SZKKE v Minister for Immigration - [2007] FMCA 2089

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKKE v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 2089

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – inadequacy of the interpreter service – failure to consider the integers of the applicant’s case – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZKKE”.

Migration Act 1958 (Cth), s.91X

Appellant P119/2002 v the Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
Appellant S395 of 2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71
Ismail v Minister for Immigration & Multicultural Affairs (1999) 59 ALD 773
Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263
Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507
SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 265
Soltanyzand v Minister for Immigration & Multicultural Affairs [2001] FCA 1168
WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171

Applicant:

SZKKE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 985 of 2007

Judgment of:

Lloyd-Jones FM

Hearing date:

13 November 2007

Delivered at:

Sydney

Delivered on:

14 December 2007

REPRESENTATION

Solicitors for the Applicant:

Shijing Zhang of Zhang Shijing Lawyers

Counsel for the Respondents:

Mr J Mitchell

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The application filed on 23 March 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 985 of 2007

SZKKE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

The applicant is a citizen of the People’s Republic of China and was born in Fujian province. He states that he underwent 13 years of education including attendance at the Electronic Junior College in Fujian. He was then employed at the Radio Tube Factory from 1993 to 2001. The applicant departed China on 4 May 2002 on a legally issued passport in his own name. He claims that he lost his career and was separated from his family because of persecution stemming from his observance of the Christian faith, which he claims is illegal in China.
The applicant states his mother is a devout Christian and that he was baptised as a baby. He attended secret church meetings including mass with his mother. He claims that he and his mother were detained by the police when he was about nine years old because of their involvement with the church. He claims that since then, they were detained on a number of further occasions for the same reason. The applicant seeks protection because he fears that if he returns to China, he will be persecuted and his religious freedom has been denied.
The applicant arrived in Australia on 4 May 2002 and applied for a Protection (Class XA) visa on 17 October 2006. A delegate of the first respondent refused to grant the visa on 11 November 2006 and the applicant applied to the Refugee Review Tribunal to review the delegate’s decision. The Tribunal affirmed the delegate’s decision so the applicant applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision which is the application before this Court.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. This document was read into evidence.
The affidavit of Ke Ying Yao, an accredited interpreter and translator, was sworn on 4 July 2007 and filed in these proceedings. Annexed to the affidavit and marked Annexure “A” is Ke Ying Yao’s “Comments on the performance of an interpreter in a RRT hearing”. Annexed and marked Annexure “B” is a transcript of the hearing held on 5 February 2007.
I also granted the applicant leave to further amended application filed was in Court on 13 November 2007. It contains three grounds of review:
(a)Ground one – “The interpretation made by the interpreter at the Tribunal hearing was inadequate and that on relying on it in reaching its decision, the Tribunal fell into error.”
(b)Ground two – “The Tribunal in failing to grant an adjournment to the applicant failed to give the applicant sufficient time to prepare material and therefore failed to give the applicant a fair hearing.”
(c)Ground three – “The Tribunal erred in failing to consider an integer of the applicant’s case or alternatively failure to consider a relevant consideration – namely its failure to consider the case of fear of persecution on the basis of imputed religious affiliation.”

Consideration

Ground one

Mr Zhang, for the applicant, read the affidavit of Ke Ying Yao, to which no objections were raised. Mr Zhang referred to Annexure “A” of that affidavit which states:
I, Ke Ying Yao, an accredited professional interpreter and translator with NAATI Number 58904, hereby make the following observations on the interpreter’s performance in a Refugee Review Tribunal hearing.
I was provided with the audio recording of the hearing (two cassette tapes) and the English transcript of the tapes. I had been through the tapes and the transcript very [careful], and accordingly spotted some errors in the interpretation.
There are three types of major errors, namely misinterpretation, distortion of the meaning and unjustified omission, in the interpretation. Although there are many other minor mistakes, they will not be discussed here, as they do not fall into the abovementioned three categories.
To illustrate the errors, the passage has been reproduced in English and labelled “Target language”, followed by a suggested interpretation of the more appropriate translation into English:

Category 1: Misinterpretation

Example 1 (page 9)
The Target Language (by the interpreter in English)
Because I came out, I think he mean he is now settled, and I only bought it like a few months before I came out, therefore I don’t know the address.
Suggesting interpretation (in English)
I have not bought the house before I left China. I bought it just a few months after I left. So I do not know the address. I need to call back to ask what the address is.
Comment
The applicant specifically pointed out that he bought the property a few months after he left China. This is why he had never lived in this property. Instead of saying “a few months after I left”, the interpreter had it interpreted into “a few months before I came out”. This error is seriously enough to mislead the Member to believe that the applicant was inconsistent in giving evidence.
Example 2 (page 11)
The Target Language (by the interpreter in English)
Yes. In April 2001, left China.
Suggesting interpretation (in English)
I left China in April 2002.
Comment
The applicant just mentioned he stayed at home for three to four months at home at the end of 2001 and left China in April 2002. The interpreter, however, interpreted the year 2002 as year 2001. Again, this could mislead the Member to believe that the applicant was inconsistent in giving evidence and greatly undermine the credibility of the evidence given by the applicant.
Category 2: distortion of the meaning
The Target Language (by the interpreter in English)
I was arrested and detained at the church.
Suggesting interpretation (in English)
I was arrested by the local PSB at the church and detained.
Comment
The interpretation has changed the original meaning of the source language as the applicant was not detained at the church.
These are some of my observations regarding the performance of the interpreter during the Tribunal hearing. Not all errors are mentioned as some of them are trivial or less serious.
Category 3: unjustified omission
Big chunks of information went [missing] during the interpretation, especially during her interpretation for the Member from English into Mandarin. Here is a list of missing information.
1. … so that I can be satisfied you understand the criteria against

which your application is being assessed. (page 4)
2. …And the Books of the Bible make up the Bible. Okay? So I

am asking you how many, or if you want to call them

chapters, you can call them chapters, but anyway, in the Old

Testament how many are there, and how many are there in

the new one? (page 13)
3. …He is a famous person…. I mean he is well-known in the

bible. (page 16)
4. …So how would they know what your immigration was unless

you told them? (page 22)
5. …since you are the only one who knows about your

immigration status (page 22)
6. …You still have the same immigration status, so what changed

4 months ago? (page 22)
Comment
The missing of the important information could hinder the applicant’s understanding of the questions asked by the Member.

Mr Mitchell, for the first respondent, submits that for the applicant to succeed in ground one, he must establish that:
(a)the standard of interpretation at the Tribunal hearing was so inadequate that he was effectively prevented from giving evidence at the hearing; or
(b)errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal which were adverse to the applicant.
This was discussed by Mansfield, Emmett and Selway JJ in AppellantP119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [17].
Mr Mitchell submits in respect of first test that a review of the transcript of the Tribunal hearing indicates that both answers given by the applicant were responsive to the questions asked. The answers were also generally coherent and consistent with other answers. Mr Mitchell contends that it does not appear that there was any confusion in the exchanges between the interpreter and the Tribunal member.
This test was considered in Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507 at [41]-[42] per Kenny J:
41.What are the factors that might lead a reviewing court to conclude that the transcript of a Tribunal hearing discloses such incompetence in the interpretation that, in consequence, the applicant for refugee status can be said to have been effectively prevented from giving his evidence? In my opinion, those factors include, amongst others, the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, any evident confusion in exchanges between the Tribunal and the interpreter: cf Gonzales v Zurbrick 45 F.2d 934 at 936-37; United States v Urena 27 F.3d 1487 at 1492 (10^th Cir 1994); Acewicz v US Immigration and Naturalization Service 984 F.2d 1056 at 1062.
42 Whilst it is possible to divine the general thrust of the applicant's case from the transcript as a whole, his evidence, as given through the interpreter and transcribed, was, as we have seen, repeatedly unresponsive to the questions asked by the Tribunal. It was at times incoherent and inexplicably inconsistent with other evidence given. There are a number of exchanges between the interpreter and the Tribunal which evidence confusion on the interpreter's part as to the subject and direction of the Tribunal's inquiry; and it would seem that from time to time difficulties in communication actually led the Tribunal to abandon avenues of relevant inquiry. Speaking more generally, it is difficult to believe that the interpretation given is adequately expressive of Mr Perera's unchallenged account of himself as an attorney-at-law in Colombo. His evidence, as interpreted and transcribed, lacks the responsiveness and coherence of the well-educated person that he apparently is. It may be that Mr Perera's unresponsiveness and lack of coherence are indicative of a lack of candour on his part. It is, however, difficult to fathom what the applicant, an educated person, could hope to gain from an unresponsive approach, particularly having regard to the nature of his application for refugee status.
The test was also considered in Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [32]-[34] per Goldberg J:
32.It is therefore necessary to consider the manner in which the interpretation of the applicant's evidence was given before the Tribunal in order to determine whether any departure from the standard of interpretation related to matters which were significant in relation to the applicant's claims, and significant in relation to the reasoning of the Tribunal.
33. It is apparent from the transcript of the hearing on 11 April 2000 that there were a number of answers given by the interpreter which were not responsive to the Tribunal's questions and which showed an element of either confusion or misunderstanding as to what had been asked by the Tribunal.
34.The respondent responded to the applicant's submission on this matter by submitting that, although there may have been some non-responsive answers, or confusion, or misunderstanding as to questions, on critical matters the Tribunal persisted with questions until the matter was clarified. It was submitted that to the extent to which there was any misunderstanding or confusion which did not appear to be clarified, it did not relate to any critical or significant issue either in relation to the applicant's claims, or the Tribunal's reasoning.
Mr Mitchell submits in respect to the second test that the three different groups identified in the affidavit of Ke Ying Yao were not material to the Tribunal’s decision, and relies on WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 at [66]-[67] per Lee, Hill and Carr JJ:
66. It may be accepted that the expression `house arrest' was a term which was significant both to the appellant's claim and to the decision which the Tribunal reached. It may also be accepted that the function of an interpreter is to translate from a foreign language to English and vice versa at the Tribunal hearing, thereby placing the appellant as nearly as possible in the position of a person proficient in English by removing barriers which prevent or impede understanding or communication: see Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414 at 425 per Samuels JA. It follows from the fact that interpretation is not merely a mechanical exercise that there will be some words, of which `house arrest' may be an example for which there is no perfect translation: Perera per Kenny J at [25] - [26]. However, the requirement is not that there be a perfect translation, it suffices that the translation is sufficiently accurate as to permit the idea or concept being translated to be communicated.
67. This is not a case where the qualification or competence of the translator is called into question. Nor is it a case where the appellant has been effectively prevented from giving his evidence. A reading of the transcript does not suggest there was any confusion created, either as between the appellant and the interpreter or as between the Tribunal and the interpreter.
See also AppellantP119/2002 at [33], Soltanyzand v the Minister for Immigration & Multicultural Affairs [2001] FCA 1168 at [18]; Perera at [45]-[46]; Ismail v Minister for Immigration & Multicultural Affairs (1999) 59 ALD 773 at [25]-[26].
Mr Mitchell further submits that even if the affidavit of Ke Ying Yao is taken at its highest, the applicant was not denied the opportunity to answer significant questions about matters determinative of his claims. Mr Mitchell contends that the errors identified did not prevent the applicant from answering the Tribunal’s questions about the church in China, the bible, Christian practice or other theological issues. It was the nature of the applicant’s responses to these questions which were material to the Tribunal’s conclusions. There were no material errors that affected the applicant’s ability to answer questions on these topics, notwithstanding that the omission identified in the translation of one question concerned the number of books in the Old Testament. That question and the response was not material to the Tribunal’s decision.
While I acknowledge that in category one of Ke Ying Yao’s affidavit, the expression used in the interpretation is unusual in that context, the Tribunal approached the issue in different ways in an attempt to clarify further. By adopting this approach, I believe that the Tribunal was satisfied with the response before moving to a new issue. Further, this line of questioning did not form the reason or part of the reason for the Tribunal’s ultimate findings. Consequently, I am satisfied that the first example of the error in interpretation was not significant to the reasoning of the Tribunal.
The second example of the wrong year being quoted does not appear to have confused the Tribunal member because the line of questioning was based on a progression of what the applicant had done over a period of time, and working towards his date of departure. The Tribunal asked the applicant when he had been involved in various activities until his departure. The departure date, which the interpreter said was 2001, was clearly incorrect. However that did not influence the Tribunal member who said in the following statement:
Tribunal: That’s right, the end of 2001 will take you through to March. So from the end of 2001 to when you left China in 2002 you weren’t working?
That question clearly demonstrates that the Tribunal understood the applicant’s departure to have been in 2002.
The list of omissions in category 3 only represents a small part of the general area of knowledge that the applicant clearly lacked in relation to Christianity. When the applicant was unable to answer a question, the Tribunal moved on to a new question to examine the subject area. The Tribunal acknowledged that the applicant was unable to answer some questions on Christianity. The applicant’s failure to answer specific questions on Christianity did not, in itself, lead it to conclude that he had little knowledge of the subject. This became apparent as the Tribunal examined a wide range of issues with the applicant. While the omissions may have had some impact, the substantial determining factor in the Tribunal’s conclusions was the applicant’s general lack of knowledge on the subject.
I am not satisfied that the examples identified in the transcript as errors in interpretation had any impact on the final decision of the Tribunal.

Ground two

Mr Zhang indicated to the Court that he would not make any submissions in relation to the second ground of the further amended application.

Ground three

The Tribunal erred in failing to consider an integer of the applicant’s case or alternative he failed to consider a relevant consideration – namely its failure to consider the case of fear of persecution on the basis of imputed religious affiliation.

Mr Zhang submits that the Tribunal is required or obliged to investigate a case not expressively advanced by the applicant. He relies on NABE v the Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263 per Black CJ, French & Selway JJ at [58] and [63]:
58. … The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). … It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
63. 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.’

Mr Zhang referred to SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 265 and submits that three questions need to be answered:
1.   Did there exist the material available to the Tribunal an apparent case of imputed religious affiliation?
2.   If the above question is answered in the affirmative, then was there evidence upon which the Tribunal could make a finding necessary for the applicant to succeed?
3.   If the above question is answered in the affirmative, then did the Tribunal fail to consider such a case?
Mr Zhang contends that if all three questions are answered in the affirmative, then the Tribunal has erred and its decision is reviewable.
Mr Zhang referred to the following evidence in support of his argument that there was a clear case of imputed religious affiliation:
(a) Transcript at p 12:
Applicant: At the moment I am not exactly a true question. I only follow my parents and I always participate in church activities.
(b) Transcript at p 14:
Applicant: In regard to this, I am not really a professional Christian.
(c) Transcript at p 19:
Applicant: With my younger sister, occasionally…. my younger sister is a true Christian.
Tribunal: What did you do with your younger sister? I didn’t catch your first word.
Applicant: with my younger sister.
Tribunal: ya. But did you personally evangelise?
Applicant: I followed by sister, my younger sister, occasionally, when to do it.
Mr Zhang submits in respect to the second question that there was probative evidence which addressed the issue of religious affiliation. The Tribunal either accepted or did not deny the following matters discussed by the applicant during the hearing:
(a)that the applicant was detained in around 25 March 2001 for two weeks (transcript, p.18);
(b)that the applicant was detained again on 25 December 2001 for three weeks (transcript, p.19);
(c)that the applicant was detained as a result of joining in secret church meetings or due to suspected religious affiliation; and
(d)that the applicant feared persecution for his reasons if he returned to China (transcript, p.20).
Mr Zhang submits that if I accept his argument, the applicant’s answer to that question would be probative evidence of subjective and objective fear of persecution for a Convention reason. He acknowledges that the sole finding of the Tribunal was an adverse finding on the applicant’s credibility because of his “limited religious knowledge” and limited church attendance in Australia. However, Mr Zhang argues that this does not prevent a finding of imputed religious affiliation as the Tribunal fundamentally misunderstood the applicant’s case. He referred to the evidence given at the hearing that the applicant was not a true Christian (transcript, p.12). However, a lack of religious knowledge or church attendance in Australia would not be a bar to a finding of imputed religious affiliation.
In respect of the third question, Mr Zhang referred to WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [47] per French, Sackville and Hely JJ:
47.The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
Mr Zhang argues that in the matter before this Court, the Tribunal did not expressly dealt with the issue of imputed religious affiliation in its findings and reasons. Mr Zhang contends that all three questions posited above at [20] above can be answered in the affirmative and that the Tribunal, in failing to consider this issue, made a jurisdictional error.
In respect of the third ground, Mr Mitchell referred to Appellant S395 of 2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71 at [1] per Gleeson CJ:
1. The system of judicial review of administrative action, as it operates in relation to visa applications by people seeking acceptance as refugees, often means that, by the time a case reaches this Court, it is at the fifth level of decision-making. It may be, as in this case, that there have been adverse decisions at the first and second levels (the Minister's delegate and the Refugee Review Tribunal ("the Tribunal")) and that the Tribunal's decision has been upheld at the third (Federal Court of Australia) and fourth (Full Court of the Federal Court) levels. It may not be surprising that, at the fifth level, an appellant will look for a new way of putting a case that has already failed on four occasions. The case put to this Court may bear little relationship to what was previously advanced, considered, and rejected. There is a risk that criticism of the reasoning of a decision-maker at an earlier stage might overlook the forensic context in which such reasoning was expressed; a context that may have changed almost beyond recognition. Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process.
Mr Mitchell also referred to SDAQ at [19]:
19.For the purposes of this appeal, the alternative case of a well founded fear of being persecuted for reasons of religion as a result of having imputed to the appellant the religious beliefs of those Baha'is with whom he associated, had to arise squarely on the materials available to the RRT before it had a statutory duty to consider it. That is, it had to arise squarely on the history of past events and the account and justification of present fears. It required that it was open to the RRT to make all necessary findings of fact to satisfy the definition of refugee referrable to a fear of being persecuted for reasons of religion as a result of having imputed to the appellant the Baha'i religious beliefs of his girlfriend and associates. It required a subjective fear of being persecuted which was well founded and further that the reason for such persecution was, or would be, imputed Baha'i religious beliefs. The question of having a well founded fear of being persecuted did not arise unless the appellant in fact had a subjective fear of being persecuted and that feared persecution was for an imputed Baha'i religious belief.
Further, NABE (No. 2) at [60] states:
This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.
Mr Mitchell then referred to the transcript of the Tribunal hearing where the following sequence of questions occurred:
Tribunal: So why did you fear return to China now?
Interpreter: Because I receive persecution from the [Chinese] government. I lost my religious freedom.
Tribunal: Okay. So you fear harm for reasons of religion, is that correct?
Interpreter: Yes.
Tribunal: Okay. So what religious denomination do you follow?
Interpreter: Christian.
Tribunal: What one?
Interpreter: Protestant.
Tribunal: Which one? There are a number of branches of Prostestantism. I just wonder which one do you attend.
Interpreter: My mother has been a believer since I was young, I do not know which denomination, maybe in China it’s not divided into such details.
Tribunal: So you don’t know which branch of Protestantism you follows?
Interpreter: That’s correct. I only know that is Christianity. At home there is only the distinction between Catholicism and Protestantism and I am Protestant. (transcript, p.11)
Shortly after in the same group of questions, the following discussion occurred:
Tribunal: So when did you become a Christian?
Interpreter: At the moment I am not exactly a true Christian. I only follow my parents and I always participating in Church activities.
Tribunal: Okay then. Would you describe yourself as a Christian or not?
Interpreter: But Christians you have to be baptised before you can be a true Christian.
Tribunal: So you haven’t been baptised?
Interpreter: Yup.
Tribunal: Okay. Apart from baptism, would you consider yourself to be a Christian?
Interpreter: I go to Church on Sundays, and I go to weddings and I take part in prayers.
Tribunal: Do you read the Bible?
Interpreter: Occasionally there was a period of time I read it. (transcript, p.12)
The Tribunal came to the following conclusion in its Findings and Reasons:
The Tribunal has made grave adverse credibility findings regarding the applicant’s religious beliefs, finding that it cannot be satisfied that the applicant was ever a Christian prior to coming to Australia.
In summation
The Tribunal finds that the applicant’s almost complete lack of knowledge about the Bible, Christian practices and other theological issues, combined with his failure to attend Church for four years despite being in Australia where there is freedom of worship, leads the Tribunal to the finding that the applicant is not, and has never been a Christian, and that he has fabricated this claim to enhance an application for refugee status. (CB 77.5)
Mr Mitchell submits that the issue raised in ground three is subsumed in the applicant’s overall claims. It is not for the Tribunal to speculate that the applicant may suffer persecution for an imputed religious belief which has not been articulated. Nor is it apparent from the material that he would be subject to persecution because of his religion or an imputed religious affiliation.
At the Tribunal hearing on 5 February 2007, the applicant gave evidence which is summarised as follows:
The Tribunal asked the applicant when he became a Christian. The applicant stated that he is not exactly a true Christian. The applicant stated that he follows his parents. The Tribunal asked the applicant if he would describe himself as a Christian or not. The applicant stated that you have to be baptised. The applicant stated that he has not been baptised. The Tribunal asked if apart from Baptism he would consider himself a Christian. The applicant stated that he goes to Church, he goes to weddings, and he takes part in prayer. (CB 69.8)
I am satisfied that any claim that the applicant may have in respect to his alleged practice of Christianity in China has been considered by the Tribunal in its examination. During the hearing, the Tribunal member discussed and questioned the applicant on his observance of his alleged Christian faith. An examination of the Court Book, the Tribunal decision and transcript of the hearing does not suggest that any integer of the applicant’s claim was overlooked or ignored. I do not believe that the Tribunal failed to consider the applicant’s fear of persecution based on an imputed religious affiliation. This ground cannot be sustained.

Conclusion

I am satisfied that neither of the grounds contained in the further amended application which were argued by the applicant’s legal representative can be sustained and consequently the application should be dismissed.
I am satisfied an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 14 December 2007