NASA v Minister for Immigration
[2004] FMCA 352
•8 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NASA v MINISTER FOR IMMIGRATION | [2004] FMCA 352 |
| MIGRATION – Application for review of Refugee Review Tribunal decision – whether failure to take into account relevant considerations – whether denial of natural justice – whether Tribunal under an obligation to seek out more recent country information. |
SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80
Singh v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 109 FCR 18
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244
Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196
WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
NAVM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 99
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188
Kioa v West (1985) 159 CLR 550
VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82
| Applicant: | NASA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1348 of 2003 |
| Delivered on: | 8 June 2004 |
| Delivered at: | Sydney |
| Hearing date: | 2 April 2004 |
| Judgment of: | Barnes FM |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr G Kennett |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1348 of 2003
| NASA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for a review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 20 May 2003 refusing to grant the applicant (and his wife and son) a protection visa. The applicant is a citizen of the Peoples Republic of China who last entered Australia on 29 July 2000. He had first entered Australia on a temporary business visa in April 1997 and travelled to and from Australia several times before his last arrival. On 1 March 2002 the applicant and his wife and son (who are not parties to the present proceedings) applied for protection visas. The application was rejected by a delegate of the respondent on 30 May 2002. On 7 June 2002 the applicant sought for review of that decision by the Refugee Review Tribunal.
The applicant claimed that he and his family were Roman Catholics and that if he returned to China he would be involved in proselytizing and with “house churches” (both practices proscribed by the Chinese Government) and that such activities would lead to him being targeted by the authorities. He claimed that in China he would not be associated with the official association for Catholicism acknowledged by the authorities (the Catholic Patriotic Association) and that if he returned to China he would consider it his duty to proselytize notwithstanding that he had not done so in Australia. His adviser claimed that if the applicant returned to China he may be approached by “family churches” (the underground church movement) and he may “unwillingly” become involved with them which could lead to “harm” by the authorities.
The applicant also claimed to fear possible adverse consequences because he had told an official at the Peoples Republic of China Consulate in Sydney that his wife and son had applied for protection visas. The applicant’s wife and son did not present individual claims although the applicant essentially stated that they had the same claims. The Tribunal held a hearing on 17 April 2003.
The Tribunal accepted that the applicant and members of his family had attended a Catholic Church in Sydney since August 2001. However it found that his claims that he would be involved in proselytizing and house churches in China lacked credibility. It found that the applicant had exaggerated his interest and involvement in religious activities to enhance his application. On the basis of his evidence at the hearing the Tribunal was not satisfied that the applicant either intended to proselytize or that he had any interest in such activity, as he did not have qualifications or training to engage in such activity and he had not demonstrated any interest in being trained as a person who could proselytize on behalf of the Catholic Church in China. The Tribunal also stated that when the applicant introduced the claim at the hearing and the matter was discussed with him, it became apparent that he had not given the matter any thought prior to the hearing. The Tribunal concluded that the applicant fabricated this claim at the hearing to enhance his application.
The Tribunal also found that the applicant had greatly exaggerated his responsibilities and importance in the church he attended in Sydney. He claimed that he had a leadership role and had responsibility for organising “everything”. On the basis of his evidence at the hearing the Tribunal found that he had responsibility for some minor practical tasks such as lighting and overheads. It rejected his claim that he had a prominent or leadership role with the church he attended in Sydney.
The Tribunal found the claim that the applicant may unwillingly become implicated with house churches in China not credible. The applicant had actively avoided any involvement in unauthorised or illegal religious activities in China. He had not expressed an interest in being involved in a house church in the future. The Tribunal did not accept as plausible the applicant’s claim (first made through his adviser) that he may unwillingly become implicated with house churches in China given he had avoided these activities throughout his life. It was the Tribunal’s view that he would do so again in the future. The Tribunal did not accept as credible the claim that the applicant would be implicated in house churches either willingly or unwillingly if he returned to China in the reasonably foreseeable future.
The Tribunal considered the applicant’s claim that as a Christian and a Roman Catholic he feared he would be harmed by the authorities in China due to his religion. It stated:
Information from external sources, summarised above, indicates that despite the PRC government’s regulation of religious activities in China there are many opportunities for PRC citizens to express their religious beliefs lawfully through registered organisations. Citizens who participate in registered churches do not attract the adverse attention of the PRC authorities. The Tribunal accepts the applicant’s claim, supported by the information from external sources cited above, that religious activists who oppose government regulation of religion, such as those who persist in proselytizing without obtaining government permission, have been targeted by the PRC authorities. The Tribunal also accepts the applicant’s claim that the underground church and its members have been subjected to human rights violations by the authorities. However, the Tribunal is not satisfied that the applicant is either a religious activist or a person with a genuine interest in becoming a religious activist in the reasonably foreseeable future. The Tribunal is also not satisfied that the applicant has any interest or intention of becoming a member of an underground church in China. It is the Tribunal’s view that the applicant is neither a radical or non-conformist Roman Catholic. The Tribunal finds that the applicant will not be involved in any religious activities in China which will attract the adverse attention of the authorities. Accordingly, the Tribunal cannot be satisfied that the applicant has a well-founded fear of persecution in China because he is a Christian or Roman Catholic.
Based on independent information about the attitude of PRC authorities to protection visa applicants the Tribunal was not satisfied that the authorities in China would seek to harm the applicant or members of his family because they applied for protection visas in Australia as no member of his family had ever been implicated in any activities against the government of China.
In these proceedings the applicant relied on grounds raised in an amended application filed in Court. The grounds are:
i)The applicant claimed a fear of persecution in connection with his desire to publicise information about the regulation of religion by the Chinese government, “so that the international society would intervene and add pressure on the Chinese government”. It was claimed that the Tribunal failed to deal with this claim giving rise to jurisdictional error. (“The political opinion issue”)
ii)The Tribunal found that it was not satisfied “that the authorities in China will seek to harm him or members of his family because they applied for a protection visa in Australia”. The Tribunal was said to have fallen into jurisdictional error in dealing with this claim. (The “failed protection visa issue”) and
iii)The Tribunal based its decision on country information which it did not put to the applicant set out in the reasons for decision and on this basis the Tribunal fell into error. (The “country information issue”)
The political opinion issue
In a written submission made to the Tribunal by the applicant’s adviser on 8 April 2003 it was claimed:
The applicant claims that his fear becomes more serious after hearing such news [in relation to attacks on underground Catholic dioceses and participants in China]. He feels sorrowful that his fellows are being persecuted and tortured by the authorities and some of them even sacrifice their lives to fight against the brutality of the government. What he can do now is to publicise this information so that the international society would intervene and add pressure on the Chinese Government. But if he were to return to China, he would immediately become another victim of the government persecution on Roman Catholic.
The applicant contended that the Tribunal failed to deal with this claim. It was submitted that in summarising relevant matters in the adviser’s letter the Tribunal did not refer to this claim and that this was a “pointer to the conclusion … that the Tribunal member simply overlooked this aspect of the claim” SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 at [24]. Although the Tribunal asked the applicant at the hearing if he ever participated in any activities of a political nature against the PRC government (and the applicant replied that he never did anything against the government) it was contended that this exchange was not relevant to the applicant’s claim. It was submitted that the context in which that exchange occurred indicated that the Tribunal (in considering the applicability of a DFAT report before it) was trying to determine whether the applicant was “implicated in political activities against the [PRC] government” in the past. The applicant had correctly stated that in the past he had not done anything against the PRC government. It was further contended that the finding that the Tribunal was not satisfied that the applicant was either a religious activist or a person with a genuine interest in becoming a religious activist in the reasonably foreseeable future did not respond to this aspect of the applicant’s claim, as the context in which the finding was made indicated that the term “religious activist” meant a person who was both religious and an activist whereas the applicant’s claim involved his desire to be a political activist. It was submitted that the Tribunal failure to deal with the claim amounted to a jurisdictional error consisting of a failure to take into account a relevant consideration and a failure to deal with the case raised by the material or evidence before it (see SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 at [26] per Madgwick and Conti JJ and Singh v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 109 FCR 18 at[49] per Merkel J).
A failure to take into account a relevant consideration or to deal with an integer of the claim made by an applicant may constitute jurisdictional error (see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244 and Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196). However in this instance it has not been established that the Tribunal erred in the manner contended.
There is no indication in the letter from the applicant’s adviser or in the discussion of the claims put to the Department or to the Tribunal during the hearing that the applicant was in fact making a claim through his adviser that he intended to involve himself in publication of information about persecution of underground Roman Catholics. Rather he claimed that while he had the capacity to do so while in Australia, if he were to return to China he would immediately become another victim of the government persecution “on Roman Catholics”. In other words the claim was a claim to fear persecution not as a political activist but for reason of his religion (and the associated claims that he made in relation to religious activism, proposed proselytizing in China and possible association with the underground Church movement). There was no articulation, either in the adviser’s claims or in the claims made by the applicant, of a fear of persecution as a result of political opinion as is now submitted. Nor did such a claim arise on the material before the Tribunal. He did not assert that he presently engaged in publication of information about the regulation of religion by the Chinese government (albeit that it was claimed that he would have capacity to do so outside China). It is apparent from this letter and from the other claims made by the applicant that his claim was based on religion and the possibility of future religious activism.
The Tribunal has, in any event, implicitly rejected any claim that the applicant would become active in a way that would arouse the interest of the authorities in China and hence fear persecution for any Convention reason. Reading the decision of the Tribunal fairly and as a whole any such claims were rejected by the Tribunal. The findings of the Tribunal are inconsistent with any claim by the applicant to fear persecution in China for a Convention reason. The Tribunal not only concluded that the applicant exaggerated his interest and involvement in religious activities to enhance his application, it rejected his claims that he intended to proselytize or that he had any interest in such activity in China or that he may ‘unwillingly’ become implicated with house churches. It went on to consider independent country information in relation to freedom of thought, conscience and religion that indicated that despite the PRC Government’s regulation of religious activities in China, there were many opportunities for PRC citizens to express their religious beliefs lawfully through registered organisations. Relevantly it specifically addressed the religious activism aspect of the applicant’s claims in its acceptance that “religious activists who oppose government regulation of religion … have been targeted by the PRC authorities” and in its conclusion that it was “not satisfied that the applicant is either a religious activist or a person with a genuine interest in becoming a religious activist in the reasonably foreseeable future”. These findings deal with the claims made in the adviser’s letter. This is apparent from the fact that the Tribunal dealt separately with the applicant’s claim to have any interest in or intention of becoming a member of an underground church in China. It found that the applicant was neither a radical or a non-conformist Roman Catholic and that he would not be involved in religious activities in China which would attract the adverse attention of the authorities. The Tribunal rejected not only the narrower contentions that the applicant would proselytize or become involved in an unregistered or non-sanctioned activity connected with religion but also the wider claim that he was, or had a genuine interest in becoming, a religious activist. There was no claim that the applicant had in the past participated in any activities of a political nature against the PRC government. This issue was raised with the applicant in the hearing. The applicant stated that he never did “anything against the government” and the Tribunal found that he had not been implicated in political activities against the PRC government. However all the integers of his claim were addressed by the Tribunal including those now said to be based on political opinion.
The applicant submitted that an inference that the Tribunal failed to consider the claim put in the adviser’s letter may be drawn from its failure to deal with that issue expressly in its reasons. As the Full Court of the Federal Court said in WAEE v MIMIA (2003) 75 ALD 630 at [47] this is “an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.” It is not an inference that should be drawn in this case. It was unnecessary for the Tribunal to make a finding at the level of specificity urged by the applicant because it dealt with the claim in its finding that the applicant had not engaged in such conduct in the past and in the finding of greater generality rejecting the applicant’s claims about his future intentions.
Counsel for the applicant also suggested that a religious activist is someone who is both practising religion and who in the practice of religion is in an activist and that the Tribunal findings in relation to religious activism did not sufficiently consider the claim made by the applicant based on political opinion. It was contended that this was apparent from the material summarised by the Tribunal in relation to attitudes towards Roman Catholics and religious activists involved with the so-called underground church. However I consider that it is taking an unduly restrictive approach to the Tribunal reasons for decision to consider that a summary of information from external sources in relation to a specific aspect of the claim indicates that the Tribunal has not taken into account the nature of the applicant’s claims. Moreover, on the basis of independent information, the Tribunal accepted that religious activists who oppose government regulation of religion have been targeted by the PRC authorities. At its widest this is the nature of the claim made in the adviser’s letter. The Tribunal conclusion that the applicant was not and would not become such a religious activist was open to it on the material before it. The claims that the applicant made in this respect were in the context of the applicant returning to China to practice as a Roman Catholic and have been so considered by the Tribunal.
The “failed protection visa” issue
The second ground relied on by the applicant is that the Tribunal relied upon historical country information in relation to the attitude of China to returned protection visa applicants and failed to search for and/or consider more recent country information on this point and to this extent ignored relevant material, being up-to-date country information. It was submitted that this constituted jurisdictional error in the sense considered in MIMA v Yusuf (2001) 206 CLR 323.
The applicant was the only member of the family to present an individual claim for refugee status. The Tribunal considered his claim in relation to what he told the PRC authorities on the basis of any harm to him. It went on to consider harm to members of his family and concluded that not only did he not have a well-founded fear of persecution in China for a Convention reason arising from this incident but also that the same considerations applied to his wife and son.
The Tribunal referred to the independent advice it relied on about the attitude of the PRC authorities and to the fact that in 1994 the Australian government ceased monitoring failed refugee applicants returning to China because it found no evidence that PRC citizens were mistreated by the authorities because they had applied for refugee status overseas. The Tribunal put the substance of the information relied on to the applicant in the hearing. It is not submitted that there was any particular contrary material before the Tribunal which was not taken into account. As Madgwick and Conti JJ said in SCAT at [26] “The Tribunal member was obliged to come to what he considered the correct or preferable decision on all the material before him” also see Singh at [49] reiterating that the Tribunal is “under a duty to arrive at the correct or preferable decision in the case before it according to the material before it”. The submission that the Tribunal should have searched for and considered other more recent country information on the attitude of PRC authorities does not establish jurisdictional error. The Tribunal is not under an obligation to make inquiries in the manner contended. It is for the applicant to present his claims. Moreover, as was said by McHugh, Gummow and Hayne JJ in Yusuf at [74] : “What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts”.
The “country information” issue
In its reasons for decision the Tribunal stated that in addition to information discussed with the applicant at the hearing it “also considered information from external sources dealing with the PRC government’s attitude towards Roman Catholics and religious attitudes involved with the so-called ‘underground’ church”. As set out in its reasons such information was of a general kind regarding religious activity in China and the PRC government’s activities. The applicant submitted that the Tribunal denied the applicant procedural fairness in failing to put such information to him for comment.
However much of this cited material was relied on by the Tribunal in its acceptance of the applicant’s claim that religious activists who oppose government regulation of religion, such as those who persist in proselytizing without obtaining government permission have been targeted by the PRC authorities and that the underground church and its members have been subjected to human rights violations by the authorities. It is to the same effect as information submitted by the applicant on these issues. This part of the material was not adverse to the applicant’s claims. The failure to put to the applicant information consistent with aspects of his claims that are accepted cannot constitute an operative breach of the rules of natural justice. The applicant failed, not because the Tribunal rejected his claims about the situation in China, but because it did not accept his claims that he would engage in those activities that attracted the adverse attention of the authorities.
The Tribunal also relied on information indicating that, despite the PRC government’s regulation of religious activities in China, there are many opportunities for PRC citizens to express their religious beliefs lawfully through registered churches as such participation does not attract the adverse interest of the authorities. It is apparent from the Tribunal reasons for decision (the only material before the Court in relation to the conduct of the hearing) that the Tribunal discussed with the applicant the circumstances of Catholics in China and put to him that millions of Catholics in China practised their religion without adverse interest from the authorities because they attended registered Catholic churches. Some specific country information to this effect was discussed with the applicant. It has not been established that the substance of such material and the critical issues were not raised with the applicant.
The Tribunal is not obliged to put every item of independent information to the applicant for comment. It is not contended, nor is it apparent, that the material quoted on such matters raised issues of which the applicant was not aware. In this case the conclusions which the Tribunal was inclined to draw from such material were put to the applicant in the discussion of the latest US Department of State Human Rights Report on China and in relation to the practice of Catholicism in China recorded in the reasons for decision. Moreover it is apparent that the applicant was aware of the substance of such material and its relevance from the documents submitted on his behalf to the Department and Tribunal, the letter from the Departmental delegate dated 28 March 2002 seeking his comments and his response of 4 April 2002 as well as the matters raised in the hearing. The substance of the information in question was conveyed to the applicant and no lack of procedural fairness is apparent (see NAVM v MIMIA [2004] FCA 99 at [32] to [33] per Beaumont J). This is not a case where the credibility of the applicant turned on the independent information about the PRC government’s attitude or the state of affairs in China or where the authenticity of documents submitted by the applicant was in issue (cf WAEJ v MIMIA [2003] FCAFC 188). The applicant was informed of the case he had to meet (Kioa v West (1985) 159 CLR 550). Fairness in this case did not require provision of the “specific text of country information seen to be of relevance.” see VHAP of 2002 v MIMIA [2004] FCAFC 82 at [17] per Gyles and Conti JJ and at [27] to [28] per Allsop J.
Further, as in VHAP, (see [16] and [30]) the applicant has not presented evidence as to what would have been done by him or on his behalf if, were his argument accepted, the potential use of the information by the Tribunal had been known in advance. There is nothing in the contentions of the applicant to suggest that, even if the applicant had been provided with all of the documents, he would have conducted his case differently or that it would have affected the outcome of his case. The information relied upon was consistent with the matters put to the applicant and discussed in the hearing. Much of it was likely to be known to the applicant and indeed his own adviser had put some material to the same effect to the Tribunal. There is no operative breach of the rules of natural justice in such a situation (see Re Minister for Immigration & Multicultural Affairs; Ex parte A (2001) 185 ALR 489 at [500]-[501] per Kirby J, VHAP at [15] to [16] and also see Stead v State Government Insurance Commission (1986) 161 CLR 141).
As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 8 June 2004
0
11
0