SZRCY v Minister for Immigration
[2013] FMCA 51
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRCY & ORS v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 51 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to comply with s.424A of the Migration Act, misunderstood the applicant’s claims or erred in failing to refer to letters of support. |
| Migration Act 1958 (Cth), ss.48A, 48B, 91R, 424, 424A |
| Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Minister for Immigration and Citizenship v MZYHS and Another (2011) 119 ALD 534; [2011] FCA 53 Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 |
| First Applicant: | SZRCY |
| Second Applicant: | SZRCZ |
| Third Applicant: | SZRDA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 246 of 2012 |
| Judgment of: | Barnes FM |
| Hearing date: | 26 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 31 January 2013 |
REPRESENTATION
| Applicants: | In person |
| Counsel for the Respondents: | Ms Nolan |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
A writ in the nature of certiorari issue directed to the second respondent, quashing the decision of the second respondent made on 10 January 2012 in Tribunal case number 1104688.
A writ in the nature of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent made on 3 May 2011.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 246 of 2012
| SZRCY |
First Applicant
| SZRCZ |
Second Applicant
| SZRDA |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGREE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal dated 10 January 2012 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas. The protection visa application in question was lodged on 21 February 2011.
The first applicant (referred to for convenience as “the applicant”), who is a citizen of the People’s Republic of China and upon whose claims the second and third applicants (his wife and son respectively) rely, arrived in Australia on 27 February 2000. According to the delegate of the first respondent, on 10 April 2000 he applied for a protection visa. That application was refused on 11 May 2000. The applicant unsuccessfully sought review by the Tribunal and Ministerial intervention. In 2006, over five years after the Tribunal decision, he sought judicial review. He appealed to the Federal Court. After his appeal was dismissed in 2008 he again sought Ministerial intervention. In 2008 he also made a request under s.48B of the Migration Act 1958 (Cth) (the Act).
In its findings and reasons the Tribunal recorded that the second and third applicants, also citizens of the People’s Republic of China, arrived in Australia in 2007 and 2008 respectively.
On 9 February 2011 the first respondent, pursuant to s.48B of the Act, determined that s.48A did not apply to prevent another application for a protection visa by the applicant.
In the further application for a protection visa lodged on 21 February 2011 the applicant sought protection on the basis that he feared persecution if he returned to China because of his adherence to the Christian faith. The application was refused and the applicants sought review by the Tribunal. The Tribunal invited the applicants to a hearing. When the applicants’ migration agent responded to the hearing invitation (on 15 July 2011), he provided the Tribunal with two letters of support (with translations) attesting to the faith of the first applicant and his wife and their involvement in church activities in Australia, including attendance at church, fellowship meetings and Bible study (the letters of support). The applicants attended a Tribunal hearing.
After the Tribunal hearing the applicant provided a written statement addressing deficiencies in his oral evidence about his knowledge of Christianity.
The Tribunal Decision
On 10 January 2012 the Tribunal affirmed the decision of the delegate. The Tribunal recorded that it had before it the Departmental file relating to the applicant. It outlined the claims made by the applicant in his first protection visa application of 2000, as well as in the second protection visa application.
The Tribunal also summarised the evidence given by the applicant and by his wife and son at the Tribunal hearing. It referred to the statement provided by the applicant after the hearing addressing responses given by him at the hearing relating to his knowledge of Christianity and to a medical certificate relating to a claim that the applicant’s wife suffered from depression.
In its findings and reasons the Tribunal accepted that the applicants were citizens of the People’s Republic of China. It summarised the applicant’s claim as a claim to be at risk of persecution as a genuine, practicing Christian who was introduced to Christianity at the age of 10.
The Tribunal expressed “serious concerns regarding the applicant’s lengthy stay in Australia illegally after his first claim for protection was refused” and what it described as “his failure to exhaust the appeal process”. It stated that by staying illegally the applicant had risked deportation to the PRC, where he allegedly feared “persecution for reasons of his being a genuine practicing Christian, who due to the strength of his convictions would organise a house church in the PRC were he now to return there”.
The Tribunal referred to the applicant’s explanation that he had “approached immigration authorities in an attempt to regularise his status after the remainder of his family arrived” and the fact that when asked why he had risked deportation “for such an inordinate length of time if he feared persecution” the applicant had stated that “he was not aware that he could pursue the appeal process further”, that he later learnt further avenues were open and that he had “feared return to the PRC so much that he overstayed illegally”. The applicant also testified that he did not know he could appeal until advised by a friend and that he had applied later.
The Tribunal rejected these explanations. The Tribunal found that “[i]f the applicant had a subjective fear of persecution, he would have made efforts to determine whether he had exhausted the avenues of appeal available to him, and to … avoid becoming illegally present in Australia, thereby risking forcible return to the PRC”. Given these factors, the Tribunal found that “the applicant [did] not have a subjective fear of persecution in the PRC, and that as a result his claims of fearing persecution in the PRC for reasons of his being a genuine practicing Christian, who due to the strength of his convictions would organise a house church in the PRC were he now to return there [were] greatly undermined”. The Tribunal assessed the claims before it in this light.
The Tribunal referred to the fact that, in addition to his claim to be a Christian who took an interest in Christianity at the age of 10 at the encouragement of his mother, the applicant claimed to have attended a house church in China and to have read the Bible. He claimed that as a result of being a practicing Christian in house churches in China he was at risk of persecution.
The Tribunal stated (at [85] – [87]):
The applicant did not display a level of knowledge of Christianity commensurate with that of a person who was introduced to Christianity many years ago at the age of 10. His testimony was hesitant and often confused. The applicant testified that he has read the Bible, and has his own copy. At first he did not understand it. When asked about the difference between the Old and New Testaments, he testified that the New Testaments are in poems, and that the Old Testament is about Genesis and how God created the world. In the Old Testament Jesus Christ regretted creating man but he does not have a good idea about this. When asked to describe the story of Abraham, he testified that it’s a king of Israel. He heard a pastor talking about it but did not remember the details. When asked about the story of Moses, he testified that Moses was dispatched to lead the Israelites to walk out of Egypt. When asked what else he did the applicant testified that Moses also taught God’s law. When asked how the laws came to be, he testified that he did not remember. The applicant was unable to remember how many gospels there are in the New Testament. When asked who wrote the gospels he said that they were written by Christ’s disciples, but did not remember them now. He testified that Jesus was born in Bethlehem in a horse shed. The applicant was asked to name Christ’s mother and after hesitating answered Maria. When asked the name of his father on earth he testified that he was Joseph. The applicant was asked who Mary Magdalene was, and testified that she was the mother of Jesus. When asked who Lazarus was, he testified that he did not remember. When asked the name of the disciple who betrayed Jesus Christ, he after some hesitation testified Judas. When asked about the last supper he hesitated and then testified that it was when Jesus broke bread and drank wine, and that all his disciples could remember Jesus’ death and he could come back together. When asked what Christians call the day Jesus died, he hesitated and replied that it was suffering day. The applicant testified that he attends a church in Cabramatta, that he did not know its denomination, and that he has attended once or twice a week for over ten years.
The Tribunal found that given his hesitation in answering questions regarding Christianity and tendency to change his testimony that his limited knowledge of Christianity had been rehearsed and memorised, albeit in most instances incorrectly. The applicant’s knowledge of Christianity is not commensurate with that of an individual who has attended church from the age of ten, and who claims to have attended church in Australia for a number of years, and who on return to China would attend or form an unregistered family church. The Tribunal does not accept that the applicant has been a practicing Catholic (sic) since the age of ten. In the Tribunal’s view the applicant’s knowledge of Christianity is not commensurate with his claims to be a genuine practicing Christian, who due to the strength of convictions would organise a house church in the PRC were he now to return there.
Given the applicant’s limited level of knowledge of the Christian faith, it finds that his level of knowledge is not commensurate with that of a genuine practicing Christian. Given these factors, the Tribunal finds that the applicant is not a genuine practicing Christian.
The Tribunal also observed that applicant’s son and wife had been able to depart China legally without hindrance and that his family had not come to the adverse attention of the authorities in China for over 10 years.
The Tribunal continued:
Given the Tribunal’s finding that the applicant is not a genuine practicing Christian, it does not accept as credible the claims by the applicant that he is a genuine practicing Christian, and it is not satisfied that he has been involved in any church activities in Australia or China which will now, or in the reasonably foreseeable future attract the adverse interest of the PRC authorities. The Tribunal is not satisfied that the applicant will be targeted or mistreated by the authorities in China for being a genuine practicing Christian or of any interest to the authorities in the PRC. Given that this is the central element of his claim, the Tribunal finds that there is insufficient credible evidence upon which to make a finding that the applicant is a Convention refugee.
The Tribunal concluded that it was not satisfied that there was a real chance that the applicant would be subjected to persecution by the authorities in China for a Convention reason. As it was not satisfied that any of the applicants was a person to whom Australia had protection obligations, it was not satisfied that they met the criteria applicable to family members of such persons. The Tribunal affirmed the decision not to grant the applicants protection visas.
These proceedings
The applicants sought review by application filed on 6 February 2012. The grounds of the application are as follows:
1. The Refugee Review Tribunal has acted unjustly and has not fulfilled its obligation under S.424
2. The Refugee Review Tribunal incorrectly assessed me as a Catholic but my claim was based on the fact that I am a protestant Christian.
3. The Refugee Review Tribunal erred in law when it unilaterally concluded that I was not a genuine practicing Christian because it has no such power to determine this. It is also not qualified to make such conclusion
Sections 424 and 424A of the Migration Act
The first ground in the application refers to s.424 of the Act, which provides that in conducting the review the Tribunal may get any information that it considers relevant. However if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. Section 424 also provides for the Tribunal to invite a person to give information by a specified method.
The applicants did not file written submissions. At the hearing the applicant was given the opportunity to explain this ground. He took issue with the fact that the Tribunal had not referred to the two letters of support attesting to his involvement in church activities in Australia. This issue is discussed further below, but it does not raise any concern about a failure by the Tribunal to comply with s.424 of the Act. The letters of support were provided to the Tribunal at the volition of the applicant, not in response to an invitation to provide additional information under s.424 such that the provisions of s.424(3) were engaged. No failure to comply with s.424 has been established.
Counsel for the first respondent proceeded on the basis that ground one was intended to refer to s.424A of the Act. Insofar as the applicant did intend to refer to s.424A, it has not been established that there was any information to which s. 424A(1) applied.
It is the case that the Tribunal stated that it had before it the applicant’s first protection visa application and summarised the claims he made in that application. However there was no suggestion by the Tribunal and nor is there any evidence to suggest that there was anything in the first protection visa application that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. In particular, there is no suggestion that there was material that constituted in its terms a rejection, denial or undermining of the applicant’s claim to be a refugee (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [17]).
Furthermore, in making the 2011 application for a protection visa, the applicant’s migration agent provided the Department or the Tribunal with a copy of the original protection visa application, the applicant’s statement in support of the original protection visa application, and a statement he had provided to the Refugee Review Tribunal in 2000. Hence this material amounted to information that the applicant gave during the process that led to the decision under review and was excluded from the requirements of s.424A(1) by virtue of s.424A(3)(ba) of the Act.
The delegate recorded that the applicant unsuccessfully sought judicial review of the 2001 Tribunal decision in 2006 and that his appeal to the Federal Court was dismissed in 2008. However the fact of such proceedings did not amount to information that would be the reason or part of the reason for affirming the decision under review within s.424A(1) of the Act. Moreover, the Tribunal’s view that the applicant had “failed to exhaust” the appeal process after his first unsuccessful protection visa application was an aspect of its reasoning and not information within s.424A(1) of the Act. As the High Court observed in SZBYR (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 par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". 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.
No failure to comply with s.424A of the Act has been established.
Whether the Tribunal fell into jurisdictional error in incorrectly assessing the applicant as a Catholic
Ground two in the application is that the Tribunal incorrectly assessed the applicant as a Catholic when his claim was said to be based on the fact that he was a Protestant Christian. In submissions the applicant referred to the Tribunal’s finding (set out at [14] above) that it did not accept that he had been “a practicing Catholic since the age of ten”. The applicant submitted that the Tribunal thought he was a Catholic, whereas in fact he was a Protestant.
As North and Lander JJ observed in Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 (at [27] – [28]):
Of course, if the RRT failed to consider an element of an applicant’s claim, that would amount to jurisdictional error because Division IV of Part 7 of the Act requires a review of the whole of the applicant’s claims. In that case, the RRT would have failed to discharge its “imperative duties”: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1.
However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.
Insofar as it is contended that the Tribunal’s finding that it did not accept that the applicant had been a practicing Catholic since the age of 10 potentially involved a misunderstanding of the applicant’s claim, he made no claim to be Catholic in the material before the Tribunal that is also before the Court. Moreover, while there is insufficient evidence for the Court to be satisfied that the applicant’s claim was expressly presented on the basis of Protestantism as such (as distinct from a claim to be a Christian who attended a house church in China) some of his claims appear to be based on the situation for Protestants in China.
In his original protection visa application of April 2000 the applicant claimed he was a Christian who had assisted his mother who had set up a family church. He claimed that after his mother had been arrested for organising a public evangelical sermon and tortured by the police, he had sued the police and in turn had been beaten and warned.
In his statement of 22 May 2000 provided to the Tribunal after the delegate’s first decision, the applicant referred in support of his application to evidence that “the Chinese authorities ha[d] never stopped suppression and persecution of Catholics and Christians” (sic). He also referred to “sporadic reports of arrests and detentions of Catholics and Protestants”, the arrests of a named Bishop and Fathers and claimed that the Communist Party’s “campaigns to register Catholic congregations” in certain provinces “forced many worshippers into hiding”. He claimed to have actively participated in “Christian” worship activities in a Family Church and to have been persecuted by the Communist Party in China.
There is no evidence before the Court as to the oral evidence given by the applicant to the first delegate or to the Tribunal as originally constituted or as to that Tribunal’s reasons for decision.
In his statement accompanying his second protection visa application of 2011 the applicant claimed that he was born into a devout Christian family and that he left China because of “deprivation of freedom of religion”. He reiterated his claims about his mother’s religious involvement and his action against the police and elaborated on their warnings. He claimed to be “a Jesus follower” who could “only attend a real church where Jesus will be regarded as the Head and not the Communist Party as in the registered three-self church”. He referred to their attendance at an “unregistered church” or a “family church”. The applicant claimed he would continue to be a Christian and attend or even form an unregistered family church of his own if he went back to China. While the applicant did not expressly claim to be Protestant in his written claims, the delegate referred to country information that recorded that the three-self patriotic movement was “the state-approved Protestant religious organization”.
In response to the question about why he thought he would be harmed if he returned to China, the applicant claimed he would not go to “the three-self church regulated and controlled by the Chinese Government because it is not a real Christian church but a government propaganda machine used by the Chinese Government” and that he would only go to an unregistered family church.
According to the delegate, the applicant stated that he would be persecuted because of his Christian faith and that he had been attending the “Western Sydney Christian Church”. However the delegate was of the view that the practices of the Three Self Patriotic Movement (TSPM) would “provide the applicant with spiritual comfort and succour” and that there was “nothing to suggest [he was] of such a strict doctrinal view so as to not find any spiritual comfort in TSPM church services”.
In support of his review application, the applicant’s adviser provided country information about the treatment of Christians in China, including, relevantly, a copy of an article in relation to the situation of Protestants. However the adviser claimed generally that the applicant was a genuine and devout Christian, as did the applicant in a supporting statutory declaration.
The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision. According to the Tribunal, at the hearing the applicant claimed to be a Christian and stated that while he had attended a church in Cabramatta once or twice a week for over 10 years, he did not know its denomination.
In its reasons for decision the Tribunal referred initially to the applicant’s claim to be a Christian. However in the course of its findings the Tribunal did not accept that the applicant had been “a practising Catholic since the age of ten”.
The Tribunal can be seen as having made an error of fact based on a misunderstanding of evidence in categorising the applicant as a Catholic. There is no evidence that he made such a claim. However, apart from the one reference to Catholicism in paragraph [86] of the reasons for decision, the Tribunal otherwise considered the claim that the applicant had made, that is, that he was a “genuine practicing Christian” who had attended church from the age of 10 in China, and who, on return to China, would attend or form an unregistered family church. There is no other evidence in the Tribunal reasons that it considered Catholicism in particular or that it failed to consider any relevant aspects of Protestantism. Elsewhere in its decision it referred to the Christian faith in general.
Critically, the Tribunal made a general finding that the applicant was not “a genuine practicing Christian”. It is not apparent that the Tribunal based this general finding on any matters peculiar to Catholicism. Moreover it considered, but rejected, the applicant’s claim that he would organise a house church based on the level of his knowledge of Christianity. There is no evidence (or claim) that the Tribunal had regard to aspects of knowledge of Christianity not common to both Catholics and Protestants. Subject to what is said below in relation to the letters of support, the Tribunal’s general findings about whether the applicant was a genuine practising Christian sufficiently addressed his claim.
Having regard to the Tribunal’s decision as a whole, this is not a case in which the incorrect factual reference to Catholicism was such that the Tribunal failed to consider the applicant’s claims (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 and SZNPG at [28]). Nor am I satisfied that such error otherwise affected the exercise of power by the Tribunal in a manner amounting to jurisdictional error.
Ground two is not made out.
Whether the Tribunal erred in law
The third ground appears to take issue with the Tribunal’s findings in relation to the applicant’s knowledge of Christianity on the basis that it is contended that the Tribunal had no power to determine whether he was a genuine practicing Christian and was not qualified to make this assessment.
It is well-established that the Tribunal is entitled to assess an applicant’s knowledge of a religion by reference to its own knowledge of that religion (SBCC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 270) provided it does not do so irrationally (see NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 and also SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231). There is nothing in the Tribunal reasons for decision to suggest that the Tribunal went beyond what it could expect the applicant to know about Christianity in its questions at the hearing.
As indicated, there is nothing in the material before the Court to suggest that the questions asked of the applicant about the Bible were not of a general character and central to the Christian faith such that they would apply to both Catholics and Protestants. The Tribunal’s questioning of the applicant as disclosed in its reasons for decision and its findings about his knowledge of Christianity cannot be said to demonstrate irrationality or a predisposition to a certain outcome such as to give rise to any finding of actual or apprehended bias.
Insofar as this ground is intended to take issue with the Tribunal’s credibility findings, such findings are a matter for the decision-maker.
Ground three is not made out.
The letters of support
Counsel for the first respondent also addressed in submissions the Tribunal’s failure to refer to the two letters of support (and translations) provided to the Tribunal by the applicant’s representative on 15 July 2011 with the response to hearing invitation.
The first of these was dated 30 May 2011 from a named person who claimed to have known the applicant and his wife “for quite a number of years”. The writer claimed that they “always attend church together to worship … and to take part in other activities”. He stated that “we join the family bible study group” and that in his opinion the applicant and his wife are “very dedicated Christian”, serving the church and “volunteering to help others in Jesus’ name and to testify to other people the Glory of God from their behaviour”. The writer also stated that the applicant was “well known in the renovation industry”. A photocopy of a New South Wales driver’s licence in the name of the writer was provided, together with an Australian address and telephone contact details.
The second letter, dated 19 June 2011, is from another named person who claimed to know the applicant and his wife and stated that “[w]e always stay together at my house or the house of other brothers and sisters for fellowship meetings and bible study to worship God”. The writer believed they both “love God very much”, were “obedient to God” and “have respect from their heart for God”. A photocopy of an Australian passport in the name of the writer, an address and telephone contact details were provided.
It is apparent that these letters relate to the applicants’ activities in Australia. This is consistent with the applicant’s acknowledgment in his statutory declaration of 15 May 2011 that he did not have documentary evidence in relation to his Christian activities in China.
An issue arises as to whether the Tribunal fell into jurisdictional error by failing to have regard to the letters of support and/or the claims contained therein.
The Tribunal made no reference whatsoever to these letters of support in its reasons for decision. Indeed, it did not make any reference to or purport to apply s.91R(3) of the Act in relation to the applicant’s conduct in Australia. Nor did the Tribunal address whether the applicant’s wife may be seen as making a claim to fear persecution based on her Christian activities in Australia and/or beliefs as attested to in these letters. Rather, it set out the applicant’s claim that he had attended a church in Cabramatta once or twice a week for over 10 years but did not know its denomination. It found that his knowledge of Christianity was “not commensurate with that of an individual who has attended church from the age of ten and who claims to have attended church in Australia for a number of years, and who on return to China would attend or form an unregistered family church”. It concluded that given its findings that the applicant was not a genuine practicing Christian it did not accept as credible his claims that he was a genuine practicing Christian and it was “not satisfied that he has been involved in any church activities in Australia or China which will…attract the adverse interest of the PRC authorities”.
Counsel for the first respondent acknowledged that authorities in relation to situations in which the Tribunal had regard to purportedly corroborative evidence but gave it “no weight” (such as Minister for Immigration and Citizenship v SZNSP and Another (2010) 184 FCR 485; [2010] FCAFC 50; SZNPG; and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30) were not strictly apposite to the facts of this case. However it was suggested that SZNPG and SZNSP stood for the proposition that no legal error was involved in a refusal to give certain evidence sufficient weight to overcome Tribunal concerns arising out of the assessment of an applicant’s credit, even where the brevity of the treatment of the corroborative evidence was unsatisfactory.
While this is so, it was not what occurred in this case. The Tribunal made no reference at all to the potentially corroborative letters of support.
Counsel for the first respondent also contended that a mere failure to refer to, or adequately to consider, evidence, whether or not it might be thought probative, did not of itself give rise to jurisdictional error, even where it may have led to an erroneous finding of fact (see Minister for Immigration and Citizenship v MZYHS and Another (2011) 119 ALD 534; [2011] FCA 53 and Minister for Immigration and Citizenship v SZJSS and Others (2010) 243 CLR 164; [2010] HCA 48). In that context reference was made to the obiter observations of North and Lander JJ in SZNPG (at [27] – [28]) set out at [27] above.
It was submitted that there was no evidence in this case that the applicant claimed to fear harm in China as a result of his Christian activities in Australia and that no jurisdictional error was revealed as the Tribunal was “arguably” not required to consider the issue to which the letters of support related (which was said to be whether the applicant participated in Christian activities in Australia) either because that issue was subsumed in the finding of greater generality that the applicant was not a genuine practising Christian or because the factual premise on which any such claims were based was rejected (see Applicant WAEE).
It was also submitted that even if it were to be accepted that a sur place claim was raised by the applicant’s claims about his conduct in Australia, it was clear that the Tribunal understood that the applicant claimed to have engaged in Christian activities in Australia, regardless of whether it considered the letters of support, having regard to its record under his “claims and evidence” of his claim to the delegate that he “attended a church in western Sydney for the last few years, but had no official role in the church and was not involved in evangelising”, and his recorded oral evidence that he “attends a church in Cabramatta, that he did not know its denomination, and that he has attended once or twice a week for over ten years” and that “[i]n relation to activities with the church in Australia apart from attending services, he testified that he also did maintenance work at the church”.
Counsel for the first respondent submitted that these claims were addressed by the Tribunal in its findings at [86], that “[t]he applicant’s knowledge of Christianity is not commensurate with that of an individual who has attended church from the age of ten and who claims to have attended church in Australia for a number of years” and at [89], where the Tribunal noted that it was not satisfied that the applicant had “been involved in any church activities in Australia or China which will now, or in the reasonably foreseeable future attract the adverse interest of the PRC authorities”. It was contended that having regard to these findings and on a fair reading of the Tribunal’s decision as a whole, it was clear that the Tribunal considered and rejected, inter alia, the applicant’s claim that he would suffer harm in China as a result of his practice of Christianity per se, whether in China or in Australia.
It was acknowledged that the Tribunal had not disregarded the applicant’s conduct pursuant to s.91R(3) of the Act, but submitted that s.91R(3) had no application to the circumstances of this case. It was pointed out that in Minister for Immigration and Citizenship v SZJGV and Another; Minister for Immigration and Citizenship v SZJXO and Another (2009) 238 CLR 642; [2009] HCA 40 at [12], French CJ and Bell J found that the correct construction of s.91R(3) of the Act was “to read ‘whether’ as ‘that’: not introducing alternatives, but indicating only processes of reasoning leading to a favourable determination” (at [12]) and that their Honours went on to find (at [12]):
[P]ar (a) hypothesises the existence of a chain of reasoning leading to a determination in favour of the applicant where that determination is based in whole or in part upon inferences drawn from conduct engaged in by the person in Australia. The command in s 91R(3) therefore requires that the decision-maker not apply any such chain of reasoning unless the condition in par (b) is satisfied with respect to the relevant conduct.
The first respondent submitted that in this case the Tribunal never determined “that” the applicant had a well-founded fear of being persecuted in China and that accordingly the Tribunal was not compelled by s.91R(3) of the Act to consider the issue of its satisfaction pursuant to s.91R(3)(b).
First, it is not in dispute that the Tribunal failed to refer in any way to the letters of support. These letters were potentially corroborative, not only of the applicant’s claims to have engaged in church activities in Australia but also of his claims to be a genuine practicing Christian. This is not a case in which the Tribunal considered but did not give any weight to corroborative evidence (such as Applicant S20/2002). It is not a case in which the Tribunal was of the opinion that corroborative evidence was “not of sufficient weight to allow a finding that the [visa applicant] was a credible witness notwithstanding the glaring weaknesses in [his] evidence” (cf SZNPG at [23]).
In SZNSP the Tribunal had considered but given no weight to a purported witness statement given its adverse credibility finding. The Tribunal’s finding in that case showed that it had “made an assessment of the value of the witness statement and then considered its effect in light of the view it had formed to that point about the credibility” of the applicant (at [33]). Their Honours found (consistent with Applicant S20/2002) that it was open to the Tribunal to assess the credit of the visa applicant “and then, in the light of that assessment, consider what weight should be given to the witness statement” (at [33]) and, in view of all the evidence in the case, to conclude that no reliance should be placed on the witness statement in question (the provenance of which was not established). However, North and Lander JJ made several observations of relevance to a case such as the present. Relevantly, their Honours stated that Applicant S20/2002 “does not relieve the RRT from giving consideration to corroborative evidence” (emphasis added) but “concerns only the timing of that consideration” and “establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence” (SZNSP (at [37] per North and Lander JJ).
Critically, in SZNSP North and Lander JJ continued (at [38]):
The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence.Applicant S20/2002 [2003] HCA 30; 198 ALR 59 does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence. Consequently, the observation concerning the dicta of McHugh and Gummow JJ at [49] in Applicant S20/2002 [2003] HCA 30; 198 ALR 59 made in SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638; (2008) 105 ALD 25 at [23] is probably misdirected. Those observations addressed the situation where the corroborative evidence was disregarded. (Emphasis added).
In this case the Tribunal made an adverse credibility finding about whether the applicant was a genuine practicing Christian, but did not consider the potentially corroborative evidence. Even if the applicant did not expressly claim to fear persecution in China because of his claimed religious activities in Australia, it can be inferred that he relied on such activities and the letters of support in relation to his claims to fear harm as a genuine practicing Christian. Hence corroborative evidence about such activities, his faith and his practices in Australia was relevant to an integer of his claims. The letters of support addressed his beliefs as well as his attendance at church and involvement in other activities. This is not a case in which the corroborative evidence was “irrelevant” to the matter in issue (as considered in WAEE at [46]), or where what was in issue was only whether weight should be given to the opinions expressed by the witnesses about the applicants’ faith (cf Thirukkumar v Minister for Immigration & Multicultural Affairs [2002] FCAFC 268 in which Cooper and Finkelstein JJ were of the view (at [39]) that the Tribunal had not failed to “consider” an opinion, albeit it did not give any weight to that opinion). Thus, the Tribunal fell into jurisdictional error in disregarding the letters of support.
It is the case that there is a distinction between failing to discuss a piece of evidence and failing to have regard to a relevant consideration in the sense considered in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 (and see Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 at [57] and MZYHS at [23] – [24]). It is also the case that in SZJSS the High Court expressed caution about the suggestion by a court that a Tribunal must give “proper, genuine and realistic consideration” to evidence, lest such a court engage in impermissible merits review (at [30] – [37]). However SZJSS was not a case in which no mention was made of supporting letters in issue. Rather the Tribunal had stated that it gave such letters “no weight” (SZJSS at [33]).
In this case the Tribunal failed to give any consideration to evidence that was potentially corroborative of the applicant’s claims not only to have participated in church activities in Australia but also to be a genuine practicing Christian. It did so in circumstances where it failed to make clear findings as to whether or not it accepted that the applicant participated in church activities in Australia as claimed.
While in its findings and reasons the Tribunal recorded that the applicant claimed he had attended a church in Cabramatta once or twice a week for over ten years (but did not know its denomination), it did not make a clear finding as to whether it accepted this aspect of his claims and made no reference to the other activities referred to in the letters of support.
The Tribunal’s observation that the applicant’s knowledge of Christianity was “not commensurate with” that of an individual who had attended church from the age of ten and who claimed to have attended church in Australia for a number of years and who on return would attend or form an unregistered family church did not involve a clear finding as to whether or not the Tribunal accepted that the applicant had attended church in Australia as claimed (and as corroborated) let alone the other claims in the letters of support. Similarly, the Tribunal’s finding that it did not accept that the applicant had been a practicing Catholic since the age of ten not only involved a misunderstanding, but also did not address the claims the applicant made about church activities in Australia. Nor did the subsequent implied finding that he would not “organise” a house church in China.
The applicant’s claims about his conduct in Australia (whether seen as a sur place claim or as relevant to his claim to be a genuine practicing Christian) were not sufficiently addressed in the Tribunal’s findings (based on its adverse credibility finding) that it was not satisfied he had been involved in any church activities in Australia which will attract the adverse interest of the PRC authorities. It is not clear whether the Tribunal accepted that such conduct had occurred, but was of the view that it was not a basis for a fear of harm or support for a finding about the applicant’s Christianity or whether it did not accept that any relevant conduct had occurred. On either basis the Tribunal’s findings were made without taking into account all the claims made in the letters of support about the applicant’s activities in Australia (including not only the church attendance referred to by the Tribunal but also bible study and fellowship meetings) as well as about his faith. These aspects of the applicant’s claims about his activities were not referred to in the Tribunal’s reasons for decision. These claims were not subsumed in a finding of greater generality in circumstances where such finding was made without taking into account the extent of the claims about the applicant’s conduct and beliefs in the letters of support.
It appears that the Tribunal simply based its conclusion on its rejection of the applicant’s claim that he was a “genuine practicing Christian”. Indeed, I note that the Tribunal did not address the relevance of the applicant’s claims that he was arrested and threatened in China, except indirectly in its finding that he did not have a subjective fear of persecution. In this respect it had regard to his lengthy stay in Australia illegally and what was (somewhat confusingly) said to be the applicant’s failure to “exhaust the appeal process” notwithstanding the delegate’s account of his judicial review application to this Court and his appeal to the Federal Court.
In any event, the letters of support amounted to evidence of such potential significance to the applicant’s claims, in particular his claim to be a genuine practicing Christian as well as his claim to have attended church in Australia (see SXRB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1222 and SZOYH v Minister for Immigration and Citizenship and Another (2012) 128 ALD 554; [2012] FCA 713) that if the claims in the letters were accepted this might have affected the result the Tribunal reached. It was necessary for the Tribunal to give express consideration to such evidence.
I note that it may have been open to the Tribunal to consider, but to disregard, the applicant’s claimed conduct in Australia under s.91R(3). It did not do so. It is not to the point that the Tribunal had not determined that the applicant had a well-founded fear of persecution, insofar as such conduct in Australia would clearly be relevant to a process of reasoning leading to a favourable determination (SZJGV at [12].
Whether seen as a failure to address an integer of the applicant’s claim to fear persecution for reasons of religion or as a failure to consider the corroborative evidence as such the Tribunal fell into jurisdictional error.
The matter should be remitted for reconsideration according to law.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 31 January 2013
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