SZREM v Minister for Immigration
[2014] FCCA 129
•30 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZREM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 129 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – whether the Tribunal erred in its consideration or application of s.91R(3) of the Migration Act 1958 – whether the Tribunal failed to consider an integer of the Applicants’ claims to fear persecution for reason of their religion. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 91R, 424A, 425 |
| Corporation of the City of Enfield v Development Assessment Commission and Another (2000) 199 CLR 135; [2000] HCA 5 Lee and Others v Minister for Immigration and Citizenship and Another (2007) 159 FCR 181; [2007] FCAFC 62 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 Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 Re Refugee Review Tribunal and Another; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 |
| First Applicant: | SZREM |
| Second Applicant: | SZREN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 481 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 6 August 2013 and 24 September 2013 |
| Date of Last Submission: | 15 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 30 January 2014 |
REPRESENTATION
| Applicants: | In person through their mother as litigation guardian |
| Counsel for the Respondents: | Ms Graycar |
| 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 14 February 2013 in Tribunal case number 1212632.
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 CIRCUIT COURT AT SYDNEY |
SYG 481 of 2013
| SZREM |
First Applicant
| SZREN |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal dated 14 February 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicants protection visas.
The Applicants are two children born in Australia in 2010 and 2011. Their parents are citizens of the People’s Republic of China who arrived in Australia as the holders of student visas and later lodged unsuccessful applications for protection visas.
In a statement accompanying their protection visa application, the Applicants claimed to fear persecution on the basis that they would be penalised under the Fujian Province family planning law and that their family would be unable to pay the fine. It was also claimed that their parents had experienced persecution in China as Catholics and had suffered financially and psychologically.
The delegate refused the application. The Applicants sought review by the Tribunal and attended a Tribunal hearing in September 2011 at which their parents gave evidence. On 24 January 2012 the Tribunal affirmed the decision not to grant the Applicants protection visas. The Applicants sought judicial review of that decision. By orders made by consent on 9 August 2012 the matter was remitted to the Tribunal for reconsideration according to law on the basis that in considering the Applicants’ claims the Tribunal had failed to pose or ask the correct question.
The Applicants attended a further Tribunal hearing on 28 November 2012 at which their parents gave evidence. In addition, supporting documentation, including copies of baptismal certificates for the Applicants dated 8 April 2012 and for their mother dated 7 April 2012 was provided to the Tribunal.
In its decision of 14 February 2013 the Tribunal accepted that the Applicants were citizens of the People’s Republic of China. It summarised their claims that they would suffer harm in China as children born “out of plan” because their parents were not married, that under the Fujian family planning policy they would be penalised significantly and that their parents could not afford to pay the relevant fines. The Applicants claimed that as a result they would be denied household registration and associated benefits such as an equal right to social welfare, public medical treatment and education and that their parents could not afford to meet the costs of private medical treatment and preschool education. It was also claimed that the Applicants would be classified as “secondary citizens” in China.
In addition, the Tribunal recorded that the Applicants claimed to fear harm in China for reason of their Catholic faith. According to the Tribunal, the Applicants’ parents claimed they were Catholic and feared they would be persecuted and also advanced this claim in relation to the Applicants. The Tribunal accepted that the Applicants had been baptised as Catholics on 8 April 2012, the day after their mother was baptised.
In relation to the claims about the application of the family planning laws, the Tribunal accepted that if the Applicants and their parents were to return to China, the parents would be considered to be in breach of the family planning regulations because they had children born out of wedlock and also because they had an additional child (the Second Applicant). It also accepted that the penalty would be payment of relevant social compensation fees. The Tribunal considered country information in relation to the probable amount of such social compensation fees. It noted that there was no evidence or claim that the laws would be applied to the Applicants in a discriminatory manner. Rather, their mother claimed that she and her partner were unable to pay the fees and that consequently the Applicants would not have access to education and health care.
Having regard to country information and the evidence from the Applicants’ parents, the Tribunal did not accept that the parents would be unable to pay the relevant social compensation fees on return to China. Hence it found that the Applicants would be able to secure household registration and that they would have access to the associated basic entitlements. It did not accept that the Applicants would be unregistered or “black children” in China such that they would suffer harm amounting to persecution due to their not being able to obtain education, health care and other entitlements.
In reaching these conclusions the Tribunal considered the youth and work experience of the Applicants’ parents, the fact that they could seek permission to pay the fees in instalments over three years and the prospect of financial assistance from their families. On the evidence before it, the Tribunal did not accept that if the fees were paid in instalments the Applicants would be denied access to household registration and its consequential benefits.
The Tribunal considered whether the Applicants would experience discrimination and social harassment in China because their parents were not married. It addressed the parents’ evidence that they intended to marry when their families could be persuaded to support the marriage. However, the Tribunal was of the view that if the parents returned to China they would marry if that would benefit the Applicants in any way and that the Applicants’ grandparents would come to support such a marriage in order to improve the Applicants’ social situation. In any event, while the Tribunal accepted on the basis of country information that the Applicants may face prejudice from elements of Chinese society because their parents were not married, it concluded that any such “discrimination or social bias” was not serious harm amounting to persecution.
In relation to the claims based on religion, the Tribunal observed that the Applicants’ parents had both claimed to be Catholic and that they feared they would be persecuted because of their religion and that this claim was also advanced in relation to the Applicants.
The Tribunal considered whether the Applicants would face harm by reason of their parents’ claimed religion. The Tribunal had regard to the father’s evidence about his religious beliefs and practices in China and in Australia, the fact he was not baptised and his evidence about the Catholic faith. The Tribunal found that the Applicants’ father lacked the interest and commitment to attend the necessary classes of instruction in order to receive baptism into the Catholic Church. The Tribunal also found that he lacked knowledge of simple prayers commonly recited by Catholics, that he could not name the seven sacraments, knew little of the Bible and that he was unable to recall any aspect or content of the reading from the Bible which he claimed to have read the morning of the Tribunal hearing.
The Tribunal concluded that the Applicants’ father was not a practising Catholic. It did not accept that he had been a practising Catholic in China or that he had experienced restrictions in practising the Catholic faith or that he had ever suffered harm in China because of his religion as a Catholic. It found that he would not seek to practise the Catholic faith if he returned to China because he was not a genuine Catholic and had no desire or intention to embrace that religion.
The Tribunal considered the claims of the Applicants’ mother that she had been a Catholic since 2006 when she was a 16 year old in China. It had regard to her various explanations for why she was not baptised until April 2012. Having considered her actions in relation to her expression and profession of the Catholic faith from 2006, the Tribunal concluded that the Applicants’ mother was not a Catholic in China and was not committed to the Catholic faith in Australia from her arrival in 2007 or when detained in 2009. It considered it important that she had not sought baptism by the time she made her own application for a protection visa in 2009 or by September 2011 when she appeared before the Tribunal as originally constituted in relation to the Applicants’ application for protection visas.
The Tribunal acknowledged that the Applicants’ mother had subsequently sought and obtained baptism for herself and the Applicants. It referred to s.91R(3) of the Migration Act 1958 (Cth) (the Act). The Tribunal acknowledged that this section required it to disregard any conduct in Australia engaged in by the person claiming to fear persecution for a Convention reason unless the person satisfied it that he or she had engaged in the conduct otherwise than for the purpose of strengthening his or her claims to be a refugee.
The Tribunal accepted that the mother and the Applicants were now baptised as Catholics and that as a result of the required course of preparation for baptism at a Flemington church, the Applicants’ mother had now learned a considerable amount about the Catholic faith, its beliefs and practices. Her knowledge was said to have “improved markedly” since the September 2011 Tribunal hearing. However the Tribunal did not accept that the Applicants’ mother was a genuine and committed Catholic. As discussed in more detail below, it found that “she has sought baptism for herself and the applicants in 2012 for the purpose of strengthening the claims of the applicants to refugee status” and therefore disregarded “the conduct” as required by s.91R(3) of the Act.
The Tribunal did not accept that the parents of the Applicants were practising Catholics in China or that either of them was harmed in China because of their religion as Catholics. It also found that the Applicants’ parents were “not genuine committed Catholics at the present time” and that they would “not seek to practise the Catholic faith in China as part of the approved or the underground church for the reason that they [we]re not committed believers in that faith and [we]re not genuinely motivated to practise it”. In the absence of this commitment from the parents, the Tribunal found that the Applicants would not practise the Catholic faith if they returned to China. It found that the Applicants would not be perceived to be Catholics and therefore that they would not suffer mistreatment or serious harm in China for the reason that they were practising Catholics or that they were perceived to be committed to the Catholic faith.
The Tribunal reiterated its conclusions that it did not accept that there was a real chance the Applicants would be persecuted for reason of their status as children born out of plan, out of wedlock and lacking household registration or as the children of parents who were unmarried. Nor did it accept that they would be persecuted in China for reason of their real or perceived religious beliefs as Catholics. The Tribunal did not accept that the Applicants had a well-founded fear of being persecuted for a Convention reason if they returned to China now or in the reasonably foreseeable future.
The Tribunal then addressed the issue of complementary protection. It found that “[h]aving regard to its findings above” it did not accept that:
… there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to China there [was] a real risk that they [would] suffer significant harm as defined in subsection 36(2A) of the Act on the basis of their status as “black children” or their claimed religious beliefs.
The Tribunal acknowledged that s.91R(3) of the Act did not apply in the context of the complementary protection criterion. However it did “not accept on the evidence before it … that there [we]re substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to China there [wa]s a real risk that they [would] suffer significant harm as defined in subsection 36(2A) of the Act on the basis of their baptism into the Catholic faith.” The Tribunal found that there was nothing in the evidence before it to indicate that the Chinese authorities were aware of the Applicants’ involvement in or expression of the Catholic faith.
The Tribunal referred to its earlier finding that the Applicants’ parents would be able to pay the relevant social compensation fees and hence secure household registration and its attendant benefits. On the evidence before it the Tribunal did not accept there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicants being removed from Australia to China there was a real risk they would suffer significant harm at the hands of local government authorities or the local community because they were unregistered or living with parents who were unmarried.
The Tribunal affirmed the decision not to grant the Applicants protection visas.
The Application
The Applicants sought review by application filed in this Court on 12 March 2013. Several claims are set out in an attachment to the application under the headings “Orders Sought by Applicant” and “The Grounds of the Application”. I have considered each claim as a ground of review.
Under the heading “The Grounds of the Application the Applicants state [as in original]:
1, We are Australian born children and my parents have faithful and committed Christian faith. They have been persecuted and threatened by Chinese authority due to underground church practice, and have a fear of return to origin. People associated to local church activity are also adversely affected.
2, My parents have been actively involved in church actives in Australia. Their action and religious performance has been evidenced by church elder with reference.
3, My parents can’t give up their commitment of faith or backward their religious practice into a secret mood in China. The fact tells us that there is no real religious freedom in China to allow us legally enjoys the same approach and proselytizing as we have in Australia. Any activation of religion including Christian proselytizing will be treated illegal and underground activities are bound to be suppressed by government.
First, insofar as these grounds contain factual assertions about the parents’ activities, religious beliefs or fears, they seek impermissible merits review. Such assertions do not demonstrate any arguable jurisdictional error on the part of the Tribunal. Findings of fact are a matter for the Tribunal. It is not the role of the court to engage in merits review of such findings (see Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1 at [67] per McHugh J). As the First Respondent submitted, insofar as these grounds may be seen as cavilling with the delegate’s decision, the decision under review in these proceedings is the decision of the Tribunal.
The first two grounds raise issues about the Tribunal’s consideration of the Applicants’ claims about religion based on their parents’ activities. However it is apparent from the Tribunal’s reasons for decision that it considered the Applicants’ claims insofar as they were based on their parents’ claimed commitment to the Christian faith and claimed church activities in China and Australia.
The second ground refers to a reference from a church elder. It appears that this is a reference to a letter from the President of the Western Sydney Catholic Chinese Community dated 15 July 2010 in which the Applicants’ mother was described as “a member of our community since 2009”, “an active member within the Church Community” and “a person with a good heart and with good intentions”. The Tribunal did not refer to this letter in its reasons for decision.
The Tribunal is not obliged to refer to every item of evidence in its reasons. It may however fall into jurisdictional error by overlooking a corroborative document that is cogent and central to the Applicants’ claims in the sense considered by Robertson J in Minister for Immigration and Citizenship v SZRKT and Another (2013) 212 FCR 99; [2013] FCA 317. However, the letter in question went to the claim that the Applicants’ mother had attended a Chinese Catholic church in Australia. Having regard to all the circumstances of the case and the nature of the document (see SZRKT at [112] and VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77]), it cannot be said that the Tribunal was obliged to refer expressly to the letter. As the Tribunal accepted that the Applicants’ mother had attended church in Australia, the letter cannot be said to be of such cogency and so central to the assessment of the Applicants’ claims that the Tribunal’s failure to refer to it constituted jurisdictional error.
Insofar as the Applicants intended to take issue with the Tribunal’s consideration of the evidence of their mother’s baptism, the Tribunal referred to the baptismal certificates and accepted that the Applicants and their mother had been baptised. It has not been established that these documents were overlooked or that it was necessary for the Tribunal to refer to them in more detail.
Ground three seeks merits review of the Tribunal findings about the parent’s faith. As indicated, the Tribunal did not accept that the Applicants’ parents were genuine or committed Catholics. It found that they would not seek to practise the Catholic faith if they returned to China as part of the approved church or the underground church because they were not committed believers in the faith and were not genuinely motivated to practise it. Such findings were open to the Tribunal on the material before it for the reasons which it gave. In the absence of such a commitment on the part of the parents, it was open to the Tribunal to find that the Applicants would not practise the Catholic faith if they returned to China and would not be perceived to be Catholics. This ground is not made out.
As expressed, these grounds are not made out. Insofar as they raise an issue about the Tribunal’s consideration of the application of s.91R(3) of the Act, that issue is discussed further below.
In addition, under the heading “Orders Sought by Applicant”, five issues were raised which may also be understood as grounds of review. First, it was contended that the decision was not fair and reasonable as it failed to take into consideration “my commitment of religion (sic)” and ignored “my background and actual practice of Christian[ity] in China and Australia”. Given that the Applicants are children who have never lived in China, it is apparent that this is intended to refer to the claims of either or both of the Applicants’ parents. The Tribunal considered the parents’ claimed commitment to and practice of Christianity. The fact that the Tribunal did not accept these claims is not indicative of jurisdictional error.
To the extent that the Applicants allege that the Tribunal decision was not “fair”, it has not been established that the Tribunal decision was illogical, unreasonable or irrational in a manner constituting jurisdictional error in the sense considered in Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 and SZOOR v Minister for Immigration and Citizenship and Another (2012) 202 FCR 1; [2012] FCAFC 58 (see in particular SZMDS at [131] per Crennan and Bell JJ and at [78] per Heydon J). The Tribunal’s decision was open to it on the evidence before it. Even if its conclusions were ones on which minds may differ, as Crennan and Bell JJ pointed out in SZMDS at [131]:
... the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Beyond this, in taking issue with the Tribunal’s conclusions in relation to the claims by their parents, the Applicants seek impermissible merits review. The Tribunal considered the claims of the Applicants’ parents relevant to the claims made by the Applicants. No jurisdictional error is established on the basis contended for in this part of the application.
The second issue raised in this part of the application is a claim that the Tribunal “did not consider our statement and comments given to the questions asked in the hearing and judge (sic) my faith simply by knowledge, instead of real practice and fact”.
This appears to take issue with the statement provided in support of the protection visa application and the evidence given by the Applicants’ parents at the Tribunal hearing. Contrary to the assertion in this paragraph, the Tribunal outlined and considered the claims made and evidence given by the parents. In finding that it was not satisfied as to the genuineness of the father’s claimed commitment to Catholicism, it had regard not only to his lack of knowledge of beliefs and practices of the Catholic faith and tradition, but also to his failure to have been baptised. Similarly, the Tribunal considered the mother’s evidence about her activities in Australia and in China and her explanations for her failure to be baptised until April 2012 as well as her knowledge of the faith. Insofar as the Tribunal disregarded the mother’s conduct in seeking her baptism as well as that of the Applicants, this issue is discussed below. The Tribunal recognised that the mother’s knowledge of the Catholic faith, beliefs and practices had improved markedly since the September 2011 hearing. Its finding that it did not accept that the Applicants’ mother was a genuine and committed Catholic was open to it on the material before it for the reasons which it gave. Apart from the s.91R(3) issue, no jurisdictional error is established on the basis contended for in this ground.
The next claim is an assertion that the Tribunal “failed to prudently consider our risk, especially my mother’s commitment of paralyzing (sic) if we return to origin”. It appears that this is intended to suggest that the Tribunal failed to consider the mother’s commitment to proselytising in China. It is not clear that the mother claimed she would proselytise, but in any event the Tribunal rejected the mother’s claim that she was a Catholic in China or that she was now a genuine and committed Catholic. It found that she would not seek to practise the Catholic faith in China, either as part of the approved church or the underground church, because she was not a committed believer in that faith and was not genuinely motivated to practise it. Hence it was not necessary for the Tribunal to consider whether there would have been any risk to the children if their mother practised the Catholic faith or proselytised in China. No jurisdictional error is established on this basis.
It is then claimed that the Tribunal “failed to consider our statements, explanation, and evidence provided in supporting our claim as a whole”. However, as discussed above and subject to what is said below in relation to s.91R(3) of the Act, the Tribunal considered the Applicants’ claims and the supporting evidence before it.
Finally, it is claimed that the Tribunal treated the Applicants’ case unfairly and unreasonably and “did not consider that [they would] be punished by the Chinese government due to family planning issues”. Contrary to this contention, the Tribunal addressed the Applicants’ family planning claims in detail, including the application of the Chinese family planning laws. The Applicants’ disagreement with the Tribunal’s conclusions in that respect does not establish jurisdictional error.
At the hearing the Applicants’ mother, who appeared as their litigation guardian, claimed that the lawyer assigned to assist the Applicants pursuant to the legal advice scheme had suggested to her that some of the questions the Tribunal had asked the Applicants’ father at the Tribunal hearing were “contradictory” to questions it had asked her. She did not clarify the nature or extent of such suggested contradictions. This general assertion does not establish jurisdictional error.
Relevantly, the Tribunal’s decision record contains an account of the evidence of both the Applicants’ parents at the Tribunal hearing. The decision record also indicates that after the evidence was taken, the Tribunal put a number of issues to both the parents for their comment or response on behalf of the infant Applicants.
The Tribunal’s decision is the only evidence before the Court of what occurred at the hearing. There is nothing in that evidence to support a finding that the Tribunal failed to comply with s.425 of the Act in relation to any dispositive issues which may have arisen from the father’s evidence in the sense considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63. Nor has it been established that the evidence from the Applicants’ father gave rise to an obligation on the Tribunal to put information to the Applicants for comment or response under s.424A of the Act.
Baptism and s.91R(3) issues
At the hearing I raised with the legal representative for the First Respondent whether there was a possible error in or arising from the Tribunal’s reasoning in relation to the application of s.91R(3) of the Act, in particular whether the Tribunal erred in disregarding the conduct of the mother (who was not the visa applicant) in seeking baptism for herself and the Applicants. This also raised the issue of whether the Tribunal had consequently failed to have regard to an integer of the Applicants’ Refugee Convention claims based on the fact of their baptism into the Catholic faith (as distinct from the part of their claims based on their parents commitment and beliefs). The parties were given the opportunity to make further submissions and the hearing was adjourned. The First Respondent provided detailed submissions.
In its reasons for decision the Tribunal acknowledged the fact of the mother’s baptism as well as that of the children. It noted that in the hearing it had asked the mother on a number of occasions why she did not get baptised until April 2012. It set out her explanations. The Tribunal stated that it had carefully considered the mother’s actions in relation to her expression and profession of the Catholic faith over the time she claimed to be Catholic, but had formed the view she was not a Catholic in China and that she was not committed to the Catholic faith in Australia in 2007, 2008 or when she was in detention in 2009. The Tribunal was of the view that it was important that the mother had not sought to be baptised into the Catholic faith at the time of her own application for refugee status in 2009 or by the time of the first Tribunal hearing in September 2011. It acknowledged that she had now “sought and obtained baptism for herself and the applicants”.
The Tribunal correctly described s.91R(3) of the Act and its application to the conduct of the person who was the applicant for a protection visa. However it then made the following finding:
The Tribunal accepts that the mother and the applicants are now baptised as Catholics. It accepts that as a result of the required course of preparation for baptism at St Dominic’s Church Flemington the mother has now learned a considerable amount about the Catholic faith, its beliefs and practices. As it put to her at the hearing it considers that this knowledge has improved markedly since the hearing before the first Tribunal in September 2011. The Tribunal however does not accept that the mother of the applicants is a genuine and committed Catholic. For the reasons outlined it finds that she has sought baptism for herself and the applicants in 2012 for the purpose of strengthening the claims of the applicants to refugee status. It therefore disregards the conduct as required by s91R(3). (Emphasis added).
The Tribunal went on to find that the Applicants’ parents were not genuine committed Catholics, that they would not seek to practise the Catholic faith in China and that in the absence of this commitment from the parents the Applicants would not practise the Catholic faith in China. It also found they would not be perceived to be Catholics and concluded that therefore the Applicants would not suffer mistreatment or serious harm for the reason that they were practising Catholics or perceived to be committed to the Catholic faith.
In contrast, the Tribunal acknowledged that s.91R(3) did not apply in relation to the complementary protection criterion. It considered whether on the evidence before it there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicants being removed to China there was a real risk they would suffer significant harm “on the basis of their baptism into the Catholic faith”. However it found that there was nothing in the evidence to indicate that the Chinese authorities were aware of the Applicants’ involvement in or expression of the Catholic faith.
The First Respondent conceded that the Tribunal had erred in relation to s.91R(3) of the Act. However it was submitted that the Tribunal’s error was merely that it had incorrectly regarded the section as relevant in circumstances where it was not satisfied that the Applicants had a well-founded fear of persecution based on their or their mother’s religion and accepted that in this sense the Tribunal had misconstrued the terms of s.91R(3) contrary to the approach of the High Court 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). The First Respondent submitted that while this may be a legal error, it was not clear it would constitute a jurisdictional error, but that even if it did the Court should exercise its discretion to refuse relief.
The First Respondent also contended that there was no jurisdictional error in the Tribunal’s failure to expressly consider the fact of the Applicants’ baptisms in relation to their Refugee Convention claims, but that even if there was, no remedy should issue as no useful result could ensue from the grant of relief.
Section 91R(3) of the Migration Act is as follows:
For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
Prior to the decision of the High Court in SZJGV, the awkward manner in which s.91R(3) is drafted (see SZJGV at [7] per French CJ and Bell J) had led to some controversy as to whether the section required the decision-maker to disregard conduct in Australia within s.91R(3)(b) for all purposes or only when the decision-maker “would otherwise have decided that the conduct provided evidence that the [Applicant] would satisfy the Convention definition” (see the discussion of SZJGV in SZRSA v Minister for Immigration & Anor [2012] FMCA 1187 at [40] – [43]). The latter, more limited approach was taken in SZJGV.As French CJ and Bell J stated at [9]:
The legislative purpose of s 91R(3) as disclosed in the Second Reading Speech is to ensure that an applicant for a protection visa in seeking to demonstrate a well-founded fear of persecution within the meaning of Art 1A(2) cannot place any reliance upon, nor gain any advantage from, conduct engaged in within Australia for the purpose of strengthening his or her claim to meet the criteria of classification as a refugee under Art 1A(2). Neither that purpose nor Australia’s protection obligations under the Refugees Convention require that such conduct be disregarded where it is adverse to an applicant’s credibility. Such a result would be irrational. A construction of s 91R(3) to avoid that result may properly encompass a departure from the literal or natural and ordinary meaning of the text... (citations omitted).
Similarly, Crennan and Kiefel JJ referred at [64] in SZJGV to the need to give weight to the underlying objective of s.91R(3) in finding:
It is necessary to its proper operation that when a decision-maker has found that the sole motive of the person in engaging in the conduct was to strengthen the claim, another question, concerning its evidentiary effect, be addressed. If it is determined that evidence of the conduct would strengthen the person’s claim, it is to be disregarded, consistent with the objective of sub-s (3); if it would not strengthen the claim, it may be taken into account.
Hence, as Smith FM stated in SZRSA at [43]:
After the judgment of the High Court, it was clear that a decision-maker considering the application of the criteria in s.36(2)(a) could, and indeed should, evaluate all of the applicant’s conduct in Australia, including the motives for which it was engaged in. If it was concluded that a motive within paragraph (b) existed for the conduct, then the Australian conduct could still be taken into account if it supported a negative assessment of the risks of persecution facing the applicant. In effect, as Crennan and Kiefel JJ said, a decision-maker’s evaluation of the applicant’s conduct in Australia was not required to be disregarded “if it would not strengthen the claim”.
The First Respondent submitted that because the Tribunal did not consider the Applicants’ claims to be genuine and to indicate commitment to Catholicism, the conduct of obtaining baptism would not have assisted the Tribunal to reach the relevant state of satisfaction required under s.65. Hence it was submitted that, in accordance with the reasoning of the High Court in SZJGV, s.91R(3) was not enlivened and that the conduct of obtaining baptism could have been considered by the Tribunal, including for the purpose of making a negative credibility assessment.
While on this basis the First Respondent conceded that the Tribunal did err, it was said that the error lay not in its reasoning that the conduct had to be disregarded by reference to s.91R(3), but in its misconstruction of the terms of s.91R(3). The Tribunal’s error was said to be its misapprehension as to the effect of s.91R(3) in that it saw that section as relevant notwithstanding that it was not satisfied that the Applicants had a well-founded fear of persecution based on their or their mother’s religion. To this extent Counsel for the First Respondent acknowledged legal error on the part of the Tribunal, although it was submitted generally that it was not clear that this would constitute a jurisdictional error.
The First Respondent submitted that if this error did amount to a jurisdictional error, relief should be refused as a matter of discretion on the basis that no purpose would be served by granting the relief sought as the Tribunal had disregarded conduct that would not have strengthened the Applicants’ claim (see SZLWI v Minister for Immigration and Citizenship and Another (2008) 171 FCR 134; [2008] FCA 1330 at [45]).
The First Respondent did not consider it necessary to express a final view on whether the conduct in relation to the baptism of the Applicants was that of the mother and, if so, whether it would be impermissible to “disregard” it in a case where the conduct would otherwise support the application.
For a number of reasons I am not persuaded by such submissions. The suggested categorisation of the Tribunal’s error in relation to the application of s.91R(3) of the Act is premised on the assumption that the Applicants’ Refugee Convention claims to fear persecution for reason of religion were based only on their parents’ conduct, beliefs, practices and commitment. It was on this basis that it was submitted that, given the Tribunal finding that the Applicants’ mother was not a genuine and committed Catholic, the mother’s conduct in seeking her own baptism and that of the Applicants would not have strengthened the Applicants’ claims so that s.91R(3) would not be relevant (see SZRSA at [44] – [45]).
However as explained below I am of the view that, as the Tribunal recognised in its consideration of the complementary protection criterion (to which s.91R(3) does not apply), the Applicants’ claims were not so limited and were based, at least in part, on the fact of their baptism into the Catholic faith and their consequential status as baptised Catholics. Seen in this light I am not persuaded that the fact of their baptism would not have strengthened the Applicants’ claims to protection in the sense considered in SZJGV at [64] per Crennan and Kiefel JJ. Moreover, as a consequence of disregarding the conduct of the mother in seeking baptism for the Applicants, the Tribunal failed to address the aspect of the Applicants’ claims under the Refugees Convention based on their status as baptised Catholics.
As the First Respondent submitted, to the extent that any independent claim could be seen as arising for the Applicants based on their baptism, it would be necessary to characterise such claim as a claim that the fact of baptism itself could give rise to a well-founded fear of persecution (distinct from a claim that the parents’ practice of Christianity and the Applicants’ necessary involvement in that as infant members of the family put them at risk of persecution). The First Respondent acknowledged that if such a claim had been made or arose on the material before the Tribunal then a failure to respond to and consider such claim would constitute jurisdictional error.
It was submitted for the First Respondent that this was not a claim that was expressly made or a claim that arose clearly on the material before the Tribunal in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58] – [61] or Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42]. It was contended that, not least because the initial claim was articulated some considerable time before the baptism, the Applicants’ claim was more accurately characterised as a claim to fear persecution on the basis of their parents’ Christianity rather than as a claim to fear persecution as a result of having been baptised. The First Respondent submitted that the Applicants’ baptism was a fact or piece of evidence plainly adduced to support the broader claim based on the religion and activities of the parents, including before the birth of the children.
Hence it was contended that as no claim in relation to the fact of the Applicants’ baptism arose independently of the Applicants’ claim to fear persecution on the basis of their parents’ Christianity, to the extent that the Tribunal disregarded the fact of their baptism in considering their claim under the Refugees Convention (albeit by reference to s.91R(3)), that did not constitute or result in a failure to consider a claim and thus that no jurisdictional error could be seen to flow from it (Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 at [27] – [28] per North and Lander JJ).
The approach taken by the Tribunal is to be seen in light of the basis on which the Applicants claimed to fear persecution or significant harm and all the evidence before the Tribunal. The family planning law claim is not of relevance in this context. It is the case that initially the Applicants’ claim based on religion was based on their parents’ claimed belief in Catholicism, their parents’ past persecution and their parents’ (or at least the mother’s) claimed active engagement in Church activities in Australia. The reasons given for the first Tribunal’s lack of satisfaction in relation to the claim as then presented included the fact that neither of the Applicants’ parents displayed a knowledge of Christianity commensurate with their claims to have practised Christianity over a long period of time and the fact that neither of them had been baptised. In that Tribunal’s view, a long-time Catholic Christian of the age of the Applicants’ parents would have been baptised.
Subsequently, the Applicants’ mother was baptised on 7 April 2012. The Applicants were baptised on 8 April 2012. At the Tribunal hearing on 28 November 2012 the Applicants’ parents gave the Tribunal copies of the April 2012 “Certificates of Baptism” for the Applicants and their mother. The Tribunal raised with the mother the fact that despite her claim that she had been a practising Christian since 2006, she had only been baptised a short time earlier and that this was after the first Tribunal hearing in relation to the Applicants’ protection visa applications. The Tribunal also recorded that it discussed with the Applicants’ mother issues in relation to her knowledge of and commitment to Christianity and the beliefs and practices of Catholics as well as her own religious activities in Australia. The Tribunal engaged in a similar process in relation to the Applicants’ father.
Relevantly, according to the Tribunal, when it put to the Applicants’ parents certain matters arising from the evidence for response or comment, it referred to the Certificates of Baptism for the Applicants and the mother that had been provided that day. It stated that it would consider this evidence, but that it would do so “in light of all the other evidence before it” and that “it must seriously consider the manner in which the parents claim[ed] they h[ad] practised their Catholic faith since 2005 and 2006 and consider why neither of them sought baptism at an earlier time”.
The Tribunal also recorded that it discussed the application of s.91R(3) of the Act and put to the Applicants’ parents that it would:
…give consideration to the fact that baptism for the three individuals involved, in particular for the mother of the applicants comes after her own application for refugee status was declined in 2009 and after the application for the applicants was declined by DIAC and more recently by the first Tribunal. In the intervening period the mother has undertaken the necessary course of instruction and subsequently sought and obtained baptism. This particular conduct will also be considered in light of the claim made by the mother that she has been Catholic since 2006, both in China and in Australia.
The Applicants’ mother was recorded as replying that she had “acted genuinely in having her children baptised”, that “if she did not have this faith she would not have had the [children] baptised”, that they had “always held this faith”, that she considered baptism to be a “serious matter and she would not use it as a means for this purpose” (emphasis added) (which appears to be a reference to the purpose of strengthening a claim to be a refugee).
In other words, the Applicants’ claim in relation to their religion was initially expressed as a claim that derived from their parents’ asserted practice of religion (in contrast to the claim in relation to their own status as “black children”). This was reflected in the fact that they had not been baptised at the time of their protection visa application. Their parents were found not to be genuine in their practice of Christianity and adverse credibility findings were made against the mother in relation to her conduct in seeking baptism (expressed in terms reflective of s.91R(3)(b) of the Act). In view of the ages of the Applicants, no question did or could have arisen before the Tribunal about the existence or sincerity of their own religious beliefs and thus of their credibility.
However, while the matter was before the Tribunal, the Applicants were baptised into the Catholic faith at the volition of their mother. In these circumstances, the fact that the Applicants’ initial claim (made before they were baptised) was based solely on their parents’ Christianity does not mean that there was not ultimately an independent integer of their claims arising from their baptism in April 2012. Such baptism was drawn to the Tribunal’s attention at the hearing. On the material before the Tribunal, from that time the Applicants’ claim to fear persecution was “clearly” (see NABE (No 2) at [61]) a claim to fear persecution based both on their parents’ Catholicism and their own baptism into the Catholic faith. Their baptism was not simply an item of evidence in support of a claim based on the status, beliefs and practices of their parents. While the Applicants’ baptism did provide support for the claim based on their parents’ beliefs, as the Tribunal recognised in its consideration of the complementary protection criterion, an integer of the Applicants’ claims was a claim to fear harm in China by reason of their status as baptised Catholics.
Thus, the conduct in obtaining baptism of the Applicants into the Catholic faith was not only of potential relevance to the Applicants’ claim to fear persecution based on their parents’ faith and commitment, but also to the integer of the Applicants’ claim to fear persecution by reason of their religion because of their status as baptised Catholics. Contrary to the First Respondent’s submission, it cannot be said that the baptism of the Applicants in Australia would not have strengthened the Applicants’ claims to fear persecution as persons baptised into the Catholic faith (that is apart from their claims based on the asserted faith and practices of their parents).
Hence it is necessary to consider whether the Tribunal erred in disregarding such conduct under s.91R(3). Further complications arise because on a fair reading of the Tribunal decision, it is apparent that it reached its conclusion in relation to the Applicants’ Refugee Convention claims after disregarding “the conduct” of their mother on the basis that the mother “has sought baptism for herself and the applicants in 2012 for the purpose of strengthening the claims of the applicants to refugee status”. In other words, in reliance on s.91R(3) of the Act the Tribunal disregarded conduct of a person other than the Applicants themselves.
As the Tribunal recognised in its account of the Tribunal hearing and in its findings and reasons, the conduct in question was that of the mother in seeking baptism for herself and for the infant Applicants. In relation to the baptism of the Applicants, the Tribunal referred to the conduct and motivation of the mother. This is perhaps unsurprising as the children were infants and their baptism was obtained at the volition of their mother and could not be seen as their conduct. While the Tribunal accepted that the mother had learned a considerable amount about the Catholic faith, its beliefs and practices in her baptism preparation course, it did not accept she was a genuine and committed Catholic. It was on this basis that it found that the mother had sought baptism for herself and the Applicants for the purposes of strengthening the claim of the Applicants to refugee status.
On its face s.91R(3) applies only to conduct of the applicant for a protection visa. It has been held that to disregard the conduct of a third party under s.91R(3) involves a misunderstanding of s.91R(3). As stated in SZNCT & SZNCU v Minister for Immigration & Anor [2009] FMCA 233 at [92] per Nicholls FM:
Nonetheless, s.91R(3), does not contemplate a situation that where children who are sole applicants (children who are not part of their parents’ application) but are dependent entirely on the consequences of claims made by their parent or parents that such conduct should be treated as conduct of the children.
In SZNCT the Tribunal had considered the application of s.91R(3) to the conduct of a parent of the applicant. Nicholls FM held (at [97]) that it was not necessary for the Tribunal to consider whether or not the parent’s conduct should be disregarded under s.91R(3) of the Act because (at [87]):
…in light [of] the plain language of 91R(3) it is the conduct of the applicant in Australia that engages that section, not the conduct of a third party.
His Honour was of the view (at [97]) that the Tribunal had “misunderstood the application and relevance of s.91R(3) and asked itself the wrong question” in asking whether the conduct of the Applicant’s parent in Australia should or should not be disregarded for the purposes of the review.
Nicholls FM recognised (at [94]) that in some circumstances a misunderstanding of a relevant statutory provision may give rise to jurisdictional error (see SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30). In SZNCT the Tribunal had considered s.91R(3) but had not in fact disregarded the conduct in question as it decided that the conduct was not engaged in solely for the purpose of strengthening the claim. Nonetheless, Nicholls FM found that the preferable view was that the Tribunal’s error was an error going to the exercise of its jurisdiction, not merely an error that was not material.
While his Honour refused relief on the basis that the Tribunal had had regard to the father’s conduct such that no useful result could ensue by granting the relief sought, as his Honour stated at [110]:
Plainly, the matter would have been different had the Tribunal chosen to disregard some aspect of the father[’s] conduct in Australia.
In this case the Tribunal disregarded the mother’s conduct in obtaining her own baptism as well as that of the Applicants (albeit in circumstances where it had rejected the genuineness of the mother’s motivation and did not accept she was a Catholic in China or a genuine and committed Catholic at the time of decision and that for this reason she would not seek to practise the Catholic faith in China). It was not appropriate for the Tribunal to turn its mind to s.91R(3) in relation to the mother’s conduct in seeking baptism. While the Applicants’ baptism into the Catholic faith was part of their claim, it was not the result of conduct engaged in by the Applicants themselves. Nor was the mother’s conduct in obtaining her own baptism subject to s.91R(3) in the context of the Applicants’ protection visa claims.
Indeed, even if it could be said that the mother’s own baptism would not have assisted or strengthened the Applicants’ claims based on their parents’ faith given the Tribunal’s negative findings about her credibility, the Tribunal’s misapplication of s.91R(3) also resulted in the Tribunal disregarding the mother’s conduct of obtaining baptism of the Applicants. It did not consider any potential relevance of the Applicants’ status as baptised Catholics in addressing their claim to fear persecution for reason of religion.
Consistent with the approach taken in SZNCT (which I consider I should follow in the interests of judicial comity as I am not persuaded it is clearly wrong), I am satisfied that in disregarding the conduct of the Applicants’ mother the Tribunal disregarded conduct of a third party which potentially strengthened the Applicants’ claim (particularly insofar as it consisted of seeking the Applicants’ baptism). Hence the Tribunal fell into jurisdictional error.
In my view the Tribunal’s error in relation to s.91R(3) was not as limited as that conceded by the First Respondent. Not only did the Tribunal misunderstand the application and relevance of s.91R(3), but it also went on to ask itself the wrong question as to whether the mother’s conduct in Australia in seeking baptism for the Applicants should or should not have been disregarded (see SZNCT at [97]). Further, having disregarded such conduct the Tribunal then failed to address the relevance of the Applicants’ baptism into the Catholic faith in its consideration of their claim to have a well-founded fear of persecution within the Refugees Convention by reason of their religion. Such a failure to consider an integer of the Applicants’ claims amounts to a further jurisdictional error (see Htun and Yusuf).
The First Respondent submitted that even if the Tribunal could be seen as having fallen into jurisdictional error by failing to consider an integer of the Applicants’ claims to fear persecution (as well as in relation to its application of s.91R(3)), the Court should exercise its discretion to refuse relief on the basis that in view of the outcome on all factual matters in dispute and, in particular, the Tribunal’s negative findings about the credibility of the parents, authorities such as Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 – 6; [1986] HCA 54 and Re Refugee Review Tribunal and Another; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [104], [131] and [211]) strongly supported the exercise of the discretion to refuse relief.
I am not satisfied that I should refuse relief. A clear case of an error going to jurisdiction has been made out insofar as the Tribunal disregarded the conduct of a third party under s.91R(3) of the Act that would have strengthened the claims of the Applicants. The discretion to refuse relief is “not to be exercised lightly” (see Aala at [55]). The Migration Act specifies a framework for and limitations on the Tribunal’s consideration of whether an applicant has a well-founded fear of persecution, including s.91R(3). The Tribunal misapplied s.91R(3). It did so in a way that meant that it disregarded conduct of potential relevance to the Applicants’ claims to have a well-founded fear of persecution for a Convention reason. This case is not on all fours with the breach of the rules of natural justice considered in Stead at 145 – 6 and Aala at [104] per McHugh J dissenting (and cf Kirby J at [130] – [131] and Corporation of the City of Enfield v Development Assessment Commission and Another (2000) 199 CLR 135 at 157; [2000] HCA 5 at [56] referred to in Aala at [55] per Gaudron and Gummow JJ).
The First Respondent also submitted that any error in relation to s.91R(3) was technical and that having regard to the Tribunal’s findings in relation to complementary protection, it would be futile to remit the matter (see Lee and Others v Minister for Immigration and Citizenship and Another (2007) 159 FCR 181; [2007] FCAFC 62) even if the Tribunal had failed to consider an integer of the Applicants’ claims. In relation to complementary protection the Tribunal considered whether there was a real risk the Applicants would suffer “significant harm” on the basis of their baptism into the Catholic faith. It made a generally expressed finding that there was nothing in the evidence to indicate that the Chinese authorities were aware of the Applicants’ involvement in or expression of the Catholic faith. The First Respondent submitted that in light of this finding it was not possible to infer that a different result could be reached when considering whether there was objectively a real chance of persecution on that basis.
However, apart from the difficulties of drawing an inference about whether a different result could have been reached in relation to any aspect of the Applicants’ Refugee Convention claims (see Lee at [48]). In my view the Applicants are entitled to expect their claims to be dealt with lawfully by the Tribunal. As discussed above, the Tribunal misunderstood and misapplied s.91R(3) and disregarded the mother’s conduct (in relation to seeking baptism both for the Applicants and for herself). It also asked itself the wrong question and failed to consider an integer of the Applicants’ claims under the Refugees Convention. I am not satisfied that I should exercise my discretion to refuse relief.
The application should be remitted to the Tribunal for reconsideration according to law.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 30 January 2014
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