SZQTB v Minister for Immigration
[2012] FMCA 32
•20 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQTB v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 32 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – level of interpretation at the Tribunal hearing – whether the Tribunal wrongfully set itself as the arbiter of religious faith or doctrine in considering the applicant’s claims – request for impermissible merits review – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 65, 189, 411, 414, 425, 425A, 426A, 430, 441A, 441C, 441G, 476 Migration Regulations 1994 (Cth), reg.4.35D International Covenant on Civil and Political Rights [1980] ATS 23 (Cth) Australian Human Rights Commission Act 1986 (Cth), Sch.2 |
| Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) |
| Applicant: | SZQTB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2314 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 9 December 2011 |
| Date of Last Submission: | 9 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 20 January 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr D A Hughes |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 12 October 2011 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2314 of 2011
| SZQTB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 12 October 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), to review a decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 September 2011, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.
Background
The applicant is a national of the People’s Republic of China (“China”) who arrived in Australia on 3 May 2008 on a student visa, which ceased on 13 December 2010 (after one renewal). On 4 March 2011 the applicant was detained pursuant to s.189 of the Act. The applicant, with the assistance of legal representation, applied for a protection visa on 12 April 2011 (Court Book – “CB” – CB 1 to CB 41).
Claims to Protection
The applicant’s claims to protection were set out in a statement attached to her protection visa application (CB 39 to CB 41).
The applicant claimed that she was introduced to a Christian group after her mother was involved in a work accident. She claimed that people attended the family home “… to talk to [her] mother about things to do with God…”, and that she and her mother also attended “Shouter activities” (CB 38.7).
The applicant claimed that on 24 December 2006 the local police detained both her and her mother, along with eight others, for attending a gathering to celebrate Christmas (CB 38.8). The applicant claimed that she was held in a detention centre for one week, and her mother was detained for a month and fined 5,000 yuan (CB 39.1). The applicant claimed that she was “slapped” during detention, and was only released when she signed a guarantee to say that she “… would never attend an illegal gathering like that again.” (CB 39.2.)
The applicant also claimed that after another police raid on a church gathering attended by her mother on 25 March 2007, the police began to visit the family home regularly, and she was subjected to discrimination at school (CB 39.5 to CB 39.9). Consequently the applicant claimed that she went to live with her mother’s “church sister” until she travelled to Australia (CB 39.5).
The applicant claimed that her mother had been, and still is, in hiding since 25 March 2007, and that she has not had any contact with her since then (CB 40.8). The applicant claimed that if she returned to China she would be arrested again for practising her faith and
“… people will treat [her] distantly and neighbours will discriminate against [her] and some people may report [her] to the authorities…” causing the applicant to retreat into hiding (CB 41.5).
The Delegate
The delegate was not satisfied that the applicant was a practicing Christian. The delegate noted that as the reading of the Bible is a central element to the Shouters, the applicant’s limited knowledge and answers at the interview, which were “superficial at best”, were not congruent with someone who would read the Bible several times a week (CB 56.2). The delegate also found the applicant’s limited practical involvement in her church and level of proselytisation undertaken in Australia was not consistent with someone who wanted to freely practice their faith in Australia (CB 42 to CB 57).
Further, the delegate found that the applicant’s three year delay in applying for a protection visa after arrival in Australia was not consistent with someone who claimed to fear for their safety. In any event, the delegate found that if returned to China, the applicant would not involve herself in a Shouter Church and would therefore not be of adverse interest to the Chinese authorities (CB 56.8).
The Tribunal
The applicant, through her solicitor, applied to the Tribunal on 31 May 2011 for review of the delegate’s decision (CB 58 to CB 61).
On 8 June 2011, the Tribunal invited the applicant to appear before it on 20 July 2011 (CB 64 to CB 66, see also [34] (at CB 122) to [55] (at CB 124)).
On 29 June 2011, the applicant’s representative wrote to the Tribunal attaching translated documents from the applicant, which included a statement from a previous guardian of the applicant, certification that the applicant was baptised in China, a “Release Certificate” dated 31 December 2006, and a “Detention Certificate” dated 24 December 2006 (CB 70 to CB 78). On 14 July 2011 the applicant’s representative wrote again attaching a statement by the applicant dated 8 July 2011 (CB 79 to CB 82). On 18 July 2011 the applicant’s representative wrote, yet again, to the Tribunal providing submissions and evidence for the hearing (CB 83 to CB 115).
The Tribunal rejected the applicant’s explanations for the delay in applying for a protection visa and noted that if she had a genuine fear of being persecuted in China then it would have been expected that she would have made efforts to determine the validity of her student visa and to avoid becoming illegally present in Australia. It therefore held that the applicant did not have a subjective fear of being persecuted in China, and that her fears of freely practicing Christianity in China had been “seriously undermined” ([59] at CB 124).
The Tribunal did not find the applicant’s claims that she was a practicing Christian, or her accounts of her attendance at church gatherings, to be credible ([64] – [66] at CB 125). These findings were based on the applicant’s “… extremely limited level of knowledge of the Christian faith…” and her inability to describe the significance of certain events described in the Bible, particularly, the story of Abraham, the sermon on the Mount, and to whom the “10 Commandments” were given ([61] at CB 125).
In any event, the Tribunal believed the answers given by the applicant to be “rehearsed” ([61] and [64] at CB 125). The Tribunal also noted that the level of knowledge displayed by the applicant of Christianity at both the departmental interview and at the hearing before it was not “… commensurate with that of a person who was introduced to Christianity over five years ago…” ([61] at CB 125).
The Tribunal was therefore not satisfied that the applicant had been, or would be involved in any church activities in either Australia or China, and therefore found that she would not attract the adverse attention of Chinese authorities ([66] at CB 125). It therefore affirmed the delegate’s decision not to grant the applicant a protection visa ([68] at CB 126).
Application to the Court
The applicant has put forward the following three, unparticularised grounds for review by the Court:
“1. Error of law in the decision itself and in the manner in which the Refugee Review Tribunal conducted the hearing and matter.
2. Failing to take into account very relevant facts of the matter.
3. Failing to take into account Australia obligation under the International Covenant on Civial right and Political rights ICCPR under Article 2, 6, and or 7 of the ICCPR if I the applicant returned to CHINA.”
[Errors in the original.]
Before the Court
At the hearing before the Court the applicant appeared in person with the assistance on an interpreter in the Mandarin language. Mr D A Hughes of counsel appeared for the first respondent. Written submissions were only filed by the first respondent.
Before the Court the applicant raised a number of complaints which did not appear to arise from the grounds of the application. Although, given the varying general nature of grounds one and two, it may be said that some of the complaints could be seen as particulars.
In any event the complaints were:
1)The applicant had provided a statement of her claims to the Tribunal. It ignored that statement and failed to ask her questions about it.
2)The interpreter at the hearing before the Tribunal did not have sufficient knowledge about Christianity and was therefore unable to adequately translate what she said “in terms of the Christian terminology”. This impacted “heavily” on her answers.
3)That the “barrister” assigned to give advice to the applicant (in context, I understood this to be a reference to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”) was not an “independent barrister”, was a “barrister for the Department of Immigration”, and did not take her “case seriously”.
Consideration
Dealing first with each of these complaints.
Complaint One
The document in question appeared to be that headed: “Statement To The Refugee Review Tribunal for Hearing on 20th July 2011” and dated 8 July 2011 (reproduced at CB 80 to CB 82). The applicant’s statement put forward matters relating to her faith in China, in particular the “meaning” of her “Christian faith”, her experiences of persecutory incidents in China, arrangements to come to Australia, and the applicant’s life in Australia.
It is the case that in its decision record the Tribunal made no mention of this statement. The Tribunal did make reference to another statement submitted by the applicant in support of her application for a protection visa on 12 April 2011 (CB 38 to CB 41).
What may be implicit in the applicant’s complaint is that the Tribunal failed to deal with a claim made, or an aspect of any such claim, in the manner explained in such authorities as Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No.2) [2004] FCAFC 263; (2004) 144 FCR 1, and Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244.
While the later document exhibits a level of sophistication of expression perhaps not evident in the more straightforward, earlier, statement, what is apparent is that the later document does not materially add to, or expand the scope of, the claims as made in the first statement.
The applicant’s claimed incidents of harm in China (including those involving her mother), the applicant’s claimed detention in China, her Christian faith (for example her claimed baptism) and her experience in Australia, were all present in the document to which the Tribunal expressly said it had regard.
Further, I agree with submissions made by Mr Hughes that, in relation to the later document, the Tribunal’s recording of the applicant’s claims in its decision record ([22] (at CB 121) to [32] (at CB 122)), and the Tribunal’s account of what occurred at the hearing before it ([34] (at CB 122) to [55] (at CB 124)), reveal that the Tribunal considered all the claims put forward by the applicant in support of her application.
If the applicant’s complaint is simply that in its decision record the Tribunal did not specifically refer to the actual document, as opposed to the claims advanced, then such a complaint does not assist the applicant in revealing jurisdictional error in the Tribunal’s decision.
The Tribunal’s decision record was plainly produced in compliance with s.430 of the Act. The obligation arising from this section, amongst other things, is to refer in the decision record to the “evidence or other material” on which the Tribunal’s findings of fact were made (s.430(1)(d) of the Act), not necessarily to all the material before it.
So long as those findings of fact encompassed all of the applicant’s claims to fear persecutory harm, then no error is revealed in simply omitting to refer to a document whose contents in any event were subsumed in the Tribunal’s consideration, albeit, sourced elsewhere.
Further, any error in relation to s.430 of the Act, on its own, does not reveal error (Applicant S296 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 1166 at [6] per Gyles J, and Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [45] per Gummow and Hayne JJ).
Complaint Two
The applicant’s second complaint before the Court concerns the level of interpretation provided at the hearing before the Tribunal. It is the case that an inadequate level of interpretation at the hearing can lead to a finding of jurisdictional error. What is required is a competent interpreter who provides a competent interpretation (Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6). There will be a breach of s.425 of the Act where the interpretation provided is such that the applicant is unable to adequately give evidence (Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 at [31] per Goldberg J).
Further, bearing in mind the specific complaint about lack of sufficient knowledge of Christianity, what is required is that the translation is sufficiently accurate to permit the concept being translated to be communicated (WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511 at [66] per Lee, Hill and Carr JJ).
The Tribunal would fall into error if the standard of interpretation was so inadequate that the applicant was, in effect, prevented from properly giving her evidence (Appellant P119/2002 v Minister for Immigration & Multicultural& Indigenous Affairs [2003] FCAFC 230).
But such a finding requires evidence to form a probative basis for it. Despite opportunity the applicant has provided no evidence (say, at least, a transcript of the hearing) to enable any consideration of this complaint to take place.
It must also be said, as Mr Hughes submits, that the applicant’s complaint before the Court lacked the necessary specificity of translation errors that may have made the provision of a transcript a useful medium in revealing jurisdictional error.
At best, the applicant’s complaint before the Court was expressed, at its highest, as a thought that the interpreter did not translate correctly, and that this may have impacted on her evidence. The equivocal nature of her complaint to the Court, even allowing for expression and cultural factors, does not assist the applicant in leading the Court to consider whether any such transcript should be made available.
I also note that the applicant was represented before the Tribunal by a solicitor employed by the Legal Aid Commission of NSW (CB 59) who made a number of submissions on the applicant’s behalf (CB 70 and CB 83), and it appears may have attended the hearing (CB 68.5).
If there were any interpretation difficulties at the hearing on 20 July 2011 then there is no evidence before the Court that any complaint was made to the Tribunal about this, either by the applicant or her advisor, in the subsequent two months leading to the Tribunal’s decision.
Complaint Three
The applicant’s third complaint about the panel lawyer cannot possibly reveal jurisdictional error in the Tribunal’s decision.
To the extent that it may be seen as having some impact on the current proceedings, then there are two answers.
First, in the circumstances there is nothing before the Court, other than the applicant’s self-serving complaint, that the barrister lacked independence, or in some way acted unprofessionally. Lawyers on the panel of the “RRT Legal Advice Scheme” should not be impugned simply because they give advice not to an applicant’s liking.
Second, and in any event, there is no right to legal representation or advice before the Court in matters of this type (see SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 at [3] to [4] per Gyles J, a matter on appeal from this Court (SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 41)).
The Grounds of the Application
Ground One
Ground one of the application is expressed in a formulaic way. It uses identical wording to that often seen in other matters of this type involving applicants who are held in immigration detention.
In any event, to the extent that it is a complaint about the manner in which the Tribunal is said to have conducted the hearing, then it fails for the reasons set out above in relation to the complaint about the level of interpretation.
That is, there is no evidence before the Court to support any such charge, which in any event lacks particularity. Further, if there was any such concern, the applicant’s representative before the Tribunal, who was also a lawyer, made no such complaint to the Tribunal at the time.
Nor is any such error apparent from the Tribunal’s decision record. The applicant was invited to a hearing before the Tribunal pursuant to s.425 of the Act. There is nothing before the Court to show that the invitation did not comply with all the relevant statutory and regulatory requirements (see ss.425A, 426A, 441A, 441C, 441G and reg.4.35D(a) of the Migration Regulations 1994 (Cth)).
Ground one is not made out.
Ground Two
Ground two asserts that the Tribunal did not take into account the relevant facts of the matter. No particulars are provided. However, in one sense, it may be seen as an extension of complaint one. That is, that the Tribunal did no consider some aspects of her claims. (See the authorities at [24] above.)
It is the case that implicit in, if not explicit, the Tribunal’s obligation arising from s.430 of the Act, is the obligation to inform the applicant as to the reasons for its decision. Of course s.430 sets out the necessary elements for this to be achieved. The “art” of drafting an effective decision record includes the capacity to strike a balance between being concise but addressing all relevant matters, and prolixity which can only serve to confuse.
In the current case, the scope of the decision record does cause pause to consider whether the Tribunal dealt with all the integers of the applicant’s claim.
During the course of the hearing I did raise the question as to whether the Tribunal considered what may be said to be an integer or iteration of the applicant’s claim to be a Christian, namely a “Shouter”.
In his analysis, the delegate proceeded on the basis that the applicant’s claim to fear persecutory harm was as a member of the Shouter Church, a sub-group of the Christian faith.
The distinction between the two can be seen in his analysis where differences between “mainstream” Christianity and the Shouter Churches formed a part of the consideration of the applicant’s claims (see for example the Shouter practice as to baptism, and the
non-celebration of Christmas (CB 55)).
The Tribunal proceeded on the basis that the applicant’s claimed fear of persecutory harm derived from her claimed Christianity (in general). The question arises therefore, did the Tribunal not consider an integer of the applicant’s claim?
On balance, I do not consider that to be the case. In her statement submitted with her protection visa application, the applicant made no mention of the Shouter Church other than a reference to also being taken by her mother to “Shouter activities”. In terms of her religious faith however, her statement proceeded on the basis that she was a Christian, with Christian beliefs and practices. In particular, an instance of claimed harm to her mother was because “she was a Christian” (CB 39.4, see also generally CB 38 to CB 41).
While in her subsequent statement to the Tribunal (CB 80), she made reference to “the underground church” (CB 80.3), her claimed doctrinal beliefs were presented as: “The meaning of my Christian faith” (CB 81.5).
It was precisely this “meaning” that the Tribunal explored at the hearing ([35] (at CB 122) and following), and on which it based its assessment that the applicant was not a genuine, practicing Christian.
Importantly, the Tribunal also understood that her claimed practice of Christianity took place in “… an underground church…” ([41] at CB 123).
The Tribunal’s analysis therefore must be read, at least fairly, as having encompassed her claim to have attended a Shouter Church as part of her practice of Christianity. In other words, the Tribunal dealt with her claims as presented. No legal error is revealed here.
If what is meant therefore by this ground is that the Tribunal failed to consider the applicant’s claims, or an aspect of her claims, then it fails for the same reasons as set out above at [24] – [30].
In the circumstances what remains is that the ground is a complaint that the Tribunal did not accept, her account of her experiences in China and her claimed religious faith as facts.
As such the ground does not rise above a challenge to the facts as found by the Tribunal. Findings which, for reasons set out in this judgment, were reasonably open to the Tribunal to make on what was before it. The applicant therefore seeks impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481 (“Wu Shan Liang”)).
Ground Three
Ground three asserts that the Tribunal failed to take into account Australia’s obligations under the International Covenant on Civil and Political Rights[1] (“ICCPR”).
[1] Opened for signature on 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
This is an international treaty to which Australia is a party. However, a treaty is only part of Australian law to the extent that it is incorporated into municipal, or domestic law (Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 195 ALR 502 at [100] per McHugh and Gummow JJ and the reference to Ah Hin Teoh v Minister of Immigration and Ethnic Affairs [1994] FCA 1017; (1994) 49 FCR 409).
This treaty does appear in some limited fashion in domestic law (International Covenant on Civil and Political Rights [1980] ATS 23 (Cth) see Australian Human Rights Commission Act 1986 (Cth), Sch.2). But it is limited to the relevant purposes of that Act.
The ground does not succeed in revealing jurisdictional error on the part of the Tribunal because the relevant question for the Tribunal in the current case, that is, a review of the delegate’s decision, was whether it was satisfied that the applicant was a person to whom Australia owed protection obligations under the Convention Relating to the Status of Refugees.[2]
[2] Opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (“Refugees Convention”).
The applicant applied for a protection visa under the Act. This immediately invoked the statutory and regulatory framework established by s.65 of the Act, and in the circumstances, s.36(2) of the Act. This is, in effect, whether the applicant met the definition of “refugee” as set out in Art.1A(2) of the Refugees Convention (SZQGE v Minister for Immigration and Citizenship [2011] FCA 1018).
There is nothing in that Convention, nor its “incorporation” into the Act, nor in the statutory requirements for the conduct of the review by the Tribunal, to even suggest that the Tribunal was required, obliged or compelled to have regard to, or consider the ICCPR (see especially ss.411 and 414 of the Act).
For that matter, nor is there anything before the Court to show that this treaty was advanced as part of the applicant’s case before the delegate, or the Tribunal, such that it can be said the Tribunal failed to consider a claim or relevant consideration in the conduct of the review. In effect the ICCPR was irrelevant to the statutorily task set for the Tribunal by the Act, and was outside the scope of the circumstances presented and arising before the Tribunal.
Ground three therefore lacks merit and is not made out.
Further Consideration
At the first Court date in this matter, I did raise with the Minister’s solicitor the question as to whether the Tribunal wrongfully set itself as the arbiter of religious faith, or doctrine, in considering the applicant’s claims. That is, whether the Tribunal imposed, and arising from its assessment, a minimum threshold of knowledge that a person must have in order to be accepted as, in this case, a Christian.
After a first perusal of the Tribunal’s decision record, I was minded to raise this for at least two reasons.
First, the proper assessment of religious faith cannot be reduced to a formulaic and mathematical “check list” of religious knowledge. What I have described previously (see for example SZOHB v Minister for Immigration & Anor [2010] FMCA 651 at [41]) as the “pub quiz” approach can lend itself to the Tribunal setting itself up as to arbiter of religious doctrine. For example, in the past the Court has been presented with an approach that said for a person to be recognised as a Christian they must know how many epistles St Paul wrote to the Corinthians (answer: two (see I Corinthians and II Corinthians: The Holy Bible in the King James version)).
In the current case, evocative of such an approach, in some parts of its account of the hearing the Tribunal makes reference to questions as to the naming of the gospels of the New Testament, and where Jesus was born ([44] at CB 123).
Second, I had in mind, after perusing the decision record, the relevant analysis by Kenny J in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362; (2010) 272 ALR 115 (“SZLSP”) at [30] – [41] on the question of the imposition of an arbitrary standard of religious knowledge. I specifically invited consideration and submissions from the Minister in light of this at the final hearing. Bearing in mind that the applicant was not legally represented I felt it appropriate to seek submissions from, at least, the Minister.
I thank Mr Hughes for his assistance. In essence the Minister’s position can be summarised as follows.
First, with reference to SZONC & Anor v Minister for Immigration & Anor [2010] FMCA 723 per Raphael FM at [11]:
“There have been a number of cases recently in which concern has been expressed about the manner in which the Tribunal assesses a person’s religious adherence… Those cases all involve criticism of Tribunal decisions where it was alleged that what the Tribunal was attempting to do was to set out some barrier or minimum level of knowledge that an adherent ought to have in order to be accepted as such an adherent… the Court should recognise those cases in which this course of action is undertaken by the Tribunals as rare and should not rush to so minutely examine every case in which religious knowledge is questioned in order to attempt to find such error. In the instant case, there was questioning of the applicant and the applicant’s wife about their religious knowledge, but I am unable to see that it is sufficiently arguable that it comes within that narrow range of cases, where the questioning turns itself into some form of barrier or hurdle that an applicant must jump before his adherence is accepted…”
[Emphasis added.]
I have previously, and respectfully agreed with his Honour on this “emphasised” point (see SZOMD v Minister for Immigration & Anor [2010] FMCA 1001 and SZOPF v Minister for Immigration & Anor [2010] FMCA 924). I see no reason to depart from this in the current circumstances.
Second, with reference to SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129 (“SBCC”) per French J (as he then was), Lander and Besanko JJ 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 short, the Minister’s position is that the Tribunal did not impose some minimum threshold of religious knowledge, but rather made an adverse credibility finding based on the fact that the applicant’s knowledge of Christianity was inconsistent with the knowledge of a person who had been a Christian for the length of time that the applicant claimed.
In this, the Minister submitted the present circumstances are similar to those in WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 (“WALT”), per Mansfield, Jacobson and Siopis JJ at [29] – [30]:
“29 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.
30 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. Nor had the appellant practised his claimed new religion in any way which he identified. The way the Tribunal approached this issue does not reveal any lack of sensitivity to the possible cultural differences which may inform the practice of a particular religion in a particular country: cf Mashayekhi v Minister for Immigration and Multicultural Affairs [2000] FCA 321; (2000) 97 FCR 381 per Merkel J at 384-385, [11]-[15].”
I am guided, and directed, in this also by the later analysis of Kenny J in SZLSP, and relevantly at [37]:
“These authorities indicate that the question whether applying an ‘arbitrary standard’ of knowledge of religious doctrine constitutes jurisdictional error is a complex one. I accept that a Tribunal which relies on the premise that ‘every believer or follower of [a religion] must have certain knowledge or provide certain answers concerning aspects of that religion’ may well fail to engage with the question whether the particular applicant before it is in fact a follower of the religion, and so fall into jurisdictional error. There is, however, a difference between: (a) operating from the premise that all believers will have certain specific knowledge; and (b) concluding, after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant’s lack of knowledge indicates that he is not a genuine adherent of a religion. Further, it must be remembered that the Tribunal’s written reasons typically represent a Tribunal’s concluded view after considering all the evidence. If a Tribunal ultimately finds that an applicant’s lack of particular knowledge is a reason to reject his claim, this finding does not necessarily mean that the Tribunal approached the matter from the outset on the a priori basis that the applicant was required to demonstrate that knowledge.”
[Emphasis in the original.]
As also referred to above (at [50]) it must be accepted that there is a balance to be achieved in the writing of decision records (and indeed judgments) between a prolix record on the one hand, and one of great brevity on the other. While the first may lead to greater complexity and confusion, the latter can create the situation where questions are raised as to whether the Tribunal has properly approached the task set for it.
In spite of its brevity, and on balance, I agree with the Minister that this is not a case where the Tribunal fell into error in its assessment of the applicant’s claimed Christianity.
Importantly, there is no explicit statement in the Tribunal’s reasons that the applicant must meet a particular standard of knowledge.
On at least a fair reading of its analysis (bearing in mind what Kenny J said at the conclusion of her analysis at [37] of SZLSP), I accept that the Tribunal’s approach was to weigh the applicant’s answers to relevant questions in the sense of the paucity and delivery of those answers in an objective sense, rather than as against some preconceived arbitrary standard.
The evaluation in this sense is illustrated by its finding that in comparing the display of her knowledge as expressed at the interview with the delegate with her demeanour and hesitation at the hearing before it, and the observed tendency to change her “testimony” that the applicant’s “limited knowledge of Christianity had been rehearsed…” ([61] at CB 125).
Further, the Tribunal did take into account a range of factors in rejecting the applicant’s claim that she is a “genuine” practicing Christian. Beyond her knowledge of Christianity, the Tribunal explored and considered how she said she came to be a Christian ([35] at CB 122) and the significance to her of being a Christian ([39] at CB 123) (see in this regard WALT at [28] – [32], and as this is considered at [35] in SZLSP).
But even further, in the current case (and with reference to SBCC at [48]) the Tribunal’s rejection of the credibility of the applicant’s claim to be a practicing Christian was also based on a quite separate ground, or basis. Namely, the rejection of the applicant’s explanation as to why she delayed for an inordinately lengthy period of time in applying for protection after arriving in Australia ([58] at CB 124 – nearly three years).
As the Minister submits this also led to a separate finding that the applicant did not have a subjective fear of persecution in China ([59] at CB 124).
The test for determining “well-founded fear”, as it arises from Art.1A(2) of the Refugees Convention, was set out by the High Court in Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379; (1989) 87 ALR 412. Relevantly see, for example, per Dawson J at 396:
“The phrase ‘well-founded fear of being persecuted’… contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear.”
(See also Wu Shan Liang at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.)
The Tribunal’s task is to consider whether an applicant, objectively, has a well-founded fear of persecution.
It is the case that if the Tribunal makes a finding, of course based on the evidence before it, and for which it gives reasons, that an applicant does not have a subjective fear, based, and arising from, the Refugees Convention, there is no need to consider whether there is an objective basis to the claimed fear (see Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 52 at [32] – [34] per O’Connor J, as confirmed on this point on appeal in Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 per Heerey, Moore and Goldberg JJ).
As the Minister submits, in SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 120; (2003) 129 FCR 137 at [19] Cooper J found that the question of an objective fear does not arise if no subjective fear arises in the circumstances presented. Although I should just note, for the sake of completeness, that in the same case Finkelstein J, in dissent, found that the Refugees Convention does not require an applicant to correctly specify the exact reasons as to the claimed well-founded fear of persecution. Contrary to this, Mansfield J in Firuzibakhsh v Minister for Immigration & Multicultural Affairs [2002] FCA 982 at [56], stated that the subjective fear should be identified by an applicant.
In any event, whether an applicant is required, or not required, to correctly specify the reasons for why, as in this case, she has a
well-founded fear of persecution, in the current circumstances it was open to the Tribunal on what was before it to find she did not have a subjective fear of persecution. It gave a cogent reason for this finding.
The applicant did seek to explain her lengthy delay in seeking protection. In the circumstances, it was reasonably open to the Tribunal to reject this explanation. It gave reasons for this. Once it arrived at this conclusion it was not necessary for the Tribunal to proceed further to see if the fear was objectively made out. But there is no legal error in it having done so.
I agree with the Minister therefore that whatever else the Tribunal did (although no jurisdictional error is otherwise revealed in any event) its finding as to the absence of a subjective fear was sufficient, and entire, to support its decision to affirm the delegate’s decision.
Conclusion
In all therefore, for the applicant to succeed the Court would need to, at least, find jurisdictional error in the Tribunal’s decision. As I cannot discern any such error on what has been put before me, the application should be dismissed. I will make an order accordingly.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 20 January 2012
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