SZOCT v Minister for Immigration & Anor
[2010] FMCA 425
•18 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOCT v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 425 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Christian – applicant not believed – applicant tested at the Tribunal hearing about his knowledge of the Bible – Tribunal requiring the applicant to recite a favourite passage from the Bible – Tribunal applying a standard of what was necessary to establish adherence to the Christian faith – jurisdictional error established. |
| Immigration Restriction Act 1901 (Cth) Migration Act 1958 (Cth), s.91R |
| Minister for Immigration v SZMDS [2010] HCA 16 Minister for Immigration v SZNPG [2010] FCAFC 51 Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 SBCC v Minister for Immigration [2006] FCAFC 129 SZJBD v Minister for Immigration [2009] FCAFC 106 SZLSP & Anor v Minister for Immigration [2009] FMCA 932 SZMEM v Minister for Immigration & Anor [2008] FMCA 1286 SZNLJ v Minister for Immigration [2009] FCA 1414 SZOBA v Minister for Immigration [2010] FCA 99 SZOIW v Minister for Immigration & Anor [2010] FMCA 568 WALT v Minister for Immigration [2007] FCAFC 2 Wang v Minister for Immigration [2000] FCA 1599; (2000) 105 FCR 548 Yan v Gonzales (2006) 438 F.3d 1249, 1252 (10th Circuit) |
| Applicant: | SZOCT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 141 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 18 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2010 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
A writ of certiorari shall issue quashing the decision of the Refugee Review Tribunal made on 29 December 2009.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the review application before it according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 141 of 2010
| SZOCT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 29 December 2009. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant claimed persecution in China as a Christian. The applicant was not believed. The following statement of background facts is derived from the Minister’s written submissions filed on 9 June 2010.
The applicant most recently arrived in Australia on 30 October 2008: court book (CB) 91 [2], and applied for a protection visa on 10 July 2009: CB 1-39. The Minister’s delegate refused the visa on 25 September 2009: CB 47-63, and the applicant applied to the Tribunal for review on 26 October 2009: CB 64-70. The Tribunal held a hearing (by videoconference) on 7 December 2009: CB 83-85.
The applicant claimed to fear harm in China for reason of his religion. He claimed to be a Christian and to have organised religious gatherings in his restaurant from 2005 in Fuqing City, Fujian Province. He claimed that on 8 April 2007 the restaurant was raided by police, and his wife was arrested and held at a labour education camp in Fuqing City, and mistreated. The applicant claimed his wife was released in October 2007, and died in December 2007. The applicant claimed he sought compensation for his wife’s death from the Fuqing appeals office in January 2008 but this was refused in March 2008 and so he decided to leave China because he had witnessed corruption, and applied for a new passport through a friend. He applied for his Australian visa in July or August 2008. The applicant claimed that on 16 August 2008 he was attending a church gathering at a friend’s house when the PSB arrested him and others present. The applicant claimed he was detained for seven days and mistreated. He claimed that in Australia he went to church every week or two weeks, and had recently been baptised. The applicant claimed that he would be arrested if he returned to China because he would attend a local church and preach the gospels. See generally CB 93-100.
The Tribunal records putting a number of concerns with the applicant’s evidence to him at the hearing, and that the applicant asked for more time to respond and was granted two weeks: CB 98-100 [48-55]. However no response was received by the Tribunal: CB 100 [56].
The Tribunal found that the applicant was not credible, and not a witness of truth: CB 105 [78], noting his delay in applying for the visa after arriving in Australia; his limited knowledge of Christianity given he claimed to have read the Bible and attended church regularly in China and Australia; his ability to leave China on his own passport without difficulty; and his failure to provide any documentation concerning his and his wife’s detention, despite claiming that he had such documentation, or to be able to describe the name of the labour camp where he claimed his wife was detained despite claiming to have visited it on several occasions. As a result the Tribunal rejected the applicant’s claim to have been a Christian in China, or that he or his wife were harmed for this reason. The Tribunal found that the applicant was of no interest to the Chinese authorities, and had not left China for the reasons he claimed, and would not attend a local church or preach the gospels if he returned to China. It also found it would be reasonable for the applicant to relocate within China if he had any apprehension concerning returning to his home province. It disregarded his Australian church attendance and Bible reading pursuant to s.91R(3) of the Migration Act 1958 (“the Migration Act”). See generally CB 103-107.
The application
The applicant relies upon a show cause application filed on 27 January 2010. There are three grounds in that application:
1. [Tribunal] considered my case unfairly. They doubt my claim without substantive evidence.
2. Procedural fairness has been denied by [Tribunal].
3. [Tribunal] did not consider my situation in China. I will be put in jail if I go back.
I conducted a show cause hearing in this matter on 9 April 2010. At that time I made the following order:
Pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth), the first respondent is ordered to show cause why relief should not be granted in relation to the issue of the manner in which the Tribunal tested the religious faith of the applicant.
The evidence and submissions
I received as evidence the applicant’s affidavit filed on 18 March 2010, to which is annexed a transcript of the Tribunal hearing conducted on 7 December 2009. I also received as evidence the court book filed on 5 March 2010. I received as a submission the applicant’s affidavit filed on 27 January 2010. I also have before me the Minister’s written submissions filed on 9 June 2010.
Both parties also made oral submissions.
Consideration
There is no substance to the applicant’s grounds as put in the show cause application. To that extent, I agree with the Minister’s submissions.
The Tribunal’s conclusion that the applicant was not credible and not a witness of truth is a finding of fact within the purview of the Tribunal: Re Minister for Immigration; ex parte Durairajasingham[1]. The Tribunal’s finding had a factual basis, including the country information to which it refers. The Court cannot review the merits of the Tribunal’s decision, and there is no error of law in the Tribunal making a wrong finding of fact or engaging in unsound reasoning: Minister for Immigration v SZNPG[2].
[1] (2000) 168 ALR 407 (HCA/McHugh J) at [67]
[2] [2010] FCAFC 51 at [20] and cases there cited
The application claims without particulars that the Tribunal considered the applicant’s case unfairly, that it denied procedural fairness and that it did not consider the applicant’s situation in China. The first two grounds are meaningless in the absence of particulars, and the third is clearly wrong given the Tribunal’s findings summarised above.
The real issue in this case arises from the show cause order I made on 9 April 2010. The Minister deals with that issue in the following terms:
On 9 April 2010 the Court ordered that the Minister show cause why relief should not be granted in relation to the manner in which the Tribunal tested the Applicant’s religious faith. The Tribunal was entitled to explore the Applicant’s knowledge of Christianity, given his claims to have studied the Bible and attended church regularly in both China and Australia: SBCC v MIMA [2006] FCAFC 129 at [45]; WALT v MIMA [2007] FCAFC 2 at [30], and its doing so is no evidence of apprehended bias: SZNLJ v MIAC [2009] FCA 1414 (Bennett J) at [31]; SZJBD v MIAC [2009] FCAFC 106 at [80-88] per Buchanan J, [107] per Perram J; SZOBA v MIAC [2010] FCA 99 (Driver FM). Moreover the Applicant’s religious knowledge was only one of a number of matters that concerned the Tribunal, and the Applicant did not respond in writing to the Tribunal’s concerns expressed at the hearing (including as to his religious knowledge), despite claiming that he would: CB 98-100 [48-56]. In these circumstances it was open for the Tribunal to find that the Applicant did not have the knowledge of the Bible that might reasonably be expected of a person with the religious background that he claimed: CB 104 [74].
The same issue was dealt with last year by Scarlett FM in SZLSP & Anor v Minister for Immigration[3] at [45]-[52]:
[3] [2009] FMCA 932
In Wang[4], Gray J stated:
[4] Wang v Minister for Immigration [2000] FCA 1599; (2000) 105 FCR 548 at 557
Religion is a matter of conscientious belief, professed adherence and practice. The RRT seems to have approached the issue 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. It is not appropriate for the RRT to take on the role of arbiter of doctrine with respect to any religion.[5]
[5] (2000) 105 FCR 548; [2000] FCA 1599 at [16]
In SBCC, the appellant, who claimed to have engaged in Falun Gong activity, was found by the Refugee Review Tribunal to have fabricated his early involvement with Falun Gong. That finding, together with his limited knowledge, had led the Tribunal not to be satisfied that his recent undertaking of Falun Gong activities was other than for the purpose of strengthening his claim to be a refugee (see Migration Act, s.91R(3)). The appellant argued that the Tribunal had applied its own knowledge of Falun Gong as setting the standard for determining that he did not have adequate knowledge of his claimed religion. The appellant cited the judgment of Gray J in Wang[6] and submitted that there was no evidence before the Tribunal that every member of Falun Gong must know in detail the matters upon which the Tribunal questioned the appellant.
[6] supra
The Full Court (French, Lander and Besanko JJ) dealt with that ground of appeal in this way:
It is sufficient to say that the Tribunal’s findings of fact were clear and open on the evidence and were fatal to the appellant’s claims. The Tribunal found that the appellant had fabricated his claim to be a Falun Gong practitioner since 2002. It accepted that he had done Falun Gong exercises while in detention but because of his fabrication of earlier involvement and what it regarded as his superficial knowledge, the Tribunal was not satisfied that he had engaged in the more recent activities other than for the purpose of strengthening his refugee claim…
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. Here, there was ample ground for the Tribunal to find that the appellant’s case was fabricated and, a fortiori, that it could not be satisfied as required by s.91R(3) that his engagement in Falun Gong activities was otherwise than for the purpose of strengthening his claim to be a refugee.[7]
[7] [2006] FCAFC 129 at [43] and [45]
The appellant’s second ground of appeal in SBCC was said to go to the
‘…apparent imposition by the Tribunal of a standard that it imposed as to the requisite level of knowledge of Falun Gong doctrine that might attract Falun Gong status’. There was, it was said, no evidence before the Tribunal to indicate any ‘cut off’ point for an acceptable minimum level of knowledge for a Falun Gong practitioner.
The short answer to this contention is that where a person makes a claim to be an adherent to a particular religious movement or set of beliefs, the Tribunal can quite legitimately explore what that person knows about the religion in order to assess the genuineness of the claim. That is what happened in this case.
Any criticism of the process of the Tribunal’s reasoning to a finding on credit does not expose jurisdictional error. It is also to be borne in mind that the Tribunal’s assessment of credit in this case was based upon more than just the appellant’s level of knowledge of his professed religion.
The second ground of appeal as formulated is also based upon the assumption that the Tribunal held that ‘every believer or follower of the Falun Gong religion must have certain knowledge or provide certain answers concerning aspects of that religion’. This was not a proposition enunciated or implied in the Tribunal’s reasons.[8]
More recently, the Full Court (Mansfield, Jacobson and Siopis JJ) considered the decision in Wang in WALT[9], which was a case of a young man from Kenya who was claiming to be a person to whom Australia owed protection obligations for reasons of his religion and his membership of a particular social group. He claimed to have been brought up in strict Muslim family but to have converted to Christianity at the age of 11 and thereby disowned by his family.
The Full Court stated that the Tribunal “simply did not believe the appellant’s claims”[10] and “noted that the appellant did not even have a rudimentary knowledge of Christianity”.[11] At first instance, the appellant had argued that:
…the Tribunal had wrongly filtered his claim through its own views of what were appropriate understandings and beliefs for a Christian to have. Reliance was placed upon the observations of Gray J in Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599; (2000) 105 FCR 548 at 557, [16] (Wang).[12]
[8] [2006] FCAFC 129 at [46]-[49]
[9] WALT v Minister for Immigration [2007] FAFC 2
[10] [2007] FCAFC 2 at [7]
[11] [2007] FCAFC 2 at [8]
[12] [2007] FCAFC 2 at [16]
This ground was re-argued on appeal. The Full Court dealt with that ground in this way:
In Wang at 552, [16], Gray J pointed out that it is not appropriate for the Tribunal to take on the role of arbiter of doctrine with respect to any religion. 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.
We agree with the learned primary judge, that the Tribunal did no more than that. It did not set a level of knowledge of, and commitment to, Christianity which the appellant was required to meet to satisfy it that he had converted to Christianity. It merely explored the level of his knowledge and understanding, and his commitment. Clearly, the appellant had virtually no knowledge or understanding of Christianity either at the time of his ‘conversion’, or at the time of the Tribunal’s hearing.[13]
In my view, with respect, the decisions in SBCC and WALT require an examination of the Tribunal decision to see whether the Tribunal did, in fact, set up a minimum standard of knowledge of the religion or belief and thereby take on the role of ‘arbiter of doctrine’ (Wang at 552, [16]), or whether it was doing nothing more than questioning the applicant about his or her beliefs on matters which that particular religion teaches (WALT at [29]) or legitimately exploring what that person knows about the religion ‘in order to assess the genuineness of the claim’ (SBCC at [47]).
[13] [2007] FCAFC 2 at [28]-[30]
In the case before him at [60]-[61] Scarlett FM found that the Tribunal fell into error by failing to disclose its source of information for examining the applicant about his knowledge of Falun Gong and by dealing with two applicants on the basis of the first applicant’s lack of knowledge about Falun Gong. That decision is subject to appeal in the Federal Court. The appeal was heard on 9 February 2010 and a decision is reserved. I have waited for some time to see if that decision would become available to provide guidance but have elected to proceed with my decision, noting that Raphael FM dealt with the same issue as arises in this case in SZOIW v Minister for Immigration & Anor[14] on 2 August 2010.
[14] [2010] FMCA 568
The nub of the problem in this case lies in [74] of the Tribunal’s reasons (CB 104) where the Tribunal stated:
The applicant claimed to have read his Bible every day in Australia and to have gone to church in Australia every week or fortnight, claimed to have read his Bible two or three times a week in China and attended a local, unregistered church from 2004 to 2008 in China on a regular basis. He claimed to have a favourite verse in the Bible which he knew by heart, but he could not say it for the Tribunal. He knew parts of a few stories from the Bible. The Tribunal was not satisfied that he had a level of knowledge of the bible a person might reasonably be expected to have if they had been a believer in Christianity in China from 2004 until 2008 or had been associated with the practice of Christianity in China from 2004 until 2008. The Tribunal is not satisfied that he was a witness of truth in relation to his claim he was a believer in Christianity in China in a local, unregistered church from 2004 to 2008 or that he was associated with the practice of Christianity in China in a local, unregistered church from 2004 to 2008.
It was not part of the applicant’s written claims that he had a favourite verse in the Bible which he knew by heart. The transcript of the Tribunal hearing reveals that the proposition that the applicant ought to have a favourite verse came from the presiding member. The following exchange occurred at T20 – T23:
TRIBUNAL MEMBER: Do you have a favourite verse in the Bible?
APPLICANT: Yep.
TRIBUNAL MEMBER: What is that?
APPLICANT: Chapter 4 in Matthew.
TRIBUNAL MEMBER: Would you like to say it to me please?
APPLICANT: Passage 1, chapter 4 Matthew, it’s about Jesus Christ.
TRIBUNAL MEMBER: Can you say it to me?
APPLICANT: About the content, right?
TRIBUNAL MEMBER: Yes. Can you say the favourite verse to me?
APPLICANT: It’s about Jesus Christ’s temptation. One day Jesus Christ was lead by the Holy Spirit to a wild land and was tempt by the devil and he was starved for forty days.
TRIBUNAL MEMBER: Mr [Applicant] I asked you about a favourite verse, not a chapter. Do you have a favourite verse?
APPLICANT: This is verse.
TRIBUNAL MEMBER: Do you know it word for word?
APPLICANT: Can you elaborate it?
TRIBUNAL MEMBER Sometimes people have favourite verses from the Bible. I am asking if you know a verse by heart that you can tell me. Do you know any words of the Bible by heart?
APPLICANT: Yes, I do.
TRIBUNAL MEMBER: Tell me them?
APPLICANT: Jesus Christ miracle feed five thousand people.
TRIBUNAL MEMBER: Do you understand what I mean by a verse? A verse is like a short sentence or group of sentences. Can you tell me which verse Jesus’ miracle of feeding the five thousand comes from? In other words where is it in the Bible?
APPLICANT: In Matthew.
TRIBUNAL MEMBER: Where in Matthew?
APPLICANT: Chapter 5, passage 2.
TRIBUNAL MEMBER: Can you say it to me? Do you know it by heart?
APPLICANT: Yes. The story is about one day Jesus Christ went to a wild land and many people heard he’s here and people gathered together to listen to his teaching and when time passed by Jesus Christ noted that so many people had nothing to eat so he asked one disciple how shall we feed them. One disciple said we don’t have enough food for so many people and the other disciple handed over five bread and then Jesus Christ broke those five breads and give them away to all the people.
TRIBUNAL MEMBER: Can you give me the, tell me exactly where that is in the Bible please?
APPLICANT: In Matthew’s testament.
TRIBUNAL MEMBER: Whereabouts in Matthew?
APPLICANT: What is question?
TRIBUNAL MEMBER: Whereabouts in Matthew is that story?
APPLICANT: I forgot.
TRIBUNAL MEMBER: Earlier you said it was in Matthew 5, passage 2, so what is in Matthew 5 passage 2?
APPLICANT: I forgot.
TRIBUNAL MEMBER: Mr [Applicant], in the hearing room in Sydney there is a copy of the Holy Bible, the new King James version, and that is the Bible on which we ask people to swear an oath. I have a copy of that Bible in front of me and in that Bible I have opened it to Matthew 5 verse 2, and in that passage it talks about Jesus going up on to the mountain and telling to the people the Beatitudes. Do you know about that? Do you know what the Beatitudes are?
APPLICANT: Chapter 5 passage 2?
TRIBUNAL MEMBER: Yes, you said that was your favourite verse in the Bible.
APPLICANT: That’s my favourite.
TRIBUNAL MEMBER: Can you tell me what Matthew 5 chapter 2 says?
APPLICANT: What is about?
TRIBUNAL MEMBER: I am asking you what it is about, you said it was your favourite.
APPLICANT: That was actually not my favourite. My mind is very confused now.
TRIBUNAL MEMBER: Do you have another one that is your favourite?
APPLICANT: And my favourite one is that Jesus Christ healed epilepsy.
TRIBUNAL MEMBER: Healed? Can you tell me what that person healed?
APPLICANT: Epilepsy, he heals epilepsy.
TRIBUNAL MEMBER: Is it epilepsy? Is that what you said?
APPLICANT: Yes.
TRIBUNAL MEMBER: What verse is that?
APPLICANT: Which verse? I did not pay attention to which verse it belongs to.
TRIBUNAL MEMBER: Do you have, were these your favourite verses in China?
APPLICANT: Back in China yes I did.
The Tribunal’s version of what occurred is contained in [33]-[34] of its reasons (CB 96):
He owned a Bible in China and read it in China. The Tribunal asked if he had a [favourite] verse from the Bible and he said it was Matthew, Chapter 4, Verse 1 which was about the temptation of Jesus. The Tribunal asked if he had a [favourite] verse which he knew by heart that he could tell the Tribunal and he said it was about the miracle where Jesus fed 5,000 people with loaves and fishes. The Tribunal asked him which verse this was and he said it was Matthew, Chapter, 5, Verse 2. He was able to tell the Tribunal about this story. The Tribunal asked him what this story meant to him and he said it was because Jesus was a holy power and this was one of his miracles. He then said he forgot where this was in the Bible other than that it was in the New Testament. He said that he read the Bible in China when he had the free time to do this which was usually at night. He often read it two or three days a week.
The Tribunal showed the applicant a Bible which was used in the hearing room for the purpose of swearing oaths. The Tribunal said that it was the New King James Version of the Bible and at Matthew, Chapter 5, verse 2 it contained a verse where Jesus went up mountain and told a sermon including “the beatitudes”. He could not say the words of Matthew, Chapter 5, Verse 2, which he said was his [favourite] verse in the Bible, and which he knew by heart. He did not know what the beatitudes which were contained in Matthew, Chapter 5, Verse 2, were. He then said it was not his [favourite] verse and he was confused. The Tribunal asked if he had another [favourite] verse which he could tell the Tribunal about. He told the Tribunal about when Jesus treated an epileptic. He could not name which verse this was as he did not pay attention to which verse it was when he heard it in China. He said he sang hymns and he said prayers in China. He said the Lord’s Prayer.
At [57] of its reasons (CB 100-101) the Tribunal recited the Beatitudes from the Gospel of Matthew as “independent information”.
It is reasonable to assume that a person claiming protection on the basis of alleged serious harm suffered by them by reason of their religion might know something about that religion. If the Tribunal followed a uniform practice of asking questions of applicants in order to satisfy itself that they knew something of the faith that they professed, there would be little ground for complaint[15]. However, the cases coming before this Court do not show such a common practice. Rather, the Tribunal adopts a practice of grilling Chinese applicants claiming to be Falun Gong practitioners or Christians about their faith and their practice by asking a series of testing general knowledge questions of a kind which are almost never put to adherents of other faiths from other countries.
[15] However, there may be circumstances in which a person is persecuted because of their religion even though they have lost touch with the faith and do not practice any religious observances, eg. secular Jews in World War II.
Article 3 of the Refugees Convention states:
The Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin.
It is a real concern that in ten years I have never seen a case in which persons claiming persecution as Muslims, Buddhists, Hindus or indeed any other religion are tested on their knowledge in the same way Christians (and Falun Gong practitioners) are. It may be that some decision makers hold a jaundiced view about Chinese asylum seekers, in particular when protection visa claims are made through a migration agent with a poor reputation[16]. If that is the case it is to be deplored. It is the responsibility of decision makers to make decisions impartially and consistently with the Refugees Convention and the Migration Act. The courts must be vigilant to ensure that decisions are made on the basis of principle, not prejudice. I have previously put the view that the Minister’s Department should reform the process for the making of protection visa applications through migration agents[17]. Protection visa applicants should not be disadvantaged because of the ineffective regulation of the migration agent industry. Protection visa applicants from all countries and claiming adherence to all religions are entitled to expect the same standard of consideration of their claims, regardless of which registered migration agent they choose to instruct.
[16] See the article by Patricia Cruise, a former officer in the Minister’s Department, in the Sydney Morning Herald, Wednesday, 11 August 2010, page 15.
[17]SZMEM v Minister for Immigration & Anor [2008] FMCA 1286
Apart from the problem of a discriminatory approach being taken to the assessment of claims by Chinese Christians, there is the additional problem of the Tribunal setting itself up as the arbiter of what a Christian should know about the faith. Such an assumption is often not even stated and cannot readily be tested. When dealing with Christians, rather than Falun Gong practitioners, the Tribunal does not have the advantage of independent evidence of what an adherent should know[18]. I dealt with this problem in SZOBA v Minister for Immigration[19] at [8]-[9] where I said:
There is a view that there are better ways to test claims of a well-founded fear of being persecuted for reasons of religion than by asking an applicant questions to test knowledge of details of a faith. On that view, decision makers should focus on observable triggers of persecution that give rise to a risk of serious harm, rather than attempt to test the sincerity of asserted religious faith by means of a knowledge test or an examination of subjective beliefs. There are real risks in the latter approach[20]. A particular difficulty is that tests of religious knowledge are irrelevant without reliance on an assumption about what an applicant should know. Such an underlying assumption may be difficult to validate. The alternative (and to my mind more reliable) approach recognises that refugee status does not depend upon genuine belief but rather on the motives of persecutors. In that regard, a credibility assessment will be focused not on the genuineness of faith but on the applicant’s account of the events that are said to trigger the fear of persecution.
While there is, in my view, some force in the view that there are better ways of approaching this issue, it is well established that the Tribunal is entitled to take the approach it did. In my view, viewed as a whole, the Tribunal’s questioning of the applicant was not unfair and does not indicate any reasonable apprehension of bias. The applicant’s answers to the questions put to him bore on the adverse credibility finding made but were one of a number of factors bearing on that adverse credibility finding. The finding was clearly open to the Tribunal on the material before it.
[18] The Tribunal frequently refers in Falun Gong cases to the opinions of Dr Benjamin Penny, a noted China scholar and someone with a high degree of knowledge about Falun Gong.
[19] [2010] FMCA 99
[20] Yan v Gonzales (2006) 438 F.3d 1249, 1252 (10th Circuit)
While I had some concern in that case, I found no jurisdictional error in the Tribunal’s approach. However, in the present case, the Tribunal’s approach was more problematic. The Tribunal elected to badger the applicant for a favourite verse and then to demand that he recite that verse verbatim and accurately by reference to an English language King James version of the Bible. The Tribunal appears to have reasoned from an assumption that a person attending a local unregistered Church in China from 2004 to 2008 on a regular basis should be able to recite verbatim a verse from the Bible that made sense in English when compared with the King James English translation of the Bible. The applicant told the Tribunal that he read the Bible in the Chinese language. He was speaking through an interpreter. He was also made confused by the presiding member’s questions. In my view, the approach taken by the Tribunal was most unfair.
There is a question of whether what might be procedurally unfair under the general law constitutes a jurisdictional error by reference to the procedural code governing the operations of the Tribunal. Absent a finding of bias or some other jurisdictional error outside the common law fair hearing rule (which is excluded by s.422B), complaints of the kind I am now addressing need to be considered by reference to s.425 which, when read with s.420, requires the Tribunal to afford a hearing opportunity which has substance.
For the purposes of s.425 the issue in this case is whether the Tribunal ensured that the applicant understood the essential and significant issues upon which the review would turn. The delegate found without difficulty that the applicant is a Christian (CB 60). The Tribunal reached the opposite conclusion. The Tribunal therefore needed to ensure that the applicant was aware that the genuineness of his faith was an essential issue that the Tribunal wished to determine. The Tribunal asserts at [48] (CB 98) that it made a relevant disclosure, albeit apparently in purported compliance with s.424AA:
The Tribunal said that his practice of Christianity in Australia could be the reason or part of the reason which could lead the Tribunal to find that it should affirm the decision to refuse the visa. The Tribunal said he could respond or comment on what it had said and he could ask for more time to do so. He was not well educated and he could not talk smartly.
Further, at [53] (CB 99) the Tribunal records that it expanded upon its concerns and also disclosed to the applicant its expectation about what a Christian in his position should know:
The Tribunal said it also had concerns about his claim that he was a Christian in China. He had told the Tribunal that in China he had attended the local church from 2004 until 2008 and that he read his Bible between two and three times a week in China and that he attended church in Australia and that he read his Bible nearly every night for about an hour. The Tribunal said it might be reasonable to expect a person who had been practicing as a Christian for that time in China and who had read their Bible during this time to have a broader knowledge about the Bible than he displayed. The Tribunal said that it might be reasonable to expect a person with this amount of Christian experience in China to be able to recite a claimed [favourite] verse in the Bible and to provide a greater level of detail or knowledge about claimed [favourite] stories in the Bible than he was able to provide to the Tribunal. The fact that he was not able to do so, might lead the Tribunal to find that he is not telling the truth about his practice of Christianity in China and might suggest to the Tribunal he was not a witness of truth and that he had not told the truth about other claims to the Tribunal. This could be the reason or part of the reason which could lead the Tribunal to conclude it should affirm the decision to refuse the visa. The Tribunal said he could respond or comment on what it had said and he could ask for more time to do so. He would like more time and the Tribunal granted him two weeks.
The Tribunal’s statement is verified by the transcript of the Tribunal hearing[21]. I am satisfied that the Tribunal did enough to ensure that the applicant was aware of the essential and significant issues upon which the review would turn. There was no breach of s.425.
[21] Transcript, pages 32, 35-36
In my view, the real difficulty in this case is that the Tribunal did set itself up as an arbiter of what a Christian in the applicant’s circumstances ought to know about the faith. This is revealed both from the transcript of the hearing at page 36 and also [74] of the Tribunal’s reasons (CB 104) wherein the Tribunal found that it was not satisfied that the applicant had:
…a level of knowledge of the Bible a person might reasonably be expected to have if they had been a believer in Christianity in China from 2004 until 2008 or had been associated with the practice of Christianity in China from 2004 until 2008.
The Tribunal does not state explicitly what the minimum standard for such a person was. How much of the Bible would a person need to know in order to satisfy the Tribunal’s test? The assumption underlying the Tribunal’s reasons is that there is some minimum standard that a person might expect, but the standard is not clear, apart from an expectation that a genuine Christian ought to be able to recite a favourite verse from the Bible. If, as appears from the Tribunal’s reasons and the transcript, that standard was that an applicant who studies the Bible in the Chinese language must be able to recite a passage from the Bible as known to him or her verbatim, through an interpreter, by reference to the King James version of the Bible in the English language, then the standard is absurd and unreasonable. A decision made on such a basis would be so unreasonable that no reasonable Tribunal member could make it: Minister for Immigration v SZMDS[22]. That would be the application of a wholly artificial test uncomfortably reminiscent of the notorious dictation test applied between 1901 and 1958 under the Immigration Restriction Act 1901 (Cth)[23]. However, because I cannot be certain that that is the full extent of the standard that the Tribunal intended to apply, and there may have been other elements of its standard, which were unstated, I content myself with finding that the Tribunal fell into the error identified in Wang.
[22] [2010] HCA 16
[23] Amended in 1912 to become the Immigration Act 1901 (Cth)
I conclude that the Tribunal committed a jurisdictional error because by approaching the applicant’s claims on the basis that he had to satisfy the Tribunal that he possessed a particular level of doctrinal knowledge to justify being regarded as a Christian, the Tribunal asked itself the wrong question and there was a constructive failure of jurisdiction.
The applicant should receive relief in the form of the constitutional writs of certiorari and mandamus. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 18 August 2010
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