SZHTU v Minister for Immigration - [2006] FMCA 575

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHTU v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 575

MIGRATION – RRT decision – Chinese person claiming persecution as Christian – Tribunal addressed claims presented – post‑hearing inquiries of Tribunal – questioning about knowledge of the Lord’s Prayer – no procedural unfairness – no jurisdictional errors found.

Migration Act 1958 (Cth), ss.414, 420, 422B, 424A, 424A(1), 425, 474, 474(1), 476

Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225
Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1
Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387
Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs(2005) 222 ALR 411
Minister for Immigration & Multicultural Affairs v Eschetu (1999) 197 CLR 611
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264
NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2

Applicant:

SZHTU

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3601 of 2005

Judgment of:

Smith FM

Hearing date:

12 April 2006

Delivered at:

Sydney

Delivered on:

12 April 2006

REPRESENTATION

Counsel for the Applicant:

Mr T Ower

Counsel for the First Respondent:

Mr J Mitchell

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3601 of 2005

SZHTU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 8 December 2005 under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 25 October 2005 and sent to the applicant on 26 October 2005. The Tribunal affirmed a decision of a delegate made on 7 September 2005 refusing to grant a protection visa to the applicant.
The applicant arrived in Australia on 15 or 16 May 2005, and did not make an application for a protection visa until after he was taken into immigration detention on 5 July 2005. His application was lodged on 31 August 2005 with the assistance of a migration agent, who also assisted him to present his appeal to the Tribunal. The assistance he received from that agent appears to me to have been reasonably competent.
The applicant has also had the benefit in the present proceeding of receiving the assistance of counsel who was appointed under the Court’s legal advice scheme, and who also accepted instructions to present the applicant’s case to the Court today. The Court has been well assisted by the arguments presented by the applicant’s counsel.
The Court’s jurisdiction under s.476 is subject to limitations under s.474, which have the effect that I do not have power to grant relief unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claim should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
As I have indicated, the applicant’s application for a protection visa was completed with the assistance of a migration agent. It claimed that the applicant had entered Australia using a Chinese passport showing a false name, but which apparently contained a visa issued to a person whose photograph was that of the applicant. The applicant claimed that this passport was given back to his tour leader, but that he subsequently obtained his true passport from China. That passport was, he claimed, in the possession of the Department of Immigration.
The applicant gave the following responses to the pertinent questions on the form:
40Why did you leave that country?
Because the Chinese government persecuted me in China.
In 2003 my father was sick and people told me that joining the Christian Church could save people, so I joined. People from the Church always came to visit my father.
I went everywhere to promote the activities of the Church. We went to different villages and invited people to attend our Church.
If I was not busy I will go to Church 2 or 3 times per week. If I was busy I went once a week.
Our Church was very big. Someone told the government that someone was organizing an underground church. In October 2004 the PSB came to the Church, they broke the furniture and arrested two of us.
We were held separately. The PSB hit me almost to death. They hanged me up, put a piece of timber over my body and hit me with a hammer. The bones in my shoulder were dislocated because of this.
I was released 2 months later after my parents borrowed money and paid it to the PSB. After I was released I went to Church for a few times.
I heard that the Church “was free” in Australia, so I wanted to come here. I had a connection and paid them to help me come to Australia.
I was in Australia for a short time and was detained so did not have the opportunity to join the Church here.
After being at Villawood for one or two weeks I found out that there is a Church here so I joined. They come here Thursdays and Saturdays.
41What do you fear may happen to you if you go back to that country?
The same thing that I experienced before.
I fear I may be detained again because I am involved with/participate in an underground Church.
42Who do you think may harm/mistreat you if you go back?
The Government.
43Why do you think this will happen to you if you go back?
Because I attend/participate in an underground Church and I was arrested before and detained for two months for this reason, so I am afraid that I will be detained again.
44Do you think the authorities of that country can and will protect you if you go back? If not, why not?
No.
In China everything has to be resolved by money.
In relation to a question concerning his travel document, he said:
50Do you have your travel document with you now?
Used false passport to leave China and travel to Australia.
Also have Chinese passport in own name but did not use it to travel because I was worried that authorities would not allow me to leave China if I used my own passport.
This passport is now at Property (in Villawood Detention Centre).
No further information or support for the application was given to the Department. A delegate refused the application on 7 September 2005, giving reasons which it is unnecessary for me to analyse.
The applicant’s application for review was lodged on 12 September 2005. No further material was presented to the Tribunal prior to a hearing on 12 October 2005, which was attended by the applicant with his agent. The Tribunal was presented at that time with a letter from a pastor of the Central Baptist Church, which said:
This is to certify that we know [the applicant], ID Number VW#, since 9 July 2005 when he started to attend the church services organised by Central Baptist Church in Villawood Immigration Detention Centre. [The applicant] is a Christian. He is a regular attendant to the weekly church services and bible studies on both Saturday and Monday.
During this period, we have found that [the applicant] is courteous, friendly and sincere.
Apart from a passage transcribed from the tapes of the hearing which was contained in the applicant’s counsel’s written submission, to which I shall refer below, neither party presented a full transcript of the hearing to the Court. However, the Tribunal gave an account of the hearing, and I have no reason not to accept it as accurate.
The applicant elaborated his claimed history of membership of a church in China. The church was built in his village, and conducted religious activities openly until October 2004. The applicant explained that it had been built on land claimed by local farmers, and that the State authority had refused to register it. The Tribunal said:
I asked him how extensive his own role had been within the Church and he said that he attended church services, cleaned the church sometimes and secured it, by closing doors and windows and so on. He had also persuaded other people in the village to join the church as about half of the villagers were Buddhist. I asked him if his activities were different to those of the other members of the church and he said they were not. I asked him if he meant that other members of the church had also encouraged local villagers to join the church and he said that his father had been cured of cancer so he was more devoted to his religion [than] the other villagers. However the “propaganda” of the church was organised by the religious hierarchy and not [the applicant].
He went on to say that he had had nowhere to live and so had sometimes lived in the kitchen of the church. The Pastor had given him permission to live on church premises. I asked him if the church was registered with the local authority and he said that it was not and that local farmers felt that the land belonged to them and that they were entitled to build that church on the land. They had tried to register the church but the County had been unwilling to register it.
The applicant described a police raid on the church in October 2004, in which he had been detained with four or five other people as a result of being found in a storage area used by the church. He claimed to have been held for two months at a police station, physically mistreated, and released after a payment was made by his family. The applicant claimed that after his release he attended a church gathering in a neighbouring village, and he did not know whether it was registered or unregistered. He had attended that church only twice before leaving China in May 2005. He said the church congregation in his own village had continued to meet together secretly, but he did not claim to have joined that congregation.
The Tribunal put to the applicant evidence from independent sources that “there were many Christian churches in his area in Fujian and they were usually tolerated by the authorities. That included many unregistered churches”.
The Tribunal also questioned the applicant about his religious practices in Australia. He told the Tribunal that he had no time to find a church before being taken into detention and had attended about 28 services at the detention centre, but had not yet been baptised. According to the Tribunal, he explained: “he was not familiar enough with the religion and not devoted enough to it. His education was still limited and he would decide when he was ready to be baptised”.
The Tribunal’s description of the hearing then proceeded:
I asked him what might happen to him if he returned to China. He said that the government would not be happy that he had gone to a foreign country and that the people who had been watching him would have made enquiries where he was so would be aware that he had left the country. He said that he did not know what would happen in the future but thought his problems with the police would be worse because he had gone away without their permission. He said he would still go to church services if possible.
I then asked him a number of questions about his knowledge of the Christian faith. I asked him to tell me the basic prayer known to all Christians. He initially indicated that he did not know what that basic prayer might be. He then said that the word “Amen” was at the end. I asked for the first line, and he said it was something like “Our Holy Father, confess our sins”. I put to him that he did not seem to be familiar with this basic prayer. He said that everyone from his village was under‑educated and that the village was under‑developed. I asked him if he could tell me what Christmas was. He said he did not know. I asked him if he knew the significance of the date 25th December for Christians and he said he did not know. However he was able to say that Jesus Christ was believed to have been betrayed by a disciple, to have been crucified on the cross and to have come back on the third day. He was also able to say there were 27 books in the New Testament. He named three of them. I told him that because he seemed to be so unfamiliar with some basic features of Christianity I would have to consider the plausibility of his claim to have been attending church services and to be a Christian while in China. He responded that even a Pastor would not know everything.
I gave him the opportunity to make any further submissions he wished, in writing, by the close of business on Monday 17 October. He said he did not have anything to say but I suggested that he discuss his claims with his migration agent before making that decision. [The applicant’s agent] advised the Tribunal that there were no oral submissions she wished to make and that she could not suggest any further questions which could be put to her client. The hearing ended. No further submissions were provided after the hearing.
After the hearing the Tribunal attempted to contact a person who claimed to be a pastor from a Baptist church, who had written to the Tribunal confirming that [the applicant] had been attending religious services in Villawood detention centre since July 2005. This person was located with some difficulty but advised a Tribunal officer that he had nothing more to add. For that reason no further enquiries were made of him.
The Tribunal, in its statement of reasons, referred to country information concerning the situation of Christians worshipping in registered and unregistered churches in China, and in particular the situation in Fujian province. This appeared to the Tribunal to be less restrictive than in other parts of China.
Under the heading “Findings and Reasons”, the Tribunal said that it was prepared to accept “that it would not have been difficult to obtain a passport in the name of another person and depart China with it”, and accepted that this had happened in the applicant’s case. It, therefore, accepted his claimed identity.
The Tribunal then discussed his claimed history and arrived at a conclusion:
For these reasons I am not satisfied, and do not accept, that [the applicant] was a member of an underground Christian church in China.
It may be that [the applicant] has had some problems with the police in China, and he has been injured by them (although no medical evidence was submitted in support of his claim to have been injured). However for the above reasons I am not satisfied that the reason for those problems was his religion. In the absence of evidence that he might face harm in China for any of the other reasons set out in the Refugee Convention, I find that [the applicant] does not have a well‑founded fear of Convention‑related persecution in China.
The Tribunal gave three reasons for arriving at these findings. The first was that the country information concerning the situation of unregistered churches in Fujian province was not consistent with the applicant’s claims. The Tribunal thought the information showed “that the authorities in Fujian province offer a generally tolerant environment for a large number of unregistered churches”.
The Tribunal’s second reason arose from the Tribunal’s assessment of the applicant’s familiarity with Christian practices. The Tribunal referred to what it regarded as defects in his knowledge, in particular making a finding that “he was unfamiliar with the Lord’s Prayer, and did not know the significance of Christmas”. The Tribunal said: “he did show some familiarity with particular aspects of Christianity”, but thought that this was consistent with his having attended, “a few religious services”, and not the approximately one hundred religious services he had claimed to have attended in China. The Tribunal drew a conclusion as to the source of the applicant’s knowledge:
As he claimed that he had been attending Christian services since being detained in Sydney in July this year, and has provided evidence to that effect, I am of the view that these are the source of the knowledge he displayed about Christianity.
The third reason for the Tribunal’s rejection of the applicant’s claims was his conduct which the Tribunal thought cast doubt on his claim to have left China for reasons of religious persecution. The Tribunal referred to the applicant’s conduct in Australia before being taken into detention, and said: “his actions cast doubt on this as his reason for leaving China”. The Tribunal referred to four aspects of his conduct, but I need not explain this reasoning further.
Counsel for the applicant relied on four grounds in a further amended application filed at the hearing. Grounds 1 and 2 were:
1.The Second Respondent failed to exercise jurisdiction because it failed to consider the Applicant’s claim that he had a well‑founded fear of persecution because of his membership of the social group of persons who have left China illegally for purported religious reasons. (emphasis in original)
2.The Second Respondent failed to exercise jurisdiction because it failed to consider the Applicant’s claim that he had a well‑founded fear of persecution because of his Christianity, per se, as distinct from his membership of an “underground Christian church in China”.
These two grounds rely upon principles in relation to jurisdictional error which were discussed in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1. At [63] their Honours identified jurisdictional error where a Tribunal fails to identify and address all the claims made by an applicant to satisfy the Convention definition of refugee:
63It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be “subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected”: Applicant WAEE (at [47]). But as the Full Court said in WAEE (at [45]):
If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.

At [68] their Honours indicated how a Court should approach the question of whether there has been a failure by a Tribunal to address a claim:
68Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, “a substantial clearly articulated argument relying upon established facts” in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal.
Allsop J explained this reasoning in NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 at [15]:
A practical and common sense approach to everyday decision‑making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
In the present case, counsel for the applicant accepted that nowhere in the claims presented to the Tribunal in writing was there a claim to fear persecution as a Christian attending any church in China, nor to belong to a particular social group of people who might face harm as a result of having left China illegally for any reason. However, he sought to identify such claims in the Tribunal’s description of the applicant’s statements at the hearing in response to the Tribunal’s question: “I asked him what might happen to him if he returned in China”. I have extracted the relevant paragraph above at [15].
Counsel submitted that the Tribunal had not addressed in its findings either of the claims referred to in these grounds, nor any variants involving them. I accept that it did not. However, in my opinion the material before the Tribunal did not raise for the Tribunal’s consideration a claim to fear persecution for Convention reasons, other than the applicant’s involvement in an unregistered church in China.
I would not, as counsel submitted, read the Tribunal’s description of the applicant’s statements to it at the hearing as suggesting that he held a fear of persecution “because of his Christianity, per se”. In my opinion it was open to the Tribunal to understand his reference to “he said he would still go to church services if possible” as, at most, suggesting a fear of persecution if the applicant returned to his involvement in the congregation of Christians in his village who were participating in unregistered church activities.
In relation to the contention that the applicant’s claim should be considered as raising a claim of membership to a particular social group who had left China illegally, or a subgroup of those who have claimed religious reasons doing this, I do not consider that such a claim was made by the applicant nor arose on the material that was before the Tribunal. There was no country information identifying such a group, and the applicant did not seek to identify himself as a member of such a group.
Moreover, as counsel for the Minister has pointed out, the bare group of persons who have left China illegally and fear criminal sanction for their conduct would not satisfy the requirements of a particular social group identified in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 and Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387. The common experience which would characterise the group would be the act of persecution itself.
There was no country information nor other information before the Tribunal that gave any substance to the claim that there was a suggested subgroup of such persons who had left for religious reasons.
As I have indicated, in my opinion, the one claim which the Tribunal was bound to address, and did address, was the applicant’s claim to fear persecution on the basis of his membership and participation in an unregistered Christian church.
Ground 3 of the further amended application was:
3.The Second Respondent failed to comply with its obligation pursuant to s.424A of the Migration Act, 1958.
Particulars of s.424A Breach
a)After the hearing the Second Respondent contacted Reverend [name] to obtain further comment upon his letter dated 26 September 2005 that verified the Applicant’s Christianity and his regular attendance at church services. The fact and substance of this approach was not communicated to the Applicant.
Section 424A(1) requires the Tribunal to invite an applicant in writing to give written comment upon “particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. On authorities recently followed in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2, a Court determines whether there was a failure to comply with that duty by considering the reasons ultimately given by the Tribunal for affirming the delegate’s decision.
On my reading of the Tribunal’s decision it drew no information from the attempt to contact the Baptist pastor which is referred to in the last paragraph of the extract which I have set out above at [15]. In particular, the Tribunal has not drawn any adverse conclusion from the information which it was given, apparently by a Tribunal officer, that the Baptist pastor “had nothing more to add” to his letter which was before the Tribunal.
Indeed, in my view the circumstances of the inquiry revealed by the Tribunal show it making no more than an exploratory inquiry as to whether it was possible for further evidence to be obtained from the Baptist minister. The preliminary inquiry was unproductive, and the Tribunal drew no inferences from the contents or outcome of its inquiry. I therefore cannot find in the circumstances of the inquiry, nor in what was communicated in the course of it, any information which played any part in the Tribunal’s reasons.
The Tribunal’s reference in the reasoning described above at [20] to the applicant providing “evidence” to the effect that he had attended Christian services while being detained, shows that it has accepted and taken that information from the pastor’s letter. It was not information derived from the subsequent inquiry to see whether the pastor could give more evidence. This element in the Tribunal’s reasoning does not, therefore, support this ground of review.
In discussion with counsel for the applicant, I explored further ways of considering the circumstances of the Tribunal’s post‑hearing inquiry in relation to the pastor’s evidence. No ground alleging a failure of procedural fairness outside the confines of s.424A was raised in the further amended application. However, counsel submitted that an unfair procedure had been followed because the Tribunal had not informed the applicant nor his agent about the attempt to obtain further evidence from the pastor, either before it was made or afterwards. As a result, the Tribunal did not allow the applicant to consider whether he should himself attempt to obtain more evidence from the pastor, in particular concerning the pastor’s unexplained statement: “[The applicant] is a Christian”.
[I note that it was not submitted that I could conclude that there was a failure by the Tribunal to consider that statement in the pastor’s letter, notwithstanding that it is not expressly addressed by the Tribunal. I think that concession was correct, and I would not draw any inference that this was overlooked or not given due weight by the Tribunal.]
Reference was made in discussion with both counsel as to whether any failure of procedural fairness in this respect would amount to a failure by the Tribunal to comply with duties implicit in s.425 or s.414 of the Migration Act, so as to survive the exclusionary provisions of s.422B. However, it is unnecessary for me to explore this area of authority. This is because I am not satisfied that anything that could be described as procedural unfairness occurred in this case.
On my above findings, the Tribunal has not drawn any conclusions, whether adverse or otherwise, from the communications occurring when it attempted to contact the pastor. I doubt whether it would have been open to it to do so. I do not consider that the principle of procedural fairness requiring an applicant to be given an opportunity to deal with undisclosed communications which can be described as “adverse information that is credible, relevant and significant to the decision to be made” is applicable in the present case (see Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 per McHugh J at [140], and Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs(2005) 222 ALR 411).
Nor, in my opinion, can the applicant complain that he was denied a reasonable opportunity himself to present further evidence from the pastor. Plainly, he did have that opportunity, both when originally procuring and presenting the pastor’s letter to the Tribunal, and also in the post‑hearing opportunity which the Tribunal gave the applicant and his agent to make further submissions. No evidence has been led from the applicant nor his agent that the applicant would have initiated further attempts to obtain more evidence from the pastor, nor that further evidence would have been forthcoming, had the applicant been informed that the Tribunal had made its fruitless inquiry. In those circumstances, I consider that no practical injustice has been shown to have resulted to the applicant from the procedure followed by the Tribunal (see Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (“Lam”) at [36]‑[38], [106], [122], and [149]).
I accept that in the more recent case of Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1 (“Applicant NAFF”), the High Court has allowed an inference of injustice to be drawn even in the absence of evidence to this effect from an applicant. However, in the present case there is absent any apparent unfairness resulting from the procedure of the Tribunal, for example, by reason of the applicant being misled as to the procedures the Tribunal proposed to follow (c.f. Callinan J in Lam (supra) at 214 CLR 48 [150] and [151] citing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, and Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [28]‑[29]). Nor, in my opinion, does the Tribunal’s procedure reveal a failure to complete its review such as was found in Applicant NAFF.
For the above reasons, I am not persuaded that any jurisdictional error arose from the circumstances of the Tribunal’s attempt to obtain further evidence from the Baptist pastor.
Ground 4 in the further amended application was:
4.The Second Respondent’s finding that the Applicant was “unfamiliar” with the Lord’s Prayer was erroneous as there was no evidence to support this finding and its questioning of the Applicant on this aspect was unfair and, therefore, in breach of s.420 of the Act.
Counsel for the applicant referred to the element in the Tribunal’s reasoning which had relied on its finding that the applicant was unfamiliar with the Lord’s Prayer, which I have identified above at [20]. I have set out above at [15] the Tribunal’s description of its full questioning on this topic. Counsel for the applicant had available the tapes of the hearing, but transcribed only the following part in his submissions:
SR: Second Respondent; A: Applicant
SR:Can you say the beginning of the most basic prayer in the Christian religion?
A:I can. Concerning the prayers is based on several points because ones(?) prayers depends on the individual but the basic things are the same: You should worship the God. You should praise the God. You should confess your sin to the God. You should ---- God. Wait and ask for God’s guidance.
SR:O.K. But I’m not asking you about those things. I’m asking you to say the prayer that even Christian children learn. It’s a prayer that all Christians know and that they say during Christian gatherings.
A:The prayer is said by each individual but the prayers are all based on those points that I mentioned just now.
SR:Maybe so, but there is one prayer that all Christians say in church. Do you know what that prayer is?
A:That prayer seems to be after everybody prayed and everybody say “Amen” together.
SR:Yes, they say “Amen” at the end of the prayer. So can you say to me any of that prayer?
A:Prayer, which point do you mean? Do you want me to pray from the beginning, or at which particular point?
SR: What are the first words of that prayer?
A:The first word should be Our Holy God or Our Holy Father. (Interpreter: Because he said a lot I said “the first word” and final now he said “ Our Holy God or Our Holy Father”).
SR:So, after you say “Our Holy Father” what is the next line?
A:Then we say something praise him then confess our sins to him.
SR:You don’t sound like you’re very familiar with this prayer.
Counsel for the Minister did not dispute the accuracy of this transcription. He did, however, point out from the Tribunal’s description of the hearing that the applicant was given an opportunity to respond to the proposition that he did not appear to be “very familiar with this prayer”, and that he did not deny this inference but responded by making reference to the uneducated state of people from his village. The Tribunal then considered this response, but did not accept it as a “reasonable explanation”.
I have had difficulty identifying the ground of jurisdictional error relied upon in this ground. Counsel for the applicant did not refer me to any authority addressing analogous circumstances. He did not seek to pursue any reliance on s.420, and I do not consider that reference to this added any substance to the ground, noting the High Court’s interpretation of that provision in Minister for Immigration & Multicultural Affairs v Eschetu (1999) 197 CLR 611.
Counsel for the applicant submitted that the Tribunal’s opening questions in the extract above were unfair, because it did not expressly refer to the name usually given by Christians to the “most basic prayer”, that is, the Lord’s Prayer. However, in my opinion there was nothing unfair in the Tribunal seeking to test the applicant about his knowledge of the Lord’s Prayer, without drawing his attention to that name at the commencement of its questioning. I can find nothing unfair or improper in the questioning that has been extracted by counsel for the applicant.
I also reject the contention of the applicant’s counsel that it was not open as a matter of law to the Tribunal to draw the inference that the applicant showed unfamiliarity with the Lord’s Prayer. It was not, and could not reasonably be, submitted that the Tribunal’s questioning and reasons regarding the applicant’s knowledge of his claimed religion could be characterised in terms showing a closed mind, or perverse or capricious reasoning such as was found by the Full Court in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264.
For the above reasons, I do not consider that this ground or any of the other grounds argued by counsel for the applicant is made out. I conclude that the Tribunal’s decision was not affected by jurisdictional error. It was therefore a privative clause decision for which relief is barred under s.474(1), and I must dismiss the application.

I certify that the preceding fifty‑one (51) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 26 April 2006