SZRSJ v Minister for Immigration and Anor

[2014] FCCA 2390

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRSJ v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2390

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to take relevant considerations into account.

Legislation:

Migration Act 1958, ss.36, 425, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Singh v Minister for Immigration & Multicultural Affairs (2001) 183 ALR 531
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389

Applicant: SZRSJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1761 of 2012

Judgment of: Judge Cameron

Hearing date: 7 October 2014

Date of Last Submission: 7 October 2014

Delivered at: Sydney

Delivered on: 14 November 2014

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr J. Smith SC

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1761 of 2012

SZRSJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of China who arrived in Australia on 16 May 2010 as the holder of a student visa.  On 24 August 2011 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in China because of his religious beliefs.  On 26 October 2011 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa.  As summarised by the Tribunal, the applicant relevantly made the following claims.

Protection visa application

1. In a statement attached to his protection visa application the applicant claimed:

   a)in 2000 he went to live in Israel and while he was there became a Christian.  After three years he returned to China and joined a local Christian church;

   b)he discovered that the church was under surveillance from the government and when he raised his concerns with the church leaders they laughed at him and told him that he was an ignorant and fake Christian.  He was so upset and disappointed that he and some other members left and established their own church;

   c)the growth of his church attracted the attention of local government authorities and they “brainwashed” him and tried to make him stop his church activities and to start attending a registered church.  He refused and they started making trouble for him;

   d)one afternoon in April 2006, while he was celebrating his daughter’s birthday, the police attended his home, arrested him and detained him for one night for illegally distributing Christian material.  He was released after paying RMB3,000;

   e)in July 2007, while celebrating his son’s birthday, the police attended his home at 10am and he was again arrested.  He was accused of working against the Communist party when he lived in Israel, of establishing a family church and of encouraging church members to go against the government.  He was beaten and detained for fifteen days;

   f)when he returned home he found out that his wife had also been beaten by the police and that his home had been searched.  He was ill for a month as a result of the torture he suffered while detained;

   g)after his release he continued with his Christian activities.  As a result the government sent people to his home who made trouble for him and his neighbours and so he and his family moved to a rented apartment.  His boss was compassionate and allowed him to keep his job;

   h)in December 2009 his home village committee destroyed his home without his knowledge.  He was supposed to be compensated but was not.  When he went to complain to the village committee he was arrested, beaten and detained for thirty days.  His right leg was injured and he was forced to write a “statement of repentance”;

   i)one week after his release the police attended his rented apartment and told him that if he continued with the family church his life would not be peaceful.  They destroyed some of his personal property.  After that the police visited him every week and made trouble, so he had no choice but to leave China; and

   j)he had not known until August 2011 that he could seek protection in Australia.  If he returned to China he would be persecuted and would not be able to practise his religion.

2. During a departmental interview on 24 October 2011 the applicant made the following claims:

   a)he had read the entire Bible while in Israel;

   b)the first time the authorities approached him about his unregistered church activities was in 2007.  Two officers attended his home at 7am on a Sunday while he was evangelising to a friend and they told him to stop but he refused.  A gathering had been due to start at 8am; and

   c)he had been issued with two detention certificates which had his name, arrest date and time and release date.  He received the first one when he was released in 2007 and the second one was sent to the village office when he was arrested on 6 December 2009.  The village office subsequently gave it to his wife.  The applicant then said that the certificate issued when he was arrested in 2009 was only a certificate committing the police to arrest him and he was later issued with another one on his release.

Tribunal proceedings

1. The applicant attended a Tribunal hearing held on 12 April 2012 and 15 June 2012.  On 12 April 2012 the applicant produced to the Tribunal:

   a)a “Notification to Family or Employer Organisation of Detainee” issued on 9 December 2011 stating that the applicant had been detained on 9 December 2009;

   b)a “Certificate of Release” dated 8 January 2011 stating that he had been detained on 9 December and released; and

   c)photographs of himself participating in church activities with other people.

2. On the first day of the Tribunal hearing the applicant made the following claims:

   a)when he returned from Israel he twice approached the deacon of the registered church, which was the only one in his area, and told him that the time spent on Bible reading was too short and that there were not enough church activities.  He also suggested that the church produce a booklet for followers, that church members pray together and share personal experiences and give gifts to each other.  He had wanted the church to be better and thought that spending an hour on Bible reading was too short when they had spent two hours on the same activity in Israel. He thought that the registered church took orders from the government and disregarded things about Jesus by not offering enough activities or time to explain the Bible;

   b)he first learnt that unregistered Christian activity would attract adverse attention in China in September 2003 when he joined the unregistered church.  He then said it had been in April 2006 when he was arrested;

   c)when he attended the registered church in 2003 his wife had not attended because they had had no transport to get there.  He then said she did not attend because she had had to stay behind and tend their farm before saying that he had told her that he would see if the services were good before she joined him.  His wife only started attending church gatherings in September 2003 when they held home church gatherings in their home;

   d)the gatherings of his home church were held in his home and in the homes of other believers in his village and in another village.  They were held on Sunday nights from 8pm to 10pm because the church members were farmers who had to work during the day.  Initially about five or six people attended and then numbers increased to fifteen or sixteen.  When he moved into rented accommodation he no longer held gatherings in his home because his landlord would not allow it.  The applicant later said that from September 2003 until April 2006 the gatherings were held on Sunday afternoons;

   e)after his arrest in April 2006 the church began to conduct gatherings in the evening rather than during the day because during the day neighbours could report them.  On one occasion between April 2006 and July 2007 the authorities had visited his home and asked his wife if he was still organising church gatherings.  His wife told them he was not.  The police had also visited him four times during that period to tell him to attend a registered church;

   f)the first time the police visited him in the period between April 2006 and July 2007, they asked him for a list of his church members and when he did not provide it they left.  When they arrived he had been teaching a new church member but they did nothing because the latter had said that he was only visiting;

   g)during his detention in 2007 his right leg was injured.  He also had to write a guarantee letter and a letter stating that he regretted his mistakes.  When asked to elaborate on his claim in his statement that the authorities had brainwashed him, he said that they asked him what benefits he received from God, told him unregistered church gatherings were illegal and had “educated” him but he had not had to attend classes;

   h)during his detention in 2007 his wife did not attend gatherings because she had to take care of their children and because she had been sad and upset.  Apart from being beaten on the day of his arrest, his wife had never had any problems with the authorities because of her religion;

   i)between September 2007, when he left his home, and December 2009 the police had not known where he was living.  The applicant then said that in that period the police had contacted him twice at work and had gone once to his rented accommodation when he was not there.  He then said that they had visited his rented accommodation many times and he had been there on one occasion;

   j)the police found out his new address from a family friend and they started visiting him there at the end of 2008.  Even though the police then knew where he lived, he did not return to his old home because his neighbours there had been the ones to report his home church to the police;

   k)he had been able to keep his job because the leader of the company, which was government owned, had been sympathetic;

   l)he had first heard rumours in December 2008 that his property was earmarked for demolition but had not challenged the proposed demolition because no action had been taken, local people said that they would be relocated, he had not been officially notified of the demolition and had not known who would be demolishing it;

   m)he had been offered RMB300 per square metre in compensation when his home was destroyed but he had asked for RMB1,000.  He and the village committee could not reach an agreement so they fought and he was reported to the police;

   n)he had arranged his student visa through an agent in China.  The agent had provided much of the information in support of his application but he had also given the agent his household registration documents, bank account information and identity cards;

   o)because he had previously been arrested, he had had to pay “connections” RMB5,000 to obtain his passport;

   p)his wife had told him that if he returned to China the police would be interested in him because he would continue his church activities and they would not allow it.  If he returned he would continue to promote family church activities, which was not allowed by the government;

   q)his wife had sent him one of his detention certificates by including it in a package of medicines; and

   r)he attended church services in Australia.

3. On 15 June 2012 the applicant made the following additional claims:

   a)the police had visited him at home twice: in the afternoon in April 2006 and at 7am in 2007.  When they visited in 2007 he was evangelising to a church member and other members had been due to arrive at 8am;

   b)he thought that he had been detained on 6 December in 2009 but after seeing his detention certificate knew that it had been on 9 December.  He was detained for a month;

   c)his family had taken his household registration to an agent and the agent had arranged his student visa, “including signing necessary documents”.  The applicant then said he had gone to the agent the day after his release to pay the agent to process his student visa application.  He said that he had visited the agent many times and had personally signed some documents but was not sure what they were;

   d)he had delayed lodging his protection visa application because he did not speak English, had not known where to get information in Mandarin and had not had any friends.  Six months after his arrival he started working casually and attending church and his work friends had told him about protection visas.  One of his friends had told him that he could help him for $5,000.  After he paid the money, that friend disappeared; and

   e)even though he had told the delegate that he had read the entire Bible while in Israel, he had been unable to answer questions about Christianity put to him by the delegate because he had been nervous and had been unable to recall anything.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons.

2. The Tribunal found significant and extensive aspects of the applicant’s claims and evidence problematic and unconvincing.  Due to the nature, number and extent of discrepancies and concerns regarding the applicant’s evidence, the changing and evolving nature of significant aspects of his evidence and his inability to provide convincing explanations in response to concerns put to him, the Tribunal was not satisfied of the truth of significant aspects of his claims and evidence.

3. The Tribunal noted that the applicant claimed that he only feared harm because of his religion and not in relation to the demolition of his house.  Nevertheless, it found his evidence about the demolition vague and unconvincing and it doubted the truth of the claim or that he had taken action to seek compensation higher than the amount he had been offered.

4. The Tribunal was not satisfied that the applicant had formed, conducted or participated in unregistered church gatherings in China as he claimed or that he had suffered any adverse attention or treatment in connection with such activities.  It did not accept that he had been questioned, detained, beaten or otherwise adversely treated in connection with any actual or perceived participation in unregistered Christian activities in the past.  In that connection the Tribunal found that:

   a)the applicant’s evidence about his claimed suggestions and concerns which he said he raised with the deacon of his local registered church did not reveal concerns regarding matters of faith or his ability to express the Christian faith in the registered church, but only identified differences of opinion between himself and the deacon regarding practical issues.  It found that that suggested that if the applicant intended to practise the Christian faith he would be able to do so in a registered church without fear of persecution or serious harm;

   b)the applicant’s evidence did not explain how he convinced local people who were largely busy farmers to attend two hour day-time gatherings at his home for three years;

   c)although the applicant claimed to have read the entire Bible, to have set up his own church and to have preached for some seven years in China, at his departmental interview he was unable to answer correctly certain questions about the Christian faith.  It found that while he demonstrated some understanding of Christianity and had said that he had been nervous at the departmental interview, that did not explain his poor understanding of basic Christian facts which was disproportionate to his claimed practice;

   d)the applicant gave conflicting evidence about the adverse attention he claimed to have experienced in connection with his unregistered church activities in China.  It noted that he gave inconsistent evidence about the time of day the police arrived at his home when he was arrested in 2007.  The Tribunal further noted that when it put those inconsistencies to the applicant he did not address them but restated his evidence and offered no further response;

   e)the applicant’s evidence concerning when his 2009 detention commenced was inconsistent and raised concerns regarding the truth of his claimed detention and the integrity and reliability of the detention certificate he had provided.  The Tribunal also had concerns about the truth of the applicant’s claim to have been detained, because of his ability to appoint a migration agent who signed a certificate of appointment on 16 December 2009 when the applicant was in detention and his ability to provide supporting documentation for his student visa application to travel to Australia, which he signed one day after his claimed release from detention.  The Tribunal found the applicant’s evidence on that issue changing, unreliable and unconvincing;

   f)the applicant’s evidence that he had had to move from his home to rented premises was unconvincing.  The Tribunal noted that the applicant’s evidence regarding how and when the authorities located him after 2007 was changing and inconsistent, suggesting at times that the police knew where he had been and at others that they had not.  It found that, on the evidence, the authorities had known where he worked, which raised questions about why he would have continued living in rented accommodation instead of at his home.  It noted that the applicant’s evidence that his company had been sympathetic towards him did not explain why he would have paid additional money for rental accommodation while working at a place known to the authorities.  The Tribunal found that the applicant’s conflicting and changing evidence compounded its doubts concerning his claims;

   g)the applicant’s written claims appeared to be overstated when compared with his oral evidence at its hearing.  In that connection it noted that:

   i)in his written claims he claimed that he had been brainwashed by the government but, when asked to elaborate on that claim at its hearing, he said he had not had to attend any classes and only referred to being asked a few questions about God, being educated that unregistered gatherings were illegal and being asked to write a letter of regret which he did not write or sign.  The Tribunal found the applicant’s evidence on the issue to have been vague, evolving, unconvincing and untrue;

   ii)in his written claims he claimed that his right leg was injured during his detention in 2009 but at its hearing he said that it had been injured during his detention in July 2007; and

   iii)when initially asked he said that while he was in detention in July 2007 his wife had stayed at home and had never had any problems with the authorities before saying, when questioned about his claim in his written statement that she had been beaten during his arrest, that she had been beaten by the police on the day of his arrest; and

   h)the applicant’s delay in lodging his protection visa application for fifteen months after his arrival in Australia led it to doubt the truthfulness of his claims.  The Tribunal found that there was extensive information available in the applicant’s language regarding migration services in Australia and he had had an agent to assist him with his student visa application, which suggested that he could have made enquiries as to how to seek protection.  The Tribunal also found that the applicant had been able to find casual work and a church which suggested that if he had faced the harm he claimed in China he would have been able to source information enabling him to lodge a protection visa application without the protracted delay.

1. The Tribunal accepted that the applicant had attended church in Australia and that he would wish to continue to practise his Christian faith in the future which, based on independent information and the applicant’s evidence, it found that he would be able to do in a registered church in China.  It found that the applicant’s evidence was that he had attended a registered church in the past and had only stopped because the practical suggestions he had made to the deacon of one registered church were not accepted and he felt humiliated by the manner in which they had been rejected.  The Tribunal noted that the applicant’s evidence did not reveal that he had any concerns about being able to express his faith in a registered church but only a reluctance to continue attending a church where he felt that he had been insulted.  While accepting that the applicant might feel some reluctance in attending a church where he had been humiliated, it found that that had occurred about nine years earlier and did not consider that it amounted to serious or significant harm.

Proceedings in this Court

1. In his amended application the applicant alleged:

   1.The RRT committed jurisdictional error in that it failed to take into account a relevant consideration, namely the evidence of the Applicant that he had ceased attending a Chinese government registered Christian church in China because it was controlled by the Chinese government.

   Particulars:

   a)The Applicant’s “Personal Statement” in support of his application for a protection visa stated that the registered Christian church that he began to attend on his return from Israel “was under the surveillance and intervention of the government” and “was government controlled”, the government being the Chinese government. (CB 27)

   b)In the Applicant’s interview with the First Respondent on 24 October 2011 the applicant stated that he stopped attending the registered church in China because:

   i)      it was controlled by the government, and therefore it did not respect Jesus Christ as the first, most important and only God

   ii)     it was controlled by the Chinese Communist party and therefore disobeyed the real meaning of Christianity

   (CB 55, 140-141 at paragraph 29)

   c)At the hearing of the RRT:

   i)      the Applicant stated that the registered church in China was established by the Chinese government which took orders from the government (CB148 at paragraph 69)

   ii)     the RRT did not squarely confront the Applicant in relation to his claims that the registered church in China was controlled and took orders from the Chinese government. The RRT merely asked the Applicant to state what his concerns were with the registered church at the time he was making certain suggestions to the deacon of the registered church and, accordingly, the RRT misstated, at CB 155, paragraph 105, that the Applicant had simply been “asked by the Tribunal to communicate all his concerns regarding the registered church in China”.

   2.The RRT committed jurisdictional error in that it failed to take into account a relevant consideration, namely the evidence of the Applicant as to the persecution suffered by him in China after his detention by the Chinese police in December 2009.

   a)The Applicant’s “Personal Statement” in support of his application for a protection visa stated that when the Chinese police attended his rented accommodation, one week after being set free from detention in December 2009, they warned and threatened him that if he kept developing his “family church” he “would never have peaceful life again”, “they even smashed my TV and other furniture” and “After that, they came to my place every week to make trouble for me”. (CB 29-30 ,CB 57.9, CB 138 at k))

   b)However, the RRT stated that, according to his written claims, the Applicant had not experienced adverse treatment in relation to his claimed religious activities since being released from police detention in July 2007 (CB 149, paragraph 78)

   3.The RRT committed jurisdictional error in that it failed to take into account a relevant consideration, namely the totality of the Applicant’s evidence relating to his church attendances and practices in Australia.

   a)The Applicant tendered to the RRT photographic evidence relating to his attendance at and worship at a Christian church in Australia.  The RRT misstated his evidence in this respect stating that the photographic evidence tendered related to church attendances in Israel. (CB 144, paragraph 46c), CB 150, paragraph 79)

   c)The Applicant tendered a baptism certificate in evidence to the RRT and a copy was taken by the RRT.  The RRT did not confront the Applicant in relation to this document nor did it refer to this document in its decision.

Ground 1

1. The evidence concerning the reasons for the applicant’s departure from the registered church in China was set out in the Tribunal’s reasons:

   a)The more times I went to church, the more I found that the church was under the surveillance and intervention of the government.  When I raised an objection to those who managed the church, they laughed at me, saying I was ignorant, fake Christian.  I was so upset and disappointed that I left that church with some other church goers.  (Statement attached to visa application and quoted by the Tribunal) (p.137 of the Court Book which was exhibit A);

   b)In relation to his claims that, when he started attending a registered church in China following his return from Israel, he made suggestions regarding the service, the Tribunal asked who he approached with his suggestions.  He responded that he approached the deacon and suggested that the time to explain the bible [sic] was not long enough; church activities did not exist, so he suggested that brothers and sisters should come together to pray and share personal experiences and give gifts to one another.  He also suggested a booklet for followers.  When asked if he had any objections to the registered church other than these suggested improvements he responded he did not, he just wanted it to be better, like overseas.  (Evidence to first day of Tribunal hearing) (CB 147-148);

   c)… the registered church took orders from the government and disregarded things about Jesus.  When asked to elaborate on how the registered church disregards Jesus he repeated that they do not offer enough activities or time to explain the bible [sic].  (Evidence to first day of Tribunal hearing) (CB 148).

2. The applicant should therefore be understood to have indicated to the Tribunal, as it recognised at para.105 of its reasons, that the claim he had made in the statement lodged with his visa application was no longer being pressed and that he relied instead on the claim made at the Tribunal’s hearing. It was this claim which the Tribunal considered at paras.103–105 of its reasons. In such circumstances, I conclude that the Tribunal did consider the claim which the applicant pressed concerning state involvement in Chinese registered churches but concluded that it did not ground a well-founded fear of persecution for a Convention reason or a proper basis for a real fear of significant harm, as defined in s.36 of the Act.

3. Although the Minister submitted that particular (c)(ii) of the first ground might have been, impliedly, an allegation that the Tribunal breached s.425 of the Act, I read it as raising a matter which the Tribunal did not need to address, namely, whether Chinese registered churches are, in fact, controlled by the Chinese government. The issue which the Tribunal did have to address was whether the reasons the applicant advanced for leaving the registered church were credible, not whether they were correct. In some circumstances the issue of government control of registered churches might be relevant but that was not so in this case because the Tribunal was not satisfied that the applicant had formed, conducted or participated in unregistered Christian gatherings in China, which were said to have been the consequence of his departure from the registered church, and which were the basis of his claimed fear of returning to China.

Ground 2

1. In para.78 of its reasons the Tribunal recorded that it put to the applicant that he had not alleged, in his written claims, that he had experienced adverse treatment in relation to his claimed religious activity after being released from detention in July 2007 although his statement lodged with his protection visa application had made such a claim.  Relevantly, it said:

   One week after I was set free [from detention in December 2009], the cops came to my renting place and warned and threatened me that if I kept developing the family church, I would never have peaceful life again.  They even smashed my TV and other furniture.  After that, they came to my place every week to make trouble for me.

2. Plainly the statement in para.78 of the Tribunal’s reasons was incorrect. However, it was no more than a proposition put by the Tribunal to the applicant in discharge of its natural justice obligations under s.425 of the Act and not part of its reasoning. Further, that misunderstanding, together with any possible failure to advert to the evidence in question was of no significance because the relevant issue, or non-issue, was not a material part of the Tribunal’s decision-making. The question whether the applicant had been harassed by the Chinese authorities would only have assumed relevance if the Tribunal accepted the applicant’s allegations concerning the circumstances which might, according to him, have led to such harassment. However, the Tribunal did not accept those allegations, specifically:

   a)at para.105 of its reasons the Tribunal expressed the view that the applicant’s evidence cast doubt on his claims to have set up his own unregistered Christian gatherings in China and did not evidence any doctrinal differences between his beliefs and those which could be expressed in the registered Christian church;

   b)at para.106 the Tribunal expressed the view that the applicant’s ignorance of important aspects of Christian belief belied his claims to have read the entirety of the Bible, to have set up his own church and to have preached the Bible and Christianity in China for about seven years before coming to Australia in May 2010;

   c)at para.107 the Tribunal said that the discrepancies in the applicant’s accounts of events in 2006 and 2007 compounded its concerns regarding the credibility of his claims and evidence as well as the truth of his claimed circumstances in China;

   d)at para.108 the Tribunal found that the applicant’s evidence concerning how he applied for a student visa had been changeable, unreliable and unconvincing and that this compounded its concerns that he had not been truthful about significant aspects of his claims and evidence;

   e)at para.109 the Tribunal expressed the view that the applicant’s conflicting and changing evidence concerning his move to a rented apartment compounded its doubts regarding significant aspects of his claimed circumstances in China, in particular his claim to have been of adverse interest to the Chinese authorities;

   f)in para.110 the Tribunal observed that the applicant had exaggerated aspects of his claims;

   g)at para.111 the Tribunal expressed the view that the applicant’s claims concerning his treatment in detention and the police treatment of his wife compounded its concerns that significant aspects of his claims and evidence had not been reliable or truthful; and

   h)at para.112 the Tribunal concluded that the applicant’s delay in lodging his protection visa application, in the context of the extensive concerns it had already expressed, compounded its doubts regarding the truth of his claimed circumstances in China.

3. The Tribunal went on to say:

   Taking into account all the claims and evidence before it, including cumulatively, the Tribunal is not satisfied that the applicant has formed, conducted or participated in unregistered Christian gatherings in China as he claims, nor that he has suffered any adverse attention or treatment in connection with such claimed activities.  The Tribunal does not accept that the applicant has been questioned, detained, beaten or otherwise adversely treated in connection with any actual or perceived participation in unregistered Christian activities in the past.  In the context of the extensive and significant credibility concerns detailed above, including the concerns identified in connection with the applicant’s claims regarding the demolition of his home and his claimed 30 day detention in commencing in December 2009, for the reasons given above the Tribunal does not accept that his property was demolished, or that he was detained in December 2009 in connection with that claimed demolition or for any other reason.

4. Consequently, even if the Tribunal had overlooked the applicant’s claims to have been harassed from January 2010 onwards because of his religious beliefs, that did not amount to jurisdictional error because the failure to take it into account could not have materially affected the decision or possibly have deprived him of a successful outcome to his application for review: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Gibbs CJ at 30, Mason J at 44-45 and Dawson J at 71; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82]; Singh v Minister for Immigration & Multicultural Affairs (2001) 183 ALR 531 at 542 [49]; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [73]-[83]; SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 at [72].

Ground 3

1. In the third ground of the amended application the applicant alleged that the Tribunal had failed to consider all his evidence related to his church attendances and practices in Australia.  In para.114 of its reasons the Tribunal stated that it accepted that the applicant had attended church in Australia and also that he wished to continue practising his Christian faith in the future.  That being so, there was no reason for the Tribunal to undertake any particular analysis of the applicant’s claims and evidence concerning his religious observances in Australia.  Even if the Tribunal had failed to consider the matters which the applicant alleged it did not consider, that would not have led to a different conclusion on the issue in question or a different decision on the review.

2. Consequently, the third ground of the amended application does not demonstrate jurisdictional error on the Tribunal’s part.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 14 November 2014