SZROX v Minister for Immigration
[2013] FMCA 244
•6 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZROX & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 244 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth), s.91R |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548; [2000] FCA 1599 |
| First Applicant: | SZROX |
| Second Applicant: | SZROY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1381 of 2012 |
| Judgment of: | Barnes FM |
| Hearing date: | 6 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2013 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicants pay the costs of the first respondent fixed in the sum of $5,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1381 of 2012
| SZROX |
First Applicant
| SZROY |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 29 May 2012. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicants protection visas. The First Applicant is a male citizen of the People’s Republic of China who arrived in Australia on a student visa in 2007. The visa was cancelled in 2009. He applied for a protection visa in July 2011. The Second Applicant, also a citizen of China, is the First Applicant’s de facto spouse. She was included in the application as a member of his family.
In a statement in support of the protection visa application, the First Applicant claimed that his parents had “opened a family church” in China, that they had refused to register it and that they had been arrested in 2006. He and his brother had argued with the police. He claimed that the police (and subsequently two strangers) assaulted him and that he was discriminated against by his school. He claimed he “often received threats or attacks” on his way home from school. After he came to Australia his parents were arrested and his brother implicated.
He also claimed that he had recently sent information to his parents through the internet about the Jasmine Revolution launched by Christians in China. He claimed the police found out about this and the family home had been searched. He claimed to fear returning to China because his “parents’ lives had been threatened since they were Christian and their persistence in their religious belief”.
The application was refused by a delegate of the First Respondent. The Applicants sought review by the Tribunal. In support of the application the Applicants provided photographs to the Tribunal said to be of their respective baptisms in Australia and a certificate in relation to the attendance of the First Applicant at a Local Church in Sydney since July 2011, as well as a medical certificate confirming that the Second Applicant was pregnant. The Applicants attended a Tribunal hearing on 8 May 2012. The only evidence before this Court of what occurred at the Tribunal hearing is the Tribunal reasons for decision.
The Tribunal set out the Applicants’ claims and evidence in some detail, including the fact that initially only the First Applicant had made claims for protection. It summarised the evidence of the First Applicant to the delegate, including his claim that his partner was now a Christian, although she had not been when he first met her and that they had attended the Local Church in Lidcombe every week after he was released from detention.
The Tribunal also summarised the evidence of each of the Applicants at the Tribunal hearing in circumstances where the Second Applicant had indicated that she wished to make her own claims to refugee status and to give evidence about them. In the findings and reasons part of the Tribunal decision it dealt with the claims of each Applicant separately and did not rely on information from one Applicant in relation to its findings about the other Applicant.
The Tribunal recorded, in relation to each of the Applicants, extensive questioning in relation to each Applicant’s practices and knowledge of doctrine and practices of significance to the Local Church to which they claimed to belong. The Tribunal recorded that it raised specific concerns with each of the Applicants about particular aspects of their knowledge, including putting to them country information from a Local Church website as to matters of importance to that church. The Tribunal also referred to issues raised by it with each Applicant that might lead it not to believe aspects of their claims.
In addition, the Tribunal recorded that it discussed with the First Applicant the issues that he had raised in relation to sending information to his parents about the Jasmine Revolution and concern about his delay in lodging the application for protection. Similarly, it raised with the Second Applicant issues in relation to her claimed fear of harm from the government on the basis that she was pregnant and would give birth to a child as an unmarried mother.
In its findings and reasons the Tribunal summarised the First Applicant’s claim as a claim to fear persecution because he would attend the Local Church of which his parents were members and this would lead to harassment by the police and that he would experience “problems” because he sent information about the Jasmine Revolution to his parents who were consequently investigated.
The Tribunal did not accept that the First Applicant sent information about the Jasmine Revolution to his parents in March 2011 or that his parents had come to the adverse attention of the authorities for this reason. It gave reasons for that finding. In particular the Tribunal did “not accept that the Applicant would have risked sending religious or political information … by email which … he must have realised might endanger” his parents in China. It did “not accept that a Chinese citizen who claimed that his family had been subjected to persecution for their religious beliefs could fail to appreciate that the Chinese authorities would view such information unfavourably, and that sending or receiving it might place his parents at risk of further harassment or persecution”.
The Tribunal also had regard to the extreme vagueness, confusion and inconsistency in the first Applicant’s evidence about what he claimed happened after he sent this material. It set out his evidence and his explanation that his parents would not tell him things so as not to worry him, but did not accept that in circumstances where he was applying for protection based on his parents’ circumstances “they would have withheld from him information [about problems they experienced] that would be highly relevant to his claimed fear of persecution in China, and helpful to his application”. It found that the First Applicant was unable to provide the additional details requested because he was not telling the truth.
The Tribunal did not accept that the First Applicant “would have sent information … without being aware of its content”. Nor did it accept that “he would have sent the material if he had been aware of its content because he must have known that this might be dangerous”. The Tribunal found that even if the First Applicant had sent such material to his parents, given his “extremely vague evidence about the claimed consequences”, it was not satisfied he had been linked with the material by the authorities or that his parents had faced consequences amounting to persecution as a result. Hence, the Tribunal was not satisfied there was a real chance the First Applicant would face mistreatment amounting to persecution as a result of having sent religious or political material to his parents.
The Tribunal then turned to the First Applicant’s claims to fear persecution on the basis of his religion. It found that there were “considerable difficulties” with his evidence about his religious beliefs and practices.
The Tribunal had regard to the fact that the First Applicant claimed to have attended Local Church services in China and in Australia since July 2011 and had submitted a letter from elders of the Local Church in Lidcombe about his attendance in Australia since that date. He claimed that he had attended several other churches in Sydney before he was able to find a Local Church, albeit he only attended a few times, and stopped going when he realised the other churches were different from the Local Church.
The Tribunal recorded that at the hearing it had “questioned the applicant extensively about beliefs and practices specific to the local church which, according to information provided to the Tribunal by local church elders in Australia, are common to both Australia and China [and were matters] with which members of local church congregations should be familiar”. It acknowledged that the First Applicant had been “able to provide some information and demonstrate some knowledge”, but found that “there were several areas of fundamental significance to the local church about which he was not able to provide any information”, that much of the information he provided “appeared to have been learned by rote, (as he was unable to relate it to other aspects of the bible or local church beliefs), and he appeared to lack understanding of the facts he knew”.
The Tribunal stated generally that in considering the religious knowledge of both Applicants, it had “had regard to the fact it [wa]s difficult to express abstract spiritual concepts through an interpreter”. It was “mindful that it [wa]s not appropriate to assume that a minimum level of knowledge, or a set of specific facts, should be known by “genuine” adherents of a particular faith”. However the Tribunal stated that it was “entitled to test an applicant’s religious knowledge if this [was] the basis for their claimed fear of persecution” and “assess the level of that knowledge”, provided it did not purport to be an arbiter of doctrine.
The Tribunal concluded that “even taking a liberal view of the knowledge displayed by the applicant [it was] not satisfied that it [wa]s consistent with that which could be expected of someone who ha[d] grown up with parents who conducted local church activities in their own home, ha[d] attended the local church in China, and ha[d] attended the local church in Sydney…[for] a period of some nine months”. The Tribunal was not satisfied that the First Applicant had demonstrated that he genuinely held Christian religious beliefs or that he adhered to the teachings of the Local Church.
The Tribunal pointed out that in questioning the First Applicant at the hearing it had “asked mainly about matters that, according to information provided by the local church itself, were of high significance in that church, and matters which the Applicant himself [had] initially mentioned” and asked him to expand on these matters. While information from the Local Church discussed at the hearing suggested the Bible was of paramount importance in that church, the Tribunal found that the Applicant’s knowledge of the Bible was “minimal”. It had regard to evidence from the Local Church about the importance of reading the Bible everyday and the First Applicant’s own evidence that Bible reading and sharing individual responses was part of every Local Church service. However it recorded that the First Applicant was not able to tell the Tribunal which parts of the Bible had been read on his last claimed church attendance just over a week before the hearing and when asked about the contents of the Bible, said it was “a record of Jesus’ life composed by sixty four authors, but apart from that was only able to talk very briefly about four miracles that Jesus performed” and was unable to expand on those stories or say more about the content of the Bible.
The Tribunal considered the First Applicant’s explanation for his lack of knowledge of the Bible including his claim that he had not read the Bible. It found that his explanation distinguishing between the recovery version used in the Local Church (which the Tribunal pointed out contained explanatory footnotes) and other comparable versions did not account for his lack of knowledge and that his frequent repetition of the claim that the Local Church used the recovery version without apparently understanding the relationship between this and the standard version of the Bible suggested his knowledge was “superficial and learned for the purpose of his application”.
The Tribunal found that the First Applicant was “unable to explain…in a meaningful way, or a way resembling the local church’s teachings … what the local church teaches about the bible or its significance in the local church”. It found his “obvious lack of familiarity with the contents of the bible” was also “inconsistent with his professed religious faith and with his claimed participation in religious activities”.
The Tribunal also found that the Applicant was unfamiliar with significant aspects of Local Church beliefs and practices, such as the significance of the Lord’s Table. The Tribunal was of the view that if the First Applicant had been attending Local Church services regularly and had a genuine commitment to Christianity based on a real understanding, he would be familiar with this term and would understand how the symbolism related to the Bible.
The Tribunal found that the First Applicant “appeared to be able to recite partial pieces of information, but not the full story, and he demonstrated no understanding of the broader context of information he relayed”. The Tribunal “formed the impression that the applicant had learned certain information … to be able to answer questions about his religious beliefs”. The Tribunal also had regard to the Applicant’s lack of familiarity with the Local Church practice of “pray reading” as described in the information before it.
The Tribunal was not satisfied that the First Applicant underwent baptism out of a genuine commitment to Christianity. It was of the view that his inability to remember exactly when his baptism occurred suggested he did not consider the date of particular importance. This, together with other deficiencies in his knowledge and understanding of Christianity, led the Tribunal to conclude that if the First Applicant did undergo baptism, (of which the photographs were not in themselves evidence as they just depicted the Applicant submerged in a bathtub), this was done for the purpose of strengthening his claims for refugee status and not out of a genuine commitment to the Christian faith. Accordingly the Tribunal found that such conduct must be disregarded under s.91R(3) of the Migration Act 1958 (Cth).
In light of the letter from the Local Church in Sydney, the Tribunal accepted that the Applicant had attended that church since July 2011. It had regard to the fact that he did demonstrate some knowledge of religious doctrine but was not satisfied that such conduct was otherwise than for the purpose of strengthening his claims and disregarded his church attendance in Sydney under s.91R(3).
The Tribunal concluded that it did not accept that the First Applicant was a genuinely committed Christian. It reiterated that while he was able to provide factually correct answers to some questions, the Tribunal had “formed the impression that his knowledge had been learned for the purpose of supporting his application”, and that his “knowledge of the bible was extremely limited, especially considering the importance of the bible in the local church”.
Overall, the Tribunal considered the First Applicant’s “limited ability to provide meaningful information about local church beliefs and practices or his claimed commitment to these [wa]s inconsistent with attendance at church gatherings in China, and with the degree of exposure that might be expected of a person raised by devoutly Christian parents” as the First Applicant claimed. The Tribunal also found it inconsistent with him holding genuine religious beliefs he would seek to express if he returned to China.
The Tribunal concluded that the First Applicant had “made up the basis of his claims to refugee status”. It did not accept that his parents were members of the Local Church or that they conducted gatherings in their home, that the First Applicant had attended such gatherings in the past or that he would do so in the future, that he had come to the adverse attention of the police or authorities as a result of his parents’ religious activities or his own in China or that there was a real chance that he would do so in the future.
The Tribunal then addressed the claims of the Second Applicant. She was said to have claimed that if she returned to China she would have problems with her family who did not approve of her relationship with the First Applicant because he was Christian, that they might throw her out, that she would be homeless and unable to survive and that she would have to pay a penalty for having a child out of marriage that she could not afford. She also claimed that in Australia she had become a Christian and that she would seek to practise the Christian faith if she returned and that this could lead to her persecution.
The Tribunal considered first the Second Applicant’s claims in relation to Christianity. It did not accept that she was a genuinely committed Christian. It expressed doubts on the evidence about her claim to have attended church in Sydney, but found that even if she had done so, it was not satisfied this was conduct engaged in other than for the purpose of strengthening her claims to refugee status and that the same could be said of her claim to have been baptised in Sydney. It did not accept she would practise the Christian religion or attend the Local Church if she returned to China or face persecution for this reason.
The Tribunal had regard to its questioning of the Second Applicant at the hearing about her knowledge of Christianity and Local Church beliefs and practices. It acknowledged she had been able to answer some questions, but found her knowledge was minimal. It found that “she was unable to answer questions about significant beliefs and practices of the local church”, that “the answers she was able to provide had the appearance of having been learned for the purpose of the hearing rather than having been acquired and developed out of genuine religious faith” and that she did not appear to be able to explain the underlying significance of the approach taken by the Local Church. The Tribunal’s summary of its conclusions in this respect has to be seen in light of its more detailed explanation of the Tribunal hearing.
The Tribunal also found that the Second Applicant’s “lack of knowledge of the bible [wa]s inconsistent … with her having regularly attended such services where sharing of the bible [wa]s important; and also with a genuine commitment to the local church, given the information about the importance of the bible to the local church”. It had regard to the Second Applicant’s evidence that she had not read the Bible because it was too complex for her and the fact that all she could tell the Tribunal about its content was that “once Jesus was telling a story on a mountain top”. In addition, she could not say what the Local Church believed about the Bible, although she did mention that they used the Recovery Version.
The Tribunal also found that the Second Applicant was “not able to relate her answers to questions about other aspects of her faith and religious practice to the contents of the bible”. The limitations in her knowledge led the Tribunal to conclude that such minimal knowledge as she had was “learned in a context other than genuine bible or religious study”. It found the Second Applicant “lack[ed] any essential understanding of the way in which different elements of the Christian religion fit[ted] together”. It gave examples of her evidence in particular respects, including her lack of understanding or knowledge of the symbolism of the ceremony of eating and drinking in church. The Tribunal found this lack of knowledge and understanding of the Bible and of religious rituals in which she claimed to have participated of significance, and that it also displayed a “serious lack of knowledge of what the local church itself describe[d] as a very important ceremony, the Lord’s Table”.
The Tribunal referred to the photographs said to be of the Second Applicant being baptised and the fact that she could provide some information about the meaning of baptism and details of where her baptism was conducted. It accepted that baptisms in the Local Church may be conducted in a bathtub in a private home, but found that the photographs did not indicate that this was a genuine baptism in which the Second Applicant truly committed herself to Christianity.
The Tribunal accepted that “according to some religious doctrines, baptism may be the beginning of a path to God, rather than the culmination of a learning process”. However, given the serious deficiencies in the Second Applicant’s knowledge of basic Christian beliefs and the Local Church, the Tribunal was not satisfied on the basis of the photographs that she had genuinely committed herself to Christianity through baptism. Rather, it found her “obvious lack of any substantial knowledge of Christian beliefs and/or local church doctrine and practices and the lack of contextual understanding of the knowledge she did have indicate[d she was] not genuinely committed to Christianity”.
The Tribunal found that if the Second Applicant had attended church in Australia and undergone baptism, it was not satisfied she had done so other than for the purpose of strengthening her claims to refugee status. It found there was no evidence on which it could be satisfied that she had attended church or been baptised because she actually and genuinely subscribed to Christian beliefs. It found no credible evidence to support her contention she would attend the Local Church in China and found she would not do so. Hence, there was said to be no basis for her claimed fear she would be persecuted by the government or rejected by her parents for this reason.
The Tribunal also considered the Second Applicant’s claims based on her pregnancy, but was not satisfied there was a real chance she faced persecution in such circumstances. It pointed out that her claims (such as in relation to becoming homeless) were “highly speculative” and depended on “the occurrence of a series of contingencies”, given the early stage of her pregnancy. It could not be satisfied that she and the First Applicant would remain unmarried but, in any event, given that it did not accept either Applicant’s claims about religious beliefs did not accept that she would be rejected by her family because of religious belief.
The Tribunal considered the Second Applicant’s claims in relation to penalties which may be imposed for breach of China’s family planning regulations. It referred to independent country evidence it had put to the Second Applicant at the hearing and found that as enforcement of a law of general application for a legitimate purpose such penalties did not ordinarily fall within the definition of Convention persecution. It noted that while the Second Applicant claimed she would be forced to pay a penalty, she “did not suggest that the penalty imposed on her would be discriminatorily or selectively directed at her for any Convention reason”.
On the evidence before it, the Tribunal was satisfied that any penalty imposed on the Second Applicant would be the same as for other Chinese citizens who breached the family planning regulations in the same way. It found no credible evidence to suggest the laws would impact more seriously on her in a discriminatory manner for a Convention reason. Hence, it did not accept that any future penalty imposed on her under the family planning regulations would constitute Convention persecution.
Nor was it satisfied that if the Second Applicant were to give birth to a child outside marriage there would be a real risk of her suffering significant harm within s.36(2)(aa) of the Migration Act, whether by way of penalty or her parents’ disapproval, as necessary and foreseeable consequences of her removal, or that there was any credible evidence to support a claim of significant harm on some other basis. The Tribunal noted that neither of the Applicants had raised specific matters for consideration under the complementary protection provisions. It was not satisfied that such criteria were met in relation to either Applicant.
In the result, the Tribunal found that the Applicants were not persons to whom Australia owed complementary protection or that either of them otherwise satisfied the criteria for a protection visa. It affirmed the delegate’s decision.
The Applicants sought review by application filed in this Court on 25 June 2012. Before considering the grounds raised in the application and at the hearing, I note that the First Applicant swore an affidavit in support in which he claimed that they would be in “big trouble” as Chinese and “challenged due to [their] background”. Such claims seek impermissible merits review.
The Second Applicant attended the hearing on behalf of both applicants. No written submissions were filed by the Applicants. The Second Applicant made brief oral submissions. It is convenient to consider the issues raised in her oral submissions before turning to the application.
The Second Applicant claimed that at the Tribunal hearing she was asked a few questions about Christianity and because she was unable to answer these questions the Tribunal refused or rejected her application. She claimed that the Tribunal used this as a reason to refuse her application and that she believed that the Tribunal could not use this as the only reason to conclude that she was not a Christian.
First, as is apparent from the account of the Tribunal’s findings and reasons in relation to the Second Applicant, it did not rely only on her inability to answer certain questions about Christianity. Rather, it acknowledged that she was able to answer some questions, but had regard to the fact that her knowledge was minimal, to her inability to answer questions about significant beliefs and practices of the Local Church, and to the fact that the answers she was able to provide had the appearance of being learnt for the hearing rather than acquired and developed out of genuine religious faith. The Tribunal also found the Second Applicant’s lack of knowledge of the Bible was inconsistent with having regularly attended services where sharing of the Bible was important and with a genuine commitment to the Local Church given the importance of the Bible. It had regard to her inability to relate her answers to questions about other aspects of her faith and religious practice to the contents of the Bible.
The Second Applicant may also be seen as raising the issue of whether the Tribunal had taken on the role of arbiter of doctrine with respect to the religion claimed by the Applicants. I have considered such possibility in relation to both Applicants. However, having regard to the Tribunal’s findings and reasons, I am not satisfied that the Tribunal improperly set itself up as the arbiter of doctrine or that its consideration of the Applicants’ claims, insofar as they were based on Christianity and adherence to the Local Church, is such as to demonstrate or give rise to jurisdictional error.
The concept of acting as the “‘arbiter’ of religious doctrine” is discussed in some detail in the judgment of Kenny J in Minister for Immigration and Citizenship v SZLSP and Others (2010) 187 FCR 362; [2010] FCAFC 108. In that case what was in issue was whether the Tribunal had imposed an arbitrary standard of knowledge of Falun Gong. Her Honour’s general discussion of principle is relevant and informative. Kenny J set out (at [30] – [42]) the background to the notion that acting as an arbiter or religious doctrine may constitute jurisdictional error as first discussed in Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548; [2000] FCA 1599. In Wang there was some suggestion that the Tribunal had approached the issue on the basis that the applicant had to satisfy it that he was possessed of a specific level of doctrinal knowledge to justify being regarded as a Christian. In that context Gray J stated (at [16]) that it was “not appropriate for the [Tribunal] to take on the role of arbiter of doctrine with respect to any religion” (and see the discussion of Mashayekhi v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 381; [2000] FCA 321 in SZLSP at [32] – [34]).
In SZLSP Kenny J observed that in WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 the Full Court of the Federal Court considered and rejected an argument that a Tribunal had committed jurisdictional error on the basis that it had wrongly filtered an applicant’s claim through its own views of what were appropriate understandings and beliefs for a Christian to have. The Full Court made the point in WALT (at [28] – [32]) that it may be erroneous “[t]o ascribe to all [claimed] adherents to a particular religion a required minimum standard of practice or a required and consistent minimum understanding of its tenets”, but that it did not follow that questioning of a person about that person’s beliefs on matters which the particular religion teaches or its tenets meant the Tribunal necessarily became the arbiter of the doctrine of that religion. In other words, their Honours found that it was open to a Tribunal to explore “the level of [an applicant’s] knowledge and understanding, and his commitment”. (Also see SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129 at [47]).
Relevantly, in SZLSP Kenny J was of the view (at [37]) that:
These authorities indicate that the question whether applying an "arbitrary standard" of knowledge of religious doctrine constitutes jurisdictional error is a complex one. I accept that a Tribunal which relies on the premise that "every believer or follower of [a religion] must have certain knowledge or provide certain answers concerning aspects of that religion" may well fail to engage with the question whether the particular applicant before it is in fact a follower of the religion, and so fall into jurisdictional error. There is, however, a difference between: (a) operating from the premise that all believers will have certain specific knowledge; and (b) concluding, after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant’s lack of knowledge indicates that he is not a genuine adherent of a religion. Further, it must be remembered that the Tribunal’s written reasons typically represent a Tribunal’s concluded view after considering all the evidence. If a Tribunal ultimately finds that an applicant’s lack of particular knowledge is a reason to reject his claim, this finding does not necessarily mean that the Tribunal approached the matter from the outset on the a priori basis that the applicant was required to demonstrate that knowledge.
Her Honour referred (at [38]) to the difficulty of distinguishing “a potentially illegitimate a priori approach from a legitimate exploration of an applicant’s knowledge” and considered the relevance of factors such as the Tribunal’s reliance on other matters besides evaluation of religious knowledge. However Kenny J also expressed the view that even if a Tribunal relied primarily on its evaluation of an applicant’s answers, that would not necessarily constitute jurisdictional error as there was “nothing objectionable in the Tribunal questioning an applicant about his or her beliefs” and no prohibition on evaluating such answers “against probative material evincing the doctrines of the religion in question”. As her Honour pointed out, the weight to be given to such evaluation is generally a matter for the Tribunal.
Such remarks are of particular significance in the context of the present decision. This is precisely what the Tribunal did. As Kenny J pointed out, if a Tribunal rejects an applicant’s claim based on perceived deficiencies in the applicant’s knowledge of religious doctrine, there must be a basis for concluding that the particular elements of doctrine in question are elements an adherent of the religion in the applicant’s position might be reasonably expected to know. In this case the Tribunal had regard to information provided by the Local Church in relation to doctrines and practices of significance to the Local Church which Local Church sources had advised were such that persons who were in the position of the Applicants would be expected to know.
While in SZLSP Kenny J went on to discuss the possibility of illogicality in Tribunal reasoning in this respect, this is not a case in which such illogicality is demonstrated. Rather, when consideration is given to the lengthy and detailed questioning by the Tribunal of each of the Applicants at the hearing (questioning that counsel for the First Respondent went through in detail in oral submissions), it is apparent that the Tribunal properly raised with each of the Applicants questions which involved an exploration of each Applicant’s knowledge of religious doctrine and practices, in particular doctrine and practices of the church to which they claimed to belong. It did so by reference to information from sources associated with the Local Church. It did not set a level of knowledge of and commitment to Christianity or to the Local Church that either Applicant was required to meet to satisfy it that he or she was an adherent of the Local Church faith or Christianity, but merely explored the level of each Applicant’s knowledge, understanding and commitment. Having regard to the Tribunal’s reference to practices and knowledge particular to the Local Church and the manner in which it raised such issues with the Applicants at the hearing (insofar as that is apparent from the Tribunal’s account of the hearing) its reasons for decision do not demonstrate that the Tribunal approached this issue with any lack of sensitivity as to possible cultural difficulties. Indeed it referred to information about practices and beliefs of the Local Church common to both China and Australia. Nor has it been established that it operated from the premise that all believers would have certain specific knowledge in a manner that amounted to setting itself up as an arbiter of doctrine.
Rather the Tribunal reasons for decision demonstrate that it had regard to all aspects of each Applicant’s evidence and acknowledged areas in which each of the Applicants had some knowledge, but also had regard to specific deficiencies and limitations in particular aspects of their knowledge, both generally and in relation to matters of particular significance to the Local Church (such as the content of the Bible, “pray reading” and the significance of or the concept of the Lord’s Table).
No jurisdictional error is established on the basis contended for by the Second Applicant in oral submissions.
It is convenient to turn next to the last two grounds in the application which, while generally expressed and unparticularised, may also be seen as raising this issue.
Ground five is that:
RRT consider our case unfairly. Tribunal judged by personal assumption in my case, whilst ignoring an investigation in particular the facts do exist in our cultural background.
Ground six is:
I have strong feeling that Tribunal member made judgment based on perception instead of facts.
Insofar as these grounds may be seen as raising an “arbiter of doctrine” contention, as indicated it has not been established that the Tribunal improperly set itself up as the arbiter of doctrine or that it did more than legitimately explore what each of the Applicants knew about the religion to which they claimed to belong in order to assess the genuineness of their claims.
Nor is there anything in the circumstances of this case to suggest that the Tribunal judged by “personal assumption” either in relation to issues of Christianity or otherwise. It was open to the Tribunal to have regard to each Applicant’s knowledge of religious practices and beliefs. It did so by reference to independent information from Local Church sources. Its consideration and rejection of the Applicants’ claims to be committed Christians and members of the Local Church was not based on any assumptions by the Tribunal. Rather, such conclusion was reached after a comprehensive exploration of their claims and their evidence and with reference to Local Church material.
Insofar as either of these grounds may be taken to suggest either prejudgment constituting actual bias or that the circumstances are such as to give rise to an apprehension of bias from the perspective of the appropriately informed reasonable lay observer (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 and Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28), neither of such claims is made out on the material before the Court.
It has not been established that the Tribunal made its judgment based on “perception instead of facts” as contended in ground six. It was for the Applicants to establish their case and put material before the Tribunal (see Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14) and for the Tribunal to determine whether it was satisfied that they met the criteria for the visa for which they applied on the material before it.
The Tribunal was entitled to assess the credibility of each of the Applicants. Its findings in that respect were open to it on the material before it for the reasons that it gave. As Counsel for the First Respondent pointed out, the Tribunal did not simply find that the Applicants were not telling the truth, rather it rejected the credibility of their claims after a comprehensive exploration of the issues.
Insofar as either of these grounds suggests that the Tribunal was under some obligation to conduct an investigation, there is no general obligation on a Tribunal to conduct an investigation or to make further inquiries and these are not circumstances of the nature contemplated in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 in which there was a critical fact the existence of which was easily ascertained and of significance to the decision. There was no suggestion in the material that the Applicants asked the Tribunal to make further inquiries or, indeed, of what such further inquiries might be.
I note that the Tribunal did accept, based on the evidence that the Applicants provided, that the First Applicant had been attending the local church in Sydney and that the Second Applicant was pregnant. It addressed the photographs that the Applicants had provided that were said to be of their baptism. Neither ground five nor ground six is made out.
In the Application the Applicants have set out grounds both under the heading “Orders sought by Applicant” and the heading “The Grounds of the Application are”. The first claim, albeit under the heading “Orders sought by Applicant”, is a disagreement with the Department’s and Tribunal’s decision “as my risky situation is not well considered”. Only the Tribunal decision is the subject of these proceedings. In any event, it has not been established that any integer of the claims of either Applicant was not considered by the Tribunal such as to establish a failure to have regard to relevant considerations. Insofar as this ground takes issue with the Tribunal’s conclusions it seeks impermissible merits review.
Ground two is that “RRT did not consider that I will be persecuted or in big trouble if I pursue my religion in origin”, which I take to be intended to be a reference to country of origin. I have considered this ground from the perspective of both Applicants. However, as indicated, the Tribunal found that neither Applicant had a genuine commitment to their claimed religion. It did not accept that the First Applicant would attend local church gatherings in the future or that there was a real chance that he would come to the adverse attention of the police or authorities in China as a result of his parents’ or his own religious activities. Nor did it accept that the Second Applicant would attend the Local Church in China and hence found there was no basis for her claimed fear of persecution on the ground of religion.
Having rejected the underlying basis for the claimed fear of persecution, it was not necessary for the Tribunal to go on to consider what would occur to genuine adherents of the Local Church in China had it accepted such claims.
Ground three is that: “RRT failed to consider my commitment with local church and impact on my family.” The Tribunal did consider the claimed commitment of both Applicants to the Local Church. Insofar as there are references to impact on family, this would appear to relate to the Second Applicant’s claims. The Tribunal addressed the Second Applicant’s claims about a fear of her family as well as her claims in relation to the imposition of a penalty under the family planning regulations. It has not been established that it failed to address any aspect of her claims insofar as they may have an impact on her family (or, indeed, the family of the First Applicant). None of these grounds are made out.
Under the heading “The Grounds of the Application are”, the first ground is a claim that “I am a Chinese citizen and Christian who has been persecuted by Chinese government. I had record with police and afraid of return.” This apparently relates to the First Applicant who made such claims. However, it seeks impermissible merits review.
The second ground is: “I will pursue my local church religion wherever I go and I have a fear to be persecuted again.” The same may be said of this ground. The Tribunal considered such claims, but rejected any claim that either Applicant would practise or attend Local Church gatherings in the future. Such factual findings were matters for the Tribunal and it has not been established that there was jurisdictional error in any respect in relation to such findings.
The fourth ground is that: “Tribunal failed to pay enough attention to the facts there is no legal status of local church in China now and evidence I provided.” It was not necessary for the Tribunal to consider what would happen to genuine adherents of the Local Church in China or the legal status of the Local Church having rejected the claim that either Applicant was such a person. It has not been established that the Tribunal failed to have regard to the evidence provided by either Applicant. The weight to be given to such information is a matter for the Tribunal. These grounds above are not made out.
As no jurisdictional error has been established on any of the bases contended for by the Applicants, the application must be dismissed. Before I make the orders I will hear submissions in relation to costs.
RECORDED: NOT TRANSCRIBED
The Applicants have been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful Applicants should meet the costs of the First Respondent. The amount sought is reasonable and appropriate in light of the nature of this and other similar matters.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 11 April 2013
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