SZNIW v Minister for Immigration - [2009] FMCA 757

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNIW v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 757

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to comply with s.424A of the Migration Act – whether the Tribunal had regard to irrelevant considerations – whether Tribunal acted as arbiter of doctrine – whether Tribunal set a knowledge of Christianity that the applicant was required to meet – whether Tribunal failed to comply with s.425 of the Act.

Migration Act 1958 (Cth), ss.424AA, 424A, 425

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165
Mashayekhi v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 381
SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
SZMCD Minister for Immigration and Citizenship and Another (2009) 174 FCR 415
SZMSG v Minister for Immigration and Citizenship [2009] FCA 505
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2
Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548

Applicant:

SZNIW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG639 of 2009

Judgment of:

Barnes FM

Hearing date:

20 July 2009

Delivered at:

Sydney

Delivered on:

14 August 2009

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Ms T Wong

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG639 of 2009

SZNIW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal dated 16 February 2009 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People's Republic of China, arrived in Australia on 8 December 2007 and applied for a protection visa on 30 July 2008. The application was refused and she sought review by the Tribunal. She attended a Tribunal hearing.
The applicant claimed to fear persecution on the basis that she had been a practising Christian in China since 2006. She claimed that she was introduced to religion by a doctor who had assisted her father after he suffered from an illness due to mistreatment he experienced while detained in 2006 for allegedly framing government officials.
The applicant claimed that after her father's death the doctor encouraged her and her husband to attend religious gatherings organised by a named underground Christian church which met at the doctor's apartment. The applicant claimed that she remained in the town where the doctor lived (where her father had been in hospital and her husband worked) from October to December 2006, attending weekly worship together with her husband. She claimed that she and her husband were baptised on 25 December 2006. In January 2007 she returned to her hometown in Fujian province to look after her children. She claimed that through an introduction from the doctor she met another named person who was in charge of an underground church in Fujian province.
The applicant claimed that the doctor was arrested in February 2007 and that the applicant's husband was arrested at the same time, detained for a month and released after payment of a bribe. She claimed that the doctor was sentenced to three years reform through labour and that subsequently the applicant's husband decided to arrange for the applicant to accompany her child to Australia because he thought that she would be in trouble with the authorities sooner or later.
The applicant claimed that after she came to Australia her husband had bribed police and officials at the labour camp to obtain the doctor’s temporary release for medical treatment. She claimed that her husband unsuccessfully attempted to assist the doctor to leave China. The applicant claimed that the doctor was arrested at an airport while attempting to leave China and that her husband had gone into hiding.
The applicant claimed that she and her husband were regarded as key persons in organising the attempt by the doctor (a key religious dissident) to escape overseas and that they were regarded as key members of the underground church. She claimed that the police had visited her husband's company in Fujian on three occasions between June and July 2008. She also claimed that she had been put on the PSB blacklist and would be arrested on return to China.
The applicant provided the Department with copies of translated documents said to be certificates of detention and discharge in relation to her husband.
In its reasons for decision the Tribunal recorded at some length the evidence given by the applicant at the Tribunal hearing. This is the only evidence before the Court of the conduct of the Tribunal hearing.
In its findings and reasons the Tribunal found that the applicant did not have a well-founded fear of persecution. While it accepted her claims that she had a limited level of education and that she was nervous in the hearing, the Tribunal was not satisfied that any nervousness or her limited education accounted for the evidentiary problems it discussed.
The Tribunal acknowledged that the applicant came from a country where there were serious human rights issues, including restrictions on religious freedom, that religious beliefs and faith were personal matters, that there were many devout Christians who may not have an encyclopaedic knowledge of Christianity and that education could play a role in one's understanding of concepts and Christian doctrines. However, it was of the view that:
… one's understanding of Christian doctrines also demonstrates one's commitment to Christianity; it is difficult to see how a person can be a Christian without having a reasonable understanding of Christian doctrine. The Tribunal has carefully considered the applicant's knowledge of Christianity and the Tribunal is not satisfied that her overall level of knowledge of Christianity is commensurate with her claim that she has been a Christian since 2006. In the course of the hearing the applicant was asked a number of questions about Christianity keeping in mind that she has claimed that she has been a Christian and that she has practised Christianity since the end of 2006. Whilst the applicant understood a number of Christian doctrines, as will be discussed, there were a number of fundamental Christian doctrines about which the applicant displayed little or no knowledge.
In its findings and reasons the Tribunal discussed a number of aspects of the applicant’s evidence about her knowledge of Christianity and Christian doctrines. The Tribunal recognised that the concept of denomination was not well-developed in China, although there were different Christian denominations and registered and unregistered Protestants and Catholics. However, it recorded that when she was asked about her Christian denomination, the applicant had stated that she belonged to “the Family Church" and when asked if she understood what was meant by denomination she had replied “Family Church … government church … patriotic church …”, at which point the Tribunal explained its understanding of denominations of Christianity (to which the applicant repeated that she belonged to the Family Church).
The Tribunal found that while the applicant knew the Bible was about the teachings of God, on her own evidence she did not know much about the Bible. It had regard to the fact that she had stated that she had read the Bible and that when asked what part(s) she had read, she replied “Matthew’s … Gospel, Jesus is a king” and that she knew of stories relating to treating the sick and said that Jesus wanted to cure people and left Noah's family and built an Ark. The Tribunal had regard to the applicant’s explanation for her lack of knowledge about the Bible (that after reading the Bible she forgets and that she does not know many characters, that she did not have much education, that she could only read a little and that it was “very hard for me to talk about …… I read that before but I'm not very educated"). The Tribunal found however:
Whilst education could play a role, the Tribunal is not persuaded that this is the reason for the applicant's not knowing much about the Bible; if she had attended gatherings as claimed, talked about the teaching of God and spread the Good News, it is difficult to understand that she does not know much about the Bible.
The Tribunal also referred to the applicant's claim that she was baptised on 25 December 2006 and her evidence at the hearing when it asked her if she understood why she was baptised. The Tribunal recorded that it put to the applicant that it would appear that she did not understand what original sin was, to which she had replied that she did not really understand. The Tribunal was of the view that while the applicant had some understanding of baptism she lacked understanding of the doctrine of "original sin" and its theological connection to baptism.
The Tribunal also had regard to the fact that when asked if she knew any Christian prayers, the applicant had stated that she knew “Our Father in heaven” and the “Ten Commandments”. The Tribunal recorded that it had observed that the “Ten Commandments” were not a prayer as such and that when it asked the applicant if she knew any other prayers she stated that she was most familiar with “Our Father” and that "she was aware of other prayers but she could not remember their names because she was nervous". The Tribunal was not persuaded by this explanation, being of the view that a genuine Christian would know Christian prayers.
The Tribunal referred to a discussion of confirmation at the hearing, but stated that it did not rely on this, given a possible interpretation issue. It also referred to the fact that it had asked the applicant about confession, to which she had responded that "confession is to God … praying to God … to forgive sin". The Tribunal recorded that it had asked her if when one confessed they told any other person and she indicated that one told God. The Tribunal then recorded a discussion at the hearing in relation to communion, indicating that it had suggested to the applicant that her understanding of what communion symbolised was not quite right and that it was “a Christian ritual acting out the events of the Last Supper that Jesus had with his disciples” to which the applicant repeated words to the effect, “Last Supper Jesus”.
The Tribunal also referred to the fact that it had asked the applicant if she had a godmother or godfather, to which she replied that she did not, and when asked if she knew what a godfather and/or godmother was she replied, "God is our father … we're sons and daughters."
The Tribunal had regard to the fact that when asked if she had a baptism certificate, the applicant stated that she had one at home, that her husband was not at home and there was nowhere from which to get it. The Tribunal was of the view that the fact that the applicant had not provided a baptism certificate raised doubts about the veracity of her claims and her credibility generally.
The Tribunal then referred to the applicant’s knowledge of certain aspects of Christianity (that she knew that Jesus was born in Bethlehem, understood the Trinity, knew that there were 12 Apostles, that Judas was the apostle who betrayed Jesus, the significance of Easter and who Joseph was). However, it was of the view that whilst the applicant understood and knew some facts and doctrines of Christianity:
… her overall knowledge of Christianity … is incommensurate with her claims that she had practised Christianity in China and that she had been practising since late 2006, raising serious doubts about the veracity of her claims and her credibility generally. The Tribunal is not persuaded by her explanations that she was not well-educated and/or that she cannot really understand or remember what she reads.
The Tribunal also found that the applicant's evidence at the hearing about when her father had been arrested by the PSB was inconsistent and that while this aspect of the evidence if considered in isolation was minor, when considered with other aspects of the applicant's evidence: "the confusion in her answers as well as the inconsistency raise some doubts about the veracity of her claims and her credibility generally".
In addition the Tribunal had regard to the fact that while the applicant claimed that her husband had been arrested and detained before she came to Australia, she had waited for seven to eight months to apply for a protection visa and applied for protection the day before her guardian visa expired. The Tribunal was satisfied that notwithstanding that it takes some time to prepare an application for a protection visa, this did not explain the lengthy delay. It found that when this delay was considered with other concerns it raised serious doubts about the genuineness of the applicant's fear of persecution as well as about the veracity of her claims and her credibility generally. The Tribunal found that such delay in applying for a protection visa was significant and that it raised fundamental doubts about the genuineness of her fear of persecution and her claims.
The Tribunal addressed the two documents provided by the applicant in support of her claims in light of independent country information in relation to the high incidence of document fraud in China. It found that, considering the evidence as a whole and for the stated reasons, it did not accept that the applicant was a witness of truth and that given this adverse credibility finding it did not accept that the two documents she had provided contained truthful and/or accurate information and it therefore did not give them any weight.
The Tribunal did not accept that the applicant was a “genuine Christian” or that she or any member of her family was involved in any “Christian related activities” in China. Nor did accept the applicant’s claim about her father's detention and mistreatment, or her claims about the manner in which she became involved in Christianity, her husband’s arrest or detention or that he was otherwise involved in obtaining the release of and attempting to assist the doctor to leave China . Nor did it accept that the applicant's husband had gone into hiding, that she and her husband were regarded as key members of the underground church, that the police had sought them, that she was on a PSB blacklist or that she would be arrested if she returned to China. It did not accept that the applicant would be subject to persecution or that it was impossible for her to get protection in China because she had been on a PSB blacklist.
The Tribunal concluded:
In essence and for the stated reasons, the Tribunal is not satisfied that the applicant has ever practised Christianity in China or that her husband has ever been a Christian in China or that anyone in her family has been involved in any Christian related activities in China or that she and any member of her family has suffered any harm as a result of their Christian-related activities.
On this basis the Tribunal did not accept that the applicant had suffered any Convention harm in the past or that there was a real chance that she would do so in the future. The Tribunal was satisfied that if the applicant were to return to China she would not practise any religious activities or any other type of activities that would mean she would face any harm, not out of fear but out of a genuine commitment to the faith. The Tribunal concluded that the applicant did not have a well-founded fear of persecution for a Convention reason.
The applicant sought review by application filed in this Court on 17 March 2009. She filed an amended application on 15 June 2009 containing different grounds. I have considered all of the grounds relied on by the applicant in both the application and the amended application.

Error of Law

In her original application the applicant alleged generally that there was an error of law in the Tribunal's decision constituting a jurisdictional error. This ground was not particularised. There is no error apparent in the Tribunal's statement of the law in its reasons for decision. The Tribunal rejected the applicant's claims on the basis of its credibility finding. No error of law is established in the manner in which it applied the stated principles to the circumstances of the case.

Sections 424AA and 424A

The other ground in the original application is that there was “procedural error in the Tribunal’s decision constituting an absence of natural justice”. There are two particulars to this ground, alleging a failure to comply with ss.424AA and 424A(1) of the Migration Act 1958 (Cth).
It is now well established that s.424AA is a facultative provision (see in particular SZMCD Minister for Immigration and Citizenship and Another (2009) 174 FCR 415 at [90] per Tracey and Foster JJ). Hence it is appropriate to consider first whether there was any obligation under s.424A to give particulars of information to the applicant. If there was not, then it would not be necessary for the Tribunal to seek to avoid the performance of the duty under s.424A by acting in the way contemplated by s.424AA. As Moore J pointed out in SZMCD (at [2]), if there was no duty imposed by s.424A, any non-compliance with s.424AA would be “of no legal consequence”.
The particulars in relation to the s.424A(1) ground do not identify any information within that section. It has not been established that any obligation to put information to the applicant arose under s.424A(1) of the Act in this case. Insofar as the evidence the applicant gave at the Tribunal hearing may be information, it is within the exception in s.424A(3)(b) of the Act as information given to the Tribunal in connection with the application for review (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190). Insofar as the Tribunal had regard to independent country information, such material is within the exception in s.424A(3)(a) of the Act.
The Tribunal did have regard to some inconsistencies in the applicant's evidence, in particular in relation to the arrest of her father. However, as discussed in SZBYR, findings of inconsistency do not amount to “information” for the purposes of s.424A of the Act. As Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ stated at [18]:
… if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). …Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”
does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

In any event, the inconsistencies in question were inconsistencies in the applicant's evidence to the Tribunal. No issue as to inconsistency between the claims in connection with the protection visa application and her later claims to the Tribunal arose. Moreover, insofar as the Tribunal had regard to matters relating to her application for a protection visa (such as the time of lodgement of that application), information provided during the process that led to the decision under review is within the exception in s.424A(3)(ba) of the Act. Similarly, the supporting documents provided to the Department are within s.424A(3)(ba). The copy of the applicant's passport was provided by her to the Tribunal at the hearing and hence is within s.424A(3)(b).
The only other matter that might potentially be considered subject to the obligation in s.424A(1) of the Migration Act arises from the fact that the Tribunal recorded that the applicant was interviewed by the Department, during which time she was asked about her claims and religious practice. There is no further reference to this interview in the Tribunal's findings and reasons.
The amended application raised the possibility of a claim under s.424A(1) arising from the fact that the Tribunal was said to have advised the applicant at the start of the Tribunal hearing that the member was familiar with the evidence the applicant gave to the Department at that interview. However there is no evidence before the Court as to what was said at that interview. Having regard to all of the material before the Court, this is not a case in which an inference should be drawn that the Tribunal considered that any such information would be the reason or a part of the reason for affirming the decision under review.
It has not been established that there was any information subject to the obligation contained in s.424A of the Act. In these circumstances there was no need for the Tribunal to comply with s.424A or to seek to rely on s.424AA. No jurisdictional error has been established on this basis.

Irrelevant considerations

The first ground in the amended application is that the Tribunal erred by “taking into account irrelevant considerations in coming to the conclusion that the Applicant was not a credible witness and therefore disregarding all of her claims". The ground refers to paragraph 76 of the decision record, in which the Tribunal concluded on the evidence as a whole that it did not accept that the applicant was a witness of truth and, given the adverse credibility finding, did not accept that the two documents she had provided contained truthful and/or accurate information and therefore did not give them any weight. The applicant’s credibility was not an irrelevant consideration in relation to the Tribunal’s assessment of the supporting documentation (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165).
However it seems from the particulars that issue is intended to be taken more generally with the Tribunal's adverse credibility findings and its consequent conclusions that the applicant did not ever practise Christianity in China, that her husband did not suffer the consequences complained of and that she did not have a well-founded fear of persecution. Further, while reference is made to the Tribunal "disregarding" all of the applicant's claims, it appears from the particulars to this ground that it is contended that the Tribunal took into account irrelevant considerations in assessing the applicant’s credibility. The applicant did not file written submissions and did not address this ground in oral submissions other than to take issue with the Tribunal’s rejection of her claim to be a Christian. She sought to tender a photograph apparently of herself said to support her claims, but confirmed to the Court that such material had not been before the Tribunal at the time of its decision. As I explained to her, such material is not of assistance in determining whether the Tribunal fell into jurisdictional error on the material before it at the time of its decision. The applicant submitted that she told the truth when she was questioned and that all her material was truthful. However, merits review is not available in this Court.
Particulars (a) and (b) to this ground are that the Tribunal “held that the applicant was not familiar with certain theological doctrines and practices, which the Presiding Member stated was necessary for Christian belief” including:
(i) The nature of “original sin” and baptism as a necessary means to obtain “absolution from original sin”
(ii)    Confirmation - the "fact" that “generally speaking” Christians get confirmed
(iii)   The need to be familiar with formal liturgical prayers
(iv)    The nature of the confessional
(v)     Holy communion
(vi)    The necessity of having a godmother and/or godfather present at a baptism in order to "sponsor" the person.
The particulars continue that “The Presiding Member held that the Applicant’s lack of familiarity with these theological doctrines and practices were directly relevant to the conclusion that the Applicant was not a witness of truth”. Reference is made in the amended application to particular points in the record of the Tribunal hearing and also to the decision record at paragraphs 63 to 71 inclusive. There is no transcript or recording of the hearing before the Court, but I note in any event that what occurs at a Tribunal hearing does not constitute part of the Tribunal’s reasons for decision and that there is no suggestion of actual or apprehended bias in this case.
It was contended that the Presiding Member took these theological doctrines and practices into account in circumstances where:
(i) Many Christian denominations do not share or hold those theological doctrines and practices; and/or many Christian denominations do not believe that those theological doctrines and practices are necessary for a person to be a "Christian;
(ii) The Presiding Member failed to appreciate that her own theological understanding on these issues was only applicable very specific Christian denominations.
Counsel for the first respondent submitted that in circumstances where the applicant claimed to be a Christian it was entirely appropriate for the Tribunal to ask her questions regarding her knowledge of the Bible and Christian prayers, that the Tribunal had complied with its procedural obligations under Division 4 of Part 7 of the Migration Act and that no jurisdictional error had been demonstrated in the Tribunal's decision.
In one sense this ground can be seen as a contention that the Tribunal applied its own knowledge of Christianity in setting a standard for determining that the applicant did not have an adequate knowledge of her claimed religion. In Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548 Gray J expressed some doubt as to the correctness of a Tribunal's apparent approach to the knowledge of the applicant of the faith that he professed “on the basis that the appellant had to satisfy the RRT that he was possessed of a specific level of doctrinal knowledge to justify being regarded as a Christian" (at [16]). Gray J pointed out that religion was a matter of "conscientious belief, professed adherence and practice" and also stated that "[i]t is not appropriate for the RRT to take on the role of arbiter of doctrine with respect to any religion" (at [16]). However his Honour did not find that the Tribunal in that case fell into jurisdictional error on that basis.
In SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [42] the Full Court of the Federal Court referred to the doubts expressed by Gray J in Wang about “the correctness of a Tribunal approach to a finding of religious adherence based upon its judgment of the sufficiency of the applicant’s practice and religious knowledge”. In that case it had been contended that the Tribunal had applied its own knowledge of Falun Gong as setting the standard for determining that the appellant did not have an adequate knowledge of his claimed religion (at [41]). However, the Full Court found that the Tribunal's findings of fact in that case were clear and open on the evidence and were fatal to the appellant's claims. The Tribunal had accepted that the appellant had done Falun Gong exercises while in detention but, because of his fabrication of earlier involvement and “what it regarded as his superficial knowledge”, was not satisfied that he had engaged in recent activities otherwise than for the purpose of strengthening his claim to be a refugee (at [43]). Relevantly, the Court continued at [45]:
Whatever reservations might properly be held about the exploration of a person's religious knowledge in determining whether he or she is an adherent to a particular religion, it does provide a rational foundation for determining whether a person's claim to profess a particular religion is genuine. Such an inquiry is necessary in a case in which a person claims that his or her continued adherence to a religion upon return to the home country will attract persecution on that ground.
In SBCC the Full Court of the Federal Court found that there was “ample ground” for the Tribunal to find that the appellant's case was fabricated (at [45]).
Finally, in WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 the Full Court of the Federal Court considered whether the Tribunal had erred in rejecting a claim that the appellant had converted to Christianity at the age of 11, having regard to what he had done thereafter in practising and learning about the Christian religion and "his lack of any real knowledge of the basic tenets of Christianity" (at [27]).
The Court accepted that, as Gray J pointed out in Wang at [16], it is not appropriate for the Tribunal to take on the role of “arbiter of doctrine” with respect to any religion, stating at [28] – [29]:
So much may be accepted. Degrees of understanding and commitment of those practising any particular faith will vary. To ascribe to all who are, or claim to be, adherents to a particular religion a required minimum standard of practice or a required and consistent minimum understanding of its tenets may be erroneous.
But it does not follow that the questioning of a person, even a person as young as 11, who claims to have in effect given up his family and community connections for having espoused a particular religion, about that person’s beliefs on matters which that particular religion teaches or its tenets, means that the Tribunal is necessarily becoming the arbiter of the doctrine of that religion.
In that case the Court found that the Tribunal did no more than that, and that it did not set a level of knowledge of or commitment to Christianity which the appellant was required to meet to satisfy it that he had converted to Christianity. Rather it "merely explored the level of his knowledge and understanding, and his commitment" (at [30]). The Court observed that the way the Tribunal approached this issue did not reveal any "lack of sensitivity to the possible cultural differences which may inform the practice of a particular religion in a particular country" (at [30] and see Mashayekhi v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 381 per Merkel J at [11] – [15]). Their Honours also referred to the fact that the Tribunal took a range of factors into account in addition to the applicant’s knowledge of Christianity in rejecting his claims.
In this case it was open to the Tribunal to question the applicant and have regard to matters of religious practice and doctrine relevant to her claimed Christianity. The Tribunal was entitled to ask her about particular doctrines and practices to explore the level of her knowledge and understanding. Insofar as issue is taken with whether all Christian denominations share or hold the theological doctrines and practices raised with the applicant in the hearing by the Tribunal, as submitted by the first respondent, it was open to the applicant to indicate if such doctrines were not part of her faith. There is no evidence that she did so. It is apparent from the Tribunal's account of the hearing that while the Tribunal raised with the applicant its concerns in a number of respects about her responses on these issues, she did not take up the proffered opportunity for additional time to respond to the information raised by the Tribunal.
It has not been established that the Tribunal was setting a standard for determining that the applicant did not have an adequate knowledge of Christianity based on the Tribunal member's own knowledge of and view of Christianity or that it proceeded on the basis that certain doctrines or practices were essential elements of Christian belief.
In particular, it was open to the Tribunal to engage in an inquiry as to the applicant's knowledge and practice to determine whether it was commensurate with the claim of someone who was said to have practised Christianity for a number of years in a particular manner. It is important to note that, before turning to matters of theological doctrine or practice, the Tribunal had asked the applicant a range of questions relevant to her claim to be a Christian and her knowledge of Christianity about how she became a Christian. It asked how she knew that the doctor she claimed introduced her to Christianity was a leader of a religious group (to which the applicant did not provide an answer). While the applicant stated that she had been baptised, when the Tribunal asked her if she had a baptism certificate she said that she had one at home in China and had not provided a copy because the husband was not at home and there was nowhere to get it. The Tribunal found that the fact that she had not provided a baptism certificate could raise doubts about the veracity of her claims and credibility generally. When it put this to the applicant at the hearing, she reiterated that the certificate was at home and that she did not bring it with her to Australia.
As indicated, when the Tribunal then asked the applicant about her Christian denomination, she stated that she belonged to "the Family Church". The Tribunal then asked her if she understood what was meant by denomination, to which she replied, “Family church … government church … patriotic church …”. At that point the Tribunal explained to the applicant that there are various denominations of Christianity. The applicant reiterated that she belonged to the Family Church. In such circumstances it was open to the Tribunal to question the applicant about doctrines or practices that may be of relevance to her claimed Christianity.
The Tribunal asked the applicant about the nature and extent of her practice of Christianity in China. Importantly, not only did the applicant state that she practised Christianity at different people's homes but, according to the Tribunal, she also stated that she preached about the teachings of God and that as they could not build their own church in China they went to people's homes to preach. When asked exactly what she did at people's homes she stated that they talked about the teaching of God and they "spread the Good News".
The Tribunal recorded that it asked the applicant if she knew what the main text of Christianity was and the applicant referred to the Gospel. The Tribunal then asked her what the Bible was and the applicant said it was about teachings of God. In response to a Tribunal question she confirmed that she had read the Bible. However when asked to explain what parts of the Bible she had read she replied, "Matthew’s … Gospel, Jesus is a king." The Tribunal recorded that it asked her if she had a favourite story in the Bible and she replied that the stories were about Jesus Christ curing the sick. When asked again, she stated: "that Jesus wanted to cure people and left Noah's family and built an Ark".
The Tribunal recorded that it then asked the applicant if she knew much about the Bible, to which she replied "not much" and when asked why, she stated that after reading the Bible she forgot and did not know many characters. She attributed this to her limited education and claimed that she could only read a little. The Tribunal specifically put to the applicant that if she had attended gatherings as claimed it was surprising that her knowledge about the Bible and other aspects of Christianity appeared to be limited. The applicant's response was that it was "very hard for me to talk about … I read that before but I'm not very educated".
The Tribunal indicated that it would consider this claim of limited education, but that it was "odd" that the applicant's knowledge appeared to be limited in light of her claim that she had practised Christianity since late 2006. In response to questioning, the applicant also stated that she attended house gatherings in China twice a week, originally suggesting normally on Sundays and later stating Wednesdays and Sundays every week from 2006 until her departure in 2007.
It was in the context of this evidence about the applicant’s practice of Christianity that the Tribunal rejected the applicant’s claim that nervousness or limited education accounted for evidentiary problems, although it recognised that the applicant came from a country where there were restrictions on religious freedom, that religious beliefs and faith were very personal matters, that many devout Christians may not have an encyclopaedic knowledge of Christianity and that education could play a role in one’s understanding of concepts and Christian doctrines, before reaching the conclusion it did that the applicant’s overall level of knowledge of Christianity was not commensurate with the claim that she had been a Christian and practised Christianity since the end of 2006.
In its findings and reasons the Tribunal also recognised that the concept of denomination was not well-developed in China, albeit that there were different Christian denominations and that the applicant knew that the Bible was about the teachings of God. It addressed the applicant's claims about the Bible and the reasons she gave for her limited knowledge, but found that while education could play a role, it was not persuaded that this was the reason for the applicant not knowing much about the Bible, finding that "if she had attended gatherings as claimed, talked about the teaching of God and spread the Good News, it is difficult to understand that she does not know much about the Bible". In this respect it did not require a specific level of doctrinal knowledge but rather considered the applicant’s evidence and knowledge in light of the claims she had made, including that she had read the Bible.
After considering the applicant's knowledge of the Bible, the Tribunal addressed the matters referred to as “theological doctrines and practices” in the amended application. In its findings and reasons it referred to the discussion at the hearing of the applicant's claim that she was baptised. It was in that context that she was asked about her understanding of why she was baptised. The Tribunal found that the applicant had some understanding of baptism, although she lacked an understanding of the doctrine of original sin and its theological connection to baptism. Whether or not the doctrine of original sin is particular to certain denominations of Christianity (as appears to be contended for in the amended application) this was only one of a number of matters that the Tribunal took into account in determining that the applicant's knowledge of Christianity was not commensurate with her claim that she had been a Christian since 2006 in a context in which the applicant did not claim to belong to a particular denomination. The Tribunal accepted that the applicant understood a number of Christian doctrines, but concluded that she displayed little or no knowledge about a number of fundamental Christian doctrines.

Insofar as the amended application relied on the discussion at the Tribunal hearing or findings made by the Tribunal in relation to confirmation, the Tribunal expressly stated that it did not use this aspect of the evidence in a manner adverse to the applicant. No error is apparent in that respect.
The amended application also referred to what was described as "[t]he need to be familiar with formal liturgical prayers". In fact there is no reference in the Tribunal's findings and reasons to "formal liturgical prayers" as such, although it is the case that in the hearing the Tribunal asked the applicant if she knew any Christian prayers, to which she is recorded as having responded that she knew “Our Father in heaven and the Ten Commandments”. The Tribunal noted that the “Ten Commandments” was not a prayer as such and asked the applicant if she knew any other prayers. It is important to note that the applicant did not take issue with whether there were formal liturgical prayers in the particular church (or denomination) in which she claimed she practised her Christianity, but rather stated that she was mostly familiar with Our Father and that she was “aware of other prayers” but that she could not remember their names because she was nervous. It was in that context that the Tribunal found that a genuine Christian would know Christian prayers. In isolation such a finding may raise the concerns expressed in Wang and WALT. However, given the applicant’s response that she was aware of other prayers but could not remember their names, it was open to the Tribunal to have regard to her lack of knowledge of such prayers. The Tribunal considered the explanation given by the applicant for not knowing other prayers, but was not persuaded by it. It was open to the Tribunal to reach the conclusion that it did in relation to Christian prayers generally.
The next matter referred to in the amended application was “[t]he nature of the confessional”. The applicant gave evidence that confession was "to God … praying to God … to forgive sin." While the Tribunal asked her whether if one confessed they told any other person, her response was that one told God. The Tribunal did not make any determination that the applicant was incorrect in her views regarding the nature of confession or that this aspect of her evidence displayed a lack of knowledge.
The Tribunal also raised with the applicant and discussed in its findings and reasons her knowledge of communion. Importantly, it recorded that the applicant indicated some knowledge of communion, stating that it was “to have the bread represented in the body of Jesus and that the wine represents the blood of Jesus.” In context this could be seen as consistent with communion being part of the practice of the church to which the applicant claimed to belong. The concern expressed by the Tribunal was however that when asked what communion symbolised, the applicant stated that Jesus was betrayed by Judas that night they had a meal. The Tribunal put to her that was not quite right, indicating the Tribunal view that communion was a Christian ritual acting out the events of the Last Supper that Jesus had with his disciples. It is apparent from the Tribunal decision that the applicant did not cavil with this explanation, simply repeating words to the effect "Last Supper Jesus". It was open to the Tribunal to have regard to the extent of the applicant's knowledge and her lack of explanation in this respect, given her claims in relation to her practice of Christianity and the absence of any suggestion that communion formed no part of the practice of her claimed religion.
The Tribunal also recorded that it discussed with the applicant whether she had a godmother or godfather (to which she replied that she did not), and also whether she knew what a godfather and/or a godmother was, to which the applicant replied, "God is our father … we're sons and daughters". The Tribunal member told the applicant about the role of godparents as she understood it. The applicant did not claim that godparents were not part of the practices of her church. Insofar as the Tribunal could be said to have taken into account the extent of the applicant’s knowledge about godparents (notwithstanding that it made no specific finding in relation to this aspect of the applicant's evidence), it was only one of a number of matters it took into account in considering the applicant's knowledge of Christianity. In fact it appears from the findings and reasons that what the Tribunal took into account in relation to the applicant's claims about baptism was the fact that she had not provided a baptism certificate. This did not relate to the applicant’s understanding of doctrine and practices, but was said to raise doubts about the veracity of her claims and her credibility generally.
The Tribunal was entitled in addressing the applicant's credibility to assess her practices and understanding of Christian doctrine and her overall knowledge of Christianity, including in relation to the Bible and other matters, in light of her claims about the extent of her involvement in Christianity and about having read the Bible. The Tribunal accepted that the applicant understood a number of Christian doctrines, although she was said to have displayed little or no knowledge about a number of “fundamental Christian doctrines”.
While the reservations expressed in SBBC are in point, so however is the acknowledgement by the Full Court of the Federal Court in SBBC that “exploration of a person’s religious knowledge in determining whether he or she is an adherent to a particular religion” provides “a rational foundation for determining whether a person’s claim to profess a particular religion is genuine” (at [45]).
It has not been established that the Tribunal set a standard of knowledge for determining that the applicant did not have an adequate knowledge of her claimed religion according to the Tribunal member's own theological understanding of particular issues in such a manner as to constitute jurisdictional error.
Nor has it been established that the Tribunal proceeded on the basis that it rejected the applicant's claims because she did not show familiarity with doctrines which may or may not have been particular to specific denominations. As set out above, the applicant had the opportunity to provide any explanation for her lack of knowledge in particular respects or to indicate that particular doctrines were not part of her claimed faith. The applicant did not claim that the doctrines on which she was questioned were not part of her claimed faith, either at the Tribunal hearing or in these proceedings. The Tribunal was entitled to form the view, in part based on the applicant's own admissions about her limited knowledge of Christianity, that it was incommensurate with her claim that she had practised Christianity in China in a particular manner and for a particular time. As the Full Court stated in SBCC (at [45]), as set out above, whatever reservations might be held about exploration of a person's religious knowledge it "does provide a rational foundation for determining whether a person's claim to profess a particular religion is genuine".
While opinions may differ on the assessment of the level of knowledge of Christianity demonstrated by the applicant, credibility is a matter for the Tribunal, not the Court. In this case, as in Mashayekhi, the applicant has not demonstrated that the adverse credibility findings of the Tribunal were not open to it on the material before it. Nor, more specifically, has the applicant established that the Tribunal erred by taking into account irrelevant considerations in the manner contended for in the amended application.
I note that as Graham J observed in SZMSG v Minister for Immigration and Citizenship [2009] FCA 505 at [17], Tribunal members should have regard to the observations of the Full Court in WALT at [28] and the fact that it is not appropriate for the Tribunal to take on the role of arbiter of doctrine with respect to any religion. However I also note that the Tribunal in SZMSG had relied in part upon the inability of the appellant in that case to give more detailed information regarding prayers and psalms when he claimed he had studied the Bible for many months (as well as inconsistencies in relation to other aspects of the claims) and Graham J found no jurisdictional error.
Ground one in the amended application is not made out.

Section 425

Ground two in the amended application is that there was a failure by the Tribunal to comply with s.425 of the Act. Section 425 obliges the Tribunal to invite an applicant to attend a hearing to give evidence and present argument in relation to the issues arising in relation to the decision under review. The applicant attended a Tribunal hearing. It appears that the applicant's contention is that the Tribunal failed to alert her to those issues which it believed would be determinative of the proceedings in the sense considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [44].
The particulars to this ground repeat the particulars to ground one and suggest that the questioning by the Tribunal was so at odds with the applicant's claims that the applicant was not given the opportunity to give evidence and present arguments as required under s.425, having regard to her evidence that she had limited education and in China had only been part of a home church that did not have the benefit of trained clergy with theological training.
It was contended that instead of questioning the applicant on the actual claims she made, the Tribunal had instead tested her on theological knowledge she did not claim to have and which was not seen as "necessary" or correct by many Christian denominations. Reference was made to the different approach taken to baptism in particular denominations. It was suggested that in some denominations absolution from "original sin" was not obtained through the act of baptism.
There is, however, no evidence in support of the contentions made in the amended application in relation to the beliefs of particular denominations about baptism and original sin. Further, there is no transcript of the Tribunal hearing before the Court.
While the Tribunal questioned the applicant on matters relied on in ground one, that does not of itself establish a breach of s.425. The Tribunal recorded that it raised with the applicant matters of concern about these and other aspects of her evidence and gave her an opportunity to respond.
In particular, in relation to the specific issue of the applicant's overall level of knowledge of Christianity, the Tribunal recorded that it gave the applicant an opportunity to comment upon her lack of knowledge of Christianity as follows:
The Tribunal indicated to the applicant whilst she appears to understand and to know some facts and doctrines of Christianity, her overall knowledge of Christianity would appear to be incommensurate with her claims that she had practised Christianity in China and that she had been practising since late 2006. The Tribunal suggested that this could raise doubts about the veracity of her claims and her credibility generally. The Tribunal invited her to comment or respond to which the applicant replied that she was not well-educated and she cannot really understand or remember what she reads. The Tribunal indicated that the matter would be considered further.
The Tribunal questioned the applicant about her actual practice of Christianity in China (in relation to which, according to the Tribunal's account of the hearing, the applicant provided only limited information) and her knowledge of the Bible (as well as about Christian doctrines and practices) in the course of considering her claims to be a Christian. Even if certain aspects of those doctrines are not applicable to all Christian denominations, it was open to the Tribunal to question the applicant generally on such matters and open to the applicant to respond.
For example, while the Tribunal addressed the notion of original sin, it did so in the concept of considering the applicant's claim about having been baptised. It found that she did have some understanding of baptism. It was in that context that the Tribunal put to the applicant that "generally-speaking" Christians get baptised in order to be cleansed of a particular type of sin and asked her if she knew what that type of sin was, in response to which she stated, "people always commit sins and need to be cleansed." The Tribunal then expressed concern that the applicant did not appear to understand the nature of original sin and asked her if she understood the meaning of that concept. The Tribunal did not conclude that simply because the applicant lacked understanding of the doctrine of original sin and its theological connection to baptism in certain denominations that she could not be a Christian. Rather, the extent of her understanding of baptism and the doctrine of original sin were among the matters taken into account in relation to the extent of her knowledge of Christian doctrines and Christianity.
Insofar as it is contended that the Tribunal did not question the applicant on the actual claims she made, on the contrary, the Tribunal account of the hearing indicates that the applicant was not only questioned about her knowledge of Christianity, but also about her claims of how she became involved with and practised Christianity, her claims about her father, about her husband's arrest and the arrest of the doctor, the delay in lodging the protection visa application and the documents she had provided.
It has not been established on the material before the Court that the Tribunal failed to comply with its obligations under s.425 of the Migration Act.
Finally, in concluding submissions the applicant claimed that all of the material she had submitted to the Tribunal (which she confirmed were the two certificates said to be in relation to her husband's detention), told the truth. Insofar as the applicant seeks merits view, merits review is not available in this Court. The Tribunal considered the issue of the weight to be given to such documents, having discussed that matter with the applicant at the Tribunal hearing. It was open to the Tribunal to reach the conclusion that it did about the weight to be attributed to such documents on the basis of the adverse credibility findings made in relation to the applicant (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165).
As no jurisdictional error has been established on any of the bases contended for by the applicant, the application must be dismissed.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 14 August 2009