NBHI v Minister for Immigration

[2005] FMCA 261

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBHI v MINISTER FOR IMMIGRATION [2005] FMCA 261

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to consider whether applicant would modify conduct because of the threat of harm – whether Tribunal asked the wrong question. 

Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALJR 1088
Minister for Immigration & Multicultural Affairsv Respondents S152/2003 (2004) 78 ALJR 678
Appellant S395 of 2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71
Appellant S395/2002 v MIMA; Appellant S396/2002 v MIMA (2003) 203 ALR 112
WABR v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 121 FCR 196
Win v Minister for Immigration & Multicultural Affairs [2001 FCA 132
SZACV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 469
VWBA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 71
NAHW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 399
Wang v Minister for Immigration & Multicultural Affairs (2000) 105 FCR 548
NAEB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 79

Applicant: NBHI

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG2862 of 2004

Delivered on: 4 April 2005

Delivered at: Sydney

Hearing date: 1 February 2005

Last Date for Submissions: 8 February 2005

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr J. Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That a writ of certiorari issue quashing the decision of the Refugee Review Tribunal made on 20 May 2004. 

2. That a writ of mandamus issue requiring the Refugee Review Tribunal to re-determine the applicant’s application according to law. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2862 of 2004

NBHI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 20 May 2004 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.  The applicant, who is a citizen of the Peoples Republic of China, arrived in Australia on 6 November 2003 and applied for a protection visa on 18 December 2003.  The application was refused by a delegate of the respondent.  The applicant sought review by the Tribunal.  He attended a Tribunal hearing. 

2. The applicant claimed to fear persecution by reason of his religion as a Roman Catholic and his practice of that religion.  He claimed that he was from a Catholic family and as an adult had practised as an ‘underground Catholic’ in Shanghai being unwilling to participate in the official government approved Church.  He participated in religious activities at the homes of other Catholics or the priest.  He claimed that he also travelled to Wenzhou from his home in Shanghai four or five times each year for Mass and for other activities such as training courses. 

3. He claimed that on 3 August 1999 he and others were present at a priest’s home when it was raided by the police or Public Security Bureau (PSB), that he was taken to the police station and detained for an hour, ‘registered’ and that they were warned that they would be jailed if they continued to gather.  The police later arrested the priest and his whereabouts are unknown. 

4. The applicant claimed that his second contact with the police was at his own home in Shanghai on 7 May 2000 when he was attending a Mass.  All the people present were taken to the police station.  The applicant was sentenced to one year re-education through labour having been “caught” before.  After the Tribunal hearing he provided an original document and translation issued by the Shanghai Administrative Committee of Re-Education through Labour in relation to his sentence to a re-education through labour camp from May 2000 to May 2001.  The applicant also claimed that he had been dismissed from his employment as an electrician with the government when he was detained. 

5. After his release the applicant had returned to live in Shanghai.  He did not claim to have been questioned by the PSB or detained again in the 2½ years between being released and leaving China.  He claimed that he was afraid of being arrested, that the police were monitoring him and that sometimes he was checked by members of the local neighbourhood committee.  He had been employed as a shop assistant when business was good and he and his wife had bought and sold shares.  The applicant claimed that he had been careful not to be re-arrested during the 2½ years after his release and that when people went to a home Church they always took a dish, so if questioned that could say it was just a social thing.  He had done this every week.  He claimed that he preferred the underground or unofficial Church to the official Church because he felt he was listening directly to the Pope (the unofficial Catholic Church explicitly recognises the primacy of the Pope).

6. The applicant also submitted a letter in support of his claim that he had been attending Mass weekly at a Catholic Church in Sydney.

7. The Tribunal accepted that the applicant was a member of an underground Catholic Church in Shanghai and that he spent some time in underground church activities in Wenzhou.  It also accepted that he had been attending a Catholic Church in Sydney since almost immediately after his arrival here and that he was regarded there as a genuine Catholic.  From this the Tribunal inferred that the applicant had exhibited a familiarity with Catholic religious rituals consistent with having participated in such rituals before his arrival in Australia.

8. The Tribunal accepted that the applicant was held for a year in a re-education through labour camp from May 2000 to May 2001 and dismissed from his government employment as an electrician in 2000.  It also accepted that in August 1999 he had been detained for one hour and given a warning by the PSB and that it was because of this contact with the PSB, (which led to his being viewed more harshly) that he was sentenced to the period of re-education. 

9. The Tribunal accepted that after his release the applicant was sometimes checked by members of the local neighbourhood committee.  It accepted that because of his record he would be unlikely to get employment in state-run work units in the future.  It was satisfied that he was able to find alternative employment, albeit not such secure employment, in the private sector.  While it accepted that the restrictions on his employment and the occasional checks by the street committee reflected some ongoing discrimination against the applicant to which he may be subject in the future, the Tribunal did not consider that such treatment could be characterised as serious harm and found that it did not amount to persecution. 

10. The Tribunal found that the applicant had been able to continue to attend Mass each week and mix with fellow members of his underground church in Shanghai for 2½ years without being prevented from doing so or being questioned or harassed in any way during or en route to or from Mass in that period.  He did not claim to have been questioned by the PSB or detained during this time.  The Tribunal also noted that he did not claim to want to participate in other religious activities and that this was consistent with the fact that he had not participated in anything more than attendance at weekly Mass since his arrival in Australia.  The Tribunal was satisfied that, if he were to return to his home in Shanghai, the applicant could continue to participate in religious activities to a level consistent with his own religious commitment.  The Tribunal found that if he were to do so the chance that he would be subjected to treatment amounting to persecution was remote.  On the basis of these findings the Tribunal concluded that the applicant did not have a well-founded fear of Convention-related persecution in China and was not a person to whom Australia had protection obligations.

11. The applicant sought review by application filed on 16 June 2004.  He relies on an amended application filed on 30 November 2004. 

12. The first ground is that the applicant was denied natural justice by the Tribunal’s failure to consider the context in which he was and will be persecuted in China, including economic hardship that threatens his capacity to survive. However it is clear from the Tribunal reasons that it did in fact consider the context of the applicant’s claims. It accepted the applicant’s claims as to what had occurred in the past. It had regard to independent information regarding the current situation pertaining to the practice of religion in China and the attitude of the authorities to that practice. It specifically addressed the issue of economic hardship in accepting the applicant’s claims that he was dismissed from his past employment and that he was unlikely to get employment in state-run work units in the future. However it was satisfied that the applicant was able to find alternative employment, albeit not as secure, in the private sector. On the material before the court (and the only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision) the Tribunal did consider the context of the applicant’s claims. It accepted the applicant’s claims about the past restrictions on his employment and occasional checks on him by the street committee and that he may be subject to similar treatment if he returned to China. In finding that such treatment could not be characterised as serious harm it addressed s91R of the Migration Act 1958. Such findings are a matter for the Tribunal and no lack of natural justice is established in the manner in which the Tribunal considered the context of the applicant’s claims, including his claims about economic hardship. To the extent that a failure to consider the context of claims may constitute a denial of procedural fairness (see Dranichnikov v MIMIA (2003) 77 ALJR 1088) this principle has no application in this case. Insofar as this ground takes issue with the Tribunal reasoning in relation to the applicant’s future economic position it seeks merits review.

13. The second ground raised in the amended application and also raised orally was that the Tribunal erred in considering only the evidence that was adverse and in failing to consider evidence or material that was in the applicant’s favour.  There was no particularisation of what material or ‘evidence’ was referred to in this ground.  Insofar as the applicant takes issue with the independent information relied on by the Tribunal, the weight to be given to particular information is a matter for the Tribunal.  Insofar as the applicant takes issue with the Tribunal consideration of his claims, contrary to his assertion, the Tribunal accepted, rather than ignored, the evidence put forward by him.  It was the applicant’s own evidence that he had lived in Shanghai and practiced his religion for two and half years after his release which was accepted and taken into account in what might be said to be an ‘unfavourable’ manner. 

14. The third ground was that the Tribunal denied the high degree of possibility of persecution if the applicant returned to China.  The question of the likelihood of harm in the future is one of fact and therefore for assessment by the Tribunal.  The Tribunal did carry out the necessary assessment particularly in relation to the attitude of the Chinese authorities to the applicant’s continued practice of his religion.  As expressed this ground seeks merits review which is not available in this court.

15. The amended application raises a further ground, also raised in oral submissions, which takes issue with the alleged denial by the Tribunal of the applicant’s involvement in underground Catholic activities because of his inability to submit some documents to support his claim.  However this contention misunderstands the Tribunal findings.  The Tribunal decision was based on an acceptance of the applicant’s claim that he was involved in the underground Catholic Church and also an acceptance of the claim that he had been sentenced to one year re-education through labour.  In the Tribunal reasons for decision it is recorded that in the Tribunal hearing the Tribunal member told the applicant that the Tribunal could not rely on a photocopy of the order to detain him, as so many false documents were readily available in China or could be produced in Australia.  However the applicant subsequently submitted an original document and the Tribunal accepted that he was detained as claimed.  The absence of documentation played no part in the Tribunal decision and did not lead the Tribunal to reject the applicant’s claim of involvement in the underground Catholic Church.

16. Paragraph 13 of the amended application contends that the Tribunal denied the applicant’s claims as a refugee on the basis that he could not submit enough evidence and because of its insufficient understanding of the persecution of underground Church Catholics in China.  As discussed, the Tribunal accepted the applicant’s claims about what had occurred in the past.  However while events of the past are an important guide to the future, they are not determinative of it: MIMIA v Respondents S152/2003 (2004) 78 ALJR 678 at [74] per McHugh J. The Tribunal did not reject the applicant’s claims on the basis that he could not submit enough evidence. As to the claim that the Tribunal had an insufficient understanding of persecution of underground Catholics in China, this takes issue with the merits of the Tribunal decision and the weight that it placed on particular items of independent country information. No error is established in the manner contended.

17. In oral submissions the applicant contended that the Tribunal decision was unfair because it denied his rights as a refugee.  However it is for the Tribunal to determine whether a person is a refugee.  It is not for the court to inquire as to whether the applicant is a refugee.

18. In paragraph 12 of the amended application the applicant contended:

    As the Tribunal acknowledges that my oral evidence has already clarified my persecution and hardship.  I experienced persecution for my Catholic involvement.  If those of my experience was not a serious harm and persecution, I really do not know what standards the respondents abide to.

19. In essence the applicant appears to allege that the Tribunal did not understand or properly apply the concepts of serious harm and persecution.  The Tribunal did not make an express finding as to whether the applicant’s past treatment (including being held in a re-education though labour camp for a year) amounted to persecution, except insofar as it found that what had occurred to him after his release (restrictions on his employment and checks by the street committee) could not be characterised as serious harm amounting to persecution.  However it is apparent from reading the Tribunal decision fairly and as a whole that it proceeded on the basis that, even if the past treatment experienced by the applicant (in particular his detention in the re-education through labour camp) amounted to persecution, it considered that the chance that he would be subjected to treatment amounting to persecution in the future was remote – given his experience over the two and half years since release and the extent of his past and proposed participation in religious activities.  The Tribunal engaged in a consideration of the future in forecasting what the applicant would do on return to China and the possibility of his being harmed on account of what he did or believed. 

20. Counsel for the respondent addressed the question of the application of the principles laid down by the High Court in Appellant S395 of 2002 v MIMA [2003] HCA 71, an issue that was raised in very general way by the applicant’s contention that the Tribunal erred in considering the prospect of future persecution if he returned to China.

21. In Appellant S395/2002 v MIMA; Appellant S396/2002 v MIMA (2003) 203 ALR 112 the High Court considered a Tribunal decision in relation to a homosexual couple from Bangladesh who claimed to have a well-founded fear of persecution if they returned to Bangladesh by reason of their membership of the particular social group of homosexuals. The Tribunal had found that it was not possible to live openly as a homosexual in Bangladesh and that to attempt to do so would mean to face problems, but that Bangladeshi men could have homosexual affairs or relationships provided they were discreet. It had found that the applicants had lived together for over four years in Bangladesh without experiencing any more than minor problems with anyone outside their own families, that they clearly conducted themselves in a discreet manner and that there was no reason to suppose that they would not continue to do so if they returned home. In the High Court the majority was made up by the joint judgments of McHugh and Kirby JJ and Gummow and Hayne JJ. Relevantly, while McHugh and Kirby JJ accepted (at [34]) that the Tribunal had not imposed a ‘requirement’ that the appellants in that case be discreet about their membership of the particular social group of homosexual men, their Honours went on to state (at [35]):

    The reasons of the Tribunal show, however, that it did not consider whether the choice of the appellants to live discreetly was a voluntary choice uninfluenced by the fear of harm if they did not live discreetly.  It did not consider whether persons for whom the government of Bangladesh is responsible condone or inculcate a fear of harm in those living openly as homosexuals, although it seems implicit in the Tribunal’s findings that they do.  Nor did the Tribunal reasons discuss whether the infliction of harm can constitute persecution where an applicant must act discreetly to avoid that harm.  Nor did they discuss whether, if the appellants wish to display, or inadvertently disclosed, their sexuality or relationship to other people, they were at risk of suffering serious harm constituting persecution.  If the Tribunal could not have properly exercised its jurisdiction without considering these matters, it has fallen into jurisdictional error. 

22. Their Honours went on to state that:

    “although the appellants did not raise any issue of modifying their behaviour because they feared persecution, it seems highly likely that they acted discreetly in the past because they feared they would suffer harm unless they did.  If it is an error of law to reject a Convention claim because the applicant can avoid harm by acting discreetly, the Tribunal not only erred in law but has failed to consider the real question that it had to decide that whether the appellant had a well-founded fear of persecution” (at [39]). 

23. Of particular relevance to the present case are the following remarks by their Honours at [43] in rejecting the notion that asylum seekers are required or can be expected to take reasonable steps to avoid persecutory harm (cf WABR v MIMIA (2002) 121 FCR 196 at [27]):

    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 the 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 that issue properly.

1. As their Honours found (at [48]) that the Federal Court had recognised in Win v MIMA [2001] FCA 132, taking steps to hide political opinions and activities is no answer to a claim for refugee status where the applicant claims he or she would be persecuted for those opinions or activities. It may similarly be said that taking steps to hide religious beliefs or activities is no answer to a claim if the applicant claims that he or she will be persecuted for such religious opinions or activities.

2. Also relevant is what Gummow and Hayne JJ stated at [80] in Appellant S395/2002:

   If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief.  But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question.  And to say to an applicant that he or she should be “discreet” about such matters is simply to use gentler terms to convey the same meaning.  The question to be considered in assessing whether the applicant’s fear of persecution is well founded is what may happen if the applicant returns to the country of nationality;  it is not, could the applicant live in that country without attracting adverse consequences.

3. Their Honours found (at [88]) that the Tribunal was diverted from addressing the fundamental question of whether there was a well-founded fear of persecution by considering whether the appellants were likely to live in a way that would not attract adverse attention.  It is notable that the applicants in Appellant S395 had already modified their behaviour prior to leaving their country of nationality.  It was in that context that the High Court found that it was necessary for the Tribunal to consider whether modified or ‘discreet’ conduct was influenced by the threat of harm in asking what may happen if the applicant returns to the country of nationality. 

4. The respondent contended that in this case the Tribunal did not purport to require or expect that a person who might otherwise suffer persecution avoid such persecution by taking reasonable steps or by acting discreetly.  The Tribunal found that the applicant had been able to attend Mass each week and mix with fellow members of his underground church and that he did not claim to want to participate in other religious activities and had not done so in Australia.  It found on that basis that if he returned to his home in Shanghai he could continue to participate in religious activities to a level consistent with his own religious commitment and that if he were to do so the chance that he would be subject to treatment amounting to persecution would be remote. 

5. As in Appellant S395, while the Tribunal did not ‘require’ the applicant to act discreetly but implicit in its finding is an assumption that the applicant will act in what might be described as a ‘discreet’ manner.  However, the applicant gave evidence, which the Tribunal accepted, that prior to his detention in the re-education through labour camp he had not only attended Mass (and prayers and baptisms) in Shanghai at the homes of other Catholics but also at the home of a priest and that he had spent some time participating in underground church activities in Wenzhou such as Mass and training courses for people who were particularly active or enthusiastic.  He told the Tribunal that he had gone to Wenzhou for Mass from 1997 until he was arrested in 2000 but said that after his return he went to a home church.  He said that as he was still active in church activities he feared the police might find out at any time and that the police were monitoring him and sometimes the street committee sent someone to check on him.  Importantly, according to the Tribunal he gave evidence that after his release he had been ‘careful’ not to be re-arrested.  He told the Tribunal that when people went to a home church they always took a dish, so if questioned they could say that it was just a social thing and that he had done this every week.  In other words, his practise of religion during the 2½ year period after his release differed from his practise before that time in a manner not addressed by the Tribunal. 

6. In these circumstances the Tribunal’s finding that the applicant could participate in religious activities in the manner he had done in the past 2½ years was akin to a finding that a person would act in a private manner and thereby avoid persecution.  In SZACV v MIMIA [2004] FCA 469 at [20] – [21] Gyles J found that a finding that a person may practise his religious beliefs on a private basis answered the question “Could the person can live in that country without attracting adverse consequences?” and that this was the question which Gummow and Hayne JJ had identified in S395 at [80] as the wrong question (also see VWBA v MIMIA [2005] FCA 71 at [37]). In such circumstances the Tribunal had asked itself the wrong question in a manner constituting jurisdictional error. Further, as Allsop J pointed out in NAHW v MIMIA [2004] FCA 399 at [26], at least McHugh and Kirby JJ and possibly also Gummow and Hayne JJ in Appellant S395:

   “appeared to conclude that a well-founded fear of persecution was made out if the claimant would modify his or her behaviour upon return to the country in question by reason of the fear of the threat of harm (even, it would appear, where that modification of conduct would lead to safety from the infliction of harm)… certainly, all four members of the majority focused upon the testing of the well-founded fear by reference to how each person is ‘free’ to act or is ‘entitled’ to act in the country in question (Appellant S395 [44] and [83]).”

7. The respondent contended that the Tribunal took into account and accepted the applicant’s claims that he was an underground Catholic and that he had, in more recent times in China, practised his religion in a particular way in private homes.  However this failed to address the question of whether the applicant had modified his behaviour in the 2½ years after his detention (in particular his manner of participation in Mass and other church activities) and would continue to do so by reason of the fear of the threat of harm.  The Tribunal did not test the well-foundedness of the applicant’s fear by reference to how he was ‘free’ or ‘entitled’ to act in China.  Rather, while it found that he could ‘continue’ to participate in religious activities as an underground Catholic to a level consistent with his own religious commitment, that was in the modified way he had practised his religion in the 2½ years after his detention. 

8. The respondent submitted that the applicant’s reason for practising underground Catholicism was that he was listening directly to the Pope and that the Tribunal did not require him to do anything in the future by way of requiring him to change or abandon his faith in order to lessen the risk of persecution.  It was not, for example, suggested that the applicant could, or would, practice his religion within the official, government approved, Catholic Church instead of the underground church (cf Wang v MIMA (2000) 105 FCR 548). It was contended for the respondent that, in contrast, in S395 the Tribunal had failed to analyse the reason why the appellants in that case had engaged in the quiet practice of their homosexuality in the past in their country of nationality and that the Tribunal had fallen into error in that instance in ignoring the possibility that the appellants’ choice in that respect would be relevant to the decision as to whether they had a well-founded fear of persecution in the future.  

9. The respondent’s contention that the reason for the applicant’s practise of underground Catholicism was that he was following the Pope does not take into account or address the reason for the manner in which he practised his underground Catholicism after his release from detention, by visiting private homes carrying a plate of food and by no longer going to Mass or other activities at Wenzhou.  The Tribunal did not consider whether the applicant would modify his behaviour (as he had done after his release from detention) on return to China by reason of the fear of threat of harm (NAHW at [26]). Hence it fell into error in the manner considered in Appellant S395. 

10. It was also contended that the Tribunal had proceeded on the basis that the authorities were aware that the applicant would be practising as an underground Christian because he had done so for 2½ years and had previously come to the attention of the authorities.  In the alternative it was submitted that the case was distinguishable from S359 on the basis that the finding that the applicant had not come to the attention of the authorities in the two and half years after his ‘re-education’ was sufficient for the Tribunal to find that there was no real chance that he would come to their attention in the future.  In essence it was contended that the distinction between this case and S395 was that the Tribunal in this case accepted that the applicant would continue to do what he had done in the past and that he was not being required to change his beliefs or practises. 

11. I am not satisfied that it is apparent from the Tribunal reasons for decision that the Tribunal proceeded on the basis that the authorities were aware that the applicant would be practising as an underground Christian because he had done so for the past 2½ years and had previously come to the attention of the authorities.  On the contrary.  The Tribunal account of what occurred in the Tribunal hearing indicates that the applicant stated that “as he was still active in church activities, he feared they might find out any time”.  Further, the finding that the applicant had not come to the attention of the authorities in the 2½ years after his re-education is not sufficient to warrant the Tribunal finding as contended.  The Tribunal failed, as I have indicated, to consider whether the choice of the applicant as to the manner in which he practised of his religion in the 2½ years before leaving China was a voluntary choice uninfluenced by fear of harm if he did not practise his religion discreetly.  Indeed this is reinforced by the fact that, contrary to the position in Appellant S395 where the appellants did not raise any issue of modifying their behaviour because they feared persecution, in this instance (according to the Tribunal reasons for decision) the applicant did indicate that he feared that he would be found out, that he had been careful not to be re-arrested during the last 2½ years and that he had taken a dish every week when he went to a home church so that he could say that it was just a social thing.  There is no suggestion that he engaged in such subterfuge prior to his arrest and detention, when he not only participated in religious activities in Shanghai at the homes of fellow Catholics and the priest but also went to Wenzhou four to five times a year.  (See Appellant S395 at [39] and [43]).

12. It was also contended that nothing consistent with the applicant’s faith and the conduct of his faith was being impinged upon in the manner in which the Tribunal made its decision about the future.  Counsel for the respondent acknowledged that the expression of religion is part of holding a religious belief in the same manner that an expression of political opinion is part of holding a political opinion (see Win v MIMA [2001] FCA 132) and that in this instance going to Mass was part of the applicant’s religion and that if that had been curtailed such curtailment must be considered as part of persecution (also see McHugh and Kirby JJ in S395) but contended that this had not occurred in this instance.  However, as indicated, the applicant’s evidence was to the contrary and this evidence was not addressed by the Tribunal. 

13. Finally counsel, for the respondent drew the court’s attention to the decision of the Full Court of the Federal Court in NAEB v MIMIA [2004] FCAFC 79. In that case the Tribunal had found that the applicant’s compliance with the requirements of the Chinese authorities in relation to practising Falun Gong in private resulted from his lack of commitment to Falun Gong and not from a fear of the consequences threatened by the authorities (at [26] per North and Lander JJ). It was suggested that, similarly this was not a case in which the applicant’s exercise of his religion in a particular way would be impinged upon by fear as he would still have worshipped at a friend’s house. It was contended that S395 could be distinguished because of the applicant’s own evidence about the way he had practised and why he had practised his religion that way in the past and also how he had practised in Sydney, and that the Tribunal had accepted this evidence and on that basis considered the prospect of harm should the applicant return to China. 

14. This case can be distinguished from the circumstances considered by the Full Court of the Federal Court in NAEB v MIMIA [2004] FCAFC 79. In this instance there was no suggestion that the applicant was not a committed underground Catholic and no finding that his choice about how to practise his religion after his release from detention was a voluntary choice uninfluenced by fear of harm from the authorities. As their Honours acknowledged in NAEB at [23]:

    “If the Tribunal accepted that the appellant would modify his conduct, but failed to ask whether that would have occurred as a result of the threats of serious harm to the followers of Falun Gong, the case would fall within the reasoning of the majority judgments in S395/2002”. 

    This case falls within such reasoning.  The Tribunal accepted that the applicant was a member of an underground church in Shanghai and that he had spent some time in underground church activities in Wenzhou and that in the 2½ years after his detention he had been able to continue to attend Mass in Shanghai.  It did not describe this as a modification of behaviour but its findings proceed on the basis that there was in fact such a modification. 

15. The Tribunal referred to independent country information which indicated that members of unregistered Catholic congregations experienced ongoing and in some cases increased official interference, harassment and repression through 2003.  In the context of this evidence and the claims of the applicant about his practise of religion before and after his detention and his continuing fear of re-arrest, the Tribunal fell into jurisdictional error in failing to determine whether the applicant had acted as he had for the past 2½ years (and would continue to act that way on return to China) only because it was not possible for him to practise his religion openly.  While it is the case that the Tribunal did not expressly require the applicant to change or abandon his faith or to be discreet, similarly in Appellant S395of 2002 McHugh and Kirby JJ accepted that the Tribunal had imposed no requirement that the appellants be discreet about their membership of a group.  Nonetheless their Honours found that the Tribunal had erred in failing to consider whether the choice of the appellants in Appellant S395 to live discreetly was a voluntary choice uninfluenced by the fear of harm if they did not do so. Similarly, in this case the Tribunal failed to consider whether the applicant’s quiet practise of his religion in the 2½ years before he left Shanghai was a voluntary choice uninfluenced by the fear of harm. Instead it addressed what Gummow and Hayne JJ identified (at [8]) as the wrong question, that is, whether the applicant could live in China without attracting adverse consequences. I am satisfied that the Tribunal fell into jurisdictional error and that the decision of the Tribunal should be set aside and the matter remitted for reconsideration.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  4 April 2005