SZREI v Minister for Immigration

[2012] FMCA 718

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZREI & ANOR v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 718

MIGRATION – Chinese underground Catholic student – partly believed by Tribunal – finding that religious activities would not attract persecution – all refugee claims were addressed – untranslated document given to Tribunal – no duty to obtain translation or investigate – reasonableness of conclusions – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), s.91R(3)

Applicant WAEE v Minister for Immigration (2003) 75 ALD 630
Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594, [2011] HCA 1
Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429, [2009] HCA 39
Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164, [2010] HCA 48
Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, [2010] HCA 16
Minister for Immigration & Citizenship v SZOCT (2010) 189 FCR 577, [2010] FCAFC 159
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26
SZLSW v Minister for Immigration & Citizenship [2008] FCA 1321
SZMWQ v Minister for Immigration & Citizenship [2010] FCAFC 97
SZMXS v Minister for Immigration & Citizenship [2009] FCA 1543
SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58

First Applicant: SZREI

Second Applicant: SZREJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 351 of 2012

Judgment of: Smith FM

Hearing date: 14 August 2012

Delivered at: Sydney

Delivered on: 4 September 2012

REPRESENTATION

Counsel for the Applicant: First Applicant In Person

Counsel for the Respondents: Mr H Bevan

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 351 of 2012

SZREI

First Applicant

SZREJ

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant arrived in Australia from China in 2007 on a student visa at the age of 18.  He soon dropped out of his studies, to find work to support himself.  His visa expired in March 2010, but he remained in Australia, living with a girlfriend in a similar position.  They had a daughter in June 2011, who had a cardiac problem requiring surgery.  On 12 July 2011, a migration agent lodged an application for a protection visa on behalf of the applicant.  His daughter, but not his partner, was named as secondary applicant.

2. The visa application explained briefly his reasons for seeking protection, but these were amplified in a narrative forwarded by the agent to the Department of Immigration & Citizenship and in subsequent interviews and hearings.  In short, the applicant said that he came from a rural village in Fujian province, in which about 10% of the population of about 1000 belonged to an ‘underground’ or unofficial Catholic congregation.  The congregation met on Sundays at a building on the outskirts of the village which was used as a church, with visiting priests.  They also met frequently during the week for religious gatherings held in selected homes, including the applicant’s family home.  His family had been Christians for several generations, and the applicant attended these services and gatherings before coming to Australia.  He claimed that in 2005 his mother had been detained by police “due to family church gatherings”, and that this happened again in October 2008.  His mother was beaten and abused, and sent to a detention centre.  The police “still came for investigation frequently”, and his mother told him not to go back to China.  The applicant said: “she worried that I was implicated. Many Brothers and Sisters are being persecuted for religious reasons”. In Australia, he located a church at Flemington which held a Chinese Catholic Mass, which he attended periodically.  His attachment to his religion became stronger after the birth of his daughter, and he and his partner had arranged her baptism.

3. The applicant provided no corroboration for these claims to the Department of Immigration, but attended an interview with the Minister’s delegate on 28 August 2011.  The delegate then made a decision to refuse the visa applications on 29 August 2011.  The delegate thought that “the likelihood of the applicant being investigated or monitored, arrested, beaten or detained in China, even if he attended an ‘underground’ Roman Catholic Church, is low and probably remote”.  He accepted that the applicant had been attending a Catholic church in Australia, but concluded that he “is not a Catholic, but will possibly convert to Catholicism in the future”.  He was not satisfied that the applicant would be of adverse interest to the Chinese authorities for reason of his religion if he were to return to China.

The Tribunal’s proceedings

1. The applicant appealed to the Tribunal, assisted by his agent.  He attended a hearing on 22 November 2011 which lasted about three hours, and a second hearing on 11 January 2012 which lasted about two hours.  Transcripts of the hearings are not in evidence.  The Tribunal included detailed descriptions in its “Statement of Decision and Reasons”, which I would accept, but these probably give an imperfect record.  It does appear, however, that the applicant explained his history volubly, and gave responsive and thorough answers to the Tribunal’s questions and concerns.  He showed a similar capacity for intelligent and earnest presentation of his case at the hearing before me.

2. In the course of the proceedings before the Tribunal the applicant presented documentary corroboration of his claim to have been a member of Catholic congregations in China and in Australia.  As to the former, he presented a small printed Chinese book which had his grandfather’s name inside, and which he described to the Tribunal as “the bible that he has carried with him since he was young”, given to him by his mother (see paragraph 61 of the Reasons).  When questioned about baptism, the applicant said that his bible described three different types of baptism, and, at the request of the Tribunal, he later forwarded a translation of this page to the Tribunal (see paragraphs 61, 87 and 101-102).  The applicant also later provided a translation of a Chinese document which showed that his girlfriend had been baptised in China (see paragraphs 68-69, and 101-102). 

3. The applicant presented a number of photographs which had been transmitted to him by his mother “by QQ”, showing people attending house gatherings inside and outside his parents’ home.  He said that another photograph posted to him by his mother showed him receiving confession and communion.  These photographs are indecipherable as reproduced in the Court Book, and were returned to the applicant by the Tribunal.  He was unable to show them to the Court, but both parties accepted the Tribunal’s descriptions of what they showed.

4. In relation to his church activities in Australia, the applicant presented letters from Father McGee, which said that the applicant had been attending the church at Flemington “since August 2008”.  He also showed the Tribunal photographs and a certificate of his daughter’s baptism there. 

5. Significantly for a ground of review which I shall consider below, the applicant also showed the Tribunal a blank notebook containing some pages of Chinese script notes, with signatures and phone numbers at the front, and some Chinese writing on the last page including the figures “2008.7.15”.  According to the Tribunal’s description of the first hearing, the applicant presented this with his other documents, and described its contents:

   55.The applicant presented a photograph which he claimed showed his attendance at church when he was 10 years old.  He also presented a document in Chinese which he claimed was his wife's baptism certificate.  He referred to a notebook and advised that he had evidence from people who attended the Flemington church proving that he attends every week.  There was also a signature from a priest from Taiwan who visited the Flemington church 2 weeks ago and some notes about what he was thinking about on that day.  He advised the Tribunal that there was a letter from the priest that was also on the way and he should receive that within 2 or 3 days.

   (emphasis added)

6. The Tribunal later discussed uncertainties about when the applicant had commenced attending church in Australia, and the frequency of his attendances.  It said:

   65.The Tribunal also put to the applicant that the evidence from people at Flemington church was not in English and there were no dates so it did not appear to confirm when he first attended the church so it could not put much weight on this evidence.  The applicant stated that all the people were Chinese at Flemington church.  He had asked them to write in his notebook after the delegate’s decision.  The delegate did not believe that he was catholic so he invited friends to write in his notebook.  He had also spoken to Priest Ma who had promised the applicant on Sunday that he would send a letter to prove that he is a real catholic and member of the church.  He expected to receive the letter in a couple of days.  He advised that this is the same priest who baptised his daughter when she was one month old.

7. The Tribunal appears to have received the notebook with the other Chinese documents given to it by the applicant at the first hearing, and made photocopies of the pages containing Chinese writing.  There is no evidence of any further comment as to its contents by the Tribunal or by the applicant at the first hearing.  There was no reference at all to the notebook at the second hearing, however there was further discussion about the applicant’s ‘bible’ booklet, leading to an exchange at the end of the hearing:

   101.The Tribunal requested that the translation regarding the 3 types of baptism be provided by 18 January 2012.  The Tribunal also returned a document written in Chinese and indicated that if the applicant wished the Tribunal to consider the document it also needed to be translated.  The applicant stated that the document was in relation to his wife.  The Tribunal indicated that if it was not directly relevant to the applicant's claims, he may decide whether or not to have it translated.

   102.On 17 January 2012, the Tribunal received by fax a translation of the page referred to in his book regarding baptism of water, baptism of fire and baptism of blood. Also presented was a translation of the document which had been returned to the applicant at hearing regarding [the applicant’s daughter] being baptised on [date]. The originals were received by the Tribunal on 18 January 2012.

The Tribunal’s decision

1. The Tribunal made a decision on 27 January 2012, which affirmed the delegate’s decision.  After recounting the applicant’s evidence and the course of the proceedings before it, the Tribunal referred to independent information about the position of the unofficial or ‘underground’ Catholic Church in China, and in Fujian province in particular.  It said:

   105.In Fujian province, as in the rest of China, there is an official Catholic Church (the CPA), which owes its allegiance to the Chinese Communist Party; as well as an underground Catholic Church which maintains its allegiance to the Vatican. Estimates of the number of Catholics in Fujian vary between 200,000 and 400,000. Fujian is generally regarded as one of the areas of China that has applied regulations on religion more liberally than others, but police and local officials have arrested underground Catholic priests and, although not recently, police and officials have arrested parishioners and demolished churches. Chinese authorities appoint bishops to dioceses in Fujian without the approval of the Vatican, and there are allegations that local authorities take action against underground Catholics to serve the interests of local officials.

2. In the Tribunal’s “Findings and Reasons”, it said that it had found the applicant to be “an untruthful witness in aspects of his claims”, but it accepted that “the applicant’s family is Catholic and that they have been Catholic for generations, and is prepared to accept that they are underground Catholics”.  It found that the applicant “whilst not a ‘true believer’ before he left China based on his own evidence, is a Catholic and has taken into account his attendance at a Catholic Church in Australia and the baptism of his daughter.”. 

3. Although the Tribunal did not refer expressly to s.91R(3) of the Migration Act 1958 (Cth), it is clear that it concluded that it was not required by that section to disregard this conduct, since “whilst one of his reasons for attending church may have been to strengthen his claims to be a refugee, another is that he was raised Catholic and is now more actively practising his faith.”

4. In the course of discussing the applicant’s evidence about his Australian religious activities, the Tribunal said:

   112.… The applicant also presented a notebook in which he claims people at the Flemington Church had written about his attendance. The Tribunal places no weight on these statements, as they are untranslated and most are undated. …

5. The Tribunal then noted the applicant’s claims relating to his mother’s experiences:

   113.The applicant did not claim that he experienced any difficulties with the Chinese authorities as a Catholic but that his mother had been arrested and detained twice for holding church gatherings in their home, the first time in 2005 and the second in 2008. He claims to fear persecution on return because he will attend the underground Church with his mother and father. The Tribunal finds that he will return to his home village if he were to return to China.

6. It then explained why it did not accept the applicant’s claim that his mother had been arrested in 2008 and had been monitored subsequently.  It gave several reasons for this conclusion.  Importantly, the Tribunal thought that the recent photographs of a religious gathering outside the family home were inconsistent with a concern about being arrested and monitored.  It said that it “does not accept that a person who had been arrested and detained twice would continue to hold gatherings in plain view”.  The Tribunal also referred to the absence of any claims that the authorities had shown an interest in the applicant’s father for his involvement in religious gatherings.

7. The Tribunal also noted that the applicant did not apply for protection until about 3 years after the incident.  It said:

   116.… The Tribunal is of the view that if he genuinely thought he would be at risk of serious harm if he were to return that he would have applied for protection soon after he found out about what happened to his mother or at the very latest when he became unlawful. It appears that what eventually motivated him to apply for the protection visa in 2011 was his daughter’s condition and the need for Medicare so that she could have treatment. The Tribunal is thus of the view that his not having done so earlier undermines his claims that his mother was arrested in 2008.

8. The Tribunal also noted:

   118.Given its concerns, the Tribunal does not accept that the applicant’s mother was arrested in 2008. The Tribunal notes that the independent country information set out above indicates that the Fujian authorities apply regulations on religion more liberally than others and that whilst police and local officials had arrested underground Catholic priests in 2010, there have not been reports of the arrest of parishioners since 2005.

9. Relevant to a ground of review, the Tribunal referred to an additional concern:

   117.The Tribunal also had concerns that the applicant’s mother would send photographs on QQ which clearly depicted religious gatherings and icons, having regard to the independent information set out above about internet restrictions and monitoring in China. The applicant claimed that the local government would not be interested in the photographs and they were not confidential. Whilst a photograph may not be detected using tools such as keyword filtering, the Tribunal is of the view that if the authorities were actively implementing official policy on religion, that finding photographs depicting house gatherings would be of interest to them.

10. The Tribunal then discussed the applicant’s claim that his mother had been detained in 2005, and considered the risks facing the applicant if he returned home and practised his religion:

    119.In relation to the 2005 arrest and detention of his mother, the applicant has given very little detail about what occurred and the Tribunal has doubts about this claim as well. Even if the Tribunal were to accept that the applicant’s mother had been arrested and detained in 2005 for holding an illegal gathering at her home, several years have passed since that time and the applicant has not claimed that anything has happened more recently (noting that the Tribunal has not accepted that the 2008 incident occurred). Moreover, his evidence is that his family and the other Catholics in his local village, up to 100 people, have been going to the same building for services on Sundays for at least 20 years. Before that, he claimed that his grandfather’s generation had been holding church services in a nearby building, which they only moved out of because it became dilapidated. The Tribunal is of the view that the authorities have no interest in regulating or suppressing underground Catholics in his village given the length of time the villagers have been attending services at the same location without incident, even taking into account that the church building is in a remote or quiet area of the village. At the second hearing, the applicant claimed that there were people put on lookout during the service and that the Priest had arranged with the villagers that they should run up into the mountains with farming tools and pretend to be farming if anybody came near. Even if the villagers were ready to do this at a moment’s notice, the applicant did not claim that it had occurred at any time. The Tribunal thus does not accept that there is a real chance of serious harm as an underground Catholic in his village in Fujian Province if he were to return to China in the reasonably foreseeable future.   

    120.The applicant also claimed that the authorities would be interested in him and would bring charges against him as he is considered a big fish because they would think that he had consorted while overseas and would take action against China and that he would tell others how people are treated in China. The Tribunal does not accept that the authorities would have any interest in the applicant or would bring charges against him, and would certainly not consider him a ‘big fish’ as he is one of many overseas students from China. The Tribunal further notes that there is information readily available to Western governments from various sources about how Chinese people are treated by the authorities.

    121.The applicant claimed that he was discriminated against and bullied because of his mother’s arrest and detention in 2005; however he gave no further details and did not claim to have a fear of harm on that basis.

    122.In summary, the Tribunal accepts that the applicant is a Catholic and that he will attend an unregistered or underground Catholic Church if he were to return to China but finds that there is not a real chance of persecution for reason of his underground Catholic beliefs if he returns to China now or in the reasonably foreseeable future.

The grounds of review

1. The applicant filed an application for review of the Tribunal’s decision, and has presented his case without any legal representation.  He seeks orders which would set aside the decision and remit the matter for further consideration.  I have power to make these orders only if I am satisfied that the Tribunal’s decision is affected by jurisdictional error.  I do not have power myself to decide the extent to which the applicant should be believed, nor whether he and his daughter should qualify for protection visas or any other permission to stay in Australia.

2. The applicant’s grounds in his application are:

   1.The Refugee Review Tribunal (the Tribunal) stated that I am not a genuine participant in the religious activities (paragraph 110 of the Decision Record). However, the Tribunal accepted that my family is Catholic and they had been Catholic for generations, and was prepared to accept that they were underground Catholics (paragraph 111 of Decision Record). If this is the case, I could also face persecution because of my association with my parents. It also indicated that my parents and I belong to a particular social group and the persecution was Convention related.

   2.The Tribunal did not professionally assess my case. The Tribunal stated that the photographs of religious gatherings my mother sent via QQ (Chinese computer instant message software) contradicted to the internet restrictions and monitoring in China (paragraph 117 of Decision Record). In fact, that is the only way sensitive information could be sent via internet in China. Photographs are not detectable by keyword filtering. Not only did the Catholics use this method, but also I used to receive anonymous sender junk email on political issues (eg. anti-Chinese Community Party information). Hence, it gave no grounds to believe that the Tribunal consider my evidence professionally.

3. These grounds have been embellished in an amended application prepared by counsel to whom he was referred under the Court’s free legal advice scheme.  Her document contends:

   Grounds of application

   1.The Tribunal fell into jurisdictional error in that it failed to consider an integer of the first applicant’s case, namely that he had a well founded fear of persecution by reason of being a member of the particular social group of his family.

   Particulars

   (a)The first applicant claimed a well founded fear of persecution on the ground of his mother, brother and sister having been persecuted in the People’s Republic of China (“PRC”) (Green Book (“GB”) 19, 57-8).

   (b)The Tribunal failed to determine whether the applicant was a member of the particular social group of his family or whether there was a real risk of his persecution by reason of his membership of that particular social group.

   (c)The Tribunal confined its consideration to whether there was a real chance of the first applicant’s being persecuted by reason of his Catholic religious faith (GB 200 [109]; 204 [122]).

   2.The Tribunal fell into jurisdictional error in that it failed to consider an integer of the first applicant’s case, namely that he had a well founded fear of persecution by reason of being a member of the particular social group of participants in underground church gatherings in the PRC.

   Particulars

   (a)The first applicant claimed a well founded fear of persecution on the ground of having participated in underground church gatherings in the PRC and being identified as a person who had done so (GB 18, 19, 56, 58).

   (b)The Tribunal failed to determine whether the applicant was a member of the particular social group of participants in underground church gatherings in the PRC or whether there was a real risk of his persecution by reason of his membership of that particular social group.

   (c)The Tribunal confined its consideration to whether there was a real chance of the first applicant’s being persecuted by reason of his Catholic religious faith (GB 200 [109]; 204 [122]).

   3.The Tribunal fell into jurisdictional error in that it failed to take into account a relevant consideration.

   Particulars

   (a)The Tribunal found that the first applicant had attended the Catholic Church at Flemington only from July 2011 and did not accept that he had attended the Church in 2008 (GB 201 [112]).

   (b) The first applicant provided to the Tribunal a notebook containing attestations from fellow members of the Catholic Church at Flemington and other notes, in Mandarin (GB 118-127).

   (c)The Tribunal failed to take into account the material in the notebook on the grounds that it was not translated into English and its finding that most entries were undated. (GB 201 [112]).

   (d)The notebook contained diary entries by the first applicant of his attendance at a meeting of pilgrims at Darling Harbour as part of World Youth Day on Tuesday 15 July 2008, Thursday 17 July 2008 and Saturday 19 July 2008 (GB 126).

   (e)The Tribunal failed to take into account the evidence in the notebook.

   (f)The Tribunal had constructive knowledge of the first applicant’s having demonstrated his Catholic faith in 2008 but failed to take this material into account.

   4.The Tribunal fell into jurisdictional error in that it failed to take into account a relevant consideration, namely evidence of the first applicant’s demonstration of his Catholic faith while in the PRC as part of the underground Catholic Church.

   Particulars

   (a)Particular (a) to Ground 3 is repeated.

   (b)The Tribunal failed to make any finding that the first applicant was baptised in the PRC or practised his faith in the underground church there before his departure in 2007.

   (c)The first applicant provided to the Tribunal a photograph sent to him by his mother showing his participation in mass in the underground church (GB 132, 197 [94]).

   (d)The Tribunal failed to take this evidence into account in concluding that the first applicant himself was not a participant in the underground church before he left the PRC (GB 201 [111]).

   5.The Tribunal fell into jurisdictional error in that it made a decision that was irrational and illogical.

   Particulars

   (a)Particulars (a) to (d) Ground 4 are repeated.

   (b)The Tribunal drew an inference from the first applicant’s mother having sent him photos of underground church activities by an internet facility called QQ that the authorities were not actively implementing official policy on underground church activities and therefore that his mother was not arrested in 2008 (GB 202-3 [117]).

   (c)The inference was illogical in light of the evidence before the Tribunal that the mother sent the photos to the first applicant at his request solely in order to assist him to provide evidence to the Tribunal that he and his family had participated in underground church activities in support of his claim to a protection visa (GB 185 [46], 187 [55], 198 [98]).

4. Grounds 1 and 2 of the amended application, invoke well-known principles by which jurisdictional error may be found if a Tribunal fails to make findings which address an ‘integer’ or element in the applicant’s refugee claims which was expressly articulated or clearly arose from the material before the Tribunal (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1). This can occur if a Tribunal overlooks evidence suggesting that the applicant might face a real chance of persecution for a Convention reason because of attributes of membership of a particular social group, which can include a family or community group which is distinguishable in society.

5. However, in my opinion, the Tribunal did recognise that the applicant’s claimed fears of returning to China should not be addressed only by reference to his personal involvement in the Catholic Church in China and Australia.  It addressed his situation also by reference to his claims to be at risk by reason of persecution of particular members of his family and persecution directed at the Catholic congregation in their village. 

6. I have quoted the Tribunal’s relevant reasoning above.  At paragraph 113, the Tribunal recognised the applicant’s concern at being persecuted “because he will attend the underground Church with his mother and father”.  It then considered the claimed history of persecution of his mother and of the congregation.  It rejected, at paragraph 118, the principal foundation for all the applicant’s fears of persecution, being the claimed persecution of his mother from 2008, after he had come to Australia.  At paragraph 119 it had doubts about the claimed event in 2005, and noted the subsequent passage of time, and a long history of what it thought amounted to overt or readily discoverable religious practice by the congregation.  It drew a firm conclusion in this respect that: “the Tribunal is of the view that the authorities have no interest in regulating or suppressing underground Catholics in his village”. 

7. In my opinion, this finding and the reasoning which supported it addressed all of the applicant’s family, social, and religious attributes and background, as a result of which he claimed to fear persecution.  The finding negated the factual premises for the ‘integers’ of the applicant’s refugee claims which are raised by Grounds 1 and 2, and left nothing further to be considered (cf. Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [47], and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [91]). It was not necessary for the Tribunal to engage in additional discussion as to the existence and composition of a relevant “particular social group” whose members might suffer from the persecution feared by the applicant. I therefore do not accept the contentions raised by the applicant in his first ground of review, nor in these grounds of the amended application.

8. I note in relation to Ground 1 that it is, in my opinion, abundantly clear that all of the references by the applicant to ‘Brothers and Sisters’ in his written and oral evidence are to members of Church congregations in China or Australia (see, for example, the applicant’s references to brothers and sisters in his interviews noted at Court Book pages 181, and 183 at paragraph 36).  Nowhere did the applicant claim that he had any siblings, whether persecuted or not.

9. Ground 3 in the amended application focuses upon the Chinese writing on the last page of the applicant’s notebook, which the applicant showed to the Tribunal.  It contends that a jurisdictional failure of procedure occurred because the Tribunal did not request the applicant, or obtain for itself, a translation into English.  The evidence now tendered to the Court is that the writing states:

   15/07/2008 get up 6am in the morning. went to there, waited to afternoon for Mass held by Red Clothes Bishop. There were some priests.

   Thursday

   17. After 2pm at Darling Harbour, follow the parade to St Mary Big Church.

   Friday. Good Friday.

   Crucifixion performance to show the suffer of Jesus.

   Saturday

   Ranwich Horse race

   morning 2am. Sydney bridge closed. Follow the parade to horse races track with many Catholic members. We stayed there for the night with Pope. We held the candles. It was spectacular.

   20. Close Mass. Pope held it himself. 2011 the World Youth will be held in Spain.

10. There is no evidence before me that at any stage of the Tribunal’s proceedings the applicant or his agent drew the Tribunal’s attention to this page, or made any suggestion as to its particular contents or relevance to the applicant’s refugee claims.  In particular, that it provided any additional or different evidence as to the applicant’s involvement in the congregation at the Lidcombe church than was provided by the earlier pages which had been described to the Tribunal by the applicant.  Moreover, there is no evidence before the Court that the handwriting was that of the applicant, nor as to when it was written in the notebook, nor, indeed, that the experiences recorded were those of the applicant himself.

11. In the circumstances in which the applicant presented the notebook to the Tribunal, I do not consider that any particular obligation arose on the Tribunal to take any additional step to obtain a translation of this page, nor to suggest to the applicant that he should do so or provide additional evidence about its relevance and background.  I accept the Minister’s submissions, that the situation comes within authorities supporting the general proposition that “generally the Tribunal is not obliged to obtain a translation of documents furnished by the applicant in a foreign language” (see SZLSW v Minister for Immigration & Citizenship [2008] FCA 1321 at [11]-[12], and SZMXS v Minister for Immigration & Citizenship [2009] FCA 1543 at [23]-[24], and cases cited therein). It is also well established, that absent an exceptional circumstance, the Tribunal is not obliged to prompt an applicant to provide additional evidence, nor to conduct its own investigations which might improve an applicant’s case (see Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429, [2009] HCA 39 at [1], and Minister for Immigration v SZGUR (2011) 241 CLR 594, [2011] HCA 1 at [1], [20], [86]).

12. In the present case, the applicant’s description to the Tribunal of what he wished to show by presenting the notebook made no claim that it might show personal involvement in the visit of the Pope in 2008.  Indeed, at no time did he claim to the Department or Tribunal [or to this Court] that he had that involvement.  Rather, his evidence to the Tribunal suggested that the notebook contained only undated confirmations of his attendance at the Lidcombe Church at dates which were unclear.  The Tribunal reasonably assumed that the notebook contained no other relevant evidence, and addressed the contents of the notebook evidence on a reasonable assumption that the applicant relied upon it for no more that what he had described. 

13. The usual correspondence to the applicant and his agent from the Tribunal made clear, and the applicant’s agent should have well known, that the Tribunal normally expected any significant evidence in a foreign script to be provided with a translation.  The Tribunal’s statements to the applicant about the applicant’s ‘bible’ and his girlfriend’s baptism, could not have encouraged the applicant or his agent to think that the Tribunal would depart from this practice.  They have presented no sworn evidence that they had any such expectation. 

14. For all these reasons, I do not accept that the Tribunal was obliged to take any step to procure a translation of this page of the notebook, or to take any additional steps to discover its contents and its relevance and weight in support of the applicant’s case. I am not satisfied that there was any procedure which the Tribunal did not follow, and which it was required to follow by the provisions of the Migration Act, in so far as they encompass, reflect, or allow obligations of procedural fairness.

15. Moreover, I also accept the Minister’s submission that the applicant has not established any material detriment suffered by reason of the Tribunal not taking any such steps.  There are two reasons for this. 

16. The first is that the translation of the writing on the last page of the notebook would not have advanced the applicant’s case without additional evidence from the applicant, which he has never given to the Tribunal, nor now to the Court, which identified the circumstances in which the writing was made in the notebook, and how it would have given additional probative evidence in his case for refugee status.  On the applicant’s evidence to the Tribunal, all of the entries in the notebook were made after the delegate’s decision in August 2011, and were designed to assist the applicant to present his case to the Tribunal.  The note was not, therefore, a contemporaneous record of an activity of the applicant in 2008, and – even assuming that it was written by the applicant – is open to an inference that it contains the framework of a factual claim which the applicant chose never to present to the Tribunal. At least, in my opinion, on the currently known circumstances of the writing of the note, the obtaining by the Tribunal of a translation would not have usefully advanced the applicant’s credibility either generally or in relation to the issues for which it was prepared.

17. The second reason why the absence of a translation of this page before the Tribunal is immaterial, is that ultimately the Tribunal did not make materially unfavourable findings on the issues which the translated note might have addressed, if it had any probative value. These issues were whether the applicant in fact had engaged in activities showing a commitment to the Catholic Church after arriving in Australia, whether his conduct in Australia came within s.91R(3) by being solely motivated to strengthen his claim to be a refugee, and whether he would return to China committed to practising his religion as a member of an underground Catholic church. As I have explained, the Tribunal found in the applicant’s favour on all of these issues. I therefore conclude that any procedural defect in relation to the untranslated page of the notebook would not have affected the outcome of the case, and that relief would be denied for that reason (cf. SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [28], [55]-[59], [91]).

18. Ground 4, if it adds anything to Ground 3, makes a contention which would suffer the same fate, even if I accepted that the Tribunal did not take into account evidence presented by the applicant that he had “demonstrated his Catholic faith while in the PRC as part of the underground Catholic Church”. 

19. However, I do not accept that it did fail to consider the particularised evidence.  The Tribunal expressly referred to, and considered, all of the applicant’s evidence presented to it in English, including the applicant’s evidence to it as to the contents and effect of the untranslated notebook. 

20. Earlier in its “Statement of Decision and Reasons”, it shows that it was aware of the submitted photograph, and that the applicant agreed that “it was difficult to determine whether or not the person he indicated was actually him” (see paragraph 94).  The absence of further discussion of the photograph would not cause me to infer that its evidentiary weight was not assessed (cf. Minister for Immigration v SZGUR (supra) at [33], [73]).

21. On all the evidence submitted to Tribunal, and for the reasons given by the Tribunal in its paragraph 112, it was open to the Tribunal not to be satisfied that he had commenced to attend the Flemington Church in 2008.  Not only was this finding ultimately immaterial to the outcome of the matter, but it does not itself point to the overlooking of any piece of evidence.

22. For all these reasons, I am not satisfied that the Tribunal failed to take into account any evidence presented by the applicant to ‘demonstrate his Catholic faith’, whether in China or Australia.

23. Ground 5 of the amended application, which reformulates the applicant’s contention in Ground 2 of his original application, attacks the Tribunal’s reasoning in paragraph 117, which I have extracted above.  In this paragraph, the Tribunal voiced a concern that the possession and sending by the applicant’s mother of photographs of underground church activities conducted in and outside her home might suggest that, in fact, she was not being monitored by the authorities after being arrested, detained, and tortured by the Chinese authorities for holding illegal gatherings in 2008.

24. My short conclusion in relation to this contention, is that this particular factual assessment made by the Tribunal was very much an evaluation of behaviour on which minds might differ, but which is not shown to be unavailable on the evidence before the Tribunal.  It therefore fails current tests of unreasonable findings of fact capable of evidencing jurisdiction error (see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, [2010] HCA 16, SZMWQ v Minister for Immigration & Citizenship [2010] FCAFC 97, MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123, Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108, Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164, [2010] HCA 48 at [32]-[37], and SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58 at [15], [85], [114]). The ground therefore fails.

1. It is therefore unnecessary for me to consider whether the Tribunal’s conclusion that the applicant’s mother had not been arrested in 2008 was independently supported by its other, more prominently explained, reasons for this conclusion (cf. Minister for Immigration & Citizenship v SZOCT (2010) 189 FCR 577, [2010] FCAFC 159 at [17] and [83]).

2. It is also unnecessary for me to explore the Minister’s contention that the adverse finding as to the mother’s arrest was immaterial to the Tribunal’s ultimate conclusion that there was no real chance that the authorities would persecute the applicant if he returned to China and attended an unregistered or underground Catholic Church.  However, I note that I am disinclined to accept that submission.

3. For all the above reasons, I do not consider that the applicant’s grounds of review have established any jurisdictional error affecting the Tribunal’s decision.

4. The applicant’s oral submissions at the hearing canvassed the matters which I have addressed above.  He also eloquently emphasised several reasons why the Tribunal should have accepted that he would face a real chance of persecution for his present religious commitment which was accepted by the Tribunal.  I accept that his arguments showed that minds might differ as to the merits of the Tribunal’s conclusion about this future risk.  However, I am unpersuaded that its ultimate conclusion, or any part of its reasoning by which it arrived at that conclusion, shows a failure by the Tribunal to perform its jurisdictional obligations in relation to the applicant’s refugee claims.

5. I must therefore dismiss the application.  I would, however, recommend to the Minister that his decision-making in relation to the applicant father’s continuing residence in Australia should discover and take into account all his current circumstances, and in particular the situation of his daughter and her mother.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Smith FM

Date:  4 September 2012