12 September 2001.

11. The first and second applicants appeared before the Tribunal on 26 September 2001.  (A transcript of this hearing is in evidence.)  The Tribunal noted that they agreed the Tribunal should have regard to all of the information and documents they had previously given to the Department and to the Tribunal.  The Tribunal also noted that the applicants produced a copy of the certificate of the birth of their second son in Australia on 11 April 2001.  The Tribunal purported to record what they said.  At one point the Tribunal catechized the first applicant.  It said (p 10):

    “The applicant was then questioned about basic matters of Christian and Roman Catholic beliefs.  He was asked which religious faith Jesus Christ originally belonged to.  In response he stated: ‘Catholicism’.  It was pointed out that this claim contradicted evidence that Jesus was originally a Jew, and he was asked to explain this contradiction.  In response he stated: ‘No, not correct.  It’s a long story.  After Jesus was born, before he used the sheep as a sacrifice.  He used his own body.  Jesus is our lord, and we believe in Catholicism, so he is a symbol of our religion.  First it was Jesus and his followers.’  The applicant was asked when Jesus Christ was born.  He first of all did not reply, and then the Tribunal asked him to answer the question.  He then stated: ‘Jesus said those people who saw me are blessed, so I didn’t get into those details.  I believe in Jesus, because he’s my lord, but I didn’t get into details like when he was born.’  When asked why he did not know that Christians believe that he was born on 25 December, he stated: ‘Everybody knows that.  I thought you were asking which year.’  When asked to explain the significance of Easter Sunday for Christians, he stated: ‘I’m not sure about your question.  Sunday is a day we worship God.’  When asked to name the names of some of the books of the New Testament, he stated: ‘The Old Testament, there are Exodus and so on.  In the New Testament talks about after Jesus was born.  About how the devil tested him.  Revelation talks about at the end of the world’ When asked to explain why three are no women priests in the Catholic church, he stated: ‘Only nuns, but priests are all men.  You can’t get married.’  When the same question was rephrased, he stated: There are women in the Catholic church, who are nuns.  Like there’s a woman, she loves Jesus and is a holy woman.  There are nuns in the Catholic church.’”

12. The Tribunal concluded this section of its statement by describing correspondence received from the applicants’ migration agent after the hearing.  It referred to further documents forwarded on 18 October 2001, which included two documents from church sources.

13. Under the sub-heading “Independent Evidence”, the Tribunal next dealt with (1) the persecution of “underground” or unauthorised churches and Christians in the People’s Republic of China and (2) the so-called “one-child policy”.  The first topic was disposed of by reproducing holus-bolus without any analysis over thirteen and a half pages an extract from a report prepared by the United States State Department.

14. The Tribunal then set out its findings and reasons.  It was obviously conscious of its supposed position of advantage in assessing the credibility of the applicants.  The Tribunal said (pp 33-34):

    “The Tribunal finds that the applicants are not credible witnesses.  Some of the key aspects of their testimony and some of their claims were simply not plausible.  Much of their testimony was evasive.  Some of the written claims and testimony were vague, general and not sufficiently-detailed to be believable.  There were many recent inventions.  There were a number of material contradictions in the applicant’s testimony, which were not explained to the Tribunal’s satisfaction.  Many of his key claims were at odds with the independent evidence.  In these circumstances, for the following reasons the Tribunal finds that their claims are not credible and does not accept most of them.”

15. The claims it did accept were that the applicants were born in China and were Chinese nationals, that the first applicant was born on 23 January 1967 and the second applicant on 25 December 1963, and that they were married on 29 April 1987.  The Tribunal did not accept any of their reasons for claiming to be refugees.  It found it “implausible” that the first applicant would have been issued with a passport if the Chinese authorities were interested in him because of religious activities for which he had previously been arrested.  The Tribunal found unsatisfactory the explanation offered by the first applicant at the hearing on 26 September 2001 for a claim in one of his written statements given to the Tribunal on 22 November 1999 that he had obtained a fake passport.

16. The Tribunal then said (at pp 35-37):

    “At the very heart of this mater is the applicant husband an wife’s claim that they fear persecution in the PRC due to their religious beliefs, more particularly because they were practising Roman Catholics.  Therefore, as a threshold matter, the Tribunal is called upon to make a determination as to whether or not it is satisfied that they are indeed Roman Catholics as claimed.  In making this determination the Tribunal has taken into consideration the applicants’ claim that they have been practising Roman Catholics for many years in the PRC, and that very soon after their arrival in Australia in July 1999 they began regularly attending Catholic services in the Sydney area, and have continued to do so every week thereafter.

    As noted above, during the 26 September 2001 hearing the applicant husband stated that the original faith of Jesus was Catholicism.  This contradicts the well-known fact that Jesus was originally a Jew.  The Tribunal finds that this is a material contradiction, and is not satisfied with the applicant’s explanation.  His explanation – that Jesus is his lord and they believe in Catholicism inter alia – is unsatisfactory, because it did not seek to explain this contradiction.  As noted above, during the same hearing the applicant first of all did not answer the question as to when Jesus was born.  The Tribunal finds that this aspect of his testimony is evasive.  When he did offer an answer, he did not in fact indicate when Jesus was born.  The Tribunal finds that it is implausible that an individual like the applicant, who claims to have been such a committed Christian for so many years, would not know one of the fundamental beliefs of the Christian religion.  As noted above, during the hearing the applicant was unable to state what Easter Sunday represents for Christians.  For the same reasons, the Tribunal finds that it is implausible that the applicant would not know the significance of this basic and most fundamental of Christian holy days.  During the hearing the applicant, when asked to name some of the names of the books of the New Testament, only stated that the New Testament talks about after Jesus was born.  The Tribunal finds that this aspect of his testimony is evasive.  He went on to mention Revelation, but failed to name any of the other books of the New Testament.  Again, the Tribunal finds that it is implausible that the applicant would be unable to indicate any more of the names of the books of the New Testament.

    During the 26 September 2001 hearing before the Tribunal the applicant was asked why there are no women priests in the Catholic church.  He first of all only stated that all the priests are men.  The Tribunal finds that this aspect of his testimony is evasive.  He then stated that there are women in the Catholic church who are nuns.  The Tribunal finds that it is implausible that the applicant would be unable to explain another very basic and fundamental aspect of the Catholic beliefs.

    The Tribunal finds that the fact that the applicant husband was unable to answer basic questions concerning Christian and Catholic beliefs, or provided wrong answers, is inconsistent with an individual who claims to have been a practising Christian and Catholic in these circumstances.  Moreover, the Tribunal is not satisfied that an individual such as the applicant who claims to have been such a committed Catholic for so many years would have such a poor knowledge of the Christian religion, especially if he has been attending Catholic services every week since July 1999 in the Sydney area.

    The Tribunal is also not satisfied that the documentary evidence tendered by the applicants establishes that the applicants are Catholics.  The letter from Our Lady of China Chapel dated 6 August 1999 (DIMA folio 36) is vague.  Accordingly, the Tribunal places little weight on this document.  The undated handwritten letter from the Chinese Catholic Pastoral Centre in Haymarket (Tribunal folio 22, N99/30696) and the three letters from the same Centre dated 20 August 1999 (Tribunal folios 19-21, N99/30696) are similarly vague and do not claim that the applicants are Catholics.  Therefore, the Tribunal places little weight on these documents.  The 15 October 1999 ‘letter of reference’ from Rev. Joseph Fu Hsing-Chih of Taiwan (Tribunal folio 17, N99/30696) is also vague, and states that the applicants are members of the Catholic Church.  Therefore, the Tribunal places little weight on this document.  The 4 August 1999 letter from the San Luis Ganzaga Parish Church in Argentina (Tribunal folios 14-15, N99/30696) is vague and only states that he applicants are a very Christian family, and have attended Sunday mass and religious festivities.  Therefore, the Tribunal places little weight on this document.  The statement from Ding Bao Guo (Tribunal folios 67-68, N99/30696) does not claim that the applicants are Catholics, and therefore the Tribunal places little weight on this document.  The 13 October 2001 letter from St Peter Julian’s Church in Haymarket (Tribunal folio 112, N01/39733) claims that the applicants have ‘frequently come to St Peter Julian’s church to attend mass,’ but does not claim that they are Catholics.  Therefore, the Tribunal places little weight on this document.  Finally, the colour photocopy of the document from Pope Paul II does not claim that the applicants are Catholics, and therefore the Tribunal places little weight on this document (Tribunal folio 111, N01/39733).

    For these reasons the Tribunal finds that the applicant husband and wife are not Catholics and Christians, as claimed, which lies at the very heart of their claims, and their fear of persecution.

    Having rejected the applicants’ core claim of being Catholics, it follows from this rejection that the Tribunal does not accept the applicants’ remaining claims.”

17. Notwithstanding what the Tribunal said in the final sentence of the above excerpt, it went on to give further reasons for not accepting the applicants’ claims to have been persecuted by the Chinese government because of their religious beliefs and activities.  The Tribunal found the three-page typewritten statement furnished with the first applicant’s visa application to be “vague, general and not sufficiently-detailed [sic] to be believable.”  The Tribunal found it “implausible that [the first applicant] would wait until July 1999 before finally fleeing the PRC if he had a fear of persecution for so long.”

18. The Tribunal referred to the fresh statements lodged by the applicants’ migration agent, Mr Ao, with the Tribunal on 22 November 1999.  It found the second applicant’s statement to be “vague, general and not sufficiently-detailed [sic] to be believable.”  The Tribunal in the context of the one-child policy noted that a new claim was then made that the second applicant was forced to have an abortion in 1995.  It found that this and other claims were “recent inventions, fabricated … in order to create a refugee profile”.  The Tribunal found it “implausible” that, if the second applicant had been forced to have an abortion, “they waited some four additional years before finally fleeing the PRC”.  The Tribunal accordingly found that, when the applicants departed China, they did not have a subjective fear of persecution.

19. So far as the birth of the second child in Australia was concerned, the Tribunal accepted evidence that Chinese returning from overseas with more than one child do not experience difficulties with government authorities on account of the one-child policy.  The Tribunal did not accept the claim made in the first applicant’s statement dated 12 September 2001 that his sister-in-law was sterilized when her son was born.  The Tribunal found this claim to be “a recent invention, fabricated … in order to create a refugee profile”.

20. The Tribunal concluded that key aspects of the applicants’ claims and testimony were not credible and that they were not credible witnesses.  The Tribunal expressed itself as thus not satisfied that the applicants had a well-founded fear of persecution “due to religion, membership of a particular social group or for any other Convention reason.”

    The Application for Judicial Review

21. The application to the Court, as finally amended at the hearing, stated the grounds relied on as follows: (1) the applicants were not afforded natural justice; (2) the Tribunal took into account irrelevant considerations, (3) the Tribunal failed to take into account relevant considerations; (4) the Tribunal’s decision was not authorised by the Act; and (5) unreasonable finding of jurisdictional fact. Counsel for the applicants comprehensively canvassed these grounds, making particular reference to the Tribunal hearing on 26 September 2001 and to the documentary material before the Tribunal. This culminated in a submission that the Tribunal made an unreasonable finding as to a jurisdictional fact and that there was a constructive failure by the tribunal to exercise its jurisdiction. It is not necessary to deal with the details of these arguments. Section 474 of the Act protects the decision of the Tribunal from successful attack on such grounds. The operation of s 474 has been recently explained in NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 by Allsop J. I respectfully agree with that judgment. His Honour clearly exposes the error in the submission that s 474 is not effective to deny review on a ground of “constructive failure to exercise jurisdiction”. I also agree with what his Honour said about the constitutional validity of s 474 and about the undesirability of proceeding to deal with a matter on the hypothesis that the privative clause is not effective.

22. However, the submissions made on behalf of the applicants raised a case of actual bias on the part of the Tribunal.  Counsel for the respondent accepted so much.  This raises the question whether the decision of the Tribunal met the first of the conditions stated by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615.

1. The applicants’ stories were essentially very simple.  They were born into Catholic families in Hebei province, the first applicant in Tianjin and the second applicant in the village of Dong Lu near Baoding.  There is a Marian shrine at Dong Lu.  The second applicant’s great uncle, Fu Xing Lin, was a well-known priest, who was imprisoned by the Chinese authorities for many years.  Father Fu was released from prison in 1984.  He resumed his ministry in Tianjin and began to administer the sacraments openly.  Father Fu introduced the second applicant, who was living in Tianjin, to the first applicant.  In 1985 Father Fu was detained once more by the authorities for six months.  The second applicant’s parents were also detained.  After Father Fu was again released from prison, the first and second applicants assisted him to conduct his ministry “underground”.  In the early 1990s the first applicant was detained for 15 days for refusing to join the official “patriotic” Church.  Father Fu died in 1995.  In 1999 the first applicant assisted a visiting priest from Argentina, Ding Bao Guo, to contact “underground” church members in Tianjin and Fentai.  The first applicant was subsequently detained by police, who asked him about Father Ding’s visit and assaulted him.  The police threatened the first applicant with indefinite imprisonment.  The applicants then made arrangements to leave China.

2. Counsel for the applicants tendered the transcript of the Tribunal hearing on 26 September 2001 in order to demonstrate the unfairness of the questions asked of the first applicant about his religious knowledge. Counsel also submitted that the Tribunal’s summary reproduced at [11] above was selective and contained no reference to many answers where the first applicant displayed a good grasp of Catholic doctrine. I think that such criticism is justified. The bizarre tone of the hearing is captured in the following exchange:

   “MR RUSSELL:         I am now going to ask you some questions about Christianity and Roman Catholicism.  Which religious faith did Jesus originally belong to?

   THE INTERPRETER:            Jesus?

   MR RUSSELL:           That’s correct.

   THE INTERPRETER:            Catholicism.

   MR RUSSELL:           No, Mr [omitted].  The original religious belief of Jesus Christ was Judaism.  Could you please explain to me why you have stated that it was Catholicism when in fact it is Judaism?

   THE INTERPRETER:            It’s a long story.  After Jesus was born, before people knew they thought, used the sheep as a sacrifice.  I think he was born, he use his own body to sacrifice for the people.

   MR RUSSELL:           Excuse me, Mr [omitted].  I don’t want a long exposition about the history of Jesus Christ.  I asked you a very simple question and that is which religious faith did Jesus originally belong to and you said Catholicism.  In reality it’s Judaism.  I would like you to explain why it is a contradiction.  That is all I would like you to do.”

3. The Tribunal’s views about the original religious belief of Jesus Christ do sound rather Pythonesque.  But how may a judge know that in the absence of historical evidence?  Chambers Biographical Dictionary (6^th ed. 1997) contains an article on Jesus Christ as a historical figure.  It says that, according to the Gospel accounts, “Jesus was the first-born child of Mary, of the tribe of Judah and descendant of David”.  That would make Jesus a Jew, but the article make no mention of any original religious belief.  It does mention that after his baptism Jesus brought “his message primarily to Jews and only later to the Gentiles”. The article also says that it was, whilst he was a refugee in the Gentile territories of Tyre and Sidon, that Christ secretly revealed himself to his disciples as the promised Messiah.

4. It also strikes me as very odd for the Tribunal to say that it is a fundamental belief of Christians that Jesus Christ was born on 25 December.  I think I may be permitted to know that it is questionable as a fact of history that the exact date of Christ’s birth was 25 December, although the feast of the Nativity has been kept on that day in Rome since the fourth century AD.

5. Counsel for the applicants submitted that the Tribunal’s treatment of the “documentary evidence” referred to in the third last paragraph reproduced at [16] above was perverse. This involved seven pieces of evidence. I shall deal with them individually:

   (1)       The Tribunal earlier described (at p 6) the contents of the first letter referred to (which was submitted with the visa applications) this way:

   “A letter from Our Lady of China Chapel, dated 6 August 1999 (DIMA folio 36), in Elmurst New York, was lodged by the applicants.  It is signed by Rev. Thomas Sung, Pastor.  It states that the applicant, his wife and child are all Catholics baptised at childhood.  Rev. Fu was his fellow villager, and both of them lived in Baoding county, Hopeh, and studied for five years in preparatory seminary.  Rev. Sung went to the United States seven years ago.  Rev. Fu joined the Congregation of Mission in the PRC and was pastor of the church in Tian Jin.  He was also put in prison.  The applicant and his wife were persecuted due to their religion, and Rev. Fu died a few years ago.”

   That is a reasonable description of the letter’s contents, although it fails to note that Father Sung also said that Father Fu was a near relative of the second applicant.  It should also be remarked that priests of the Congregation of the Mission, or the Congregation of the Priests of the Mission to give the order its full name, are known as Lazarists in China.  Further, the vicariate apostolic in Tientsin (the former name of Tianjin) was entrusted by Rome to the Lazarists.  There is nothing “vague” about the statement that all the applicants were baptised.  Baptism is the initiatory sacrament of the Catholic Church.  It means that the person baptised  becomes a member of the Church.  The Tribunal’s statement that it placed “little weight” on Father Sung’s letter does not explain what use it did make of the information it conveyed.

   (2)        The letters from the Chinese Catholic Pastoral Centre were submitted to the Tribunal on 22 November 1999.  The Tribunal earlier described them (at p 8) as follows:

   “The fifth document is an undated handwritten letter from the Chinese Catholic Pastoral Centre of Haymarket, NSW (Tribunal folio 22, N99/30696).  It is signed by Paschal Chang, Chaplain, and it states that the applicant, his wife and son attended mass every Saturday evening at 6:00pm at the Asiana Centre Ashfield.

   The sixth, seventh and eighth documents are three typed letters, from the Chinese Catholic Pastoral Centre, dated 20 August 1999 (Tribunal folios 19-21, N99/30696).  They state that the applicant, his wife and son were baptised by Father Joseph Fu in Tian Jin Diocese church.”

   Again, there is nothing vague about the statement that the applicants were “baptised”.  That means that they are members of the Catholic Church.  Joseph is, of course, the Christian name of Father Fu.  It should also be remembered that the post-nominal initials “O.F.M”. used after Father Chang’s name in his letters show that he is a member of the Order of Friars Minor also known as Franciscans.  Father Chang also referred to the original certificate of the third applicant’s baptism signed by Melchior Siu, the Bishop of Tianjin.  The Tribunal’s statement that it placed “little weight” on Father Chang’s letters is baffling.

   (3)        The Tribunal earlier described (at p 8) the letter from Father Fu in Taiwan, which was forwarded to the Tribunal on 22 November 1999, this way:

   “The ninth document is a ‘letter of reference’ dated 15 October 1999 from Rev. Joseph Fu Hsing-Chih, S.J. of Fu Jen Catholic University College of Law and Management in Taiwan (Tribunal folio 17, N99/30696).  It states that his niece is Fun Yen Hung, the applicant’s wife.  Rev. Fu is a Catholic priest working at this university, and has been there for many years.  He states that he has visited his niece, her husband and son several times, and they are all members of the Catholic church.”

   That is a fair summary of the letter from a Jesuit priest who is an uncle of the second applicant.  I think that the Tribunal’s subsequent statement that the letter is “vague” is ridiculous and its employment of the formula “little weight” is totally perplexing.

   (4)        The “letter from the San Luis Ganzaga [sic] Parish Church” is a reference to a letter dated 4 August 1999 in the Spanish language from Father Ding first submitted with the visa applications.  A translation of this letter was sent to the Tribunal on 22 November 1999.  The Tribunal earlier described (at p 8) this document as follows:

   “The tenth document is an official translation of a letter dated 4 August 1999, signed by Rev. Pablo Ding Bao Guo of the San Luis Gonzaga Parish Church in Argentina.  It states that the applicant, his wife and son are a very Christian family.  They attended Sunday mass and religious festivities.  Their grand-uncle is Fu Xing Lin, who was detained for 15 years.  Rev. Ding also states that the applicant’s family has endured scorn and persecution.”

   In the light of the Tribunal’s subsequent conclusion, that is not a fair summary of that document.  Father Ding also states that the applicants were baptised in Tianjin, that they “followed the values and precepts of a Roman Catholic Christian life” and that they have always firmly maintained their faith.

   (5)        A further statement from Father Ding in Spanish was submitted to the Tribunal by the migration agent, Ms Tong, on 17 September 2001.  This was accompanied by a translation of Father Ding’s new statement and a copy of Father Ding’s Argentine passport with a visa endorsed for entry to China in March 1999.  The Tribunal earlier said (at p 9) of this new statement:

   “In this statement Mr Ding states that in 1999 he went to visit a priest, P. Zhang Juan, who was in jail for 20 years.  The address of Mr Ding’s congregation is in Taiwan.”

   This is a very truncated summary of this material.  Father Ding is the priest of the parish of San Luis Gonzaga in the town of Villa Flandria also known as Jauregui in the province of Buenos Aires in Argentina.  His passport shows that he was born in China and that he visited China in March 1999.  In his new statement he confirmed the first applicant’s story.  Father Ding explained that he was a member of a religious order known as the Little Brothers of St John the Baptist.  (This was an order founded in China to recruit local priests.) In order to confirm his credentials, Father Ding gave contact details for the superior general of his order who was now located in Taiwan.  These details were provided, it would seem, because at the original Tribunal hearing on 28 April 2000 there was some difficulty about the first applicant not being able to name the superior general of Father Ding’s order.  Importantly, it appears from the transcript (pp 19-20) of the hearing on 26 September 2001 that the Tribunal completely overlooked this new statement from Father Ding when it questioned the first applicant.  The second statement from Father Ding does not claim that “the applicants are Catholics”.  That is because it is premised on the earlier statement which makes that claim.  The second statement bears witness to the first applicant’s courage and devotion to the Catholic cause in assisting a visiting priest to contact members of the “underground” church.  The Tribunal’s observation is pointless.

   (6)        The letter dated 13 October 2001 was from Father Chang, who had furnished the earlier letters in 1999.  To read this later letter by itself, without regard to the contents of his earlier letter, is absurd.

   (7)        The other document submitted by Ms Tong on 18 October 2001 from a church source was a certificate of papal blessing upon the applicants signed at the Vatican on 18 October 2000 by Archbishop Oscar Rizzato, the Pope’s Almoner.  I have no idea why the Tribunal would think it remarkable that such a certificate does not claim that the persons upon whom the blessing is bestowed are Catholics, but at least the Tribunal was right about that.

6. It will be apparent from what I have said that I accept the submission that the Tribunal acted perversely in assessing this documentary material.  I also agree with the more general criticism of counsel for the applicants about the illogicality of much of the Tribunal’s reasoning.  The Tribunal’s findings are not, in my view, defensible on the evidence and material before it.

7. The content of the phrase “bona fide” in Hickman was considered in NAAG of 2002 by Allsop J, at [24]. Like his Honour, I agree with what Heerey J said in SBAP v Refugee Review Tribunal [2002] FCA 590 at [49] about bad faith involving personal fault on the part of the decision-maker. The question is then in this case whether there was a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal.

8. Catechizing the first applicant to test the genuineness of his proclaimed religious beliefs does seem a strange course to take when testimonials as to his piety and devotion have been provided by an apparently respectable local priest from a major church.  It might be expected that the Tribunal would be more concerned with his protestation of such a faith in China and with any consequent risk of persecution.  In view of the way the Tribunal disposed of the matter, namely, by finding that the first and second applicants were not Catholics or Christians, there might also appear to be something farcical about reproducing earlier in its statement pages of information from the United States State Department report about religious freedom in China.  (Perhaps this is part of the boiler-plate for Chinese Catholic cases at the Tribunal.)  On the other hand, a knowledge test may appear to some people a perfectly satisfactory way of inquiring into someone else’s religious belief.  The link between doctrinal knowledge and faith may or may not exist, but some people may well think it does.  So too, an idiosyncratic assessment of a person’s religious knowledge does not betoken a lack of good faith, any more than does factual error or faulty reasoning.

9. Some errors in fact-finding made by the Tribunal in the present case are, in my view, egregious.  At times they demonstrate an extraordinary obtuseness.  However, I am not able in all of the circumstances of this case to draw an inference that the Tribunal did not reach its decision in good faith.  The Tribunal is allowed to exhibit a degree of scepticism.  This may contribute to error on its part, but the first condition in Hickman will be met so long as the Tribunal has acted honestly in the task committed to it.

10. The application will be dismissed.  There should be no order as to costs.

I certify that the preceding thirty-two  (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             9 August 2002

Counsel for the applicants:	D H Godwin
Counsel for the respondent:	G T Johnson
Solicitor for the respondent:	Australian Government Solicitor
Date of hearing:	26 April 2002
Date of judgment:	9 August 2002