SZSHJ v Minister for Immigration
[2013] FCCA 1804
•15 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSHJ v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1804 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.30, 36(2), 36(2)(aa), 91R(3), 91X, 189, 430(1) Migration Regulations 1994 (Cth), cl.866.221 |
| Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 Craig v State of South Australia (1995) 184 CLR 163 Edwards v Giudice & Ors (1999) 94 FCR 561 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SZRSA v Minister for Immigration & Anor [2012] FMCA 1187 |
| Applicant: | SZSHJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2767 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 8 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms E. Grotte |
| Solicitor for the Applicant: | Ms M. Byers |
| Counsel for the Respondents: | Mr J. Smith |
| Solicitor for the Respondents: | Ms A. Lal of Sparke Helmore |
ORDERS
The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.
The Application filed on 27 November 2012 is dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the Application.
The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZSHJ.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2767 of 2012
| SZSHJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being a decision of B. MacCarthy, dated 5 November 2012, RRT Case Number 1211813. The Tribunal affirmed a decision of a delegate of the Minister for Immigration & Border Control, (the “Minister”) to refuse to grant the applicant a Protection (Class XA) visa.
In accordance with the Court’s orders made on 1 February 2013 the solicitors for the first respondent, the Minister, were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”). On the date of the hearing, the Court Book was marked Exhibit “A”. The applicant filed and read the Affidavit of Michaela Byers affirmed 6 December 2012, attaching the transcription of the Tribunal interview of 11 October 2012.
The applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material, on or before 26 March 2013. The applicant filed an amended application (the “Amended Application”) on 25 March 2013.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material.
The applicant is a male citizen of the People’s Republic of China (“China”), born 25 December 1967 in Gao Yao, Guangzhou Province, China. He completed 13 years of schooling in China and was initially self-employed as a farmer, then later employed as a mining contractor. The applicant and his wife applied for Sponsored Family Visitor (subclass 679) visas on 16 February 2007 for the purposes of visiting his wife’s sister. The visas were granted on 9 March 2007 and the couple arrived in Australia on 12 April 2007. The applicant’s visa was valid until 12 July 2007 and the subject to conditions including 8101 (no work), 8503 (no further stay) and 8531 (must leave before visa expiry). A bond of $10,000 was required and paid on 9 March 2007. The applicant remained in Australia unlawfully when his visa expired for a period of five years. The $10,000 bond was forfeited to the Department on 16 November 2009 (CB 168-169 at [20]). On 3 July 2012 the applicant was discovered working and was taken into immigration detention. He then applied for a Protection visa on 16 July 2012.
In support of that application the applicant claimed that he was a Christian and he and his family had been harassed by a business rival in China using the applicant’s Christianity as an excuse.
On 8 August 2012 a delegate of the Minister made a decision to refuse to grant a Protection visa to the applicant who subsequently applied to the Tribunal for review of that decision.
The applicant claimed that he had left China due to his fear of serious harm because of his house-church Christian religious practice. He claimed that he and his father had been house-church practitioners (CB 169 at [24]).
The applicant claimed that his family ran a gas production business. A competitor in his town disclosed his “house church” practice to the authorities and his business licence was then revoked. This impacted severely on the applicant’s capacity to subsist. He and his family were subjected to threats and violence. The applicant claimed that his father had been forcibly detained because he was a house church practitioner and was fatally injured during his detainment (CB 19).
The applicant claimed that he could not return to China because the authorities were aware of his activities.
Proceedings before the delegate
The Minister’s delegate interviewed the applicant on 31 July 2012. The delegate refused the application on the basis that the applicant did not satisfy s.36(2) of the Migration Act, and did not satisfy clause 866.221 of Schedule 2 of the Migration Regulations 1994 (the “Regulations”) (CB 101-103).
The delegate found:
a)That the applicant ran a gas bottle refilling business;
b)That the applicant was not subjected to intimidation by a Public Security Bureau (“PSB”) officer;
c)That the applicant had not left China due to problems with practicing his religion (CB 111);
d)That the applicant had been attending the Bonnyrigg Christian Church (CB 111) and he had not done so to strengthen his claims for a Protection visa (CB 111); and
e)The applicant’s significant delay in making a Protection visa application belied his claim of a genuine fear of persecution (CB 109).
The delegate was not satisfied that a well-founded fear of persecution had been established by the applicant because the delegate was satisfied that the applicant could attend a registered church in China which was sanctioned by the authorities or, if he did not want to attend a registered church, he could re-locate to another province, such as the Fujian province, where China’s religious policy is applied relatively liberally (CB 112).
The delegate also considered that, in accordance with the complementary protection criterion set out in s.36(2)(aa) of the Migration Act, there was no credible evidence that as a necessary and foreseeable consequence of being removed from Australia the applicant would suffer significant harm or that the applicant’s fear of harm at the hands of the PSB was genuine (CB 113-114).
Proceedings before the Tribunal
The applicant applied to the Tribunal for review of the delegate’s decision on 8 August 2012 (CB 116-121). The Tribunal found that the applicant had fabricated his account of the incidents in China and that he was not a member of any Christian church in China (CB 190 at [168]-[170]). The reasons for these findings were, essentially, that the applicant had given inconsistent evidence about those incidents (CB 188-191 at [158]-[166]), that he waited almost two years before being baptised in Australia (CB 190 at [167]-[168]) and he did not make an application for a Protection visa until 5 years after he arrived in Australia.
The Tribunal accepted that the applicant had been a member of a Christian church in Sydney since 2007 and he was baptised there in 2009, however, it found that the only reason he had done this was to strengthen his claims for refugee status. The reasons for the Tribunal reaching that conclusion were the its concerns about the applicant’s credibility, in connection with circumstances in China and the level of knowledge of Christianity displayed by the applicant in relation to his conduct in attending the church and being baptised. The Tribunal concluded that the applicant would not practice Christianity if he were to return to China.
The Tribunal then considered whether the applicant satisfied the complementary protection criterion in s.36(2)(aa) of the Migration Act. In this respect, the Tribunal did take into account the applicant’s Christian activities in Australia, but found that there was no other basis upon which he might satisfy the relevant criterion.
Current Proceedings
On 25 March 2013 the applicant filed, with the leave of the Court, the Amended Application. The orders sought therein are:
1. An order that the decision of the tribunal or Minister be quashed.
2. A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.
The grounds of the Amended Application are as follows:
3. The Second Respondent (Tribunal) made a legal error in misconstruing its role in relation to considering complementary protection criterion in s.36(2)(aa) of the Act, in particular the Second Respondent (Tribunal) considered the applicant’s motivation which is not a criterion of complementary protection and failed to consider the risk that the applicant would suffer cruel and inhuman treatment or punishment and degrading treatment or punishment upon return to China due to his religious beliefs.
PARTICULARS
The Second Respondent (Tribunal) limited its consideration of the complementary protection criterion in s.36(2)(aa) to the applicant’s conduct in attending a Christian church in Australia and accepting baptism and in doing so applied the s.91R(3) test which is the wrong test as “motivation” is nor a criterion of s.36(2)(aa).
a) At [177] the Second Respondent (Tribunal) turned its attention to the complementary protection criteria in s.36(2)(aa):
In this context, the provisions of s.91R(3) of the Act are not applicable, and the Tribunal therefore must have regard to the applicant’s conduct in attending a Christian church in Australia and accepting baptism. However, the Tribunal’s findings regarding the motivation for that conduct, and its (sic) other findings remain relevant.
4. The Second Respondent (Tribunal) made a legal error by basing the s.91R(3) finding on a mistaken conclusion.
PARTICULAR
a) At [140] the Session Clerk advised that, as the church is a Presbyterian Church, it would encourage a person with no prior experience of Christianity to prepare himself or herself for baptism over a period of about six months. Those who come to the church with experience of Christianity may wait 1-2 months before being baptised;
b) If the Applicant’s motivation to appear to be a Christian he would not have waited 2 years to be baptized; and
c) The applicant would not have waited a further 3 years to apply for protection
5. The Second Respondent (Tribunal) failed to take into account relevant considerations, being evidence in support of the applicant’s claim of being a genuine Christian, and in failing to do so, the Second Respondent failed to consider the applicant’s claims to fear persecution on the ground of religion.
PARTICULARS
(a) In support of his application to the Tribunal for review of the delegate’s decision, the Applicant submitted the following evidence:
1. The letter from Minister Joseph Park dated 6 July 2012 at CB 67;
2. The letter from Mr Kwong Lung Choi, Elder and Session Clerk at Bonnyrigg Christian Church, dated 7 July 2012;
3. The article “Mass Baptism at Bonnyrigg” at CB 65; and
4. Baptism Certificate at CB 69-70.
(b) In finding that the applicant was not a genuine Christian on the basis that his knowledge of Christianity was superficial, the Tribunal failed to consider the contrary evidence from the Minister and the Elder Session Clerk of the Bonnyrigg Christian Church;
(c) In finding that the applicant was not an experienced Christian on the basis that the applicant did not seek to be baptised soon after joining the Bonnyrigg Christian Church, the Tribunal failed to consider evidence which supported his claim of being a genuine Christian.
6. The Second Respondent’s (Tribunal’s) decision that the applicant was not a genuine Christian was “irrational and Illogical”, in that it was not open to the Second Respondent to find that the applicant was not genuine Christian.
PARTICULARS
(a) If the Second Respondent (Tribunal) had considered all of the evidence before it, including the evidence referred to in paragraph 5(a) above, it would not have concluded that the applicant was not a genuine Christian.
The Court notes that grounds 1 and 2 contained in the original application have been deleted from the Amended Application and that four new grounds have been introduced. Ms Grotte indicated that she would proceed with Ground 3 initially and then deal with Grounds 5, 6 and 4 because they are related.
Ground 3: Complementary Protection
Applicant’s Submissions
The applicant submits that the Tribunal made a legal error in misconstruing its role in relation to considering complementary protection criterion in s.36(2)(aa) of the Migration Act. In particular, the Tribunal considered the applicant’s motivation which is not a criterion of complementary protection and failed to consider the risk that the applicant would suffer cruel and inhuman treatment, or punishment and degrading treatment or punishment upon return China due to his religious beliefs.
Section 36(2)(aa) of the Migration Act provides the following:
(2) A criterion for a protection visa is that the applicant for the visa is:
…
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
The applicant argues that the assessment of the complementary protection criterion is not restricted to events which occurred in China. A risk of harm may arise as a result of actions which have occurred whilst an applicant is in Australia as a result of the applicant’s own actions, such as in this case, the applicant’s attendance at a Christian church, and his election to be baptised. Unlike the criterion in s.36(2)(a) of the Migration Act, which is subject to the provisions of s.91R(3), there is no “bad faith” exception for the “complementary protection” criterion.
Section 91R(3) of the Migration Act provides:
(3) 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.
The applicant contends that the effect of s.36(2)(aa) of the Migration Act is that even where the real risk of significant harm exists only because an applicant has deliberately engaged in conduct in Australia for the purpose of strengthening a claim for protection, the applicant will not be precluded from meeting the criterion for a Protection visa in s.36(2) if the applicant satisfied the test in s.36(2)(aa) and other relevant requirements: SZRSA v Minister for Immigration & Anor [2012] FMCA 1187 per Smith FM. Section 91R(3) only qualifies s.36(2)(a).
The Tribunal dealt with s.36(2)(aa) at [177]-[182] (CB 192) of the Decision Record. The applicant submits that the Tribunal plainly misapplied the law in respect of s.36(2)(aa) and fell into jurisdictional error because, even though the Tribunal stated that “the provisions of s.91R(3) are not applicable”, the Tribunal considered that “the Tribunal’s findings regarding the motivation for that conduct, and its other findings remain relevant”, and went on to rely on its findings in respect of the applicant being involved with the Bonnyrigg Church solely to strengthen his claims for protection to conclude that the applicant did not meet the complementary protection criterion.
The applicant argued that the Tribunal, at [172] of the Decision Record (CB 191), accepted that the evidence showed that the applicant “has been a member of a Christian church in a Sydney suburb since 2007 and that he was baptised in the church in 2009”. The Tribunal ought to have then proceeded to consider whether there were “substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”.
Minister’s Submissions
The Minister submits that the substance of this ground appears to be that the Tribunal should have, but did not consider whether the applicant’s Christian activities in Australia might lead to him suffering significant harm in China. Contrary to this, the Tribunal expressly addressed this possibility at [179] of the Decision Record:
179. The applicant has made no claim that he would face harm in China simply because he has attended Christian church services in Australia and has been baptised in Australia.
(CB 192 at [179])
The Minister contends that the applicant claimed he would return to China and practice Christianity and, for that reason, would face harm. The Tribunal rejected this because the applicant was never a genuine Christian here or in China and so would not return and practice that faith in China (CB 192 at [178]). Apart from this claim, as stated by the Tribunal the applicant did not make any claim based solely on what he had done in Australia. Further, there was no evidence before the Tribunal that people might face significant harm in China for having attended Church and being baptised in Australia. Thus, that was not a claim that arose on the materials and was not one that was required to be considered: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1.
Consideration – Ground 3
The Tribunal concluded that the applicant did not satisfy the criteria in s.36(2)(a) of the Migration Act, that is, he did not satisfy the definition of refugee (CB 192 at [176]). The Tribunal’s task was to then consider whether the applicant satisfied the provisions of s.36(2)(aa), that is, whether if he returned to China, there would be a real risk of significant harm. The Tribunal proceeded correctly to assess whether the applicant met the complementary protection provisions. The Tribunal correctly noted that the provisions of s.91R(3) of the Migration Act don’t apply, whereas they do apply when assessing whether the applicant satisfies the definition of refugee. Under s.36(2)(aa), the Tribunal is required to assess whether there is a real risk of significant harm to the applicant should he return to China because he has been baptised in a Christian church in Australia, and has been a practicing Christian for a period of 5 years. In carrying out this assessment under the complementary protection provisions, my view is that the Tribunal cannot have regard to the applicant’s motivation and whether or not he engaged in those activities and conduct in Australia solely to strengthen his claims to a Protection visa.
The Tribunal’s assessment is recorded at [177]-[182] (CB 192) and the Tribunal purports to apply the law, however, the issue is whether the Tribunal took into account the applicant’s motives. The Tribunal stated at [177]-[178] of the Decision Record:
177. The Tribunal now turns its attention to whether or not the applicant meets the “complementary protection” criterion in s.36(2)(aa) of the Act. In this context, the provisions of s.91R(3) of the Act are not applicable, and the Tribunal therefore must have regard to the applicant’s conduct in attending a Christian church in Australia and accepting baptism. However, the Tribunal’s findings regarding the motivation for the conduct, and its other findings remain relevant.
178. The Tribunal found that the applicant is not a genuine Christian; that the events that he claims took place in China did not in fact take place; and that is only motivation for attending Christian service and being baptised was to strengthen his claims for protection…
(CB 192)
The Tribunal accepted that the applicant had been a member of the Christian church in Australia since 2007 and the applicant was baptised in the church in 2009. The question to be resolved is whether the Tribunal ought then to have proceeded to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal, there was a real risk that he would suffer significant harm because he was a practicing Christian and had been baptised as a Christian. The Tribunal concluded that the applicant attended church and was baptised solely to strengthen his claims for a Protection visa and that he would not be motivated to associate himself with any underground church in China on his return.
The Tribunal’s decision was that there were no complimentary protection obligations because the applicant had attended church and been baptised in Australia solely for the purposes of strengthening his claims for a Protection visa.
The Tribunal did consider the applicant’s motivation in attending church in Sydney and the reason it considered that was to determine what might happen to the applicant in the future when he returned to China. The consideration went to the question of what might happen in the future, as dictated by s.36(2) and this is made clear by the discussion in [178] of the Decision Record (noted above at [31]). Having set aside the relevance of s.91R(3) in respect of the complementary protection criteria in [177], the Tribunal turned to consider what might happen and stated at [178]:
178. …Given these findings, the Tribunal is satisfied that, once this application is settled, the applicant will not be motivated to associate himself with any underground Christian church in China.
(CB 192 at [178])
The Tribunal found the only reason the applicant associated himself with the church was in order to advance his refugee claim. Once that motivation disappeared he would no longer seek to do so.
The Tribunal’s consideration went to a question of fact which was the right question to address. That issue was what might happen to the applicant in the future as dictated by s.36(2)(aa):
MIGRATION ACT 1958 - SECT 36
Protection visas
(2) A criterion for a protection visa is that the applicant for the visa is:
…
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(emphasis added)
The Tribunal commenced its analysis of the applicant’s claims regarding his involvement in the church in China at [167] and concluded at the end of [168] of the Decision Record:
…It therefore finds that the applicant was not a member of any Christian church in China.
(CB 190)
The Tribunal then made a number of findings in respect of claims concerning the applicant’s circumstances in China prior to coming to Australia. This is set out at [170]-[171] as follows:
170. Given all the above considerations in paragraphs 153-169 above, finds the applicant’s account of alleged adverse incidents in China has been fabricated. In particular, the Tribunal does not accept that the applicant was forced out of business by a business rival who was a government official. It does not accept that there was such a business rival. It does not accept that the applicant’s father was arrested, whether for reasons of alleged involvement in an underground Christian church or any other reason. It does not accept that his father died as a result of mistreatment while in detention. It does not accept that the applicant (sic) brothers were assaulted. It does not accept that the applicant’s family home, business premises or motor vehicle were damaged. It does not accept that the applicant was threatened in any way. The Tribunal believes that these conclusions severely undermine the applicant’s credibility.
171. It follows from the this that the Tribunal does not accept that the applicant is or was adversely regarded by Chinese authorities, whether officially or otherwise, because of anything to do with his religion or that of his father, because of anything to do with any business owned by the applicant and his family. It does not accept that the applicant was harmed or threatened by any business rival (whether a government official or not), or people acting on behalf of such a rival. It does not accept that he would face harm in the future from such rival or from people acting on behalf of such a rival.
(CB 190-191)
It is against these findings that the Tribunal was to determine, in the circumstances of the applicant returning to China, what the “foreseeable consequences” would be for him. The participation in activities at the Bonnyrigg Christian Church is claimed to have been indicated by the applicant’s and his family’s involvement in a house church Christian religious practice in his village of “Long Gim” or “Longjian”, however, this claimed background involvement was rejected by the Tribunal which raises the significant doubt that the applicant would continue this practice of involvement with the Christian church upon his return to China.
This clearly is not an issue involving s.91R(3) but rather an assessment of what the likelihood of the applicant placing himself in a position of conflict with the Chinese authorities that was a “foreseeable consequence”. The Tribunal did not accept that this would be a course that the applicant would follow, resulting in the view that the provisions of s.36(2)(aa) were not engaged. Consequently, this ground cannot be sustained and should be dismissed.
Ground 5: Failure to take into account relevant considerations
Applicant’s Submissions
The applicant submits that the Tribunal failed to take into account relevant considerations, being evidence in support of the applicant’s claims of being a genuine Christian, and in failing to do so, the Tribunal failed to consider the applicant’s claims to fear persecution on the ground of religion.
The applicant contends that in Ground 5 the Tribunal fell into jurisdictional error by ignoring relevant evidence which supported the opposite conclusion from the one reached by the Tribunal regarding the genuineness of the applicant’s Christian beliefs.
The relevant evidence was the evidence from Minister Park and Session Clerk Choi that the applicant had been attending the Bonnyrigg Christian Church regularly since April 2007 and actively participated in bible studies worship service and prayers.
The Tribunal did not accept that the applicant was a genuine Christian and found that the applicant’s attendance at the Bonnyrigg Christian Church was solely done for the purposes of strengthening his claims for a Protection visa. The Tribunal used this conclusion as a basis to find that the applicant would not associate himself with the underground church in China if he returned there, and so found there was no real chance that the applicant would come to adverse attention of the authorities for reasons of his religion.
The applicant argued that the Tribunal based its conclusion that the applicant was not a genuine Christian on his own enquiries regarding the applicant’s knowledge of the Christian religion, and the fact that the applicant did not apply to be baptised soon after his arrival in Australia.
The Tribunal referred in [172] (CB 191) of the decision record to the “evidence before it which indicated that he had been a member of a Christian church in a Sydney suburb since 2007”, but that is the extent of the reference to that material. The Tribunal did not refer to the content of the letters form Minister Park and Session Clerk Choi. The content supported the applicant’s claims that he was genuinely involved in the church, and the Tribunal has plainly disregarded it. It is materially relevant evidence that has a fundamental bearing on the applicant’s claims and the very question that was to be determined by the Tribunal. It is significant because the applicant is relying upon it to demonstrate that he is a genuine Christian who is practising his religion and who, if returned to China, will continue to practice his religion and as a result is at risk of coming to the adverse attention of the authorities.
The applicant submits that in contrast, the delegate found that the applicant’s attendance at the Bonnyrigg Church was not solely to strengthen his claims to a Protection visa.
The applicant contends that the common law rules relating to judicial review are well-established. They require a fair hearing, both through an unbiased decision-maker and a fair process. They require a decision-maker to act on all materially significant matters and not ignore significant matters.
The applicant refers the Court to the decision of the Full Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 where their Honours French (as he then was), Sackville and Hely JJ stated at [46]-[47]:
46. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. …Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact …and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason…
47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point…
The applicant’s submits that an inference can be drawn in this matter that the Tribunal failed to consider the relevant and significant evidence of Minster Park and Session Clerk Choi as contained in their letters and that this inference can be drawn from the failure by the Tribunal to expressly deal with the evidence. There is no discussion in the decision of the Tribunal of the content of the letters from Minister Park or the Session Clerk. The focus of the discussion with the Session Clerk, as recorded, appears to be solely in respect of the baptism practices in the Bonnyrigg Church.
The applicant contends that this failure is jurisdictional error because it has affected the Tribunal’s exercise of its power to determine the applicant’s claims. The failure to consider the evidence amounted to a failure to consider an issue going directly to the question of whether the criterion under s. 36 of the Migration Act was satisfied.
In Craig v State of South Australia (1995) 184 CLR 163 the High Court held per curiam at [179]:
179. …If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
(emphasis added)
In the Full Federal Court decision of Edwards v Giudice & Ors (1999) 94 FCR 561, Finkelstein J expressed the opinion that an error of law will relevantly “affect” a tribunal’s exercise or purported exercise of its power “if the erroneous finding forms the basis of the decision or is an element in the process of reasoning that led to that decision.”
The applicant refers to the decision of Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 where their Honours McHugh, Gummow and Hayne JJ stated at [82]:
82. It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)
"”falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
“Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.
(footnote omitted)
The applicant argues that the Tribunal ignored relevant material causing it to make an erroneous finding or reach a mistaken conclusion, thereby affecting the exercise of its power, such that it fell into legal error. It is submitted that the ground of application does not amount to a review of the merits, because the challenge is directed to the process of review adopted by the Tribunal. There was simply no discussion or consideration by the Tribunal of relevant material that was before it that supported the applicant’s claim he was a genuine Christian.
Minister’s Submissions
The Minister argues it is the applicant’s contention that the Tribunal failed to consider the letters from Minister Park and Session Clerk Choi to the effect that the applicant had attended church since 2007 and actively participated in bible studies, worship services and prayers (CB 67-68). The argument raises two distinct points: first, whether the Tribunal failed to consider those documents and secondly, if so, whether that constituted jurisdictional error.
The Minister submits that there are two preliminary points that should be made before considering the evidence. First, the starting point in considering what inferences may be drawn is the extent of the obligation under s.430(1) of the Migration Act. Amongst the obligations imposed by that provision is for the Tribunal to refer in its statement of reasons to the evidence upon which it based its findings of material facts: s.430(1)(d). Neither that provision nor anything else in s.430(1) requires the Tribunal to give a line by line refutation of the evidence for the applicant, either generally or in those respects where there is evidence contrary to findings of material facts made by the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [65]. Thus, the absence of reference to corroborative material in the Tribunal’s reasons does not necessarily support an inference that the material was overlooked.
The second preliminary point is that the statement of reasons is prepared at the end of the decision-making process. Gleeson CJ explained the import of this in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59:
14. Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.
The Minister argues that the only evidence before the Court of what was considered by the Tribunal is contained in the Court Book and, particularly, the statement of reasons. By reference to those reasons, the applicant submits that the reference at [172] of the Tribunal’s Decision Record is the only reference to the relevant material. That is incorrect and, even if it were correct, it does not support the inference that the material was overlooked.
The Minister submits that the Tribunal expressly referred to the letters on two occasions when setting out the evidence it had considered (CB 170 at [29] and CB 186 at [139]). This shows that the Tribunal was well aware of the letters and their content. That conclusion is confirmed by the fact that the Tribunal arranged for the authors of one of the letters to be contacted by phone and questioned about the practices of the church (CB 147).
As to the reference to the letters at CB 191 at [72], this is a clear indication that the Tribunal had read and considered the letters. Indeed, the Tribunal accepted that the applicant had been a member of the church and was baptised on account of the letters. In light of this, the applicant’s only complaint can be that the Tribunal did not accept that the applicant was a genuine Christian. That, however, was a matter for the Tribunal. It gave its reasons for not accepting that the applicant was a genuine Christian and that is all that it was obliged to do.
The Minister argues that on that basis, the second issue does not arise. However, it is submitted that the decision in Applicant WAEE (supra) supports the Minister’s argument rather than that of the applicant. The contention that the Tribunal considered and rejected was that the applicant was a genuine Christian. The letters were only evidence that tendered to support that contention. Further, the letters, to the extent they went beyond what the applicant actually did, were expressions of opinion. Thus, even if those opinions were genuinely held, the letters were not of such probative force in that respect that a failure to deal with them was such a serious error that it affected the Tribunal’s jurisdiction: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99.
Consideration – Ground 5
This Ground is directed to the process of reasoning adopted by the Tribunal, particularly consideration of the contents or the substance of evidence about the applicant’s Christian beliefs. The authorities indicate that a Tribunal does not have to refer to every piece of evidence, however, this Ground challenges the Tribunal’s failure to discuss or consider evidence that might have led to a different finding of fact. If accepted, this could amount to a failure to address a contention and might establish that the applicant has a well-founded fear of persecution for a convention reason.
The evidence in question are letters from the Minister of the Bonnyrigg Christian Church, Mr Joseph Park (CB 67) and the Elder and Session Clerk of the Church Mr Kwong Lung Choi (CB 68), as well as the article “Mass Baptism Bonnyrigg” (CB 65) and a Baptism Certificate (CB 69-70). The basis of the complaint was that relevant evidence (the four documents listed above), which supported the genuineness of the applicant’s Christian beliefs, was ignored by the Tribunal. In support of this claim the contents of the following passage from the “Findings and Reasons” is relied upon as the extent of the reference to the four items:
172. … [T]he Tribunal accepts the evidence before it which indicates that he has been a member of a Christian church in a Sydney suburb since 2007…
(CB 191 at [172])
I accept the submission made on behalf of the applicant that the only reference to the evidence in the “Findings and Reasons” section by the Tribunal in its Decision Record appears at [172] (CB 191) (being the four identified documents set out above). However, two references to this material appear in the Decision Record in the section headed “Claims and Evidence”. At [29] the Tribunal stated:
29. Among the documents enclosed with the application was a certificate of baptism indicating that the applicant was baptised 8 February 2009 in a Chinese Presbyterian church in a Sydney suburb. He also enclosed a letter written on the letterhead of a Christian church apparently affiliated with the Presbyterian Church. The writer of that letter identified himself as the Minister of the church that the applicant had attended since April 2007. The letter referred to the applicant’s baptism in February 2009. It stated that not many people in the church community were aware of the applicant’s status, apparently in reference to the applicant’s migration status. The applicant enclosed another letter, on the same letterhead as the first, written by a person identifying himself as the “Elder and Session Clerk” of the church. It also states that the applicant was baptised at the church.
(CB 170)
Then at [139]-[140] the Tribunal stated:
Inquiries regarding baptism at the applicant’s church
139. On 23 October 2012, at the Tribunal’s request, an officer of the Tribunal contacted a representative of the church the applicant attended, namely the “Elder and Session Clerk” mentioned in paragraph 29 above. The officer asked whether the church conducted baptisms for individuals, or whether it normally waited until several people wished to be baptised and the conducted mass baptisms. The Session Clerk advised that individual baptisms are the norm in the church. He said that, sometime, particular groups will request baptism for a particular reason, but this would only happen once in a period of 1 to 2 years.
140. The Session Clerk advised that, as the church is a Presbyterian Church, it would encourage a person with no prior experience of Christianity to prepare himself or herself for baptism over a period of about six months. Those who come to church with experience of Christianity may wait 1-2 months before being baptised. The church baptises people of all ages, from infants to those of advanced years.
(CB 186)
In the absence of any other reference to the four documents I turn to the submissions advanced by Mr Smith on behalf of the Minister who referred the Court to the authorities that address the obligations that a decision-maker has when reviewing evidence in these circumstances. Section 430 of the Migration Act states:
MIGRATION ACT 1958 - SECT 430
Refugee Review Tribunal to record its decisions etc.
(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
There is a substantial body of authority that addresses what should be contained in a written statement of the Tribunal’s decision. In Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham (supra), his Honour McHugh J at [65] stated:
65. In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d). However, the obligation to set out "the reasons for the decision" (s 430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal. Indeed, to do so would be contrary to the direction in s 420 of the Act that:
“(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case."
In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (supra) per Gleeson CJ at [14] his Honour addressed the issue of the sequencing of findings made by a decision-maker when recording those findings in a decision record as follows (extracted at [56] above).
Both parties have drawn the Court’s attention to the Full Court’s decision in Applicant WAEE (supra), particularly [46]-[47] (extracted at [47] above). It is the applicant’s contention this Court should draw an inference that relevant and significant evidence contained in the two letters from the Bonnyrigg Christian Church were not considered by the Tribunal to the extent required by an administrative decision-maker.
The competing limbs to this argument from the applicant’s perspective was that “the Tribunal did not refer to the contents of the letter” (see [39]-[44] above), where the Minister adopts the position “that the Tribunal expressly referred to the letters on two occasions” (see [58]-[59] above).
I am satisfied that these references by the Tribunal indicate that the Tribunal member was well aware of the letters and their contents. In forming that view, I note that the Tribunal arranged for the author of one of the letters, Mr Kwong Lung Choi, an Elder and Session Clerk of the Bonnyrigg Christian Church, to be contacted by phone (case note 8361717, 23 October 2012) (CB 147) where Mr Choi was questioned about the practices of the Church. Within that case note it states:
I contacted Mr Kwong Lung Choi on mobile number provided in his testimonial letter…
(CB 147)
This issue of the telephone contact and source of the mobile number was raised by Mr Smith in his written submissions and I have not seen any material elsewhere in the Court Book that makes references to the information. Reference is made to the instruction given by the member to a Tribunal officer to make that enquiry (CB 186 at [139]-[140]).
The issue of baptism and the timing of that event from the date of the applicant’s arrival at the Church are set out in the letter of Mr Choi in the following passage:
I have known Mr [applicant] since he has arrived at our Church in 2007 and he has been a regular attendee since then. We have seen him grow in his faith and become a part of our church community throughout the last five years, and he is active in helping to lead public Sunday worship service, prayers, participating in bible studies and assisting in the ongoing maintenance and support of our church community.
In February 2009 we celebrate his public baptism at our Church, and welcomed him as a full communicant member of our congregation. This was a great day as we rejoiced his public announcement of faith, and reaffirmed his commitment to God and to our church community. It was a day we celebrated Mr [applicant]’s acceptance of Jesus, that he now belongs to our Christian family as a brother in Christ.
…
(CB 68)
In light of the contents of Mr Choi’s letter and the instruction to make inquiries concerning issues that only arose in that letter, I have formed the view that the applicant’s submission that the letter was not referred to in the Decision Record unsustainable. I acknowledge that the contents of the letters were not reproduced or summarised in the decision, but the existence of the letters and their contents is apparent. It is also difficult to accept that the contents of those letters established a knowledge and adherence to Christianity greater than the impression conveyed by the applicant’s response to questions during the hearing. The Decision Record discloses details of the subject of the applicant’s Christian beliefs being discussed during the hearing on 25 October 2012. This discussion canvassed many areas of the applicant’s proclaimed beliefs which the Tribunal may have focused on when forming its decision on those issues. These exchanges were more focused on what the applicant claimed to be his understanding of the teaching and beliefs of the subject, rather than the limited statements contained in the two letters.
In these circumstances I am satisfied that this ground cannot be sustained and should be dismissed.
Ground 6: Tribunal’s Decision was Irrational and Illogical
Applicant’s Submissions
The applicant submits that an error of law in fact finding is demonstrated if no decision-maker acting reasonably could have made that finding. In Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 their Honours Crennan and Bell JJ noted at [123] that:
123. Judicial review has commonly been relied on to set aside a discretionary decision which "is so unreasonable that no reasonable authority could ever have come to it’ or decisions "which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful" …
Their Honours in SZMDS (supra) set out at [121]-[131] the legal principles governing the exercise of a discretion by a public officer, notably, that “statutory tribunals must not only act reasonably as intended by the legislature, they must also act rationally”. Their Honours continued at [130]-[131]:
130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
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.
The applicant submits that in the present circumstances the Tribunal did not consider material before it probative evidence, being the evidence of Minister Park and Session Clerk Choi, which supported the applicant’s claim that he was a genuine practising Christian. The Tribunal’s findings that the applicant was not a genuine Christian were based on its own investigations, being answers to questions posed to Session Clerk Choi regarding the timing of the applicant’s baptism, and its views that the applicant’s answers to his questions regarding Christianity demonstrated only a superficial knowledge thereof. There was no discussion of the corroborative evidence. The focus of the Tribunal appears to have been entirely on the baptism practices of the church.
The applicant argues that this is not a case in which all probative evidence was considered and weighed up, but where minds might differ as to the possible conclusions to be drawn from that process of reasoning: SZMDS (supra). Nor is it a case where the reasons of the Tribunal have been scrutinised over-zealously to glean some inadequacy in the way the reasons have been expressed, contrary to the principle stated by their Honours Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272.
The applicant submits that the conclusions reached by the Tribunal, being that if the applicant were a genuine Christian who had practised Christianity in China he would have applied for baptism earlier than he did, and that the applicant had attended Bonnyrigg Christian Church solely to strengthen his claims for a Protection visa, were not sustainable as pieces of logical analysis. A reasonable and rational mind which had properly considered all of the evidence, including evidence which corroborated the applicant’s claims to being a genuine Christian, namely the evidence of Minister Park and Session Clerk Choi, would not have found that the applicant was not a genuine Christian nor found that he had attended the church solely to strengthen his claims for a Protection visa. The evidence demonstrated that the applicant commenced attending the church within weeks of his arrival in Australia, and regularly attended it thereafter, participating in its activities including prayer, worship and bible studies. The applicant did not apply for a Protection visa until he was discovered by Departmental officers in 2012. There is no evidence of any relationship between the attendance by the applicant at the church for a period of five years from 2007, and his applicant for a Protection visa in 2012, some five years later, and three years after his baptism.
The applicant contends that the approach taken by the Tribunal in its process of reasoning was illogical and irrational, and the findings that it made were not open to it on the evidence it had before it, because not all of the relevant probative evidence had been considered. It is submitted that the approach adopted by the Tribunal is contrary to the one set out by their Honours Crennan and Bell JJ in SZMDS (supra) at [133] where they stated:
133. However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it…
The applicant argues that the Tribunal did not adopt the correct approach in its process of reasoning, and its conclusion regarding its state of satisfaction as to the applicant’s religious belief revealed illogicality or irrationality amounting to jurisdictional error.
Minister’s Submissions
The Minister submits that this ground is based on an acceptance that the Tribunal failed to consider the corroborative letters. The Minister submits that for the reasons set out above at [54]-[60], Ground 6 should fail.
The Minister contends that another difficulty with the applicant’s argument is that it ignores the fact that the Tribunal’s conclusions concerning the applicant’s Christianity were based on a number of matters. Those matters included a number of inconsistencies in the applicant’s evidence, a conflict between the applicant’s evidence and the statement by the Session Clerk of the Church about baptism in that Church. None of these matters are impugned by the applicant. That means that is must be accepted that they form a rational basis for the Tribunal’s findings about the applicant’s Christianity.
In SZMDS (supra) Crennan and Bell JJ said at [131]:
131. …But, 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.
Given that there was probative evidence to support the Tribunal’s finding, the applicant’s argument amounts to no more than that the Tribunal should have found differently. As explained in SZMDS (supra), that is no basis for a conclusion that there has been jurisdictional error on the part of the Tribunal.
Consideration – Ground 6
It was submitted on behalf of the applicant that the Tribunal had before it evidence that supported the applicant’s claim that he was a genuine Christian. The claim is that the evidence was noted, however, there was no discussion or consideration of the substance of that evidence. The argument advanced was that the Tribunal made its decision that the applicant was not a genuine Christian on the basis of the applicant’s answers to the Tribunal’s questions regarding the Christian religion because the Tribunal considered that the applicant only demonstrated a superficial knowledge of Christianity. The Tribunal also gave significant weight to the fact that the applicant did not seek to be baptised soon after the joining the Bonnyrigg Church in April 2007.
It was submitted on behalf of the applicant that it cannot be inferred that the substance of the evidence was considered in the context of the Tribunal’s reasoning process that the applicant was not a genuine Christian. The claim is that the approach adopted by the Tribunal in its process of reasoning can be said to have been illogical and irrational, and that the findings that were made were not open to it on all of the evidence that it had before it. The applicant contends that the Tribunal did not adopt the correct approach in its process of reasoning and its conclusion regarding the state of satisfaction as to the applicant’s religious belief revealed illogicality and irrationality amounting to jurisdictional error.
During the interview by a delegate of the Minister with the applicant on the 28 March 2012 the Tribunal member made the following observation at [32] of the Decision Record:
32. The Department file contains a CD recording of the interview. The Tribunal has listened to that recording. Its summary of the matters discussed at the interview, in paragraph 33-57 below, is not set out in strict chronological order. Some issues discussed at different times in the interview have been grouped together for greater clarity, and some matters which have proved not to be material to the Tribunal’s decision, or which merely repeat or confirm details provided by the applicant on connection with his protection visa application have been omitted.
(CB 170)
The Tribunal then records details regarding the applicant’s father and his Christian beliefs at [34], [36], [38] (CB 171) and a Statement by the applicant. At [36] the Tribunal stated:
36. …He first attended a church service when he was about 28 years old [which would therefore be somewhere around 1995]. He said he had no particular reason for starting to go to church; his main purpose was to go to church to get a “peaceful mind” and some joy, and to try to do some good deeds for other people. No other members of the family went to church, apart from him and his father because they all had to work.
(CB 171])
The applicant’s involvement in the church in Australia is addressed at [43], where the Tribunal stated:
43. The applicant said he had arrived in Australia on 12 April 2007, and he started attending church in the week which followed his arrival. The church is located in Bonnyrigg. He was introduced to the church by his sister-in-law who is also a Christian. He said that he was not a Christian in China, although he had been introduced to the religion by his father and he liked the teachings of the church. The delegate asked the applicant to mention two or three things that he liked about the Christian teachings.
(CB 172)
Further responses in respect of the applicant’s Australian experiences with the church are recorded at [45], [46], [47], [48] and [49] (CB 172-173). A fair reading of these paragraphs do not provide any material support to the applicant’s claim to be a Christian believer or adherent, rather, they set out a brief chronology of his initial contact with the church in China and his subsequent introduction to the Bonnyrigg Church in Australia by his sister-in-law. These paragraphs do not address the issues of his beliefs.
After a brief adjournment at the hearing before the Minister’s delegate, during which time the applicant consulted with his migration agent, the applicant indicated that “[H]e would also face serious harm because he was a baptised Christian” (CB 174 at [55]). The Tribunal’s Decision Record then noted the following at [56]:
56. The applicant’s migration agent said that the applicant may not have understood some of the questions about religion because, when she had interviewed the applicant, he had “no idea about the registered churches in China”. Because there was no registered church in the applicant’s area, all Christians belonged to house churches, and she believed he would not have had any idea of the existence of registered churches. She said that the delegate should take note of the fact that there may have been some difficulties because the interview was conducted using a Mandarin language interpreter rather than a Cantonese interpreter. She suggested the applicant may not have been personally aware of religious persecution in China.
57. The interview concluded.
(CB 174)
The Tribunal hearing was held over two days, 11 and 25 October 2012. At this initial hearing the first references to the applicant’s involvement with the Church appears at [91]-[94] of the Decision Record:
91. The Tribunal noted that the applicant said he attended church in the week following his arrival in Australia. He confirmed that he had attended church on Sunday which followed his arrival in Australia. The Tribunal asked if there was anything special about the first service he attended, apart from the fact that it was his first service in Australia. He said that he could not recall anything special about that service.
92. The Tribunal asked why, if the applicant had been a Christian in China he waited more than two years before being baptised in Australia. He said that one could not be baptised at any time. Baptisms had to be arranged in a group at a particular time. There were no baptism ceremonies for just a single person.
93. The Tribunal explained the provisions of s.91R(3) and said that, if it were to conclude that the applicant’s involvement in the church in Australia was simply to strengthen his claims for protection and that he had delayed being baptised in order for him to learn about Christianity, the Tribunal it would be obliged to disregard his conduct in associating with the Christian church in Australia. It would therefore need to consider whether or not it accepted that the applicant had attended the church for genuine reasons.
94. The Tribunal noted that, when the applicant was interviewed earlier in the year, he had been unaware that there were churches in China which operated with the approval of the Chinese government. It asked why, assuming for the moment that it accepted he was a genuine Christian, the applicant could not practise his religion as a member of one of those churches if he were to return to China. The applicant said he could not do so because there was no such government-approved church in his hometown. He had never heard of such a church.
(CB 179)
Further reference occurs at [98] of the Decision Record, where the Tribunal stated:
98. The Tribunal asked what it meant to the applicant to be a Christian. He said that “to believe in Jesus Christ and God can make oneself live in peace and happiness.” The Tribunal said it was looking for him to expound some beliefs which distinguish Christianity from other religions. He suggested that monotheism – the belief that there is no other god – was one such belief.
(CB 180)
The hearing summary of 25 October 2012 is recorded at [105]-[147] of the Decision Record and references to his Christian beliefs are recorded at [109], where the Tribunal stated:
109. The applicant confirmed that he had become a Christian in 1994 under his father’s influence. His father had become a Christian when the applicant was “very small.” The Tribunal said it was implicit in the applicant’s earlier oral evidence that the family only had problems relating to their religion after the government official start a rival business in 2005. The applicant confirmed that this was so. He said that other members of the church had troubles with the authorities from time to time, but nowhere near as serious as the problems experienced by his family. When the church heard that government people were coming, they moved around to other locations. Some others in the church did experience some physical mistreatment, but none like those handed out to his father and brothers.
(CB 181)
The next sequence of paragraphs in the Decision Record making reference to his Christian beliefs are found at [120]-[125] where the Tribunal stated:
120. Just prior to the adjournment, the Tribunal had asked the applicant to outline some beliefs which distinguished Christianity from other main religions. In response, he had referred to the belief in one God. While the Tribunal accepted that this was a fundamental belief of Christianity, it said it was not a belief which was unique to that religion. Adherents of Islam and Judaism also had such a belief. It was looking for evidence which would help it to accept that he was a genuine Christian, and not simply a person attending church in order to strengthen his claims for protection.
121. In response, the applicant said that, when he joined the church she (sic) he had not thought about seeking protection and he had not even known there were such things as protection visas. He repeated his earlier evidence that a friend from the church had told him there was no such thing. The Tribunal acknowledged that he had previously said that it said its point was it was looking for him to articulate some beliefs about Christianity which were unique to that religion.
122. He said that Christians believed in “one true God”. He acknowledged that other religions believed in God but said that they also “worship idols”. The Tribunal asked if Muslims worshipped idols, and he said they did. It asked if Jews worshipped idols, and he said they did as well. He added that he was not too clear on this point, but that was what he had been told by other people. He said that when he first joined the Christian church he thought that Jesus and the Bible were all about the truth and that was why he joined and took part in the gatherings.
123. The Tribunal asked him again when he had joined the Christian religion. He said he could not remember but he would have been involved in the church for maybe seven, eight, or 10 years before he left Chine, [which would suggest he joined the religion somewhere in the period 1997-2000 inclusive]. The Tribunal asked why the applicant had not been baptised while he was in China. He said it was because he was not a member of a formal church. The Tribunal said that, as far as it was aware, many people who were members of house churches were able to be baptised in China. He said that the church had no regular ministers, and that ministers only came to the church occasionally.
124. The applicant confirmed that he used to study the Bible in China, and that he also did so in Australia. The Tribunal asked the applicant to name the fifth book of the New Testament. The applicant referred to “Revelation and the four Gospel’s” but said he could not recall all the books of the New Testament.
125. The Tribunal referred to the differing nature of the various books of the Bible (e.g. histories of the Hebrew people and their relationship with God, songs or poems of praise, prophecies, etc.) and asked what form of writing majority of the books of the New Testament were. The applicant did not answer this question directly. He said that the books of the New Testament were designed to be easy for people to understand. The Tribunal elaborated on its question. It said that it regarded the four Gospels as being histories which recounted that Jesus did and what he taught. It said that most of the other books of the New Testament were of a different nature, and asked the applicant what their nature was. He said that the New Testament was about “what God said.” It was about “the Gospels of Jesus, the Jewish religion and miracles.”
(CB 183-184)
These paragraphs address the question of the applicant’s belief, but they only reflect a very superficial understanding which is in the nature of selectively learnt facts to be used in an interview of this nature. This knowledge was gained over a period of about five years from April 2007. While it is acknowledged that language may be a barrier to the clearer expression of his understanding, considering that the applicant has been a regular attendee at the Church for five years and is said to be “active in helping to lead public Sunday worship service, prayers particularly in bible studies.” While it must be accepted that the applicant has a limited knowledge of Christian religion and some of the procedural activities of Presbyterian Church this material does not convey the idea that the applicant is an actual Christian.
The paragraphs of the Decision Record relating to baptism practices of the Presbyterian Church and Bonnyrigg Christian Church in particular, which are found at [139]-[140] of the Decision Record, do nothing more than indicate what is the normal practice at that church. This information in itself does not provide any specific criteria to determine whether a person had adopted and become adherent to the faith. If somebody was participating in this procedure purely to strengthen a claim of adopting the beliefs of a Christian faith there would be nothing to prevent a person to follow this path. The mere participation in a baptism ceremony does not necessarily confirm the adoption of the belief.
I now turn to the Tribunal’s reasoning. The initial issue concerns the applicant’s claims regarding his circumstances in China. The opening paragraph in the “Findings and Reasons” clearly states the basis for the protection visa application:
148. The applicant claims to fear persecution in China at the hands of a government official who operated a business in competition with the business operated by the applicant…
(CB 187)
There then is a reference to the applicant’s father who jointly operated the business:
148. …He claims that that official had his father arrested as a member of an underground Christian church…
(CB 187)
Reference to the threats to the applicant’s and his father’s business is then made by the Tribunal at [152] of the Decision Record:
152. The applicant has referred to a number of specific instances when, he claims, various things were done to him and his family to pressure him to give up his business…
(CB 187)
Then the link between the family’s business and the father’s religious beliefs are addressed at [153] of the Decision Record:
153. In the applicant’s written claims and submissions, he asserts that the PSB came to know that his father was involved in a house church and, because of this, they revoked the family’s business licence, which impacted upon their ability to make money. However, in his oral evidence to the Tribunal, he made it clear that he motivation for the difficulties inflicted upon the family was the fact that they operated a business which was in competition with the business commenced by a government official. He confirmed to the Tribunal… that, until the official commenced his business, the family had not experienced problems relating to their religion. Put simply, his oral evidence was to the effect that the issue of religion was an excuse for his father’s arrest and mistreatment, not the underlying reason for the alleged persecution of the family.
(CB 187-188)
The Tribunal then continues and addresses the nature and operation of the family business. Questions are addressed concerning the registration and business licences held by the business, together with a number on conflicts between members of the family and the authorities directly related to the operation of the business.
Contrary to the claim that there was no discussion or consideration of evidence provided by the applicant the Tribunal addresses his claim that he developed his beliefs in Christianity in China. This consideration was as follows:
167. It is well known that baptism is the process by which people are normally accepted into the Christian church. Had the applicant been involved in a Christian church in China for a number of years, as he claims to have been, the Tribunal would have had him to have sought baptism soon after joining a church in Australia. However, he waited almost 2 years before doing so. The Tribunal has considered his evidence to the effect that he was unable to be baptised before 2009 because he had to wait for a group of baptism candidates to be formed. It is implicit in this evidence that the applicant had wished to be baptised but that an opportunity did not arise until early 2009. The Tribunal has also considered the information about the church’s practices set out in paragraphs 139-140 above.
168. The Tribunal considers that there would be no reason for an officer of the church to try to mislead the Tribunal about the church’s approach to baptism. It therefore accepts the information provided by the church officer. It finds that there would have been no barrier to an experienced Christian being baptised within the first few months after him joining the church in Australia. It finds that the applicant would not have needed to wait until a group of people wished to be baptised. Against the background provided by the church, the Tribunal concludes that the applicant’s stated reason for his failure to be baptised soon after joining the church is inconsistent with that background information. It also concludes from the fact that the applicant was not baptised soon after joining the church that he was not an experienced Christian. It therefore finds that the applicant was not a member of any Christian church in China.
(CB 190)
The Tribunal’s consideration then focuses on the applicant’s church related activities since arriving in Australia as follows:
172. Turning now to the applicant’s activities in Australia, the Tribunal accepts the evidence before it which indicates that he has been a member of a Christian church in a Sydney suburb since 2007 and that he was baptised in the church in 2009. However, having concluded that the applicant was not a Christian when he was in China, it has reached the conclusion that the applicant’s involvement in the church in Sydney was for no reason other than to strengthen his claims for refugee status by learning something of Christianity.
(CB 191)
That is followed, at [173]-[176] of the Decision Record, by what is effectively a discussion and consideration of the material that was provided by the applicant via submissions in his application and statements made during the hearing:
173. In reaching this conclusion, the Tribunal has noted that, despite having attended the church for more than five years, the applicant was unable to demonstrate much knowledge of Christianity when asked at the Tribunal hearing. It accepts the evidence he presented to the delegate indicates some knowledge of Christianity. It also accepts that the fact of his baptism indicates that he was able to demonstrate a knowledge of Christianity to his church. However, at the hearing, he was not able to articulate anything more than a superficial knowledge of Christianity. Though he claims to have studied the Bible for a number of years, he did not know such as simple thing as the fifth book of the New Testament, the one immediately following the Gospels. The Tribunal would expect any person who studied the Bible regularly to know this.
174. The Tribunal is also of the belief that a person who was genuinely Christian would have been able to articulate such fundamental Christian beliefs, as the belief that Jesus is the Son of God, and the significance of the crucifixion. The Tribunal therefore finds that the applicant’s demonstrated level of knowledge at the hearing is inconsistent with his claim to have studied the Bible in China and Australia and to be a committed Christian. Given this finding, and the Tribunal’s concerns about the applicant’s credibility, the Tribunal finds that the applicant’s sole purpose in attending church in Australia was to strengthen his claims for protection by lending credibility to his claim that he had been a Christian in China. It finds he is not a genuine Christian.
175. Therefore, as required by s.91R(3) of the Act, the Tribunal disregards the applicant’s conduct in attending church in Australia. Having so disregarded that conduct for the purposes of deciding whether the applicant meets a refugee criterion, and given the Tribunal’s finding that the applicant is not a genuine Christian and did not practise Christianity in China there is no reason to believe that the applicant would seek to practise Christianity in the future were he to return to that country.
176. Having disbelieved the applicant’s claims about the alleged events in China and having no reason to believe that the applicant would practise Christianity in China if he were to return there in the reasonably foreseeable future, the Tribunal finds that there is no real chance that he will come to the adverse attention of Chinese authorities on return to China. The Tribunal has previously rejected… the applicant’s claim that he was harmed or threatened by or on behalf of any business rival and that he would face harm in the future from such a rival or from people acting on behalf of such a rival. The Tribunal therefore finds that the applicant does not have a well-founded fear of persecution in China for a Convention reason.
(CB 191-192)
The Tribunal’s findings in respect of the applicant’s Christian beliefs are found at [178]-[179] of the Decision Record:
178. The Tribunal has found that the applicant is not a genuine Christian; that the events that he claims took place in China did not in fact take place in China did not in fact take place; and that his only motivation for attending Christian services and being baptised was to strengthen his claims for protection. Given these findings, the Tribunal is satisfied that, once this application is settled, the applicant will not be motivated to associate himself with any underground Christian church in China.
179. The applicant has made no claim that he would face harm in China simply because he has attended Christian church services in Australia and has been baptised in Australia.
(CB 192)
This Court is being invited by the applicant to accept that the letters provided by Minister Park and Session Clerk Choi establish that the applicant is an adherent of the Christian religion. Minister Park states:
I have known Mr [SZSHJ] for the last eighteen months as the minister of the church that he has been attending since April 2007. Mr [SZSHJ] was baptised in February 2009 and has been an active member serving the community in many capacities including chairing Sunday worships services, in public prayer, in regular Bible studies and general upkeep of the church building…
(CB 67)
Taking this passage, as it is the only references to the applicant’s belief in Minister Park’s letter, may be analysed as endorsement of the applicant’s faith; however, it does not contain anything that would be inconsistent with someone who was engaging in conduct for the purpose of strengthening a person’s claim to be a Christian and consequently fear persecution in China if the behaviour became known to the authorities.
Similarly, Session Clerk Choi’s letter states:
I have known Mr [SZSHJ] since he arrived at our Church in 2007 and he has been a regular attendee since then. We have seen him grow in his faith and become a part of our church community throughout the last five years, and he is active in helping to lead public Sunday worship service, prayers, participating in bible studies and assisting in the ongoing maintenance and support of our church community.
In February 2009 we celebrated his public baptism at out Church, and welcomed him as a full communicant member of our congregation. This was a great day as we rejoiced his public announcement of faith, and reaffirmed his commitment to God and to our Church community. It was a day we celebrated Mr [SZSHJ]’s acceptance of Jesus, that he now belongs to our Christian family as a brother in Christ.
(CB 68)
Again, in isolation, this passage may establish that the applicant has adopted Christian beliefs, but it is no way inconsistent with the behaviour of an individual endeavouring to strengthen a personal claim of future persecution because of a religious belief.
When these claimed beliefs are tested by oral examination at a hearing the key element of the claimed belief are brought into question as indicated by the Tribunal at [173] of the Decision Record that the applicant could demonstrate a level of knowledge of the Bible consistent with a claim to have studied it, however, there were substantial gaps in that knowledge. I believe on fair reading of the Decision Record as a whole the submission advanced on behalf of the applicant that the approach by the Tribunal was contrary to the statement by their Honour’s Crennan and Bell JJ in SZMDS (supra) at [33] and cannot be sustained. Consequently, Ground 6 cannot be sustained and should be dismissed.
Ground 4: Basing s.91R(3) finding on a mistaken conclusion
Applicant’s Submissions
This ground relates to Grounds 5 and 6 which have been addressed above. It is submitted that it follows that once the Tribunal fell into error by ignoring relevant material, it fell into error by concluding that the applicant attended the Bonnyrigg Church and was baptised in that church solely to strengthen his claims for protection.
It is submitted that the conclusions reached by the Tribunal that if the applicant were a genuine Christian who had practiced Christianity in China, he would have applied for baptism earlier than he did and that the applicant had attended Bonnyrigg Christian Church solely to strengthen his claims for Protection visa, were not sustainable as pieces of logical analysis. A reasonable and rational mind which had properly considered all of the evidence, including evidence which corroborated the applicant’s claims of being a genuine Christian, namely the evidence of Minister Park and Session Clerk Choi, would not have found that the applicant was not a genuine Christian, nor that he attended the church solely to strengthen his claims to a Protection visa. There may have been other reasons for attending the church.
The applicant submits that the evidence demonstrated that the applicant commenced attending the church within weeks of his arrival in Australia, and regularly attended it thereafter, participating in its activities including prayer, worship and bible studies. The applicant did not apply for a Protection visa until he was discovered by Departmental officers in 2012. There is no evidence of any relationship between the attendance by the applicant at the church for a period of five years from 2007, and his application for a Protection visa in 2012, some five years later, and three years after his baptism.
It is submitted that the Tribunal did not adopt the correct approach in its process of reasoning, and its conclusion regarding whether the applicant attended church solely to strengthen his claims for protection is based on a mistaken conclusion.
Minister’s Submissions
The Minister argues that this ground relies on the success of Grounds of 5 and 6, namely that the Tribunal failed to consider the corroborative letters. The Minister submits that for the reasons given above at [49]-[51], [61]-[62], those Grounds should fail and, for the same reasons, so should Ground 4.
Consideration – Ground 4
Grounds 4, 5 and 6 all turned on the question, of whether the Tribunal considered the documents that appear at CB 67-68, namely, the letters from Minister Park and Session Clerk Choi. When considering the issue raised as to whether the Tribunal had regard to anything, one must look at reasons and put them in context. The first time that the Tribunal had regard to the letters appears at CB 147, being the case-note dated 23 October 2012. The case-note was not written by the Tribunal Member, but was written at the instigation of the Tribunal Member, with the following noted:
I contacted Mr Kwong Lung Choi on mobile number provided in his testimonial letter…
Mr Choi (at CB 68) did indeed give his contact details on his letter to the Tribunal. Mr Choi’s contact details do not appear elsewhere in the Court Book. This is the first indication, admittedly, before the preparation of the Tribunal’s decision.
One of the requirements of s.430 of the Migration Act is to set out the evidence upon which the material findings of fact were based. The Tribunal does this under the heading “Claims and Evidence” commencing at CB 168.
The Tribunal Member went through the documents and set them out in some detail at CB 170 (at [29]). The Tribunal Member describes a letter, with the letterhead of the Bonnyrigg Christian Church and that the writer of the letter identified himself as Minister Park, which correlates to the letter identified at CB 67. The paragraph refers to the applicant’s baptism in February 2009 and that not many people in the church community were aware of the applicant’s status, apparently in reference to the applicant’s migration status. This paragraph reveals that the Tribunal Member read and had regard to the letters provided by the Minister and Session Clerk. The Tribunal also referred to these letters on a number of other occasions in the Decision Records, some of which are recorded above.
The Tribunal stated that it accepted “the evidence before it which indicates that he has been a member of a Christian church in a Sydney suburb since 2007…” and as such it must be taken to include the evidence that it had summarised, being the documents from the Minister Park and Mr Choi.
The Tribunal, in its Decision Record, referred to and accepted the contents of the documents insofar as they relate to his membership and attendance at the church.
The distinction between a contention or a claim and the evidence upon which that claim or contention is based was dealt with and explained by the Full Court in Applicant WAEE (supra) (at [47] above). The contention or claim in this case was that the applicant would be persecuted because he is a Christian. That contention or claim was considered and rejected. The letters corroborated the claim, but they were not the contention or claim itself.
In the context of Ground 4 of the Amended Application, the issue of the applicant’s baptism and application for protection do not appear to be linked. The motivation for seeking protection appears to have been precipitated by his detainment pursuant to s.189 of the Migration Act by Departmental Compliance Officers on 3 July 2012. At that time his previous Sponsor Family Visitor (Subclass 679) visa had previously expired on 12 July 2007, but the applicant remained in Australia unlawfully for a period of approximately five years. His own admission was that if he had not been intercepted by the Compliance Officers his intention was to stay in Australia and work. His Protection visa application was not filed until 17 July 2012 which was done with the assistance of a registered migration agent. In Ground 4, Particular (c) it is claimed that the applicant would not have waited a further three years to apply for protection, however, the event that initiated his Protection visa application was his arrest and detainment, otherwise, his stated intention was that he would have continued to work illegally.
In Ground 4, Particular (b) the question is raised as to why he would wait two years to seek to be baptised after joining the Bonnyrigg Church. The Presbyterian Church recognises two sacraments; baptism and communion, and these two sacraments are integral to the Presbyterian faith. The Church states that the adults who profess faith and make a heartfelt commitment to given their lives to the Lord as fully devoted followers are invited to be baptised. Baptism always takes place in the context of worship with the congregation, therefore it is not the practice of the Presbyterian Church to do private baptisms. To be baptised, a person is not required to pass a theology test or to live any specific life. Those seeking to be baptised are urged to participate in classes to learn about membership of the church. The next step is to meet with elders of the Church to profess faith and seek to be given authorisation for baptism.
The time taken by the applicant to make this decision and proceed through the necessary steps is unexplained by either the applicant himself or the Church Elder’s letter. There may have been problems associated with language or unfamiliarity with the new environment. The applicant’s knowledge of the significant of baptism to the Christian faith may have been a concept that he did not fully appreciated or was totally ignorant. The significance of baptism may not have been addressed in the home church of rural China where he originally resided.
The applicant’s responses to those two issues, first, intending to remain in Australia without a current visa and, second, the apparent relaxed approach to the baptism against a background of probable encouragement of the Church to undertake this within the period of 6 months are both unexplained. However, the decision to pursue the baptism is inconsistent for a person who has no visa status and who may have to return to China after being informed by his acquaintances at the Church that it was their understanding that there was no avenue for obtaining a Protection visa.
The Tribunal considered the material available to it at [173]-[176] (extracted at [101] of this decision). I am satisfied that the contents of these paragraphs permit the Tribunal to reach this conclusion in respect if the application of s.91R(3). This ground cannot be sustained and should be dismissed.
Conclusion
Consequently, none of the pleaded grounds in the Amended Application can be sustained and the Amended Application should be dismissed with costs awarded to the Minister.
I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 15 November 2013
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