SBQD v Minister for Immigration

[2006] FMCA 761

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SBQD v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 761

MIGRATION – Review of RRT decision − where applicant applied for protection visa on convention grounds of religious belief − where RRT considered applicant would not suffer persecution upon return to country of origin − where applicant claimed RRT did not ask relevant question − where country information indicates difference between treatment of persons affiliated with official and unofficial churches in China – where RRT only considered chances of persecution should applicant join official church upon returning to China − whether RRT committed jurisdictional error by failing to consider practice of religion by applicant on return to country of origin.

Migration Act 1958, s.91R
Federal Magistrates Court Rules 2001

NABD of 2002 v Minister for Immigration [2005] HCA 29
Appellant S395/2003 v Minister for Immigration (2003) 216 CLR
R Australian Stevedoring Industry Board; Ex parte: Melbourne Stevedoring Company Pty Limited (1953) ADH CLR 100

Applicant: SBQD

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG20 of 2006

Judgment of: Raphael FM

Hearing date: 17 May 2006

Date of Last Submission: 17 May 2006

Delivered at: Sydney

Delivered on: 30 May 2006

REPRESENTATION

Counsel for the Applicant: Mr S D Ower

Solicitors for the Applicant: McDonald Steed McGrath

Counsel for the Respondents: Mr K Tredrea

Solicitors for the Respondents: Sparke Helmore

ORDERS

THE COURT DECLARES

1. That the decision of the Refugee Review Tribunal made on

   
   

   23 December 2005 and handed down on 4 January 2006 is invalid and of no effect.

THE COURT ORDERS

1. That the application be remitted to the Refugee Review Tribunal differently constituted to be heard and determined according to law.

2. The respondent pay the applicant’s costs assessed in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

ADG20 of 2006

SBQD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China.  He arrived in Australia on 29 July 2001 on a Class TU sub-class 560 student visa.  He departed and returned to Australia several times.  His last return to Australia was on 12 January 2005 on a sub-class 570 ELICOS sector visa.  This visa expired on 17 January 2005.  On 2 February 2005 the applicant lodged an application for a sub-class 866 protection visa.  On 6 June 2005 a delegate of the Minister refused to grant a protection visa and on 24 June 2005 the applicant applied for review of that decision.  The Tribunal held a hearing on 15 November 2005 which the applicant attended with his migration agent.  On 23 December 2005 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 4 January 2006. 

2. In his application to the Tribunal the applicant stated his reason for considering himself to be a refugee in the following way:

   “I strongly believe that I cannot go back to China and live a normal (safe) life if I want to continue and practice my religious beliefs that people are entitled to procreate in the name of God.  I have lived a miserable life as a child albeit my parent’s financial security – I do not want my children grow up in ???. I will not be able to reveal even my beliefs without being severely punished.  At the interview I had a terrible interpreter who could not understand me, she did not understand the interviewer and I could not even express my reply fully.  It seems that the immigration officer did not believe in my true conviction to become a Christian and practice Christianity to the full.  I have no economic reasons to stay in Australia.  I fear to go back. Life means nothing in China.”

3. At the hearing before the Tribunal the applicant indicated that his first contact with religion was in November 2004:

   “He said he went to a Catholic church in Victoria Square Adelaide.  He goes there once or twice a month.  He was not able to state the name of the church.  When asked what he got out of going to the church he stated that he feels that people are very friendly and when he experienced problems they helped him.  He named two persons who helped him, he explained to them that he was lonely and they recommended to him that he start some sporting activities.

   He stated that he believed that life is sacred and he would like to have a happy family and children who can have a happy life unlike his own.

   When asked why he would be persecuted for his religion if he were to return to China he stated that even though there is an official Catholic church in China he could not study or learn in that environment.  He stated that because of his personal language problems he has not made great progress. …

   He stated that he feared a return to China because his child will be like him when he was young because he would not have the opportunity to go to church and read books and because he tried to go to church in China but it is not the same as the one here. …

   The applicant concluded by saying that he does not necessarily need to go to church in order for him to study and even though his understanding at the moment is not good enough he will continue to seek the truth.  He wants to be given an opportunity in Australia and does not want to study certain things simply because someone tells him to.”  [CB 103]

4. In its findings and reasons the Tribunal first dealt with what it classed as non-Convention related claims.  These arose out of the relationship between the applicant and his parents.  It went on to say:

   “In terms of Convention–related claims the Tribunal finds that, on the evidence, it can be fairly construed that the applicant fears a return to China because he would not be able to practice his religion in the manner which he feels he should be able to practice it.  On this point the Tribunal reiterates the information in the delegate’s decision, from the 2003 US Department of State Religious Freedom Report, that Catholicism is one of the official religions, that there are some 5600 churches in the government-approved Catholic Church.  The Tribunal acknowledges that some difficulties and restrictions apply to House Churches, it also notes that the applicant has stated that his religious development is at an embryonic stage (the fact that he could not name the Church he frequents attests to this – he was also ambivalent about the need to go to Church).  Given the evidence the Tribunal finds that even though the applicant may not be able to practice his religion in the manner which he feels he ought to be able to practice it, the existence of official structures in the PRC of the Church he purports to be interested in, and the unfettered access to that particular Church, means that the applicant is not prevented from practising his religion and any restriction which he may believe he would be experiencing in this regard, the Tribunal finds is not harm of sufficient gravity to constitute Convention persecution.  It therefore finds that there is not a real chance that the applicant would be persecuted for reasons of religion, now or in the reasonably foreseeable future, should he return to the PRC.”

5. At hearing the applicant, through his counsel, provided the court with proposed amendments to particulars of jurisdictional error.  These amended particulars are set out:

   “1. The Tribunal constructively failed to exercise its jurisdiction in that it:

   1.1failed to ask the right question, namely whether the applicant has a well-founded fear of persecution on grounds of his religion; and

   1.2asked the wrong question, namely whether the applicant would be able to attend a State-sanctioned church and therefore entitled to practise his religion.

   2.   The Tribunal constructively failed to exercise its jurisdiction in that it:

   2.1asked the wrong question in relation to whether the harm feared by the applicant constituted serious harm and persecution within the meaning of subs. 91R(2), namely whether the applicant would be restricted from practising his religion at all; and

   2.2failed to ask the right question, namely whether the restrictions on the applicant’s right to worship were such that they, in and of themselves, constitute serious harm and persecution within the meaning of the subsection.”

6. The applicant argues that the Tribunal failed to ask and then make findings about what the applicant would do if he returned to China in connection with the practice of religion.  It did not ask or make a finding in relation to:

   a)Whether the applicant would continue to be an adherent to Christianity if he returned to China;

   b)If so, whether the applicant’s beliefs would allow him to attend the official state sanctioned churches;

   c)If so, whether the applicant would attend such churches;

   d)If not, whether he would worship in another manner; and

   e)If so, whether there would be a real chance of him being persecuted for so doing.

7. In the country information considered by the Tribunal the following appears at [CB 107]:

   “During the period covered by this report, the Government’s respect for freedom of religion and freedom of conscience remained poor, especially for many unregistered religious groups and spiritual movements such as the Falun Gong.  Unregistered religious groups continued to experience varying degrees of official interference and harassment.  Members of some unregistered religious groups, including Protestant and Catholic groups, were subjected to restrictions, which has led, in some cases, to intimidation, harassment and detention.”

   The information goes on to state at [CB 111]:

   “In 1999, the Party’s Central Committee issued a document directing the authorities to tighten control over the official Catholic Church and to eliminate the underground Catholic Church if it did not bend to government control.  There has been continued pressure by the Chinese Catholic Patriotic Association on underground Catholic bishops to join the official church, and the authorities have reorganised dioceses without consulting church leaders.”

   The independent country information points out the dichotomy between the treatment of the official church and the unofficial church.  This information is similar to the information referred to by the Chief Justice in NABD of 2002 v Minister for Immigration [2005] HCA 29 at [9] and [10]

   “[9] The country information on the subject of the treatment of Christians in Iran distinguished between "converts to Christianity who go about their devotions quietly and maintain a low profile [who] are generally not disturbed" and persons involved in the "aggressive outreach through proselytising by adherents of some more fundamental faiths". The distinction thus drawn is far from clear-cut, but it is not meaningless. It was open to the Tribunal, as a matter of factual judgment, to accept the distinction offered by the information, and to regard it as useful in considering the position of the appellant. …

   [10]  Once the Tribunal accepted, as it was entitled to do on the basis of the country information, that not all Christians in Iran suffer persecution, or a real chance of persecution, then it was required to consider the individual circumstances of the appellant in the light of the available information.”

   NABD followed the decision of the High Court in Appellant S395/2003 v Minister for Immigration (2003) 216 CLR at [473] where at [80] Gummow and Hayne JJ said:

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

8. In the instant case there does not appear to have been any exploration by the Tribunal of what the applicant might do in relation to his religion should he return to China.  Would he worship through a recognised church or through an unrecognised one?  Would he worship at all?  The Tribunal notes that the applicant’s “embryonic” religious development and his ambivalence about the need to go to church but it would seem that without further information and questioning it could not make a factual finding either that he wouldn’t worship in an organisation at all, in which case it could conclude that he had no well founded fear, or that he would only worship through a recognised institution when the finding would be the same.  If the Tribunal had posed the proper questions to the applicant it may have been given an answer which would have required it to consider whether or not the form of worship that he would undertake, possibly in an unrecognised church, would result in his persecution.  This seems to me to be a constructive failure by the Tribunal to exercise its jurisdiction and thus a falling by the Tribunal into jurisdictional error.

9. The second complaint made by the applicant relates to the finding of any harm the applicant may have come to would not be harm of sufficient gravity to constitute convention persecution.  The applicant argues that the matter considered by the Tribunal was whether he would be prevented from practising his religion at all.  That is the only explanation of the way in which the Tribunal might have reached the conclusion that he would not suffer harm of sufficient gravity where there was no discussion of the type of harm indicated by the country information in respect of unofficial churches.  The Tribunal appears to have measured harm against only the restrictions imposed upon worship in the official church.  The applicant submits, and I would accept his submission, that the failure to supply adequate reasons as to why “any restriction which the applicant may believe he would be experiencing is not harm of sufficient gravity” would in those circumstances support an inference that the Tribunal was, in reality, not satisfied or had applied the wrong test; R Australian Stevedoring Industry Board; Ex parte: Melbourne Stevedoring Company Pty Limited (1953) ADH CLR 100 at [120].

10. Although the applicant argues that there are two jurisdictional errors in these findings it seems to me that the better construction is that there is one single error arising out of the Tribunal’s failure to consider what the applicant would do if he returned to his country of origin. The Tribunal has assumed that if he returned he would practice Catholicism through the recognised church and possibly rightly concluded that followers of this form of Catholicism are not being persecuted as that term is defined by s.91R of the Migration Act 1958. The proper course of action would have been to make enquiries and then if it concluded that the applicant would follow his religion through an unrecognised church make the s.91R assessment based upon all the available evidence.

11. Having come to these conclusions I should find that the Tribunal decision was invalid and of no effect. I should order that the application be remitted to the Tribunal to be heard and determined according to law. I should order that the respondent pay the applicant’s costs assessed in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: