SZMBT v Minister for Immigration - [2009] FMCA 311

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMBT v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 311

MIGRATION – RRT decision – Chinese applicant claiming persecution in underground church – gave evidence of ‘covering the head’ name given by outsiders – did not raise claim to be specially persecuted – no failure by Tribunal to address refugee claims – no duty to make further inquiries – jurisdictional error not established – application dismissed.

Migration Act 1958 (Cth), ss.91R(3), 425

Minister for Immigration & Multicultural Affairs v SZFDE (2006) 154 FCR 365
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441
SZMBT v Minister for Immigration & Anor [2008] FMCA 862

Applicant:

SZMBT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3118 of 2008

Judgment of:

Smith FM

Hearing date:

1 April 2009

Delivered at:

Sydney

Delivered on:

1 April 2009

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr R Baird

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3118 of 2008

SZMBT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia in July 2007. The evidence suggests that he had a son studying here, who was suffering some mental illness. On 21 August 2007, he applied for a protection visa. The application was completed without any apparent assistance, and attached only a short statement explaining why the applicant claimed to fear persecution if he returned to the People’s Republic of China.
The applicant said that he had met a person who was a “Christian” in 1988. He accompanied this person to different villages to do missionary work, and “influenced by him, I became a genuine Christian, I have regular religious service, and I helped to do missionary work”. In 1992 he and his friend were arrested, and he was detained for two days for interrogation before being released on a fine. However, the friend was sent to gaol, and, he said: “I took up his position to be in charge of the family churches”.
He referred to his son being born in 1990, and “influenced by me, my son was involved with religious activities when he was very young”, and “because of his involvement with family churches, I worried that he would suffer more persecution from the Chinese government”. He suggested this was the reason why the son was sent to study in Australia. He said:
Now I am in Australia, I worry about my own safety and my son’s safety in China. I worry about my son’s illness every day. My son has become the victim of the persecution from the Chinese government for his religious belief; I do not want to return to China because of my involvement with family churches in China too.
It should be noted that the applicant made no mention of any particular denomination or name or label applied to the “family churches” in which he claimed to have been active. His visa application elsewhere described his religion only as “Christianity”.
No further details of these claims were provided to the Department of Immigration, and a delegate refused the visa application on 20 September 2007. The delegate said that he was not satisfied that the applicant had substantiated a claim of well‑founded fear of persecution, due to the absence of details and supportive evidence, and the ability of the applicant to depart China on a valid Chinese passport issued in his own name.
The applicant appealed, and presented his only supporting evidence, being a letter from a Minister of the Padstow Chinese Congregational Church in Sydney. This confirmed that the applicant had been regularly worshipping at that church.
The applicant’s refugee claims were addressed by two members of the Tribunal. The first member held a hearing to which the applicant attended and gave evidence for a lengthy period on 5 December 2007. The decision subsequently handed down by that member was set aside in a considered judgment in this Court (see SZMBT v Minister for Immigration & Anor [2008] FMCA 862). I am now called upon to consider the subsequent decision by the Tribunal as reconstituted. However, that member took into account the evidence given by the applicant to the first Tribunal, as well as further evidence given by the applicant to it. It is necessary for me to consider the evidence given to the first Tribunal member, in particular to consider how the applicant presented his claims.
There is in evidence a transcript of the hearing held by the first Tribunal. This generally appears to have been fully and accurately recounted by that Tribunal in its statement of reasons, in a passage which was subsequently extracted in the statement of reasons of the reconstituted Tribunal. In the applicant’s present application to the Court, he draws attention to parts of the hearing in which he referred to a name which was given to members of his congregation in China by other people. The first Tribunal referred to this evidence, and the context in which it was provided, in the following passage which covers transcript pages 5‑14:
The applicant stated that he was still attending gatherings prior to coming to Australia and they were held in different homes in different villages. There is usually one home in each village. It is not like Australia as there is no Christian church in China except for Catholics. The Tribunal put to the applicant that independent information indicates that Christians do have their own churches in China. The applicant stated that in China the church is open on a Saturday and if he attended he would have had to take a bus and the trip takes 40 minutes. The Tribunal asked the applicant if he attends gatherings at people’s homes because they are closer to where he lives. The applicant stated that if many people go on the bus it is not easy or convenient whereas each village has home gatherings. The Tribunal asked the applicant if he is saying that he could attend the state recognized Saturday service but it is easier to attend locally. The applicant stated that his religion and their religion are totally different. Their religion is ‘hallelujah’ and his religion is called ‘covering the head’ religion. The Tribunal asked the applicant why it has this name. The applicant stated that it is not written in the Bible but in their hometown they say that they believe in Mary, the mother of Jesus. The Tribunal asked the applicant what is the significance of covering the head. The applicant stated that Mary herself was sent by God and he cannot explain the significance of the name. The Tribunal asked the applicant how many people belong to the same religion as him. The applicant stated that in the village there may be more than 2000 people but only tens of people believe in his beliefs. At a religious gathering there might be more than a hundred people but sometimes there might only be tens of people. The Tribunal asked the applicant if all the people at the gathering belong to the covering the head religion and the applicant stated that they do belong. The Tribunal asked the applicant if there is a priest or Minister and he stated that there is. The Tribunal asked the applicant if the gathering in China was similar to the gathering of the Congregational Church in Australia and the applicant stated that it is not. The Tribunal asked the applicant why he attends the Congregational Church if it is different. The applicant stated that it is because the church in his hometown is very low level whereas the service here is very good and is high‑level. (emphasis added)
The Tribunal later asked further questions about the differences between his church and the official churches, and gave the following account of the applicant’s evidence which is found at transcript pages 19‑21:
The Tribunal asked the applicant to further explain the differences between his religion and the official religion; what did he mean when he referred to ‘hallelujah’. The applicant stated that they believe in something but he does not know what but because his religion is the ‘covering the head’ religion it is quite different. The applicant stated that he covers his head once per month and men use a black cloth and women use a special cloth which has holes in it, and which they purchase. Women might also cover their heads when they are praying at home.
The Tribunal asked the applicant what he does when he goes to villages to spread religious information. The applicant stated that he was the helper of the person who gave the sermon. They normally spread religious information at gatherings, at homes. They tell them what is written in the bible and to live as a better human being. The applicant stated that he would give the introduction before the sermon. At the start people would sing songs praising Jesus Christ and God and they would say ‘amen’. At gatherings the brothers and sisters talk about their worries and then prayers are said for them. They commemorate Jesus Christ and then they drink the blood of Christ and eat the bread.
As well as asking the applicant questions about his participation in an underground church, the first Tribunal member questioned him about his claims to have been arrested and detained. The applicant gave clearly inconsistent evidence to the Tribunal member about this. At the end of the hearing, when the Tribunal put to him that he and his church did not appear to have suffered any further incidents after 1993, the applicant gave evidence that there were further detentions of him in subsequent years, and he also claimed to have suffered difficulties as a result in getting a passport and at the airport, where he had been in the company of a person who was a member of the Padstow congregation.
The Tribunal earlier questioned the applicant about his religious beliefs, and the applicant showed some knowledge of Christian beliefs. This tended to suggest that his congregation was part of the mainstream of Christianity, and that the Bible which was studied was the mainstream Christian Bible. I shall below extract the particular parts of the transcript referring to the “covering the head” name given to the congregation. However, I note at this stage of my reasons, that I can find no suggestion by the applicant in the whole of his evidence to the Tribunal that his particular congregation suffered greater or different adverse attention from the Chinese authorities than members of other unregistered home churches or underground churches.
In the proceedings in this Court concerning the first Tribunal’s decision, the applicant was represented by experienced counsel. The contention which was made on his behalf, and accepted by Orchiston FM, was that that Tribunal member failed to allow the applicant to explain why his fears in relation to persecution of his son had a bearing on his own claims. Her Honour accepted that there had been a denial of that opportunity, and also a related jurisdictional error because the Tribunal failed to address that element in the applicant’s claims to be a refugee. It was not argued to her Honour that the Tribunal failed to address a refugee claim relating to the name or other particular character of the applicant’s underground church.
On remitter, the applicant did not present any further documentary material to the Tribunal. He attended a hearing to which he was invited by the reconstituted Tribunal held on 2 September 2008. A transcript of the hearing has not been tendered by either party before me. From its description, the Tribunal member informed the applicant that it would be taking into account his previous evidence, as well as any additional evidence given by the applicant to it.
The Tribunal fully explored the applicant’s claims concerning his fears in so far as they related to his son’s involvement in the Christian religion. The applicant told the Tribunal that his son had had no experience of being arrested in China, nor had he experienced any difficulty in China relating to the practice of his religion. He told the Tribunal that his son had never been present when any arrests were made by the PSB.
The applicant also resiled from evidence he had given to the first Tribunal, claiming that he had received attentions from the Chinese authorities subsequent to 1993.
The applicant referred to his continuing attendances at a mainstream church in Australia:
28.The Tribunal referred to the applicant’s church attendance here in Australia, as noted at the first Tribunal hearing, and asked whether he continues to attend the Padstow Christian Congregational Church. He said he was still attending every week on Sundays and noted that it was different from his church in China. He said that the Pastor there is a very good preacher. He said that he also attends religious lectures on Wednesdays with his son. He said that he has recently been working in Canberra so could not attend on Wednesdays, but was also attending church on Saturdays. He said that others in his building from his village looked after his son while he was in Canberra. He said that his son also attends church regularly on Saturdays and Sundays.
He continued to refer to his church in China only as an “underground church”. For example, as the Tribunal described at paragraph 30:
30.The Tribunal then asked the applicant whether there had been any developments or changes in China which might relate to his claims. He said that he has talked to his family on the phone. He said he had been told that, since he left, their underground church hides even more nowadays. As to why, he said that if they do not hide, the local PSB and police may investigate them. As to whether his wife had told him this, he said it was actually a church brother. As to when he last spoke with the brother, he said it was a couple of months ago. As to how many times he has spoken to church brothers, he said three times, all to the same brother. He said he has spoken to his wife but they have not talked about church. As to whether there was anything else he wished to tell the Tribunal of, he said that in the last phone call the church brother told him to work well for God ‘when outside’.
The Tribunal handed down a decision on 21 October 2008, which affirmed the delegate’s decision. As did the first Tribunal, the Tribunal extracted in its decision independent country information concerning religious freedom in China, and the persecution of adherents of congregations of Christians which are not part of the registered churches. This part and other parts of its statement of reasons shows that, like the first Tribunal, the present Tribunal member understood the applicant’s refugee claim to be that his congregation was persecuted in a manner similar to other unregistered Protestant “house churches” which from time to time have suffered persecution in China. The information identified by the Tribunal pointed to differences in the treatment of underground Christians or members of unregistered home churches in different parts of China, including the applicant’s province of Fujian where there was a “generally liberal application of official religious regulations”.
The Tribunal considered the applicant’s evidence about his arrest and detentions, and noted that the applicant had admitted that evidence previously given to the earlier Tribunal was not true and that other evidence he had given was inconsistent. The Tribunal said:
72.The Tribunal thus has little faith in the evidence of the applicant that he, or members of his church, were arrested, detained, or beaten by the police at any time because of their religious practice. The Tribunal considers these events have all been fabricated to give the appearance that the applicant is being persecuted for his religion. Further, the Tribunal does not accept that the religious leader of the applicant’s church had an exchange with a government official in 1994 or 1995 as claimed.
73.However, this does not mean that the Tribunal disregards all of the applicant’s claims. Based on his knowledge of Christianity, the Tribunal accepts that the applicant is telling the truth that he and his son were Christians and members of a religious group in China.
(emphasis in original)
The Tribunal considered whether the applicant was, as he claimed at times, “a leader” of his church, but concluded:
75.Based on the more detailed oral evidence of the applicant, the Tribunal finds that the applicant was not the leader of his church as claimed in his protection visa application statement. As to his actual role in the church, based on the Tribunal’s finding that the applicant is prepared to fabricate evidence to support his central claims, the Tribunal finds that he is a long‑standing church member who helps the leader, but has exaggerated his level of responsibility by calling himself ‘a leader’. Rather, the Tribunal finds that he was merely a member of the church.
The Tribunal said that it did not accept that the applicant was a member of a church which had to hide from the Chinese authorities. It said this was not consistent with the applicant’s evidence that he was involved in publicly spreading his religion. It did not accept that he had any difficulties in leaving China, because these claims were based on his claims to have been arrested which it did not accept. It thought that any difficulties encountered at the airport were due to the authorities’ interest in the person he was accompanying.
The Tribunal extensively considered the applicant’s evidence relating to his son. It concluded that the son’s religious experiences in China “do not add in any way to the claims of persecution being made by the applicant”. It considered the applicant’s claims concerning the son’s mental health problems, but said there was no supporting evidence for the claim that his problems arose because of his or his father’s treatment by the authorities as the member of an underground Christian church in China.
It then considered “the independent country information” on the basis that the applicant “was a member of an unregistered house church”. It said:
88.The Tribunal now turns to the independent country information. If the applicant was a member of a registered church, the information suggests there would be no risk to the applicant. If the applicant was a member of an unregistered house church, it is suggested that in some regions of China, house churches with memberships in the hundreds are able to operate openly with the knowledge of the authorities. The independent country information also reports considerable religious freedom in Fujian Province, which is where the applicant resides. However, there are reports of occasional crackdowns on some groups, in Fujian Province and elsewhere. The Tribunal concludes that many unregistered house churches in Fujian are able to operate without official interference or harm and, while there is some risk, in the absence of evidence to the contrary, the risk of serious harm to most of these practitioners is remote.
89.The Tribunal notes that at the first hearing, the Tribunal member put to the applicant that the country information suggests that in some areas of China the authorities are tolerant of house churches and the applicant did not respond directly on this point.
90.Based on the Tribunal’s finding that the applicant is a Christian and a member of a religious group in Fujian, and its finding that the applicant, his son, or any members of his church, have not been subjected to arrest, detention or any physical abuse because of their religious practice, and after considering the available independent country information, the Tribunal is of the view that the reason the applicant and his religious group have not come to the authorities’ attention is either because their religious activities are officially accepted or because they are officially tolerated.
91.The Tribunal considers that the applicant’s fear of persecution is mere speculation on his part and does not amount to a real chance of serious harm being inflicted on him by the authorities. His fears are, in the Tribunal’s view, a remote possibility and thus, he cannot be considered to have a well‑founded fear of persecution.
92.The Tribunal concludes that the applicant is not of interest to the authorities for his membership of a Christian church or group, or because of his past religious practice, in China. Thus, he would not be of interest should he return, either now or in the reasonably foreseeable future, because of this past religious practice. He would be able to practise his religious belief openly without fear of persecution and not have to modify his behaviour in any way.

The Tribunal took into account the applicant’s activities in Australia, because it was satisfied that he had been attending the Padstow church because he was a Christian, and that s.91R(3) of the Migration Act 1958 (Cth) did not apply. However, the Tribunal noted that there was no claim that his attendance at that church would have “any detrimental effect on him in relation to the authorities, should he return to China”. It found that they would not lead to religious persecution in China either now or in the foreseeable future. It therefore found that Australia did not owe protection obligations to the applicant.
The applicant now asks the Court to set aside the second Tribunal’s decision and to remit the matter. I can only do that if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant is a refugee, or is entitled to a protection visa or any other permission to stay in Australia.
The applicant relies on an argument which is presented in his original application, and has not been further explained by any additional evidence, amended application or written submission. The argument is presented as follows:
1.The RRT decision was affected by jurisdictional error.
a)The applicant claims before the Tribunal that he is a member of an underground Christian group in Fuqing known as Mengtou Sect. The Tribunal member spent about 30 minutes discussing with the applicant what is Mengtou Sect because the Tribunal has no information at all from other sources regarding the underground Christian group.
b)The Tribunal’s decision has no record of any discussion of Mengtou Sect. There is no indication that the Tribunal has made any efforts to obtain more information about Mengtou Sect.
c)The applicant claims that Mengtou (in Chinese), literally means covering head in veil. Female members of this sect have their heads covered by a black veil when practicing. Members of this religious group are severely persecuted by the Chinese Government.
d)The Tribunal made a jurisdictional error by failing to consider a material claim made by the applicant and failing to make necessary efforts to seek more information.
In effect, this contention relies upon well known authorities which require the Tribunal to address all elements in refugee claims raised in the matter before it, and which find jurisdictional error where a Tribunal overlooks, misunderstands, or misconstrues a claim made by an applicant to qualify as a refugee (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63]). That error, however, only arises where the claim which was not addressed was clearly articulated or raised by clear implication in the material before the Tribunal.
In NABE, their Honours said at [62]:
62Whatever the scope of the Tribunal’s obligations it is not required to consider criteria for an application never made. The application for protection visas by a mother and her children on the basis that they were refugees was not required to be considered as though it were an application in their capacity as the family of a man who had been granted a temporary protection visa: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [31]‑[32]. Gleeson CJ generalised from this, albeit in dissent, in S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1]:
Proceedings before the tribunal are not adversarial; and the 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.
The cited passage from the judgment of Gleeson CJ and McHugh, Gummow, Hayne and Callinan JJ in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 is:
31None of the prosecutors relied upon the position of their husband and father as the main applicant to found a claim that they fell within the second category. The reasons why they did not do so are apparent, at the least, from their then state of knowledge respecting his whereabouts. The Tribunal was required to review the decision of the delegate who, in turn, had been required (by s 47) to consider the application and the criteria which that application had to meet, not the criteria for an application, never made, which might have been put on another basis.
32Section 65(1) obliged the Minister, and thus the Tribunal, to determine their satisfaction as to whether the criteria for the visas sought had been satisfied. Paragraphs 785.21 and 785.22 posited criteria expressed in disjunctive terms, as indicated earlier in these reasons. There is no obligation imposed by s 65(1) to reach a state of satisfaction (or otherwise) respecting criteria which the prosecutors did not advance. There was no misapplication of the relevant criteria by the Tribunal and no jurisdictional error.
Other authorities supported the opinion of Graham J in Minister for Immigration & Multicultural Affairs v SZFDE (2006) 154 FCR 365 at [199]):
199The Tribunal member conducting an inquiry is obliged to be fair. However, the Tribunal is not in the position of a contradictor of a case being advanced by an applicant. In a case such as that brought by the first‑named first respondent under her application for review to the Tribunal, it was for her to advance whatever evidence or argument she wished to advance and for the Tribunal to decide whether her claim that she was a refugee, within the meaning of the Refugees Convention had been made out. The Tribunal was not obliged to prompt and stimulate an elaboration which she may have chosen not to embark upon (per Gummow and Heydon JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte S154/2002 (2003) 77 ALJR 1909 at [57]‑[58]).
A contention such is as made by the present applicant to the Court must be addressed by taking a realistic understanding of the refugee claim actually made by the applicant in his evidence to the Tribunal. If, as I have concluded, the applicant’s present contention is no more than an invitation for the Court to take into account a fact or information which was not shown to have been known by the Tribunal, which was not presented to it by the applicant, and which it was under no special obligation to discover by its own enquiries, then no jurisdictional error is established. As the authorities quoted above made clear, the Tribunal is obliged to do no more than address the claims fairly which were presented before it. If, as I conclude, the applicant made no claim to be at heightened risk because of a particular characteristic of his Christian congregation in China which marked it out for special attention over and above the attentions paid by the Chinese authorities to other underground or home churches, then the Tribunal did not err in its approach to the applicant’s claims.
As I have set out above, the applicant’s statement in support of his visa application made no claim that his own family church was specially distinguished and persecuted, and the history which he presented did not suggest this.
Before the first Tribunal, his claims were similarly explained to the Tribunal in terms which did not mark out his congregation as being at special risk. At transcript pages 5‑7 at the start of the Tribunal’s questioning concerning his involvement in a Christian congregation, the applicant identified his religion only as “Christianity” and as being “the religion of the underground church”. His evidence appeared to distinguish membership of his church only with membership of an official or registered church, and not with other underground churches.
The only reference to a distinguishing name given to the congregation was made in the context which I have described above. The particular passages are at transcript pages 11‑13:
TRIBUNAL MEMBER: And so did you participate in religious activities?
APPLICANT: My friend was sentenced to two years imprisonment and then I participated in the religious activities on behalf of my friend.
TRIBUNAL MEMBER: So where were those activities?
APPLICANT: In different villages, in different villages.
TRIBUNAL MEMBER: So before you came to Australia, were you still attending religious gatherings?
APPLICANT: Yes.
TRIBUNAL MEMBER: So where were those gatherings held?
APPLICANT: In people’s home in the village.
TRIBUNAL MEMBER: In different homes or the same home?
APPLICANT: There is one home in each village. It is not like in Australia, there is no Christian building or Christian church in China but the Catholics they have their own church.
TRIBUNAL MEMBER: I think the Christians do have their own churches in China according to the information I have read.
INTERPRETER: Can I clarify with him first?
TRIBUNAL MEMBER: Yes.
APPLICANT: In China in the church it is open Saturday and if I go to that church on Saturday I have to be on the bus for forty minutes to go to the centre of the county.
TRIBUNAL MEMBER: So are you saying that you go to gatherings in people’s homes because they are closer?
APPLICANT: You know if so many people go to the church on Saturday to take the bus it is not very easy, not very convenient, and you know in our village, that is to say they have various home gatherings, so those people are used to go to the family gathering, they are not used to go to the Saturday service.
TRIBUNAL MEMBER: So are you saying though that you could go to the Saturday service which the Government recognises but instead you go to a local gathering because it’s easier?
APPLICANT: It’s another question. And another issue is that our religion and their religion are totally different.
TRIBUNAL MEMBER: So what is the difference?
APPLICANT: The difference is that their religion is Hallelujah.
INTERPRETER: Can I ask him to write down the name of the religion?
TRIBUNAL MEMBER: Yes.
APPLICANT: Our religion is called covering your head, covering head religion.
TRIBUNAL MEMBER: What does that mean? Why is it called covering head religion?
APPLICANT: Actually it is not written in the Bible. In my home town people say we are believing in Jesus’ mum.
TRIBUNAL MEMBER: In who?
APPLICANT: Jesus’ mother.
TRIBUNAL MEMBER: What was the name of Jesus’ mother?
APPLICANT: Mary.
TRIBUNAL MEMBER: And so what is the significance of covering of the head?
APPLICANT: Because Mary herself was God, stands by the Gods to the earth.
TRIBUNAL MEMBER: But why is it called covering the head?
APPLICANT: It’s hard to explain the name, I can’t do it, I don’t know how to explain.
TRIBUNAL MEMBER: So how many people belong to the same religion as you?
APPLICANT: You know the population in our village is more than 2,000, only tens of people believe in this belief.
TRIBUNAL MEMBER: So how many people would there be at a gathering, a religious gathering?
APPLICANT: You mean how many people participated in religious gathering?
TRIBUNAL MEMBER: Yes.
APPLICANT: Some gathering are more than a hundred people participated in this gathering and sometimes tens of people participated in other gathering.
TRIBUNAL MEMBER: So are all the people at the gathering part of the covering the head religion?
INTERPRETER: Can I clarify one term with him?
TRIBUNAL MEMBER: Yes.
APPLICANT: People who do not belong to our religion called covering head religion.
TRIBUNAL MEMBER: Do not belong?
APPLICANT: Do not belong but they call us covering head religion.
And at transcript pages 19‑20:
TRIBUNAL MEMBER: And you told me before that there were big differences between your religion and the official religion. Can you tell me some more about what those differences are?
APPLICANT: I think didn’t you ask this question before?
TRIBUNAL MEMBER: And you said something about their religion is Hallelujah. What did you mean by that?
APPLICANT: I mentioned that their religion is Hallelujah, that is they believe in something because I don’t believe in their religion so I don’t know.
TRIBUNAL MEMBER: How do you know what the difference is between your religion and their religion?
APPLICANT: Because our religion is covering head religion so we are quite different religion. And what we talk about, about the religions are quite different.
TRIBUNAL MEMBER: Do you have to cover your head as part of your religion?
APPLICANT: I do it once a month and the women in my home town they do it.
TRIBUNAL MEMBER: Do what, cover their heads, is that what you mean?
APPLICANT: Yes, they cover their head.
TRIBUNAL MEMBER: What do you cover your heads with?
APPLICANT: Our men, we men use the black cloth to cover our head.
TRIBUNAL MEMBER: And what do the women use?
APPLICANT: Women use special cloth, you know there are some holes in their black cloth, there are some cloths like that available, you can buy it.
TRIBUNAL MEMBER: You said you cover your heads once a month, is that when you go to a religious meeting or is that some other time?
APPLICANT: That’s when I go to different villages to spread the religious information.
TRIBUNAL MEMBER: Do women only cover their heads once a month?
APPLICANT: Women sometimes when they are doing the praying at home at night they cover their heads.
TRIBUNAL MEMBER: So when you go to the different villages to spread religious information, what do you do?
INTERPRETER: Can I ask him to write down?
TRIBUNAL MEMBER: Yes.
APPLICANT: I was helper of the person who give the speech or do the preaching, that is to say I will do as a Christian person should do.
TRIBUNAL MEMBER: So when you were spreading religious information did that happen at a religious gathering or did you go to people’s different houses, what did you do?
APPLICANT: Normally we spread the religious information to the gatherings at home.
TRIBUNAL MEMBER: What is the information that you are spreading?
APPLICANT: To tell them what is written in the Bible and to tell them how to behave as a human being.
As I have noted above, although the applicant referred to a particular characteristic of his congregation in relation to a practice of covering the head, and a name which those who did not belong to the congregation accordingly gave its followers, I do not consider that the Tribunal was obliged to understand that the applicant was claiming that this characteristic gave rise to any special or different attention from the authorities, compared to the authorities’ attitude towards any other unregistered Christian congregation. Indeed, I do not consider that such a claim was made or implied by this evidence, and certainly not by any other passage of the transcript or other material which was presented to the Tribunal by the applicant.
The applicant’s contention in his ground of application, and in his oral submissions to me, was that the Tribunal did not know that there was a sect of persons known as Mengtou who are “severely persecuted by the Chinese Government”. In effect, this concedes that this was not a fact or claim which he ever communicated to the Tribunal himself. Whether the now asserted fact is true, is something unknown to the Court and no information showing this has been presented to the Court. Moreover, it is not the task of the Court to decide this. More importantly, no such information was ever presented by the applicant to the Immigration Department or Tribunal.
The general country information which the Tribunal considered based on its own researches was, as I have indicated, not directed at a claim that the applicant belonged to a particularly persecuted religious sect, because that claim was not, in my opinion, made to the Tribunal. The Tribunal has a general discretion to rely on such researches (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]). In my opinion, it was open to the Tribunal to understand the applicant’s claim only as raising for its consideration whether the applicant would be persecuted as a member of an unregistered Christian house church. The general country information which it took into account was relevant to that claim, and was addressed in a manner which was open to the Tribunal.
I am therefore not satisfied that the Tribunal made a jurisdictional error by failing to consider a material claim made by the applicant to the Tribunal.
Since I do not consider that the now contended claim was raised by the evidence before the Tribunal, the further contention that the Tribunal failed to make “necessary efforts to seek more information” cannot be made out. In my opinion, the applicant was afforded the opportunity he is entitled to under s.425 and other provisions of the Migration Act, at both hearings before the Tribunal, to present evidence raising a claim that his congregation was specially persecuted in China compared to other house churches or underground churches. The fact that he did not raise that information, if indeed it exists, does not now provide jurisdictional error vitiating the Tribunal’s decision.
I must therefore dismiss the application.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 21 April 2009