NBKT v Minister for Immigration
[2006] FMCA 6
•31 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBKT v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 6 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to ask itself the correct question or apply the correct test – whether denial of procedural fairness or failure to comply with s.425 of the Migration Act – whether findings irrational, illogical, unreasonable or not based on findings or inferences of fact supported by logical grounds or unsupported by evidence. |
| Migration Act 1958 (Cth), ss.422B, 424A, 425 & 91R(3). |
| Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 | ||
| Applicant: | NBKT | |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG957 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 25 August 2005 |
| Date of Last Submission: | 7 October 2005 |
| Delivered at: | Sydney |
| Delivered on: | 31 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Bova |
| Counsel for the Respondent: | Ms P Wong |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
That the application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG957 of 2005
| NBKT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal made on 31 January 2005 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant is a citizen of the Peoples Republic of China who arrived in Australia on 11 March 1999 as the holder of a temporary business visa. Her visa expired. She remained in Australia. On 19 November 2004 she applied for a protection visa.
In her protection visa application the applicant claimed that she had worked as the associate director of the research institute of a food company in China. She was sent to Australia by her company to develop a business here. She claimed that before she left China in 1999 the managing director of the company had borrowed money for the company from a government-owned bank totalling 10 million RMB. The company did not make repayments under the loan. The bank took the matter to court. She claimed that the managing director of the company accused her of stealing the money and going overseas. The applicant claimed that her parents had informed her two days before she lodged her protection visa application that she should not return to China as she would be regarded as responsible for the loan and possibly would be sent to gaol. She claimed that the Chinese courts had been investigating the loan affair and that people from the court had visited her parents’ house, had asked for her and had requested that she attend at the court. Her application for a protection visa was refused. She sought review by the Tribunal.
In a written submission provided to the Tribunal by the applicant’s adviser on 24 January 2005 she also claimed that she had become a Christian after her arrival in Australia and had been baptised six months earlier. She claimed to fear that she would be persecuted by Chinese authorities because “Christians are persecuted in China”. The submission stated that this information was provided to the Tribunal at the request of the applicant. As discussed below the applicant elaborated on these claims at a Tribunal hearing. She also claimed that she feared sterilisation and would suffer like her mother (whom she claimed had been forced to undergo sterilisation) and that in Australia she could have more than one child and made complaints about past mistreatment of her parents by the Chinese Communist Government. Her claim was that she was likely to suffer persecution for a combination of political and religious reasons.
The Tribunal decision
In its findings and reasons the Tribunal had regard to the fact that the applicant had arrived in Australia in March 1999 but did not apply for a protection visa until November 2004. It noted her claims that the Chinese government may harm or mistreat her, that it could not protect her as she was accused of misusing the company funds because she was involved in obtaining the loan and that two days before lodging her protection visa application she was informed by her parents that she would be regarded as responsible for the company loan (which the company did not have the money to pay) and that she would possibly be sent to gaol. However at the Tribunal hearing the applicant told the Tribunal that her parents had told her just before she had made the protection visa application that she had been blacklisted by the Chinese government and that this was one reason why she had not previously applied for protection. The Tribunal had regard to the fact that the applicant had not previously made a claim of being blacklisted or provided any evidence in support of this claim. It did not accept this claim, finding that the applicant had embellished her claims in order to enhance her claims for a protection visa. The Tribunal found that this went to the matter of her credibility and found that she was not a credible witness.
Nevertheless, the Tribunal went on to consider other aspects of the applicant’s claims. It accepted that she came to Australia to explore the possibility of the Chinese food company being able to develop a market for a health food product and that the company closed down a month after her arrival. However it found her claim that she was associated with obtaining the company loan to be vague and variable. It noted that she gave contradictory evidence at the hearing about her position with the company (claiming that she was a vice president but also that she was only the assistant director of the research institute). It did not accept that she was a vice president of the company. It found that she had embellished her claims in order to enhance her claims for a protection visa. It noted there was no evidence to support the claim about her position or to support her claim that she was a party to the taking out of the loan (only that she claimed she was seen accompanying the managing director to the bank). The Tribunal found that it was not apparent why she would be doing so, as the assistant director of a research institute, employing only four of 30 to 40 company staff. It noted that she did not claim that she was in the finance or management areas or that she was actually involved in misusing the funds. From the limited and unsupported claims made by the applicant, the Tribunal was not able to satisfy itself that she was actually directly associated with the loan. It did not accept this claim.
The Tribunal also considered the applicant’s claim that the courts had been investigating the loan affair and had visited her home on a number of occasions. It had regard to the fact that she had made contradictory claims about the purpose of the visits to her home by the court officials. It found it significant that she did not claim that the police or law enforcement agencies came to her home in order to arrest her, to search her house for evidence or to issue her with an arrest warrant, but rather that the visits were by court officials sent to investigate. It noted that there was no evidence that she was a suspect or had been charged with any offence. It found that there were a number of possible explanations as to why the courts wanted to speak to the applicant in developing a case against persons she claimed had been charged and sentenced to life imprisonment.
The Tribunal accepted that the applicant was given a cheque for $US3,000 by the company chairman to fund her efforts to expand the company’s market in Australia, but also accepted that she did not claim that there was anything untoward about this payment or that it was somehow connected with the loan affair. It noted that at the hearing the applicant claimed, for the first time, that she now thought that the company had sent her to Australia in order to blame her for the matter, that the government was corrupt and that as the company owed a significant amount of money she may be sent to prison, but that she provided no evidence to support this claim. The Tribunal did not accept the recent unsupported speculation by the applicant that she may have been sent to Australia to make her some kind of a scapegoat. The Tribunal was satisfied that if the people involved in the loan affair were worried about unfolding developments they would themselves have sought to leave the country to avoid the possibility of prosecution rather than sending someone else out of the country to blame. In any event the Tribunal found the applicant’s claim to be entirely speculative. It was satisfied that she was not a suspect in the failure to pay back the loan taken out by her company and was of no interest to the Chinese authorities because of any role she had in this affair. It found that she had embellished her claims in this respect in order to enhance her claims for a protection visa. It accepted the claim in the applicant’s protection visa application that she had not been convicted or charged with any offence currently awaiting legal action. The Tribunal was satisfied that there was no Convention nexus to this claim and also that there was not a real chance that the applicant would be subjected to serious harm amounting to persecution for a Convention reason on this basis.
The Tribunal considered the applicant’s claims that if she returned to China she would be gaoled, that she would not be able to afford legal assistance and that she would not receive effective protection from the authorities who would prosecute her and who were corrupt. The Tribunal detailed a discussion of these claims at the hearing. However, it concluded that, having found that the applicant was not a suspect in the failure to pay back the company loan and that she was of no interest to the Chinese authorities for any role in such affair, it did not accept that if she returned to China she would be subjected to any investigation about the loans affair that had occurred over 5½ years before the Tribunal decision or that a summons or warrant had been issued against her. As it did not accept that any action would be taken against the applicant on this or any other matter, it did not accept the claim there was a real chance that the applicant would not have a fair and reliable judgment in China as the government was corrupted or that she would be thrown into prison. The Tribunal also did not accept the applicant’s related claims that the Chinese authorities would not be willing to help a person that they were prosecuting and that if she was put in gaol her entire life was “finished”.
The Tribunal also addressed the claims the applicant made in relation to the treatment of her parents in China. In particular she claimed that because of the Cultural Revolution her father was not able to sit the entrance exams to be a university student and that her mother, while allowed to have a second child, had been subject to forced sterilisation. The Tribunal accepted the claims of events that occurred over 25 years ago in relation to the applicant’s parents, but had regard to the fact that she did not claim that she herself had been sterilised or been denied college education and indeed had undertaken three years of tertiary education and worked as a junior doctor. While she claimed she could have children in Australia without risking sterilisation, she did not claim that she had a child or that she was pregnant, married or in a long-term relationship. Given all her circumstances and claims, the Tribunal was not able to satisfy itself that there was a real chance that the applicant would be subjected to serious harm by way of sterilisation or any other forced measure for a Convention-related reason now or in the foreseeable future if she returned to China.
As to the applicant’s claims that because of what had happened to her parents, she hated the Chinese Communist Party and China and had found democracy and freedom in Australia, the Tribunal noted that the things that happened to her parents happened a long time ago, that she arrived in Australia in 1999 and within one month ceased working for the company she came here with, but did not apply for a protection visa for another 5½ years. It noted the applicant’s responses when questioned on these issues and found that if the applicant had in fact hated Communism since she was a child and wanted political freedom as claimed she would have applied for a protection visa soon after she arrived in Australia to ensure her long-term safety. While it accepted that freedom to express political views and the approach to human rights was different in Australia to China, the Tribunal also accepted information put to the applicant at the hearing over the generalised and unsupported claims made by her. The Tribunal was not able to satisfy itself that there was a real chance the applicant would experience serious harm amounting to persecution for a Convention reason on this basis if she were to return to China now or in the foreseeable future.
The Tribunal then considered the applicant’s claim that she had become a Christian in Australia. It had regard to the fact that in both her written submissions and at the hearing she showed very little knowledge of the Christian religion, could not identify the churches she had attended and did not know what denomination she was (although claimed she was not Catholic). The Tribunal referred to independent country information about religion in China and the significant growth of the Christian church in China that had been put to the applicant in general terms. The Tribunal recorded that when the applicant was asked why, in light of this information, she claimed she feared persecution because she was a Christian the applicant replied that while that may appear to be the case on the surface, “many Christians are persecuted in China”, that media reports and friends in China suggested the authorities “do not allow worship in China” and that she could be sent to prison “as they do some things differently to what they say and have a dark underside which is not apparent, and if the authorities wanted you dead, you could not live”. Notwithstanding these claims the Tribunal accepted country information that there were many millions of Christians in China and that the Christian Church in China was one of the fastest growing.
The Tribunal had regard to the fact that the applicant:
does not claim that she would refuse to join the unofficial Church or that she would deliberately defy the Chinese government but rather that she wanted to believe in it for the rest of her life and would be heartbroken if she cannot practice her religion and she may be persecuted because of this.
The Tribunal concluded “in short” that from the limited claims made by the applicant it was satisfied that there was not a real chance that she would be subjected to serious harm amounting to persecution because she had become a Christian.
Moreover the Tribunal had regard to s.91R(3)(b) of the Migration Act1958, which requires the Tribunal to disregard any conduct in Australia if it was undertaken to strengthen the applicant’s claim to be a refugee. Given the applicant’s limited knowledge about Christianity, her vague and unsubstantiated claims about practising it here (including the absence of any supporting evidence such as evidence of her Baptism or church attendance or from the local pastor or priest supporting her claim) the Tribunal was satisfied that she had only become a Christian in order to strengthen her claims for a protection visa. Accordingly the Tribunal disregarded this evidence and her participation in such events.
Finally the applicant claimed that she was worried about the lives of her parents and that she had not been able to reach them for a few weeks before the hearing. The Tribunal found that her concern that something had happened to her parents was unsupported speculation. It was not able to satisfy itself that the reason the applicant had not been able to contact her parents was for a Convention-related reason or that on this basis the applicant herself would be subjected to serious harm if she returned to China.
In conclusion, having considered all the claims made by the applicant, the Tribunal was satisfied that there was not a real chance that she would be subjected to serious harm amounting to persecution for a Convention reason if she returned to China either now or in the foreseeable future. It found that she was not a refugee.
These proceedings
The applicant sought review of the Tribunal decision by application filed in the Federal Court of Australia on 16 February 2005. On 9 May 2005 the proceedings were transferred to this Court. The applicant filed an amended application in Court. However at the hearing counsel for the applicant indicated that he had come into the matter very late and suggested that there was an issue about what had occurred in the Tribunal hearing. After the hearing the first respondent filed a transcript of the Tribunal hearing. Counsel for the applicant then filed further written submissions which sought to rely on a further amended application (which added an additional ground). Counsel for the respondent did not oppose the further amendment of the applicant’s application, provided the respondent was adequately protected by an order for the costs of preparing written submissions in answer to the new ground of review raised in such further amended application. Such submissions were filed. Finally counsel for the applicant filed further submissions in response.
Whether the Tribunal failed to ask itself the correct question or apply the correct test
The first ground relied on in the further amended application is that the Tribunal failed to ask itself the correct question or apply the correct test in considering whether the applicant had a well-founded fear of persecution in China for reasons of her religion. The particulars to this ground are that the Tribunal did not ask itself whether or not there was a chance that if the applicant did not join an officially registered Catholic or Protestant church she would suffer persecution for reason of her religion.
The contentions of the applicant in this regard are that the Tribunal fell into error in two ways. (See McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at [43], [50], [53] and [55] – [58]). It was contended first that the Tribunal erroneously assumed that it was reasonable for a Christian person in China to conform to the laws of China and that in so doing the Tribunal disqualified itself from properly considering the applicant’s claim that she had a real fear of persecution if she were returned to China (see McHugh and Kirby JJ in Appellant S395/2002 at [53]). It was contended that the Tribunal merely asked itself what chance there was the applicant may face persecution upon returning to China if she were to join the official Catholic or Protestant churches which were endorsed by the State and that it erred in failing to ask whether or not the applicant would join an unregistered Christian Church. It was contended that the failure to ask the right question amounted to a substantive error of law going to jurisdiction (Craig v South Australia (1995) 184 CLR 163 at 179).
It was said that the question to be answered by the Tribunal was “what may happen if the applicant returns to the country of nationality” Appellant S395/2002 per Gummow and Hayne JJ at [80] and that in order to answer this question the Tribunal needed to consider what the applicant will do as distinct from what she was entitled to do and that the Tribunal’s approach, in the words of Gummow and Hayne JJ in Appellant S395/2002 at [83], “leads onto the consideration of what modifications of behaviour it is reasonable to require that individual to make without entrenching on the right”. As their Honours pointed out, this type of reasoning is said to lead to error and to a narrow inquiry that would be relevant only if the description given to what the applicant would do on return “was not only comprehensive, but exhaustively described the circumstances relevant to the fear that the applicant alleged”.
It was submitted that in this case the applicant’s description of what she would do on return to China was far from comprehensive and exhaustively described and that in these circumstances (cf Applicant NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 29) the Tribunal should have turned its mind to the applicant’s beliefs and asked itself the preliminary question of whether or not there was a chance that she would join an official or an unofficial church. (See NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 per Allsop J). It was contended that if there was a chance that the applicant would join an unofficial church, which there was said to be, the Tribunal would then need to assess whether the applicant’s fear was well founded in all of the circumstances. That it did not do this was said to be apparent from its “ignorance” of the plethora of independent country information before it to the effect that unregistered Christian groups had met with strong Government opposition and were subject to increased restrictions including intimidation, harassment and detention. Reference was made to aspects of country information before the Tribunal but not referred to by it.
Secondly it was submitted that the Tribunal fell into error in that it failed to consider the individual circumstances of the applicant against the country information available. Counsel for the applicant took issue with the Tribunal’s “selective” use of independent country information in relation to religious beliefs in China and contended that the Tribunal did not ask itself what chance there was that the applicant may face persecution on return to China having regard to evidence in the independent country information which was referred to but not relied upon by the Tribunal (particularly in relation to the treatment of unofficial or house church movements).
Counsel for the respondent acknowledged, that as Gummow and Hayne JJ stated in Appellant S395/2002 at [80]:
If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chances 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 if you 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 might happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without adverse consequences.
However, it was submitted that the Tribunal did not err, but asked first what might happen when the applicant returned to her country of nationality and that the Tribunal did not proceed by asking whether it was possible for the applicant to live in her home country in such a way as to avoid adverse consequences. It was also contended that what was said by McHugh and Kirby JJ at [55] in Appellant S395/2002 had been tempered by the subsequent decision of Applicant NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 29. That part of Appellant S395 is as follows:
In our opinion, the Tribunal also fell into jurisdictional error by failing to consider the issue of persecution in relation to the correct “particular social group.” (Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088) … As we have indicated, the Tribunal found that homosexual men in Bangladesh constituted a “particular social group” for the purpose of the Convention. As a matter of law, this finding was open to the Tribunal … indeed, if the Tribunal had held otherwise, it’s decision would arguably have been perverse. However, by declaring that there is no reason to suppose that the appellants would not continue to act discreetly in the future, the Tribunal has effectively broken the genus of “homosexual males in Bangladesh” into two groups - discreet and non-discreet homosexual males in Bangladesh. This inevitably invited error. It leaves to the Federal Court and the Tribunal examining a claim for refugee status in the way that Ryan J did in Applicant LSLS v Minister for Immigration & Multicultural Affairs … when his Honour said:
‘I have therefore confined my examination of this issue to considering whether the applicant had a well-founded fear of persecution if he were to pursue a homosexual lifestyle in Sri Lanka, exposing his sexual orientation to the extent reasonably necessary to identify and attract sexual partners and maintain any relationship established as a result.’ (emphasis added)
It was submitted for the respondent that, particularly in light of Applicant NABD of 2002, no jurisdictional error was apparent in the present case. Gleeson CJ had found in Applicant NABD at [9] – [10] that it was open to the Tribunal in that case as a matter of factual judgment to accept a distinction between categories of Christians in Iran consistent with country information (in that case, converts who went about their devotions quietly and persons involved in aggressive outreach through proselytising). His Honour continued that once the Tribunal accepted, as it was entitled to do on the basis of country information before it, that not all Christians in Iran suffered persecution or a real chance of persecution, it was required to consider “the individual circumstances of the appellants in the light of the available information” (at [10]).
It was also pointed out that in Applicant NABD Hayne and Heydon JJ found at [163] that the Tribunal in that case was not in error in distinguishing between categories of Christians in the manner that it did and rejected a contention that this revealed error because it showed that the Tribunal had argued from an a priori classification of Christians in Iran to the particular conclusion that the applicant’s fears were not well-founded because there was not a real chance that he would face persecution in Iran. Their Honours rejected that argument because it did not take account the nature of the information provided to the Tribunal about conditions in Iran or accurately reflect the factual findings made, and reasoning recorded, in the Tribunal’s reasons for decision.
In Appellant NABD the Tribunal had made findings about the way in which the appellant had practised his faith (in Australia) and about what he would choose to do in Iran based on the information before it and related those conclusions to the information it had about conditions in Iran. The distinction drawn in that information had to be considered by the Tribunal and on that basis it concluded that the applicant’s conduct in Australia, if continued in Iran, was properly described as not being proselytising or actively seeking attention (at [167]). Hayne and Heydon JJ continued at [168]:
At no point in its chain of reasoning did the Tribunal divert from inquiring about whether the fears which the appellant had were well-founded. It did not ask (as the Tribunal had asked in Appellant S395/2002) whether the appellant could avoid persecution; it asked what may happen to the appellant if he returned to Iran. Based on the material the Tribunal had, including the material concerning what the appellant had done while in detention, it concluded that were he to practice his faith in the way he chose to do so, there was not a real risk of his being persecuted.
It was contended for the respondent that similarly, in this case the Tribunal made findings about the way the applicant had practised her faith in Australia (that she claimed to have been a Christian for six months, showed little knowledge of the Christian religion, could not identify the churches she had attended and did not know what denomination she was, but was not a Catholic) and what she would choose to do in China – in particular that she would not deliberately defy the Chinese government but just wanted to practise Christianity and also that she had not claimed she would refuse to join the unofficial church – and related these conclusions to the information it had about conditions in China. It was submitted that there was no lack of logic in the Tribunal choosing to take into account the information it did. Indeed in light of the applicant’s particular circumstances, it was suggested that the Tribunal was entitled to consider Christians as a whole and, given the evidence of the applicant, was not under any duty to consider unofficial churches in the manner contended.
The “fundamental question” (NABD at [150] per Hayne and Heydon JJ) for the Tribunal in relation to this aspect of the applicant’s claims was whether the applicant had a well-founded fear of persecution on the ground of religion. This involved consideration of the individual circumstances of the applicant and “of how this applicant may be treated” if she returned to China as stated in Appellant S395/2002 at [78] by Gummow and Hayne JJ. As their Honours went on to state at [80]:
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.
As to the first error suggested by the applicant, it is the case that in Appellant S395/2002 McHugh and Kirby JJ concluded at [53]:
Because the Tribunal assumed that it is reasonable for a homosexual person in Bangladesh to conform to the laws of Bangladesh society, however, the Tribunal disqualified itself from properly considering the appellants’ claims that they had a “real fear of persecution” if they were returned to Bangladesh.
As McHugh J stated in Applicant NABD of 2002 (at [28]): “… the Tribunal (in Appellant S395/2002) constructively failed to exercise its jurisdiction because it erroneously assumed that it is reasonable for a homosexual person in Bangladesh to conform to the laws and social expectations of Bangladeshi society and practice their homosexuality discreetly”. As his Honour pointed out that assumption led to error because the Tribunal failed to consider, in assessing whether the applicants had a well-founded fear of persecution, why they had in the past acted discreetly in Bangladesh and what consequences might attach to their living openly as homosexuals in Bangladeshi society.
In this instance it was not claimed that the applicant had engaged in Christianity in China in the past. No issue arose as to what her practice had been in China or as to whether she had been persecuted because of any interest in or practice of Christianity (cf Appellant S395/2002 at [43] per McHugh and Kirby JJ). The Tribunal considered the applicant’s claim on the basis that she had become a Christian in Australia as claimed (albeit it went on to disregard any conduct engaged in in Australia pursuant to s.91R(3) of the Act).
Nonetheless, in considering whether the applicant’s fear of persecution by reason of her religion was well-founded it was necessary for the Tribunal to address the question of what the applicant would do, not what she was entitled to do. As Gummow and Hayne JJ stated in Appellant S395/2002 at [83]:
Addressing the question of what an individual is entitled to do (as distinct from what the individual will do) leads on to the consideration of what modifications of behaviour it is reasonable to require that individual to make without entrenching on the right. This type of reasoning, exemplified by the passages from reasons of the Tribunal in other cases, cited by the Federal Court in Applicant LSLS v Minister for Immigration & Multicultural Affairs [2000] FCA 211 at [20-21], leads to error. It distracts attention from the fundamental question. It leads to confining the examination undertaken (as it was in LSLS) merely “to considering whether the applicant had a well-founded fear of persecution if he were to pursue a homosexual lifestyle in [the country of nationality], disclosing his sexual orientation to the extent reasonably necessary to identify and attract sexual partners and maintain any relationship established as a result” (LSLS at [24]). This narrow inquiry would be relevant to whether an applicant had a well-founded fear of persecution for a Convention reason only if the description given to what the applicant would do on return was not only comprehensive, but exhaustively described the circumstances relevant to the fear that the applicant alleged. On its face it appears to be an incomplete, and therefore inadequate, description of matters following from, and relevant to, sexual identity. Whether or not that is so, considering what an individual is entitled to do is of little assistance in deciding whether that person has a well-founded fear of persecution.
However in this instance the Tribunal did not ask itself the wrong question in a manner constituting jurisdictional error as contended. It considered whether the applicant had a well-founded fear of persecution if she returned to China. It did not ask (as had occurred in Appellant S395/2002) whether it was possible for the applicant to live in China in such a way as to avoid adverse consequences (see Hayne and Heydon JJ in Applicant NABD at [151]). It considered what she would do not what she was entitled to do insofar as possible on the limited claims before it. This is apparent from a consideration of the applicant’s claims and the Tribunal decision.
In the original protection visa application of November 2004 the applicant made no claim about Christianity. This claim was first made in a written submission from the applicant’s migration agent dated 24 January 2005. The extent of the claim was as follows:
The applicant claims that after she arrived in Australia she became a Christian, was baptized six months ago and still attends service at Villawood Detention Centre.
Her claim to fear persecution on this basis was simply that she would be persecuted by Chinese authorities because “Christians are persecuted in China”. In making this claim she did not draw a distinction between members of official or unofficial churches although reference was made in the submission to human rights practices in China, including the government’s attitude to religion, based on the 2003 US Department of State Country Report on Human Rights Practices in China in support of a claim that she would not be able to be effectively protected by the authorities. She did not claim to have been a Christian in China. Hence no issue of past persecution or past religious practices by the applicant in China arose for consideration (cf Appellant S395/2002). In an untranslated statement (which the Tribunal had the interpreter translate at the hearing) she detailed her claims. In relation to religion her claim was as follows: “I have become a Christian now. Australia is a country that is promoting religious freedom, respecting everyone’s own choice. Christian is very popular in Australia, however the situation is on the contrary in China. The Chinese Communist Party has persecuted many Christians in China”.
In the hearing the Tribunal sought to explore the applicant’s claims in this respect as follows:
Mr Inna: When did you become a Christian?
The Interpreter: I officially become a Christian for about 6 months, but since I came to Australia I often went to church to worship.
Mr Inna: Which church did you go to?
The Interpreter: Quite a few churches around Sydney.
Mr Inna: Which ones? What were their addresses?
The Interpreter: Some of the church actually I went with my friends so I couldn’t remember the exact address. However, from what I can recall I’ve been through Bowral, Auburn, Hurstville and Kogarah and it was in no single church that I formally became a Christian.
Mr Inna: When were you Baptised?
The Interpreter: … …
Mr Inna: When?
The Interpreter: Six months ago
Mr Inna: Do you remember the date?
The Interpreter: Seemed to be in July. Early July.
Mr Inna: What denomination are you?
The Interpreter: Christian
Mr Inna: What sort of Christian?
The Interpreter: Like, ordinary Christian.
Mr Inna: But are you a Baptist, or Catholic or ---
The Interpreter: She just said, ‘Christian’. She doesn’t know. Not Catholic.
The Tribunal then put to the applicant in general terms aspects of independent country information about the situation of Christianity in China, including information about the coexistence and similar treatment of registered and unregistered Churches, the number of unofficial Church followers, and the significant growth of Christianity in China (albeit expressed generally and not in relation to particular areas). The Tribunal asked the applicant why, in view of this information and the significant growth of the Christian church in China, she claimed to fear persecution because she had become a Christian. She replied:
The Interpreter: It shows just something of what appears on the surface. As a matter of fact many Christians still suffering persecution in China. It is not too difficult to find out about the real reality of the news in the paper here, and I’ve also got friends back in China who told me that in China they don’t allow you to join the worship if you went to the worship of gathering you could be sent into prison. Chinese Government is a very dark minded Government. They do something on the surface where at the back they do something different. If they want you die you simply cannot live.
Finally when asked why she could not relocate in China she claimed that it was all the same across the nation, that the government was corrupt and could look for her anywhere and added:
On top of that I’m a Christian now. I want to believe in it for the rest of my life. I would be heartbroken if I cannot behold my religion once I return to China and I may be persecuted by them as well due to this.
It was in light of these limited and very generally expressed claims that the Tribunal considered the applicant’s claim to fear persecution on the grounds of her religion.
First the Tribunal made a finding that the applicant was not a credible witness based on other aspects of her claims. It nonetheless considered (and did not reject) her claim to be a Christian. It recorded that the applicant claimed to have become a Christian six months before the hearing but also that she showed very little knowledge of the Christian religion, could not identify the churches she had attended, and did not know the denomination she was (but claimed she was not Catholic). This is consistent with what occurred in the Tribunal hearing. Contrary to the applicant’s contention, it is not apparent from the transcript of the Tribunal hearing that the applicant was claiming that she was not ‘committed’ to any specific denomination. She claimed she had ‘officially’ become a Christian. Indeed she agreed that she had been baptised and said this had occurred in early July 2004 although she also said that it was in no single church that she formally became a Christian. She did not know what denomination she was. At the conclusion of the hearing the applicant was given the opportunity to put other matters before the Tribunal but apart from reiterating her fear of persecution “due to my religion” and that China was a country “without any freedom or justice” did not elaborate on this aspect of her claims.
In the findings and reasons part of its decision the Tribunal summarised the applicant’s claims. The Tribunal also recorded that it had put country information about Christianity and religious beliefs in China in general terms to the applicant for comment and asked her why in view of the information and the significant growth in the Christian Church in China she claimed to fear persecution in China because she was Christian. It accurately recorded her response.
Notwithstanding the claims of the applicant about the situation in China, the Tribunal accepted the independent country information that “there are now many millions of Christians in China and that the Christian Church in China is one of the fastest growing”. Such findings were open to it on the material before it and put to the applicant.
The applicant made no claims about the manner in which she would practise Christianity in China other than that she wished to continue to practise her religion. In that context the Tribunal addressed the individual circumstances of the applicant and what she would do if she returned to China based on her evidence. It stated:
She does not claim that she would refuse to join the unofficial church or that she would deliberately defy the Chinese Government, but rather that she wanted to believe in it for the rest of her life and would be heartbroken if she cannot practice her religion and she may be persecuted because of this. In short from the limited claims made by the Applicant the Tribunal is satisfied that there is not a real chance that the Applicant would be subject to serious harm amounting to persecution because she has become a Christian.”
It is apparent that the Tribunal proceeded on the basis that it accepted the limited claims made by the applicant, about what she would do – that she wanted to believe in Christianity for the rest of her life and would be heartbroken if she could not practise it. Critically, it did not proceed on an erroneous “assumption” that it was reasonable for a Christian person in China to conform to the laws of China. It did not merely ask itself whether she may face persecution if she were to join the official church. It sufficiently addressed the distinction between official and unofficial churches (albeit briefly) in the particular circumstances of this case in noting (as was relevant to its conclusion about the limited nature of the applicant’s claims) that she did not claim that she would refuse to join the unofficial church and, more pertinently given the Tribunal’s view of the independent information relied on, that she did not claim that she would deliberately defy the Chinese government.
As was acknowledged by counsel for the applicant, the applicant’s description of what she would do in China was far from “comprehensive” and exhaustively described (see Appellant S395/2002 per Gummow and Hayne JJ at [83]). However this does not lead to the conclusion that in this case the Tribunal asked what it was reasonable for the applicant to do rather than what she would do leading it to engage in an inappropriately narrow inquiry. It did not erroneously assume that the applicant could join the official church. It was open, given the limited claims made by the applicant, for the Tribunal to proceed on the basis that the applicant would merely seek to practise her Christianity without defying the government. It considered the applicant’s individual circumstances based on her limited claims and what may happen if she returned to China in light of the available information. It is apparent from the Tribunal decision and the independent information relied on by the Tribunal that, rather than failing to consider whether the applicant would join an unofficial church, the Tribunal took this possibility into account. This is consistent with the Tribunal’s reliance on information which referred to the millions of Christians in China (in both official and unofficial churches) and the fast growth of the Christian church in China (including unofficial church members estimated to be between 30 and 50 million).
It is clear that the Tribunal accepted, as it was entitled to do on the basis of the country information, that not all Christians in China suffer a real chance of persecution. It properly considered the individual circumstances of the applicant “in light of the available information” (see NABD per Gleeson CJ at [10]). It made the “essentially individual and fact-specific inquiry which is necessary: does the applicant for a protection visa have a well-founded fear of persecution for a Convention reason?” (Hayne and Heydon JJ in NABD at [162]).
The Tribunal did not state or proceed on the basis that an asylum seeker was required to take reasonable steps to avoid persecutory harm (Appellant S395/2002 at [50] per McHugh and Kirby JJ). Nor did it approach its task by considering what it was “reasonable” for a person to do to avoid persecutory harm (cf Appellant S395/2002 at [43]). In particular, it did not assume that it was reasonable for a Christian in China ‘to conform’ by joining an official church in a manner that disqualified it from properly considering the applicant’s claims that she had a “real fear of persecution” if she returned to China (cf Appellant S395 at [53] per McHugh and Kirby JJ). It referred to the claims about the way in which the applicant had practised her faith in Australia and about what she would choose to do in China, insofar as was possible to do so on the applicant’s limited evidence. It referred to the absence of any claim that the applicant would refuse to join the unofficial church but also to the absence of any claim that she would deliberately defy the Chinese government. She had merely told the Tribunal that she wanted to continue to practise Christianity and feared she may be persecuted as a Christian.
As it was permitted to do, the Tribunal considered the applicant’s claims and evidence about her individual circumstances, the nature of her faith and then from those claims and the evidence before it determined on the basis of independent country information it considered relevant whether there would be a real chance of serious harm to the applicant.
It may be that the sentence “She does not claim that she would refuse to join the unofficial church or that she would deliberately defy the Chinese Government” in the Tribunal reasons for decision has an element of illogicality or lack of clarity about it, although it is a correct interpretation of the limited evidence given by the applicant. The applicant did not claim she would refuse to join an unofficial church. Nor, for that matter, did she claim that she would refuse to join the official church. Importantly the Tribunal had regard to the fact that she did not claim that she would deliberately defy the Chinese government. Rather she simply claimed she wanted to practise her Christianity. Relevantly, the Tribunal considered the position of the applicant as a person with a limited exposure to Christianity, with little knowledge of the Christian religion, who could not identify the churches she had attended and did not know what denomination she was except that she was not Catholic. In stating that the applicant had made ‘limited claims’ the Tribunal was taking into account the type of Christian that the applicant claimed to be in submissions and in the hearing. It then found that, as such, the applicant would not be subject to serious harm, consistent with the country information on which it relied, in particular about the number of Christians and growth of Christianity in China. That the Tribunal did not simply proceed on the basis that the applicant would conform to the official church in China is consistent not only with the applicant’s evidence but also with the Tribunal’s view of the independent information about the position of unofficial or unregistered churches (in relation to the number of adherents to the unofficial church, the number of unregistered churches, the minimal supervision of religious activity and the authorities’ treatment of unregistered churches).
The Tribunal related its conclusions, based on the limited claims made by the applicant about the way she had practised her faith in Australia and what she would choose to do and feared in China, to the information it had about conditions in China (see NABD at [165] – [167] per Hayne and Heydon JJ). There was information (particularly recent information) before the Tribunal on which its findings about the many millions of Christians in China and the speed of growth of the Christian Church were open to it. The Tribunal cited not only the 2003 US State Department Country Report about the government’s attempts to control and regulate religious groups but also later country information suggesting that there had been an improvement in religious freedom, including for those practising in the unofficial churches. The applicant’s contentions that the Tribunal’s findings based on the independent information were not open to it and are not supported by probative evidence or are unreasonable and illogical are discussed as part of the last ground in the amended application.
The Tribunal went on to find that the applicant’s evidence and participation in Christian activities in Australia was undertaken to strengthen her claim to be a refugee and that it therefore disregarded this evidence and her participation in the events recorded (pursuant to s.91R(3)(b) of the Migration Act 1958 (Cth)).
As clarified in post-hearing submissions the second related aspect of this ground is a contention that the Tribunal failed to consider the individual circumstances of the applicant against the country information available (see McHugh and Kirby JJ in Appellant S395/2002 at [56] – [58], Gummow and Hayne JJ at [76] – [78], and McHugh J in Applicant NABD of 2002 at [29] – [30]).
As was contended for the applicant the central question for the Tribunal was how “this” applicant may be treated if she returned to her country of nationality (see McHugh and Kirby JJ in Appellant S395/2002 at [78]). In answering this central question objective country information may assist the Tribunal in assessing whether the applicant had a fear that would involve serious harm (see Gleeson CJ in Applicant NABD of 2002 at [9] – [10]).
It was contended that in Appellant S395 of 2002 the jurisdictional error that McHugh and Kirby JJ found was that rather than assessing the applicants as individuals against the independent country information available, the Tribunal had categorised them as members of a social group and then applied that categorisation to the country information.
It is notable that in Applicant NABD of 2002 at [162] Hayne and Heydon JJ recognised that in Appellant S395/2002 the Tribunal was held to have erred by dividing the “genus” of homosexual males in Bangladesh into two groups – discreet and non-discreet homosexual males and that this had led to the Tribunal assigning the appellants to the “discreet” group without considering how they wished or intended to behave. However their Honours went on (at [162]) to say that not only was the classification adopted by the Tribunal in Appellant S395/2002 one which appeared to be an incomplete and inadequate description of matters relevant to sexual identity but also:
“More fundamentally, however, the reasoning adopted by the Tribunal in that case revealed that it had not made the essentially individual and fact-specific inquiry which is necessary: does the applicant for a protection visa have a well-founded fear of persecution for a Convention reason?”
It was recognised for the applicant that in Applicant NABD of 2002 the majority of the High Court found that a jurisdictional error of this type had not been made because, although the Tribunal categorised the applicant as falling within a particular group or category, it considered the individual circumstances of the applicant in light of the country information (see Hayne and Heydon JJ at [167]).
The applicant contends that when paragraphs [55] – [58] of Appellant S395/2002 are read together what was said by McHugh and Kirby JJ in that case is consistent with Applicant NABD of 2002, in that, as their Honours stated, it was the classification of homosexual males into two groups that invited error. The error was that when the Tribunal classified the appellants as discreet homosexuals, it applied that categorisation to the country information, rather than applying the individual circumstances of the appellants to the country information. It was for that reason that the Tribunal found the appellants would not suffer harm.
Counsel for the applicant acknowledged that there was no doubt that the Tribunal was entitled to, and in many cases should, categorise individuals based on independent information to assist in considering their claim. As was said by Gummow and Hayne JJ in Appellant S395/2002 at [76], it is inevitable that this will be the case given that the Tribunal “deal with large numbers of decisions about who is a refugee”, although such an approach carries risks if the categorisation adopted is incomplete or inaccurate (see Hayne and Heydon JJ at [161]).
It is not necessary in this instance to determine whether it is correct to say (as the respondent does) that what McHugh and Kirby JJ said at [55] in Appellant S359/2002 has been “tempered’ by the decision in Applicant NABD (in that the Court accepted in NABD that it was open to the Tribunal to accept a distinction between categories within a genus). It appears to be submitted in support of this part of ground one, that the Tribunal merely applied the general category of “Christians” (which the Tribunal assumed the applicant fell into) to the country information without considering the applicant’s individual circumstances and that in so doing it committed an error which was a jurisdictional error of the second type identified by the High Court in Appellant S395/2002. If it is intended to be contended that the Tribunal classified Christians in China into two groups – official and unofficial church members, then assumed the applicant was in the first category and merely applied such categorisation to the country information – that has not been established, as discussed above.
In fact, it was contended that if the Tribunal had considered the individual circumstances of the applicant against the country information available it would have distinguished a number of categories of Christians (in particular “Christians who are likely to join an official church” and “Christians who are likely to join an unofficial church”) and then considered the chance that the applicant would form part of one or both of these categories and on that basis whether her fear was well-founded based on the chance she would form part of one or both of these categories or some other category. In particular it was said that the Tribunal should have asked the imperative preliminary question of whether or not there was a chance that was not remote, far-fetched or insubstantial that the applicant would join an unofficial Christian church. It was contended that the Tribunal did not do this and that, as a result, rather than considering the applicant as an individual, it made a mistake by “assume [ing] that because members of a group are or are not persecuted, and the applicant is a member of that group, the applicant will or will not be persecuted” (Appellant S395/2002 at [58] per McHugh and Kirby JJ).
However in this case, as submitted by the respondent, the Tribunal asked itself the correct question and did not err as contended. It made findings, as far as possible, about the way in which the applicant would choose to practise her faith in China based on the information before it. It related those conclusions about her individual circumstances – in particular that she would not deliberately defy the Chinese government but just wanted to practise Christianity – to the information it had about conditions in China in relation to Christians and Christianity both in the official and unofficial churches. There was no lack of logic in the Tribunal choosing to take into account the information that it did. In light of the applicant’s particular circumstances it was entitled to consider information in relation to Christians who did not seek to defy the authorities as a whole, including members of official and unofficial churches.
The Tribunal did not reach a conclusion that “registered and unregistered churches were treated similarly by authorities” as contended. Rather, this was part of the information the Tribunal recorded that it put to the applicant for comment. It was for the Tribunal to determine as a matter of factual judgment whether to accept any distinction between official and unofficial churches (or some other categorisation of Christian) made by independent information and to regard it as useful in considering the position of the applicant. But, as Gleeson CJ pointed out in Applicant NABD of 2002, its ultimate concern was with the applicant, not with Christians as a class (at [8]) (or, it might be added, with any categorisation of Christians as the applicant suggested should have been adopted). As Gleeson CJ said in Applicant NABD at [10] in relation to that Tribunal decision:
“Once the Tribunal accepted, as it was entitled to do on the country information before it, that not all Christians in [the country of origin] suffer persecution, or a real chance of persecution, then it was required to consider the individual circumstances of the [applicant] in the light of the available information”.
As in Applicant NABD in this case it “could hardly be contended” on the independent information before the Tribunal that all Christians in China were being persecuted whatever they intended to do in the practice of their religion.
Even if it could be said that there was other information contrary to that relied on by the Tribunal, it was a matter for the Tribunal to decide what weight should be given to particular items of country information as part of its fact-finding function (SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478 at [16] per Hely J). Questioning the Tribunal’s findings on the extent of the applicant’s involvement in the Christian faith and what country information was relevant in determining whether a well-founded fear of persecution arose seeks impermissible merits review. The correct test was followed. The Tribunal asked itself the right question. It gave proper consideration to the particular circumstances of the applicant on the limited evidence she had advanced about her practice of Christianity and what she would do on return to China. The findings that the Tribunal made were open to it on the evidence before it. Further, as discussed below in relation to the last ground, it was not necessary for it to address other independent country information as contended or to apply the categorisation suggested by the applicant.
Whether the Tribunal denied the applicant procedural fairness
The second ground relied on is that the Tribunal denied the applicant procedural fairness in that it found that she “had only become a Christian in order to strengthen her claims for a protection visa” and then applied s 91R(3) of the Migration Act 1958 (Cth) without affording her an opportunity to meet such allegations or the application of s.91R(3).
Section 91R(3) of the Migration Act is as follows:
3 For the purposes of the application of this Act and the Regulations to a particular person:
a) in determining whether the person has a well-founded fear of persecuted for one or more of the reasons mentioned in article 1A(2) of the Refugee Convention as amended by the Refugees Protocol;
disregard any conduct engaged in in Australia unless:
b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
It was contended that procedural fairness obligations attached to s.91R(3) because the application of that provision necessarily impacted adversely on the applicant’s rights and interests (Kioa v West (1985) 195 CLR 550 and 585 per Mason J). On this basis it was said that notice had to be given to the applicant of the intention to rely on that provision as otherwise an applicant could not be assured of an opportunity to rebut the operation of a provision that would involve the disregard of his or her conduct in Australia (see WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 171 at 38 – 58 and WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) ALR 623 at 625). As further elaborated upon in post-hearing submissions it was contended that it could not be said that the finding that the applicant had engaged in conduct for the purpose of strengthening her claim to be a refugee was simply a “conclusion” or “characterisation” of the evidence that the Tribunal was entitled to make and submitted that an “allegation” such as this was akin to fraud which the applicant ought to be given an opportunity to address.
However, s.91R(3) of the Act places a burden on the applicant to satisfy the Tribunal that she “engaged in the conduct otherwise than for the purpose of strengthening the person’s claims to be a refugee”. It is not a provision which has to be ‘rebutted’ by the applicant as contended.
Moreover, while the Tribunal did not specifically put the proposition to the applicant that she had become a Christian in order to strengthen her claims for a protection visa, it did on at least two occasions, indicate to her that it was having difficulty believing her claims (first that she would be of any interest to the Chinese authorities for any reason and secondly that, given the concerns she claimed to have, she waited 5½ years after coming to Australia before applying for a protection visa). In circumstances where the Tribunal was having difficulty being satisfied of the applicant’s evidence generally and made its position known to her, there was no unfairness it its reaching a conclusion that another of those claims should not only be rejected but constituted a misguided attempt to strengthen her claims for a protection visa (see WABY v Refugee Review Tribunal [2005] FCA 209 at [69]). It was not required to ‘pre-test’ its conclusions with the applicant.
As the Full Court of the Federal Court said in Commissioner for Australian Capital Territory State Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 – 2:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the state under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
The Tribunal was not required to put to the applicant for comment its provisional views on whether she had satisfied it of the matters required under s.91R(3). Nor was it required to alert the applicant to the effect of s.91R(3). As stated by the Full Court in Alphaone, the obligation of a decision-maker to alert the person affected to any issue critical to the decision is limited to issues ‘not apparent’ from the nature of the decision or “the terms of the statute under which it is made.” Here the relevance of s.91R(3) was apparent from the terms of the Act. The applicant was represented by a migration agent. In circumstances where the applicant made uncorroborated claims lacking in detail it cannot be said that the Tribunal’s adverse conclusion as to whether the applicant had satisfied it that she engaged in conduct in Australia otherwise than for the purpose of strengthening her claim to be a refugee, was not obviously open on the known material.
This is not a case where there was an “allegation” akin to fraud (cf WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 17 at [38] – [58] and WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 623 at 635 per French J). The applicant bore a statutory onus which she did not meet. While the Tribunal made a positive finding that it was satisfied that the applicant only became a Christian in order to strengthen her claims, this finding makes it clear that the applicant had not satisfied the Tribunal as required by s.91R(3). As French J stated in WABY at [69] “it is open to the Tribunal to reject or not to be persuaded by an applicant’s evidence without specifically putting to an applicant that the evidence has not convinced or persuaded it.”
Insofar as it is suggested that the finding of the Tribunal involves a finding about the credibility of the applicant’s claims to be a Christian, it is notable that the Tribunal considered first whether she would be subject to serious harm amounting to persecution because she had become a Christian. It did so without disregarding any evidence presented by her. It did not simply invoke s.91R(3) to reject her claim to be a Christian or to proceed on the misconceived premise that she would only join an official Christian Church as contended (as discussed above). Rather, having found against the applicant on the broadest basis of accepting that she was a Christian (albeit with little knowledge of the Christian religion and an inability to identify the Churches attended or her denomination) then, pursuant to s.91R(3), it concluded that it should disregard her evidence about her ‘conduct’ in Australia and participation in events here. No lack of procedural fairness is established in the manner in which the Tribunal proceeded. In light of this conclusion it is not necessary to determine the effect of s.422B of the Migration Act 1958.
Whether Tribunal failed to comply with section 425 of the Migration Act
The third ground relied on by the applicant is that the Tribunal “failed to comply with s.425 of the Migration Act 1958 in that it failed to invite the applicant to respond to the allegation that she ‘had only become a Christian in order to strengthen her claims for a protection visa’ and then applied s.91R(3) of the Migration Act 1958 (Cth) without affording her an opportunity to meet such allegations or such application of that provision of the Act”.
This ground is pleaded as an alternative to the claim of denial of procedural fairness on the basis that s.422B does not preclude reliance on s.425 (WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624 at 637 – 638 per French J). However the applicant relied on the same submissions relied on in relation to the claim of a lack of procedural fairness. For the same reasons that I am not satisfied that there was a lack of procedural fairness, I am not satisfied that it has been established that there was a breach of s.425 in the manner contended.
Further, under s.425 of the Act the Tribunal has an obligation to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal met this obligation. As the Full Court of the Federal Court stated in Chen v Minister for Immigration & Multicultural Affairs [2001] FCA 1671 at [19]:
In Minister for Immigration & Multicultural Affairs v Capitly (1999) 55 ALD 365 at [31] a Full Court described the obligation imposed on the Tribunal under the previous s.425(1) as being to give “a fair system of administrative merits review” … It is not the obligation of the Tribunal to put to the applicant all matters which might be expected to be put by a contradictor in adversarial proceedings. The position of the Tribunal is explained by Abebe v Commonwealth (1999) 197 CLR 510 at [187] in the following terms:
“The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or arguments she wishes to advance in support of her contention that she had a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether the claim is made out.”
Similarly it was for the applicant to advance whatever evidence or arguments she wished to advance in support of her contention that she engaged in conduct in Australia otherwise than for the purpose of strengthening her claim to be a refugee. Section 425 did not oblige the Tribunal to put to the applicant its intention to rely on s.91R(3) which is not expressed in terms which enables a Tribunal to choose whether or not to rely on it. It is apparent from the transcript of the Tribunal hearing that the Tribunal gave the applicant the necessary opportunity to give evidence and present arguments. At the conclusion of the hearing the Tribunal member gave the applicant the opportunity to raise any other claims or other matters she would like to put before him before the hearing closed. The Tribunal member also asked her adviser if there were any issues not previously raised that the adviser would like to take up with the Tribunal. In all the circumstances no failure to comply with s.425 or lack of procedural fairness has been established.
Whether the Tribunal made a finding that was irrational or illogical
The next ground relied upon is that the Tribunal made a jurisdictional error by making a finding that the applicant did not have a well-founded fear of persecution and/or had only become a Christian in Australia in order to strengthen her claims for a protection visa which was irrational, illogical and not based upon findings or inferences of fact supported by logical grounds.
Three particulars of this ground are relied upon. They are:
(a) The Tribunal did not doubt the evidence of the applicant that she did not know about protective [sic] visas until she was detained in Villawood (AB100.2) but held that the applicant had become a Christian in June/July 2004 to strengthen her claim;
(b) In the alternative to (a) the Tribunal only makes a finding that “the Tribunal accepts that if she hated communism since she was a child and wanted political freedom, then she would have applied for a protection soon after she arrived in Australia to ensure her long-term safety, even though she had a four-year visa” (AB112.9) which does not affect the applicant’s claim to persecution on the grounds of Christianity.
(c) The basis of this finding is that “she does not claim that she would refuse to join the unofficial church …” which is in itself illogical.”
The applicant relied on Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 as establishing a ground of review for extreme irrationality and illogicality. Whilst their Honours were considering a submission that a Tribunal decision displayed jurisdictional error because its determination that the condition upon which depended the power or duty to grant the appellant a protection visa was not met was irrational, illogical and not based upon findings or inferences of fact supported by logical grounds (based on Minister for Immigration & Multicultural Affairsv Eshetu (1999) 197 CLR 611 at 656-7), they did not actually decide that this was the appropriate test. Rather, McHugh and Gummow JJ accepted (at [34] – [37]) that for the purposes of the case the formulation of the criterion relied on by the appellant may be accepted but found that the determination by the Tribunal was not irrational or illogical as contended. This made it unnecessary to consider the view expressed by Dixon CJ, Williams, Webb and Fullagar JJ in R v Australian Stevedoring Industry Board; Ex parte Morgan Stevedoring Co Pty Limited (1953) 88 CLR 100 at 120 that the inadequacy of material is not in itself a ground for prohibition and that the issue is whether there is an absence of any foundation in fact for the fulfilment of the conditions upon which in law the existence of a power depends. As Allsop J stated in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264at [131]:
The precise extent of the role of factual error and want of logic and irrationality in the reaching of factual conclusions and state of satisfaction is not entirely clear”. (Also see Gleeson CJ at [8]-[9] in Applicant S20/2002).
While Allsop J suggested (at [134]) in NADH that a number of Full Court decisions may have dealt with Applicant S20 in a “somewhat cautious manner”, he nonetheless found it unnecessary to decide whether irrationality or illogicality was a separate ground of jurisdictional error to dispose of the case before him. His Honour did express a preference for the view that:
The Tribunal was required to reach its state of satisfaction in a reasoned fashion (even if, for the purposes of this discussion, exhibiting a degree of illogicality). It was obliged not to act capriciously, that is, it was obliged not to reach an opinion arbitrarily or by whim or, with the exception of proper credit findings, by intuition”. (See Allsop J at [12] and [135]).
However in NADH his Honour was considering what were said to be arbitrary, unreasoned conclusions made without a scintilla of evidence. While NADH and Applicant S20/2002 provide support for the view that what may be described as “extreme” irrationality or illogicality in a decision-maker’s fact-finding process can lead to jurisdictional error (see Aronson, Dyor and Groves, Judicial Review of Administrative Action (3rd ed) at 247), in the present case neither the Tribunal’s finding that the applicant had only become a Christian in Australia to strengthen her claims for a protection visa nor the more general finding that she did not have a well-founded fear of persecution can be said to be an arbitrary, unreasoned conclusion made without a scintilla of evidence. In any event, it has not been established that the Tribunal decision was irrational, illogical and not based upon findings or inferences of fact supported by logical grounds in a manner constituting jurisdictional error.
The first particular relied upon suggests that the Tribunal did not doubt the evidence of the applicant that she did not know about protection visas until she was detained in Villawood but then illogically held that she had become a Christian in June/July 2004 (before she was detained) to strengthen her claim.
However, when one considers what is stated in the Tribunal reasons for decision and the transcript of the Tribunal hearing it is apparent that the applicant did not claim (as is contended) that she did not know about protection visas until she was detained in Villawood. Rather, when asked why she had not applied for a protection visa earlier, she said that: “When I just arrive here I still held a varied (sic) visa and back then I was not aware of visas, like there were such visas such as protection visas exists” (emphasis added). She went on to say that she only became aware of the fact that she was “blacklisted” when she rang her parents before she wanted to return to China. It was this that she claimed prompted the protection visa application. There is no inconsistency, let alone illogicality amounting to jurisdictional error, in the Tribunal summarising the applicant’s claims about her knowledge of protection visas at an earlier time in the 5½ year period she had been in Australia (which is not a finding that she did not know about protection visas until she was detained) and the Tribunal’s finding that the applicant only became a Christian (which she claimed had involved baptism in July 2004) and continued to attend services in the detention centre in order to strengthen her claims for a protection visa. The fact that her claimed baptism preceded the protection visa application does not of itself mean that there was illogicality in the Tribunal’s reasoning process of the kind identified by Allsop J in NADH.
The next particular asserts that the Tribunal’s acceptance that if the applicant hated communism and wanted political freedom she would have applied for a protection visa on that basis soon after she arrived in Australia, did not affect her separate claim to fear persecution on the grounds of her Christianity. This is so. However it does not establish jurisdictional error. The applicant’s claim to fear persecution was put on a number of distinct and separate bases. At the time at which she lodged her protection visa application the main ground relied on by the applicant was her fear that she would be sent to gaol because of a perceived involvement in the unpaid company loan. However, one of the other claims that she made was that she had a hatred of the Chinese Communist Party and that she desired political freedom. These other claimed concerns were such as to predate the applicant’s arrival in Australia. It was in that context that the Tribunal found that if that was the case she would have applied for protection soon after she arrived in Australia. There is no inconsistency between this separate finding and the finding that the applicant only became a Christian to strengthen her claims for a protection visa.
The final particular asserts that the basis of the finding that the applicant did not have a well-founded fear and the finding that she only became a Christian to strengthen her claims was the Tribunal finding that the applicant did not claim that she would refuse to join the unofficial church and that this finding was in itself illogical. This takes issue with the Tribunal finding that the applicant “does not claim that she would refuse to join the unofficial church”. It is contended that the Tribunal was effectively saying (through use of a double negative) that the applicant did not claim that she would not join the unofficial church and that this amounted to the Tribunal recording that the applicant was saying that there was a possibility that she would join the unofficial Christian church and thus deliberately defy the Chinese government. It was said that this was irrational and illogical in the sense envisaged by Allsop J in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 214 ALR 264.
However, insofar as there is illogicality in this finding or in its juxtaposition with the finding that the applicant did not claim that she would deliberately defy the Chinese government, it nonetheless is not illogicality of a kind such as to constitute a capricious or an arbitrary dealing with objective material amounting to an arbitrary or capricious conclusion (see Allsop J in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 214 ALR 264 at [136]) such as to reveal jurisdictional error. As his Honour pointed out in that case at [136]: “Illogicality of some kind can be seen in the reasoning processes of many decision-makers, administrative and judicial. Perfect accord with the requirements of logic or reasoning is a standard few can achieve in the daily life of decision-making. Sometime identification of illogicality is merely no more than understanding how an error was made within the jurisdictional task provided”.
Moreover, this finding did not form the basis for the Tribunal’s finding that the applicant had only become a Christian in Australia in order to strengthen her claims for a protection visa. That finding was based on the applicant’s limited knowledge about Christianity and her vague and unsubstantiated evidence about practising it here (including the absence of any evidence of her baptism, church attendance or even a letter from a local pastor or priest supporting her claims).
In the further amended application filed by the applicant after the Tribunal hearing together with submissions in reply the applicant added to this ground that the Tribunal erred in finding that the applicant did not have a well-founded fear of persecution based on findings including the finding that the applicant did not claim that she would refuse to join the unofficial church. However it is the case that the applicant did not claim that she would refuse to join the unofficial church, albeit that it might perhaps seem more logical for the Tribunal to remark on the absence of any claim by the applicant that she would refuse to join the “official” church. It may be noted however that the Tribunal also observed accurately and relevantly, that the applicant did not claim that she would deliberately defy the Chinese government. This is an accurate recitation of the applicant’s claim. These findings reflect the fact that the applicant made no specific claims about the manner in which she would practise Christianity in China – just that she feared persecution as a Christian.
The relevant findings in this part of the Tribunal reasons for decision included the Tribunal’s acceptance of independent country information (contrary to the applicant’s claims about the treatment of Christians in China) to the effect that there were many millions of Christians in China and that the Christian church in China was one of the fastest growing, and the finding that the applicant made limited claims about her involvement in Christianity (in particular that she wanted to believe in it for the rest of her life and would be heartbroken if she could not practise her religion and may be persecuted because of this but did not claim she would deliberately defy the Chinese government). It was on the basis of the independent information and the applicant’s limited claims that the Tribunal was satisfied that there was not a real chance that the applicant would be subject to serious harm amounting to persecution because she had become a Christian. Any illogicality in its statement that she did not claim that she would refuse to join the unofficial church is not such as to constitute or establish jurisdictional error in that finding or the ultimate finding that the applicant did not have a well-founded fear of persecution.
It was also suggested that the Tribunal finding that the applicant had only become a Christian in Australia in order to strengthen her claims for a protection visa was itself irrational, illogical and not based upon findings or inferences of fact supported by logical grounds. However the Tribunal finding was open to it for the reasons which it gave on the material before it, in particular given the findings about the applicant’s limited knowledge about Christianity and her vague and unsubstantiated claims about practising Christianity in Australia. In those circumstances it was open to the Tribunal to conclude that such activities were undertaken to strengthen the applicant’s claim to be a refugee. No jurisdictional error is established in the manner contended.
Whether finding based on independent country information had no probative evidence to support it and/or was irrational, illogical, unreasonable and unsupported by the evidence available
The final ground relied on by the applicant is that the Tribunal made a jurisdictional error by finding that:
… (supervision of religious activity was minimal, and registered and unregistered churches were treated similarly by authorities, and co-existence and co-operation between official and unofficial churches, both Catholic and Protestant, in such areas were close enough to blur the line between the two; (AB113.5)),
which had no probative evidence to support it and/or was irrational, illogical, unreasonable and unsupported by the evidence available to it.
This ground was added to the amended application after the hearing. In written submissions counsel for the respondent noted that the applicant had had ample time prior to the hearing to obtain legal advice and amend her application and pointed out that the respondent would suffer prejudice in the form of the additional expense incurred in meeting this ground in written submissions when it could have been dealt with at the hearing. The respondent did not however oppose the further amendment of the applicant’s application provided the respondent was adequately protected by an order for the costs of preparing written submissions in answer to this ground of review.
The particulars in support of this ground are first that there is no probative evidence in the independent country information to support the finding and secondly that the finding was irrational, illogical etcetera as demonstrated by the Tribunal’s lack of regard to listed items of evidence contained in the independent country information before it in relation to the situation of Christianity in China. Reference is made to particular aspects of country information cited by the Tribunal.
It was contended that the Tribunal finding about the situation in China was not open to it on the material before it and that this of itself led to jurisdictional error (see NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 214 ALR 264 at [129]-[137] per Allsop J with whom Moore and Tamberlin JJ agreed and see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 – 360 per Mason CJ). It was said that the findings as to the state of religion in China were not supported by probative evidence and, in the alternative, were unreasonable and lacked logic and rationality given “a plethora” of contradictory evidence before the Tribunal.
It was suggested that the Tribunal lacked an appreciation of the need to weigh all the material before it which included a substantial amount of material said to suggest that a real distinction was drawn between Christians who join an official church and Christians who join an unofficial church and also that it was unreasonable for the Tribunal to rely on the selected independent country information upon which it relied. It was suggested that it was illogical, irrational and unreasonable for the Tribunal to conclude that registered or unregistered churches were treated similarly by authorities in light of independent country information it relied upon, rather than the other material before it.
Reliance was also placed on the statement by Allsop J in NADH of 2001 at [115] that fact-finding conducted in a manner which could be described as “in substantial respects unreasoned and mere assertion lacking rational or reasoned foundation at times as plainly and ex facie wrong and as selective of material going one way” may reveal jurisdictional error. Allsop J was considering the possibility of apprehended bias – a ground not raised in these proceedings, but in any event it has not been established that the Tribunal’s findings were not supported by probative evidence as contended or revealed jurisdictional error as the manner suggested in NADH or otherwise.
The contention that there was no probative evidence in the independent country information to support the Tribunal findings is not established. The part of the Tribunal reasons for decision in issue is a description of information that the Tribunal put to the applicant in the Tribunal hearing. The Tribunal recorded that it put such information to the applicant in general terms and in light of this information and a significant growth in the Christian church in China asked her why she claimed she feared persecution in China because she was a Christian. The finding that it made based on independent country information and relied upon in reaching its decision was that there were millions of Christians in China and that the Christian church in China was one of the fastest growing. There was independent evidence before the Tribunal to support such finding. Moreover, even if it can be said that it was making a finding of the nature complained of by the applicant, such material quotes almost verbatim from the US State Department’s 2003 Country Report on Human Rights Practices for China which is as follows:
However, in some areas, supervision of religious activity was minimal, and registered and unregistered churches were treated similarly by authorities. Co-existence and co-operation between official and unofficial churches, both Catholic and Protestant, in such areas were close enough to blur the line between the two.
In other words there is direct textual support for such a finding in the US State Department’s 2003 Country Report albeit that the report refers to some areas in China despite the qualification in the report. This is to be seen in light of all the other information before the Tribunal. In the face of such material it cannot be said that there was ‘no’ probative evidence to support the Tribunal’s findings. While the particulars of this ground refer to particular aspects of the independent country information before the Tribunal which present what might be said to be an unfavourable picture of the treatment of religion in China and suggest some distinction between the treatment of official and unofficial Christian churches and their followers, the passages relied on by the Tribunal in its recitation of independent country information included a number of references to material suggesting that there was not only a significant growth in the number of Christians, including members of unofficial churches but also that in more recent times there had developed a more relaxed official policy in China, a level of acceptance of faith (at least so long as believers professed loyalty and patriotism to the state) and new instances of toleration of house churches and loosening in attitude even in areas which had been less accepting of Christianity.
The material cited by the applicant in support of the proposition that the Tribunal’s treatment of the independent country information and its findings involve jurisdictional error consists of particular extracts from a 2001 Country Report on Human Rights Practices in China and from a 2003 Country Report on Human Rights Practices in China. The other information cited by the applicant in support of these contentions is a historical description from a March 2004 article “China Opens Doors to Christianity – of a Patriotic Sort” (CX90871) of removal of political and religious activists and arrests of church leaders in the context of discussing contradictions of Christian growth in mainland China and a policy of simultaneous acceptance and tightening, a description in the same article of the fact that the annual State Department Report on Human Rights issued before the article appeared contained what were said to be the “usual” list of violations of freedom of worship in China including arrests, beatings and church closings (although it is notable that this article went on to say that the repression was far from consistent, noted that some areas experienced a greater freedom to worship than in the past and cited the passage relied on by the Tribunal in relation to supervision of religious activity being minimal and registered and unregistered churches being treated similarly by authorities in some areas). The final part of this more recent information relied on by the applicant is a statement in the same article that many young Chinese who worked or studied abroad were returning home as Christians, finding the state-approved churches too old fashioned and joining unofficial churches.
The information relied on by the Tribunal in support of its views about the treatment of Christianity in China, and in particular the position of registered and unregistered churches post-dates most of the material cited by the applicant in support of an alternative view of the situation in China. It includes statements from a May 2004 report (CX95533) quoting the Vice President of the China Christian Association stating that his personal feeling was that they were living in China’s best ever period of religious freedom, the description in article CX90871 of evidence of a more relaxed official policy (towards underground Christians) and the statement that several home church sources and other witnesses had reported new instances of loosening that had not been seen in recent years. Also before and cited by the Tribunal was March 2004 information (CX90869) referring to improvements in the treatment of religion as the 2008 Olympics approached and which suggested that the official churches were too full to accommodate all the worshippers and that while unregistered churches were officially considered illegal many house churches were tolerated (although their leaders were occasionally gaoled).
On the basis of such extracts, particularly the extracts relied upon by the Tribunal which were from the more recent country information, it is clear that it cannot be said that there was no probative evidence to support what are said to be the Tribunal findings. While there was other, less positive information before the Tribunal, in circumstances where the Tribunal was considering the relevance of information (which included information about the fast growth of Christianity and the many millions of Christians in China) to the individual circumstances of an applicant who had made limited claims (and had not claimed she would deliberately defy the government) there was independent country evidence before the Tribunal to support its findings. As stated by the Full Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]:
The weight that [the RRT] gives to [country information] is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to “guidance”, as the appellant submitted, it may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on “country information” that is not true. The question of the accuracy of the “country information” is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of “country information”, it would be engaging in merits review. The Court does not have power to do that.
In these circumstances it has not been established that there was no probative evidence to support the Tribunal finding. Nor has it been established that the finding was irrational, illogical, unreasonable and unsupported by the evidence available to the Tribunal in a manner constituting jurisdictional error.
As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 31 January 2006.
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