SZFQP v Minister for Immigration - [2007] FMCA 46

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFQP v MINISTER FOR IMMIGRATION

[2007] FMCA 46

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to comply with ss.424, 424A, 425 or 441A of the Migration Act 1958 – standard of interpretation – whether failure to have regard to relevant considerations – whether unreasonable or no evidence.

Migration Act 1958, ss.422B, 424, 424A, 425, & 441A

Andary v Minister for Immigration & Multicultural Affairs [2003] FCAFC 211
Appellant P119 of 2002 v Minister for Immigration & Multicultural Affairs [2003] FCAFC 230
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Gaslight v Valuer General (1940) 40 SRNSW 126
Craig v South Australia (1995) 184 CLR 163
Ismail v Minister for Immigration & Multicultural Affairs (1999) 59 ALD 773
M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131
Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat (2006) 151 FCR 214
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744
Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396
Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6
Pollocks & Ors v Minister for Immigration & Multicultural Affairs (2001) 195 ALR 73
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
S635 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 65
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
SZHIB v Minister for Immigration & Multicultural Affairs [2006] FCA 611
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511
WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568
WALN v Minister for Immigration & Multicultural Affairs [2006] FCAFC 131

Applicant:

SZFQP

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG305 of 2005

Judgment of:

Barnes FM

Hearing dates:

13 July 2006 & 11 October 2006

Date of Last Submission:

28 November 2006

Delivered at:

Sydney

Delivered on:

22 February 2007

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the Respondents:

Mr J. Mitchell

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG305 of 2005

SZFQP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 6 January 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant claimed to be a citizen of the People’s Republic of China (the PRC) who arrived in Australia in June 2004 using a passport issued by the Republic of China (Taiwan) in another name. He lodged an application for a protection visa in August 2004. He claimed to fear persecution from the PRC authorities as he was regarded as a key member in the underground Christian church. In connection with his protection visa application he claimed to have been born into a Christian family. He claimed that on one occasion police had arrested his father and Christians attending a religious gathering at the family home. He claimed that his father had been released on bail but that he was arrested again for refusing to join the official church and detained for half a month. The applicant claimed that unfair treatment and continuous persecution because of his father’s religious background had made the family live in poverty for a long time and meant that he was unable to afford senior high school study. He claimed that he had been unable to find employment over a long period and was eventually recruited by the army as a “scapegoat”. He served in the army for three years but claimed that he secretly spread the gospel to named close friends and thereafter became a secret member in the underground Christian church and actively spread the gospel.
The applicant claimed that he had experienced many difficulties from the PRC authorities, had been questioned and interrogated on many occasions and often had to move from one place to another to avoid the special attention of the authorities. He claimed that at a gathering in December 2000 he and many others were arrested by the police and detained in a PSB detention centre. He claimed that he was not released until the end of January 2001 because he was regarded as a “die hard” by the authorities and that during that period he was physically tortured by the police. He was eventually released when bail was provided by his family.
He claimed that after that time he had been arrested or detained by the PSB on several occasions owing to his religious practice. In particular, in October 2002 he was arrested while participating in a Bible study group at a named person’s home, detained for two weeks and had his thigh cut with a knife. He claimed that his children became victims of persecution and were often forced to do cleaning jobs in school. He claimed that he was arrested again in February 2004 while distributing religious propaganda material with religious brothers and sisters, detained for 25 days and physically and mentally tortured by the police.
The applicant claimed that in May 2004 he was informed by a religious brother in the underground church that the PSB was going to arrest him and sentence him for many years as punishment and that he escaped with the help of religious brothers and sisters and hid in someone’s place. He claimed that during this time the PSB went to his home with an arrest warrant at least three times and that his wife was also investigated by the police. He claimed that in June 2004, through arrangements made by secret contacts of the underground church, he travelled to Hong Kong and eventually to Australia.
The protection visa application was refused by a delegate of the first respondent. The applicant sought review by the Tribunal. He made a further written submission to the Tribunal reiterating his claims and claiming that he feared that he would be arrested and sentenced to many years imprisonment on his return to the PRC due to his religious beliefs. The applicant attended a Tribunal hearing.
In its reasons for decision the Tribunal summarised the claims made by the applicant in connection with the protection visa application and at the hearing. In its findings and reasons it accepted the applicant’s claims that he was a practising Christian and that he came from a particular area in Fujian province. It referred to independent country information in relation to the situation of Christians in China, and, in particular, in Fujian province. The Tribunal had regard to advice from the Department of Foreign Affairs and Trade (DFAT) that the treatment of unregistered religious groups in China varied from locality to locality. It noted that the area where the applicant had resided was described in independent information as “easy going” and a place where worshippers who had joined the official church paid little attention to China’s official church hierarchy.
The Tribunal had regard to the applicant’s oral evidence that he and many other Christians had been attending church services at a particular church in a nearby village that had displayed a cross on its external wall for some 20 years. The Tribunal was satisfied that the building was readily identifiable as a church and that the local officials and neighbourhood community and police were all “well aware for many years that church services were being conducted in it”. The Tribunal noted that the applicant did not claim that the church leader had been gaoled by the authorities or that he was being prevented from conducting services or that the church had been closed down. It inferred from the applicant’s evidence that local Christians continued to openly attend services at that church and for that reason was not satisfied that this was an “underground” church.
Rather, the Tribunal was satisfied that the church was either a registered church or that it was unregistered but tolerated by relevant officials and the PSB in the area in which it operated. It suggested that the latter view was consistent with country information that the lines between official and unofficial churches were “blurred beyond recognition” in some parts of Fujian province.
The Tribunal was also satisfied, based on the applicant’s evidence, that he was not a leading figure in the church, but played a “minor role” within it. It had regard to the fact that the applicant did not claim to have preached at the church or elsewhere, to have conducted religious study classes or to have played any significant organising role within the church and the fact that he relied on others to obtain, and provide him with, religious materials such as Bibles.
The Tribunal then considered the applicant’s claims to have been detained and seriously ill-treated by police officers on three occasions because of his religious activities. It found that the harsh treatment he claimed to have suffered was consistent with evidence from Amnesty International about the treatment of people questioned by the police in China and hence that it was possible that he had been ill-treated and sustained some injuries. It found his oral evidence consistent with his written account about when and why he was detained, but that his oral evidence was vague as to why he might have been singled out from the church’s many other worshippers for interrogation. Further, it found that it was not consistent with the finding that the church had been at least tolerated by the local authorities for over 20 years that the police might have elected to interrogate and seriously harm a person who had played a minor role within that church for many years. It also found that the applicant was unable to “cogently explain” why the police might not have used their powers to sentence him to a period of administrative detention, despite their authority to do so and the fact that in many other parts of the country the PSB had ordered Christians to periods in labour camps. The explanation from the applicant that the police had no evidence against him was found not to be consistent with his claim that he had been picked up by the police while distributing religious pamphlets in the street. The Tribunal considered it implausible that the applicant was detained in 2004 for distributing religious material.
The Tribunal was unable to accept as true the applicant’s claim that a local trader told him in June 2004 that he was about to be arrested and sentenced to years of imprisonment which led him to flee China. It considered that if the police had considered the applicant to be worth arresting they would not have released him in February 2004 and that as he did not claim to have participated in any activity thereafter which might have altered the police view of him, it was unclear why the police might have singled him out for such severe punishment four months after releasing him. Further, it found it implausible that the police might have “casually” named the applicant to a local trader who may have known him and revealed their intention to arrest the applicant sufficiently in advance to enable him to get the news and leave the area before the police acted. It concluded that for these reasons it did not accept that because of his religion the applicant was being sought for arrest by the police when he left China.
While the Tribunal accepted that there was evidence that the applicant entered Australia with a passport issued in the ROC in the name of another person, it was not satisfied that the applicant had left China using a passport other than his own as claimed. As it had found that the applicant was not being sought for arrest because of his religion at the time he left China the Tribunal found that it seemed likely that he could have obtained a passport in his own identity and left China openly and legally using it.
Finally, the Tribunal accepted that the applicant was a Christian who had attended services at the particular church in the local village every Sunday for some 20 years. It found that it was therefore satisfied that if the applicant were to return to his home town he could practise his religion as he wished and that the chance was remote that he would be subjected to any serious harm for so doing. The Tribunal concluded that the applicant did not have a well-founded fear of persecution for a Convention reason of religion or for any other Convention reason.

These proceedings

The applicant sought review of the Tribunal decision by application filed in this Court on 4 February 2005. He filed an amended application on 6 May 2005 which raised additional grounds.

Sections 424, 424A of the Migration Act

The application of 4 February 2005 claims generally that the decision of the Tribunal was incorrect and that the Tribunal failed to assess the application in accordance with the statutory requirements in the Migration Act 1958 (Cth). The grounds in the application are that there was an error of law and procedural error constituting an absence of natural justice. The particulars set out ss.424, 424A and 441A of the Migration Act list certain items of independent country information referred to in the Tribunal reasons for decision and contend that the Tribunal failed to comply with its obligations under ss.424 and 424A of the Act as it failed to give the applicant any of the independent country information or information in relation to that information or any other information regarded as relevant to the claims, before, during or after the hearing and did not invite the applicant to comment on the information. It was contended that the Tribunal should have provided such information to the applicant by one of the methods specified in s.441A.
However, as contended for the first respondent, it has not been established that there has been a failure to comply with ss.424, 424A or 441A of the Migration Act. Section 424 provides that in conducting a review the Tribunal may get any information it considers relevant, but that if it does so it must have regard to that information in making the decision and also provides that the Tribunal “may” invite a person to give additional information. In this instance, if s.424 did apply to the particular items of country information listed in the application (DFAT advice, Marquand 2003 and an Amnesty International Report of 1996), the Tribunal clearly had regard to that information which was summarised in the reasons for decision and formed the basis for certain of its findings.
The Tribunal was not obliged to comply with s.424A in relation to the independent country information. It fell within the exception in s.424A(3)(a) as information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member” (see MIMIA v NAMW (2004) 140 FCR 572).
Counsel for the first respondent addressed the issue of whether s.424A was applicable in any other way, in particular in relation to information provided to the Department by the applicant. First, this is not a case in which the Tribunal relied on any inconsistency between information provided to the Department and to the Tribunal. The information relied on by the Tribunal as the reason for its decision consisted variously of independent country information, the applicant’s oral testimony to it and the applicant’s application for review.
Moreover, in a letter accompanying his application to the Tribunal for review, the applicant referred to the claims made in connection with the protection visa application, emphasised particular aspects of those claims as set out in the statement annexed to his protection visa application by quoting his statement about what occurred in and after May 2004 as the basis for his claim to fear persecution and continued: “As a matter of fact, I have detailed the reason why I was arrested by the PRC authorities in December 2000, October 2002 and May 2004. Unfortunately, the decision-maker obviously ignored those facts”.
In these circumstances I am satisfied that the applicant put forward to the Tribunal information taken from the protection visa application and invited the Tribunal to refer to that material (see M55 v MIMIA [2005] FCA 131 at [25]; NAZY v MIMIA [2005] FCA 744 at [36] – [37]; and SZEEU v MIMIA [2006] FCAFC 2 at [20], [157] and [219]). As contended for by the first respondent, the information about the circumstances in relation to the applicant’s arrests was republished to the Tribunal to form part of his application for review. What the applicant said in the letter to the Tribunal was similar to the content of a letter to the Tribunal considered by Young J in SZHIB v MIMA [2006] FCA 611 at [8]. In that case his Honour found the appellant had “repeatedly referred to his claims which in context must be read as a reference to the detail of claim set out in his statutory declaration … which supported his application for a protection visa”. As in SZHIB, in such circumstances the information in the applicant’s statement annexed to his protection visa application was information that the applicant gave (to the Tribunal) for the purpose of the application within the s.424A(3)(b) exception to s.424A.
Finally, s.424A(1) does not apply to require the Tribunal to invite comment on its thought processes or reasoning (see SZEEU v MIMIA [2006] FCAFC 2 per Allsop J and VAF v MIMIA [2004] FCAFC 123). No failure to comply with s.424A has been established. Hence there was no obligation on the Tribunal to give information to the applicant by one of the methods specified in s.441A of the Act.

Natural justice, section 425 and the Tribunal hearing

The applicant also claimed generally in the application for review that there was a denial of natural justice. In written submissions he contended that the Tribunal had failed to comply with its obligations under s.425 of the Act. It was submitted that during the hearing the Tribunal failed to provide the applicant with a fair chance to give his oral evidence, that on many occasions he was only required to answer the Tribunal’s questions “simply and directly” and that during the hearing the Tribunal failed to invite him to comment on pieces of negative information or negative issues, because it failed to provide them to him clearly.
It was contended for the first respondent that there was no breach of the provisions of Part 7 of Division 4 of the Migration Act and hence no breach of the common law natural justice hearing rule in light of s.422B (MIMIAv Lay Lat (2006) 151 FCR 214) and also that the Tribunal did not fail to “act judicially” (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 365 and WAIJ v MIMIA (2004) 80 ALD 568 at [20]).
In the course of the hearing before this Court, the applicant clarified his contention that the Tribunal did not give him an opportunity to put argument in relation to information it relied upon. He contended that s.425 of the Migration Act required him to be given a fair opportunity to give oral evidence and also to argue with the Tribunal’s argument and that these two rights were taken away because at the hearing he could only give simple answers to the questions the Tribunal put to him, that his answers were very often interrupted by the Tribunal member and also that the interpreter was unable to translate some religious terms so that he was not given a fair opportunity to provide oral evidence in support of his claim. He also claimed that the Tribunal did not tell him clearly what its main argument was in assessing his application and what kind of reason it would use to refuse his claims so that he was unable to address this issue. It was contended that the Tribunal erred in not providing a capable interpreter who could interpret religious terminology.

The applicant gave specific examples of his concerns about the conduct of the hearing, suggesting, for example, that the Tribunal member had asked him if he had ever been convicted and that he replied no, but that while he wanted to continue with his answer to explain it, the Tribunal member then suddenly changed the subject to something else and interrupted him and asked him something else so that he did not have the opportunity to explain his claims.
He also said that when the Tribunal member had asked him why he was released after having been arrested, he had replied that it was because he gave money to officials, but that before he had finished his answer the Tribunal member had changed the question again saying “Ok, you were released, there is no problem for you there” when in fact he wanted to clarify his response. He complained that the Tribunal’s treatment of him was unfair in these respects.
In these circumstances the applicant was given a further opportunity to file a transcript of the Tribunal hearing. The hearing was adjourned so that the issues in relation to the conduct of the Tribunal hearing could be addressed.
The applicant filed an affidavit on 25 September 2006 to which was annexed a transcript of the Tribunal hearing. The respondent then filed an affidavit sworn by Matthew Scott Hansen on 11 October 2006 to which was annexed a copy of the transcript prepared for the applicant with handwritten annotations reflecting what was recorded on the tapes as best as Mr Hansen could discern. The applicant acknowledged that he had been provided with a copy of this affidavit and he accepted it as an accurate version of what was said in the Tribunal hearing.
However, when the hearing resumed and the applicant was given the opportunity to take the Court to particular aspects of the Tribunal hearing about which he had concerns, the applicant was unable to do so. He stated that he recalled that he had been asked why he was released and his answer was that it could be that they had no evidence, but that he did not have enough time to explain that they did have some evidence against him because he was handing out leaflets. He also stated that when asked a question as to why he was released he would have liked to say that Chinese officials were very corrupt but that he could only afford to bribe one but not two or three or more, so that he had to choose to escape or he would end up like his fellow believers. He reiterated that the Tribunal did not allow him to finish his answers and kept saying “that’s fine, that’s ok” when he had more to say.
Counsel for the first respondent contended that there was nothing in the material before the Court to establish a failure to comply with s.425 of the Migration Act. Reference was made to Perera v MIMA (1999) 92 FCR 6; Ismail v MIMIA (1999) 59 ALD 773; Appellant P119 of 2002 v MIMA [2003] FCAFC 230 and WACO v MIMIA (2003) 131 FCR 511 in relation to the standard of interpretation at a Tribunal hearing.
It was submitted that the relevant test in relation to interpretation is that contained in Appellant P119 of 2002 at [17] which was applied by the Full Federal Court in WALN v MIMA [2006] FCAFC 131 at [29]. In Appellant P119 of 2002 at [17] Mansfield and Selway JJ referred to a submission (consistent with Perera) that for an applicant to succeed in an argument that the Tribunal had failed to comply with s.425 by reason of inadequate translation services the applicant would need to establish that: “(a) the standard of interpretation at the Tribunal hearing was so inadequate that the applicant was effectively prevented from giving evidence at the Tribunal; or (b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the applicant.”
It was said to be relevant to have regard to whether the applicant’s evidence at the Tribunal hearing was non-responsive, to the coherence of his answers, to the consistency of answers with one another and with the rest of the case sought to be made and more generally to any evident confusion in exchanges between the Tribunal and the interpreter (see Kenny J at [38] in Perera).
It was submitted for the respondent that when the transcript was reviewed, it was apparent that it could not be said that the standard of interpretation at the hearing was so inadequate that the applicant was effectively prevented from giving evidence and that there was no evidence of confusion or of the applicant’s answers being unresponsive or confused.
The transcript of the Tribunal hearing does not support the claims of the applicant that the Tribunal failed to comply with s.425 of the Migration Act, either because of the standard of interpretation or on the basis that the applicant was not given an opportunity to clarify any matters, ask questions or put further submissions in support of his claim.
First, in relation to the question of whether there were errors made by the interpreter material to the conclusions of the Tribunal that were adverse to the applicant (see WACO and Ismail), this is not a case (cf Ismail), where there is any evidence of specific errors in the translation of words or phrases by the interpreter. The submission by the applicant that there were errors in respect of some religious terms was not supported by evidence. In particular, there is no evidence of the meaning of Mandarin expressions used by the applicant or to demonstrate errors in the interpreter’s translation of what was said by the Tribunal.
The applicant initially suggested that terms such as “public Christian church” and “open public religion” may not have been properly interpreted. There is no use of these terms in the transcript. Nor is there evidence of confusion, unresponsiveness or incoherence such as to suggest any difficulties in translation. Further, there is nothing to suggest any mistranslation in relation to the concept of “underground church” or references to the building in which it was said that the applicant attended services. The applicant was not able to point to any particular part of the transcript in which this was said to have occurred and it is not apparent that it occurred at any point in the Tribunal hearing.
As pointed out in WACO at [66], the requirement for a translation is not a requirement for a perfect translation but only that it be sufficiently accurate and that the idea or concept being translated be communicated. In other words, it is accepted that there may be words or phrases which are not capable of a perfect translation. In any event in this case, in the absence of evidence, no inference can be drawn that concepts such as underground church, public Christian church or open public religion were not properly translated.
At the end of the hearing the applicant was given an opportunity to tell the Tribunal anything else that he considered important about his circumstances or his application. The applicant did not raise any concern about the conduct of the hearing or about the interpreter. Nor is there any evidence that he did so prior to receipt of the Tribunal decision. No error is apparent on the face of the transcript. In these circumstances it cannot be inferred that there was such an error based merely on the submission by the applicant as to the quality and adequacy of the translation services.
Further, there is no evidence that the Tribunal “changed the question” as claimed. The Tribunal did not state “Ok you were released, there is no problem for you there.” It did, however, raise with the applicant on at least two occasions its concern about his claim that the PSB decided to arrest and sentence him in May 2004, given that he claimed he had not been charged and had been released when detained in February 2004 (at a time when the PSB had evidence that he was distributing pamphlets). There is nothing in the transcript of the Tribunal hearing to support the applicant’s claim that he did not have an opportunity to clarify his response in this or any other respect.
More generally in relation to the standard of interpretation, the applicant confirmed in the Tribunal hearing that he was able to understand the interpreter. At no point in the hearing is there any indication of difficulties in comprehension such as to raise concerns about the standard of interpretation. There is no evidence that the Tribunal member interrupted or badgered the witness in the manner in which questions were asked. The Tribunal explained the purpose of the Tribunal hearing, asked the applicant whether he had any objection to using the particular interpreter. It did indicate that in responding the applicant should answer briefly, let the interpreter interpret and then go on. There is nothing in the transcript to indicate that the applicant was not given the opportunity to elaborate on his responses. Nor does the transcript of the hearing support the applicant’s claims that his answers were cut off. It is apparent that the Tribunal spent some time questioning the applicant about matters such as why he was released in 2004 and raised with him the fact that the police had evidence that he was handing out pamphlets. The transcript does not support the applicant’s claims that the Tribunal did not allow him to finish his answers. Indeed on many occasions the Tribunal sought clarification of brief responses.
Critically, at the end of the hearing the applicant was given an opportunity to make further submissions. While the questioning at Tribunal hearing had no doubt concentrated on the issues that the Tribunal member wanted to raise with the applicant, at the end of the hearing the Tribunal member asked him “Have you told me everything that you think is important about your application, about your circumstance?”
The applicant’s response was “I have told you everything. I would like to repeat some of the parts.”
When the member then said “You don’t need to tell me again anything that you’ve already told me”, the applicant’s response was “I hope this decision made by you member will change my life”.
There is nothing in this exchange to indicate that the answers that the applicant had given were incomplete or that he sought in any way to clarify what he had said. Nor is there anything to suggest that the applicant was in any way constrained to give only simple answers to questions, albeit he was asked to pause to allow the interpreter to translate and then continue. There is nothing to indicate that his answers were limited as he now contends.
No failure to comply with s.425 is established. In light of s.422B the Tribunal was not under an obligation to invite the applicant to comment at the hearing on aspects of negative information or negative issues. Nor was it required to put its tentative conclusions or thought processes to the applicant for comment.

Relevant considerations

In the amended application filed in Court on 6 May 2005 the applicant raised further grounds of review. It was claimed that the Tribunal failed to take into account relevant considerations in a number of respects. First it was contended that in determining that the tolerance of the applicant’s church by the Chinese authorities over a 20 year period was not consistent with the police interrogating and seriously harming the applicant in 2004, the Tribunal had failed to have regard to country information before it to the effect that members of unregistered religious groups had been subjected to increased restrictions, including intimidation, harassment and detention, since 2001. Further, it was contended that the Tribunal had failed to have regard to country information before it that evangelical Protestants were still being arrested. The application referred to a 2003 article by Marquand, a 2003 report from the Department of Immigration and a December 2003 report from Freedomhouse.
Counsel for the respondent contended that the Tribunal did in fact have regard to these items of independent country information, which it referred to in its reasons for decision.
These items were part of the country information referred to by the Tribunal and summarised in its reasons for decision. The DIMIA report referred to a persistent crackdown on unregistered churches in China since 2001. Freedomhouse reported on issues such as the need for official approval of leaders, venue and sermon topics and monitoring of religious services and members. However, Marquand reported in December 2003 that Christianity in both the official and unofficial Churches was gaining momentum in China and that in contrast to the situation in Beijing “along the easy-going southeast coast [from where the applicant came] Protestant worshippers pay little attention to China’s Shanghai-based official Church hierarchy” and suggested that in the villages “the lines between official and unofficial Churches are blurred beyond recognition”. This report also detailed that there were an estimated 30 – 60 million “unregistered” Christian believers in China, that while there had been renewed government efforts to curb Christian Churches, these varied in enforcement from province to province, “with urban areas … drawing more oversight and intervention than rural China and the south”.
While it is for the Tribunal to determine whether to have regard to particular items of information and the weight to be accorded to such information, it is in any event clear that in its findings and reasons the Tribunal had regard to this information and also to more recent information to the effect that the treatment of unregistered Churches varied from locality to locality in China. It had regard to the information before it in relation to the south east coast of China (where the applicant resided in a village) in finding that the village Church the applicant had attended was either a registered Church or that it was “unregistered but tolerated by the relevant officials and the PSB in the area in which it operates”. This was said to be “consistent with the evidence that the lines between official and unofficial Churches are blurred beyond recognition”. Further, contrary to the claim that the Tribunal failed to have regard to information that evangelical Protestants were arrested, it referred to information from Marquand (2003) indicating that evangelicals in a particular province had been targeted, together with other information in that publication.
The Tribunal findings were open to it on the material before it. Contrary to the applicant’s claim the Tribunal did have regard to the information before it. As indicated, the weight to be given to particular items of country information is a matter for the Tribunal and it has not been established that there was a failure to have regard to relevant considerations.
An issue arose at the hearing as to whether the Tribunal had failed to take into account all the integers of the applicant’s claims, in particular his claim of persecution on the basis of his activity away from the church he attended on Sundays, such as his claimed attendance at Bible studies conducted at private houses and handing out of pamphlets on the street. The parties were given the opportunity to make further written submissions.
It was submitted for the respondent that the Tribunal did consider and make findings in respect of such activities, specifically considering the applicant’s claims to have been “a Christian in an underground church”, and his claims to have been detained on three occasions, once as a result of attending a religious gathering at home and another time as a result of distributing religious propaganda. It was also contended that the Tribunal had considered relevant independent country information in relation to the attendance levels at “house churches”, the number of Protestant worshippers in the province from which the applicant came, the freedom of the “unofficial church” in that province and the reason for the proliferation of “home churches”. In particular it was pointed out that the Tribunal had made findings in respect of the claims that the applicant had been detained on three occasions (including the implausibility of the claim that he was detained for distributing pamphlets in 2004) and had also referred to the tolerance of the authorities in relation to the readily identifiable church that the applicant attended and its lack of satisfaction that the church was an underground church. The Tribunal concluded that for these reasons it did not accept that because of his religion the applicant was being sought for arrest by the police when he left China, was satisfied that if he were to return to his home town he could practise his religion as he wished and that the chance was remote that he would be subjected to any serious harm for doing so.
The respondent submitted that the Tribunal accurately summarised the claims made by the applicant and did not misconstrue or misunderstand those claims and that it made findings based on those claims, specifically that the activities that the applicant claimed to have participated in were “tolerated” by authorities, that he was not a leader in those activities, that it was not satisfied that he was being sought by authorities for the reasons claimed and that he could practise his religion as he wished on his return to China. It was submitted that such findings were in the nature of general findings in respect of all the applicant’s activities both inside the church and outside including in private homes of fellow Christians, and as such those general findings subsumed all the applicant’s evidence in support of those claims (see MIMA v Yusuf (2001) 206 CLR 323 at [68] and [87] – [91]; WAEE v MIMIA (2003) 75 ALD 630 at [46] – [47]).
Further, it was contended that the Tribunal was not required to give reasons why it accepted or rejected individual pieces of evidence and every contention made by the applicant in those circumstances (see Paul v MIMA (2001) 113 FCR 396 at [79] and Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407 at [65]) and that there was no requirement that the reasoning process for each finding made be exposed: Pollocks & Ors v MIMA (2001) 195 ALR 73 at [35].
In reply, the applicant referred generally to the principles in Craig v South Australia (1995) 184 CLR 163 and submitted that the Tribunal had failed to consider that he was a genuine Christian and an active member in the underground church in China and failed to consider properly and fairly the evidence that he had been subjected to persecution owing to his involvement in the underground church and that his family in China was continually subject to persecution by the Chinese government. He further submitted that the Tribunal failed to consider that the Chinese government had not changed its policies against genuine Christians who had actively sought religious freedom and had independent religious practices and that it had refused to consider his claims as a whole but rather “cut them into different pieces” to pick up some “spots” so as to refuse the application.
I am satisfied that, as submitted by the respondent, the Tribunal dealt with all the integers of the applicant’s claims, including those about his activity away from the church he attended on Sunday. The Tribunal specifically addressed the applicant’s claim that he distributed religious materials (finding it implausible that he was detained in 2004 for distributing religious materials). It did not reject his claims about handing out pamphlets in the church. It set out his claims to have been a secret member of an underground church, but found, on the basis of his evidence that the church he claimed to attend was not an “underground” church. It referred in its summary of the evidence to his claims to have been detained in December 2000 during a religious gathering at a home and again in October 2002. While the Tribunal rejected the applicant’s claims to have been detained on three occasions because of his religious activities, it is clear, reading the Tribunal decision as a whole, that it understood and accepted his claims not only that he attended the local village church for some twenty years but also that he participated in religious gatherings and Bible study in private homes, distributed Bibles and pamphlets given to him by his father, visited the sick, weak and those who had a financial burden and also that he did a “little cleaning” of his church. It was on the basis of these claims that the tribunal concluded:
I am also satisfied, having considered [the applicant’s] account, that he was not a leading figure within the church. Indeed I am satisfied that he played a minor role within it. In coming to this view, I note that he does not claim to have preached at the church or elsewhere, to have conducted religious study classes, or to have played any significant organising role within the church. I also note that he relied on others to obtain, and provide him with, religious materials such as Bibles.

Further, in rejecting the applicant’s claim that he was sought and arrested by police because of his religion, the Tribunal referred, among other things, to the vagueness of his oral evidence as to why he might have been singled out from the church’s many other worshippers for interrogation and to the “minor role” he had played in the church for many years.
The general findings of the Tribunal about the tolerance of the local church by authorities, that the applicant was not a leading figure in the church, that it was not satisfied he was being sought for the reasons claimed (given that it did not accept that because of his religion the applicant was being sought by the police when he left China) and the finding that he could practise his religion as he wished (that is by involvement in and attendance at the village church) addressed all the religious activities in which the applicant claimed to have engaged. Contrary to the contentions of the applicant the Tribunal did consider the applicant’s claims as a whole, wherever such activities were said to have occurred, including those that went beyond his physical attendance at services at the village church. No jurisdictional error is established on this basis.

Wednesbury unreasonableness

A further ground relied on in the amended application was expressed in terms of Wednesbury unreasonableness. It was claimed that in determining that the applicant could practise his religion as he wished if he were to return to his home town and that the chance of being subjected to any serious harm for so doing was remote, the Tribunal’s decision was unreasonable in the Wednesbury sense.
However, no jurisdictional error is established on this basis. As indicated, the Tribunal findings were open to it on the evidence before it. The reasoning has not been shown to be devoid of logic or without plausible justification. It was a decision that the Tribunal could reasonably reach (see Andary v MIMA [2003] FCAFC 211). Further, there is no evidence that the Tribunal unreasonably failed to ascertain relevant facts which the Tribunal member knew to be readily available to him: Prasad v MIEA (1985) 6 FCR 155 at 63.
The applicant also claimed that the Tribunal was unreasonable in that it failed to have regard to the fact that he had distributed religious materials in public and would thus be likely to be of more interest than just a “person who had played a minor role (in the church) for years”. However, the Tribunal dealt with this claim. It set out the applicant’s claim that in February 2004 he was detained by the police for distributing religious propaganda and materials. However in the findings and reasons part of its decision it addressed but found implausible the claim that the applicant was detained in 2004 for distributing religious materials. No jurisdictional error is established in the manner contended.

No evidence

The last ground in the amended application is that there was no evidence to support the Tribunal’s finding that it was implausible that the applicant was detained in 2004 for distributing religious materials.
However, as the respondent submitted, no jurisdictional error on the part of the Tribunal is established. It correctly summarised the criteria it was to apply and drew inferences and made findings based on its assessment of the evidence before it. The Tribunal finding that it was implausible that the applicant was detained in 2004 was based on evidence such as evidence that the local authorities tolerated Christian churches in the relevant province, the applicant’s oral testimony that people had attended the church that he attended for 20 years and that, based on his evidence about his activities, he did not have a high profile role in the church, as well as the absence of a cogent explanation for why he had not been sentenced to a period of administrative detention if he had been picked up while distributing religious pamphlets. It has not been demonstrated that there was no evidence to support the Tribunal findings or no evidence to support the inferences drawn by the Tribunal member. No error of law is apparent arising from the factual findings made by the Tribunal (see S635 of 2003 v MIMIA [2005] FCAFC 65 at [50]; Australian Gaslight v Valuer General (1940) 40 SRNSW 126 at 137 – 8 and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355).
As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 22 February 2007