SZSHV v Minister for Immigration - [2013] FCCA 1474

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSHV v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1474

Catchwords:
MIGRATION – Review of a decision by the Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal misunderstood applicant’s claim – whether Refugee Review Tribunal made findings not based on probative material and on logical grounds – whether Refugee Review Tribunal rejected corroborative evidence based on prior adverse credit findings without considering the evidence said to be corroborative – whether Refugee Review Tribunal applied a standard of satisfaction or proof not warranted by law - no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 91R(3)

Abebe v The Commonwealth (1999) 197 CLR 510
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 455
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF [2005] FCAFC 73
WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 LD 568

Applicant:

SZSHV

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2803 of 2012

Judgment of:

Judge Manousaridis

Hearing date:

13 August 2013

Delivered at:

Sydney

Delivered on:

27 September 2013

REPRESENTATION

Counsel for the Applicant:

Ms R. Greycar

Solicitors for the Applicant:

Kinslor Prince Lawyers

Counsel for the Respondents:

Mr H.P.T. Bevan

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs.
The name of the first respondent recorded in the application is amended to “Minister for Immigration and Border Protection”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2803 of 2012

SZSHV

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of the People’s Republic of China. He seeks judicial review of a decision of the second respondent (Tribunal) which affirmed a delegate’s decision not to grant him a protection visa. Before the Tribunal, the applicant claimed he feared persecution because of his Christian faith. The Tribunal did not find the applicant to be a credible witness and, for this reason, rejected his claim.
The applicant claims jurisdictional errors infected the Tribunal’s decision. Before I identify the jurisdictional errors the applicant claims the Tribunal made, I will set out his claims before the Tribunal, and the Tribunal’s reasons, particularly for concluding the applicant was not a credible witness.

Applicant’s claims before delegate and Tribunal

The applicant claimed he was a Catholic; his parents were members of the Underground Roman Catholic Church (URCC), with his father being a leader of that church;[1] the applicant was baptised in China with his twin brother on 8 August 2000 after completing catechumen classes;[2] on 11 February 2003, police raided the applicant’s home because they alleged the applicant’s father had organised illegal religious activities;[3] after discovering a teaching book used in the catechumen classes which the applicant’s father had hidden, the police took the applicant, his sister, and the applicant’s parents to the police station where the applicant was interrogated;[4] the applicant and his brother and sister were subjected to discrimination and bullying at two schools;[5] the applicant’s mother decided that the applicant and his brother should study overseas, and bribed the police to obtain a passport;[6] the applicant’s mother borrowed money from URCC members to enable the applicant to study overseas;[7] on 24 August 2007 the applicant left China and arrived in Sydney on 25 August 2007;[8] the applicant terminated his studies in Australia so that he could work to send money to support the costs of his brother’s study;[9] from July 2008 to March 2009, the applicant sent $17,000 to his brother to enable his brother to travel to and study in Japan, which occurred in April 2009;[10] while in Australia, the applicant continually attended the Roman Catholic Church; a Chinese citizen with whom the applicant had become friends in Australia, and who also attended church with the applicant, returned to China in December 2010 and in Hanzhong joined a secret group of the URCC;[11] the applicant’s friend informed the applicant that the URCC had a shortage of Christian materials;[12] that led the applicant to send to his friend Bibles and, in April 2011, $5,000 (through the applicant’s sister);[13] on 7 August 2011, the applicant’s brother visited the applicant in Sydney with plans to return to Japan, but his brother changed his plans when the applicant’s brother received news that persons who said they worked for National Security Bureau raided his brother’s room, and took his brother’s computer and Catholic promotion materials;[14] at the end of September 2011, the applicant’s friend and the leader of the URCC in Hanzhong were arrested;[15] on 3 October 2011, the applicant’s mother and sister were investigated by the PSB in Fuqing on the ground that the applicant and his brother had sent illegal materials from overseas to China;[16] the PSB warned they would arrest the applicant’s mother and sister if the applicant and his twin brother did not stop their anti-government and anti-communist activities;[17] and the applicant did not apply earlier for a protection visa because he made enquiries and was told he was too young to be granted one, and later he was afraid that if he applied for a protection visa, he might not succeed, and therefore he would be unable to continue to provide financial support to his brother.[18]
[1] CB7
[2] CB7
[3] CB8
[4] CB8
[5] CB8
[6] CB9
[7] CB9
[8] CB9
[9] CB9
[10] CB9
[11] CB10
[12] CB10
[13] CB10
[14] CB10
[15] CB10
[16] CB10
[17] CB10
[18] CB10
When the applicant appeared before the Tribunal, he was asked questions about a number of topics. These included the circumstances of the arrest of his friend in Hanzhong;[19] the number of times the applicant sent Christian materials to China, the nature of the materials he sent, and the means by which he sent them;[20] the applicant’s knowledge of the most important celebrations of the liturgical year;[21] the applicant’s understanding of the difference between the Catholic Patriotic Church and the URCC;[22] the applicant’s response to the Tribunal’s suggestion that Chinese customs officials would be able to identify the intended recipient of the materials the applicant sent to China;[23] the circumstances of the arrest of the applicant’s friend in Hanzhong;[24] the transfer on 14 April 2011 of $5,000 to the applicant’s sister and the applicant’s ability to prove it was then paid to the applicant’s friend;[25] the applicant’s transfer of money to his mother and brother;[26] whether the applicant worked;[27] the applicant’s attending Roman Catholic Church activities;[28] the applicant’s knowledge of a certificate dated 8 August 2000 concerning his baptism;[29] and photographs the applicant claimed showed his baptism.[30]
[19] CB152 [98]
[20] CB152 [99], CB153 [105]
[21] CB152 [100]
[22] CB153 [104]
[23] CB153 [107] [108]
[24] CB153 [112]
[25] CB154 [116]
[26] CB154 [117]
[27] CB154 [119]
[28] CB154-155 [123]; CB156-157 [143]- [144]
[29] CB155 [127] [128]
[30] CB155-156 [129] - [140]
The Tribunal also heard evidence from three witnesses who attested to, among other things, the applicant’s religious practices. One witness said that the applicant was “quite faithful”.[31] Another witness said he met the applicant in church, that the applicant was a humble person, that “I can see his belief through his actions”, and that sometimes he took “some new friends to our church”.[32] And a third witness said that he met the applicant “quite a few times in the church at Flemington”, and that he thinks “he is a quite faithful Catholic”.[33]
[31] CB157 [149]; the evidence of this witness is at page 43 of the transcript annexed to affidavit of J J Kinslor made on 30 January 2013
[32] Page 44 of the transcript annexed to affidavit of J J Kinslor made on 30 January 2013; CB157 [150]
[33] Pages 45-46 of the transcript annexed to affidavit of J J Kinslor made on 30 January 2013; CB157 [151]
Finally, the Tribunal received three letters from three different persons who attested to the applicant regularly attending church since September 2007.[34]
[34] CB130-132

Tribunal’s reasoning

The Tribunal did not find the applicant to be a credible witness for two sets of reasons. First, when the applicant was asked why he did not return to China when he ran out of money, the applicant did not give as a reason a fear of persecution because of his religious beliefs and practices; the reason he gave was that he still owed money.[35] This was a reference to the applicant’s evidence which the Tribunal summarised as follows:
a)The applicant had brought $3,000 to Australia.[36] He used only $1,000 of that amount, and the other $2,000 went to his brother. [37] The $1,000 lasted “a few nights”.[38] (This is an error. The applicant in his evidence said that the $1,000 lasted “a few months”.[39])
b)The applicant was asked why he did not return to China after he ran out of money. The applicant said “that he still owed money. The family had a debt and his twin brother was still in China. The debt was 100,000RMB, $10,000 or $20,000, which is a great deal of money for his family”. [40]
[35] CB161 [174]
[36] CB154 [118]
[37] CB154 [118]
[38] CB154 [119]
[39] Page 22 of transcript annexed to affidavit of J J Kinslor made on 30 January 2013
[40] CB155 [125]
This summary is, in part, based on the following evidence the applicant gave before the Tribunal:[41]
Member:After you ran out of money, why didn’t you go back to China?
Applicant:I had stress. At that time I still owed money, my family owed money and unlike what the agent promised, I couldn’t cover all my living expenses by myself. I felt quite stressful and my younger brother was still in China at that time.
[41] Page 26 of transcript annexed to affidavit of J J Kinslor made on 30 January 2013
The Tribunal drew the following conclusions from the applicant’s failure to give fear of persecution as a reason for his deciding not to return to China when he ran out of money:[42]
The Tribunal finds his failure to mention at all that he feared persecution if he returned to China when asked why he had not returned to China when he ran out of money, was not consistent with his claimed ongoing wish to seek protection from an early period after he arrived in Australia. His failure to mention a fear of persecution was also not consistent with his claims about the persecution of his father, the consequent persecution of himself, his brother and sister at school, including after he and his brother changed schools, and that persecution was the reason his mother wanted to send him and his brother overseas to study. The Tribunal would have expected that if all those incidents of persecution had occurred and his mother had sent him overseas because of persecution, fear of persecution would have been in the forefront of his mind when he decided to stay in Australia when he ran out of money which occurred no later than April 2008, about eight months after arriving in Australia.
[42] CB161 [178]
The Tribunal further concluded:
For those reasons, the applicant’s failure to mention a fear of persecution as at least part of the reason for not returning to China when he ran out of money within eight months of arriving in Australia, causes the Tribunal to find that it does not accept as credible his claims of persecution against his father, himself, his sister and brother in China before he left, or that his mother sent him and his brother overseas because of persecution.[43]
[43] CB161 [179]
The second set of reasons on which the Tribunal relied for not finding the applicant a credible witness relates to the applicant’s attempted use of a number of photographs. The evidence on this subject, as summarised by the Tribunal, was as follows:
a)One photograph was claimed by the applicant to represent the applicant as an eleven year old at his baptism.[44]
b)A second photograph was claimed by the applicant to show him receiving communion in 2005 or 2006 from a priest in the house of a church member. In response to the Tribunal noting that what the applicant claimed was a house looked more like a hall or larger space, the applicant said that the church member lived in a neighbouring village in a large house with a high fence. In response to the Tribunal’s noting that the person the applicant claimed was a priest did not indicate a priest of any denomination, the applicant said it was the URCC.[45]
c)A third photograph was one which the Tribunal understood the applicant claimed showed him assisting a priest by holding a candle while the priest gave communion to someone else.[46] The Tribunal informed the applicant it had difficulty accepting that he was the person in the photograph.[47] The Tribunal also informed the applicant that the photograph appeared to show a church: there was an altar and a religious image. The applicant responded that the church member was very rich and because “he is quite rich he can get that stuff”.[48]
d)A fourth photograph showed four young men in front of what appeared to the Tribunal to be a statue of a praying angel.[49] The applicant said that one of the persons in the photograph was the applicant’s brother and one was that of his Chinese friend.[50] In response to the Tribunal’s stating that it had difficulty understanding that a member of the URCC would have such a large permanent indicator of his faith, the applicant said an angel cannot prove a person’s religious belief, and sometimes “you can see an angel in a park, or in a fountain”.[51] After questioning the applicant why he submitted the photograph if it had no religious meaning, the applicant said that he submitted this photograph because it was the only one he had of him and his brother, and the angel was not relevant to his case.[52] In response to the Tribunal stating it did not recognise the applicant in the photograph, the applicant “referred to facial recognition technology”.[53]
[44] CB155 [129]. The Tribunal noted that the applicant said he was now 23 years old.
[45] CB155 [130]
[46] CB155 [131]
[47] CB155 [131]
[48] CB155 [132]
[49] CB156 [134]
[50] CB156 [134]
[51] CB156 [135]
[52] CB156 [137]
[53] CB157 [148]
The Tribunal made the following findings in relation to this evidence:
a)It did not accept the photograph to which I refer in paragraph 11(d) “includes a photograph of the applicant, his friend Mr . . . . or his brother”, because it did not recognise the applicant in the photograph, and there was no “facial recognition technology” before the Tribunal which the applicant claimed would assist the Tribunal in finding he was in the photograph; it did not accept the applicant’s claim the angel did not represent religious meaning; and it did not accept the applicant’s claim that this was the only photograph which depicted the applicant and his brother.[54]
b)The statue is a religious image, and its being erected outside the home of a practising member of the URCC, as claimed by the applicant, would be inconsistent with the secrecy the applicant claimed members of the URCC had to maintain.[55]
c)The Tribunal did not accept the photographs to which I refer in paragraphs 11(b) and (c) above depicted the applicant.[56] The Tribunal compared its observations of the applicant and the person identified in the photographs; it also relied on comparing its observations of the applicant with the depiction of the applicant in his passport the photograph.[57]
d)The Tribunal did not accept that the location depicted in the photographs to which I refer in paragraphs 11(b) and (c) of these reasons is the house of a wealthy church member.[58] It found that what was depicted in the photographs was inconsistent with the URCC’s need to be secret.[59]
[54] CB162 [181]
[55] CB162 [181]
[56] CB162 [183]
[57] CB162 [183]
[58] CB162 [184]
[59] CB162 [184]
Having concluded that “for these reasons, the Tribunal finds the applicant is not a credible witness and does not accept that his evidence is truthful”, the Tribunal proceeded to make additional findings. First, although it accepted the applicant transferred $17,000 to his brother in China, and sent $5,730.20 to China, it did not accept that the money was transferred to the applicant’s sister, or that his sister gave that money to his friend in China.[60] It did not accept this because there was no document which showed the money had been transferred to the applicant’s sister or that his sister gave the money to the applicant’s friend and “because the Tribunal does not accept that the applicant’s evidence is credible”.[61]
[60] CB163 [187]
[61] CB163 [187]
Second, the Tribunal found that the reason the applicant claimed he did not apply for a protection visa earlier than he did, namely, his fear that an application for a protection visa may be rejected and hence he will cease to be able to work and financially support his brother, ceased on 6 March 2009. That finding, together with the fact that the applicant had a valid student’s visa until 15 March 2010, and that the applicant did not make an application for protection visa until after he claims he sent religious material to China which was discovered in September 2011, reinforced the Tribunal’s finding that it was not satisfied that his claimed fear of persecution was genuine.[62]
[62] CB163 [189]
Third, the Tribunal gave little weight to the certificate of baptism because country information indicated that fraudulent documents are easy to obtain from China and the Tribunal did not accept the applicant’s evidence was credible.[63]
[63] CB163 [190]
Fourth, the Tribunal did not accept the applicant’s claims that his parents were members of the URCC, or that he or his brother were baptised, or that he and his brother participated in different activities of the URCC in China, or that his father had been detained and beaten, or that the applicant, his brother and his sister were discriminated against in school, or that the applicant’s mother and sister had been investigated by the Chinese authorities as a result of the authorities having learned of the activities of the applicant and his brother in assisting members of the URCC in China while the applicant was in Australia and his brother was in China, or that the applicant fears persecution if he returns to China because of the assistance he has given to a member the URCC in China.[64]
[64] CB164 [192]
The Tribunal noted that it took into account the evidence of references given of the applicant’s practice of, and commitment to the Roman Catholic faith and accepted that the applicant had been attending various places of worship and various activities associated with that faith in Australia since about April or May 2008.[65] The Tribunal said, however, that:
a)it was “not satisfied on the evidence that the church activities he attended were related to the URCC”;[66]
b)it gave little weight to the observations of others as to the genuineness of the applicant’s belief because it has formed its own view based on the applicant’s evidence which it found was not credible;[67]
c)it did not accept the applicant “is a genuine follower of the Catholic faith”;[68] and
d)it did not accept that the applicant participated in Catholic Church activities in Australia otherwise than for the purpose of strengthening his claim to be a refugee.[69]
[65] CB164 [193]
[66] CB164 [193]
[67] CB164 [193]
[68] CB164 [193]
[69] CB164 [194]

Ground 1 – failure to respond to applicant’s claim

The first jurisdictional error the applicant claims the Tribunal made is that it failed to respond to the applicant’s claim as put, thus denying him procedural fairness. The basis of this claim is the following finding the Tribunal made in paragraph 193 of its reasons, and which it repeated in paragraph 196 of its reasons:
. . . The Tribunal is not satisfied on the evidence that the church activities he attended were related to the URCC. . ..
. . . The Tribunal is not satisfied on the evidence that the Chinese authorities would have any knowledge of his activities in relation to the Roman Catholic religion in Australia and, in any event, the Tribunal is not satisfied on the evidence that the church activities he attended were related to the URCC.
The applicant submits that the Tribunal’s finding that it was not satisfied the applicant participated in URCC activities in Australia manifests a belief that the applicant claimed that he did participate in such activities in Australia and that, to that extent, the Tribunal misunderstood and therefore did not deal with the claims the applicant actually made. The Minister, on the other hand, submits the Tribunal did not misunderstand the applicant’s case; it considered and rejected it. The Minister submits that the Tribunal’s rejection is contained at paragraph 192 of the Tribunal’s reasons, and the Tribunal’s findings in paragraphs 193 and 196 were additional to, and unconnected with the Tribunal’s findings at paragraph 192 of its reasons.
I accept the Minister’s submission that the Tribunal understood and considered the applicant’s claims for a protection visa. This is demonstrated by the evidence the Tribunal set out in its reasons for decision, and the Tribunal’s reasons for rejecting the applicant’s claims, all of which I have summarised at some length earlier in these reasons. In my opinion, that summary shows that the Tribunal dealt with each element of the applicant’s claim for a protection visa based on his claimed fear of persecution on account of his participation in the URCC in China.
Further, in my opinion, the passages in paragraphs 193 and 196 of the Tribunal’s reasons do not indicate the Tribunal understood that the applicant claimed he had participated in URCC activities in Australia. Rather, the Tribunal made the finding that it was not satisfied that the church activities the applicant attended were related to the URCC in support of its conclusion that it did not accept that the applicant will face a real chance of serious harm on his return to China as a consequence of his church related activities in Australia.
That finding is made in the first sentence of paragraph 196 of its reasons. The next sentence in that paragraph includes a finding that the Tribunal is not satisfied that the Chinese authorities would have any knowledge of his activities in Australia in relation to the Roman Catholic religion in Australia. That sentence, however, also contains the finding that, in any event, the Tribunal is not satisfied that the church activities the applicant attended were related to the URCC. In my opinion, the relevance the Tribunal attached to that finding is that, even if the Chinese authorities were to acquire knowledge of the applicant’s activities in the Roman Catholic Church in Australia, that would not give rise to any to any well-founded fear of persecution in China because those activities were not related to the URCC.
If my interpretation of the Tribunal’s reasons is incorrect, and the Tribunal did erroneously believe the applicant claimed he participated in the URCC in Australia, the Tribunal’s belief and rejection did not affect or influence the Tribunal’s rejection of the applicant’s claim. That rejection, as summarised in paragraph 192 of the Tribunal’s reasons, does not rely or refer to the finding made in paragraphs 193 or 196 of its reasons. Had the Tribunal not made those findings, the Tribunal would still have rejected the applicant’s claim for a protection visa.
Ground 1, therefore, fails.

Ground 2 – finding not based on probative material and logical grounds

The second jurisdictional error the applicant claims the Tribunal made relates to the Tribunal’s finding that it did not accept that the applicant “is a genuine follower of the Catholic faith”.[70] The applicant claims this finding was not based on “probative material and logical grounds”.[71] He submits that, in making this finding, the Tribunal made an error similar to the one the Tribunal was found to have made in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs.[72] Additionally, relying on a passage from the reasons of judgment of Hayne, Kiefel, and Bell JJ in Minister for Immigration and Citizenship v Li[73] the applicant submits that the Tribunal’s finding lacks “an evident and intelligible justification”.[74]
[70] CB164 [193]
[71] Ground two, second further amended application
[72] (2004) 80 ALD 568
[73] (2013) 297 ALR 225 at [76]
[74] Applicant’s written submissions, [29]
The Minister, on the other hand, submits that the Tribunal’s finding was based on a finding it had made earlier in its reasons, namely, that the applicant was not a credible witness, and that the Tribunal made no error in adopting this approach.
At one level, the applicant’s claim raises a crisp question: was it reasonably open to the Tribunal not to accept that the applicant was a genuine follower of the Catholic Church in Australia given that the Tribunal, on the one hand, found the applicant was not a credible witness and did not accept that his evidence was truthful, and, on the other, the Tribunal accepted the applicant regularly attended church in Australia and had a knowledge of the Christian faith? Although, in my opinion, the claim raises this question, that is not how the applicant framed the issues on his claim. Instead, the determination of the applicant’s claim requires me to consider the following issues:
a)Precisely what finding did the Tribunal make?
b)Did the Tribunal, as the applicant claims, give no explanation for why it made the finding?
c)Did the Tribunal, as the applicant claims, make the finding in a manner analogous to the erroneous manner in which the Tribunal made the finding in WAIJ?
d)If c) is answered in the negative, did the Tribunal’s finding lack “an evident and intelligible justification”?
e)If d) is answered in the negative, did the Tribunal, otherwise make a jurisdictional error in making the finding?

What did the Tribunal find?

In his written submissions, the applicant says that the Tribunal “concluded that the applicant was not a genuine follower of the Catholic faith”.[75] That is also stated in ground 2 of the second further amended application. That is not, however, what the Tribunal found. The Tribunal found:
[75] Applicant’s written submissions, [24]
The Tribunal does not accept that the applicant is a genuine follower of the Catholic faith.

Did the Tribunal explain why it found the applicant was not a genuine follower of the Catholic faith?

The applicant submits the Tribunal, having accepted that the applicant attended two separate churches, and having found that the applicant’s knowledge of the Catholic faith was consistent with his participation in Catholic Church activities in Australia for four years, provided no explanation “for why it concluded that the applicant was not a genuine follower of the Catholic faith”.[76]
[76] Applicant’s written submissions, [24]
In my opinion, that submission is incorrect. The Tribunal did provide an explanation; and the explanation is contained in paragraph 193 of its reasons (emphasis added):[77]
The Tribunal takes into account the evidence of the references and witnesses about the applicant’s practice of and commitment to the Roman Catholic faith and accepts that he has been attending various places of worship and various activities associated with that faith in Australia since about April or May 2008. The Tribunal is not satisfied on the evidence that the church activities he attended were related to the URCC. Further, the Tribunal gives little weight to the observations of others as to the genuineness of his belief because it has formed its own view based on the applicant’s evidence which it finds is not credible. The Tribunal does not accept that the applicant is a genuine follower of the Catholic faith. The Tribunal finds the applicant has some knowledge of the Catholic faith, which is consistent with his participation in Catholic activities in Australia for four years.
[77] CB164
The explanation the Tribunal gave for not accepting the applicant is a genuine follower of the Catholic Church is the Tribunal’s “view based on the applicant’s evidence which it finds is not credible”. This is a reference to the matters which the Tribunal addressed in paragraphs 173 to 185 of its reasons. In other words, the Tribunal did not accept the applicant was a genuine follower of the Catholic faith because the Tribunal, for the reasons stated in paragraphs 173-185 of its reasons, did not accept the evidence the applicant had given about his religious beliefs, practices, and experiences in China.

Was the Tribunal’s approach analogous to that in WAIJ?

In WAIJ, the applicant for a protection visa relied on two documents which, if accepted as genuine, corroborated the applicant’s account of the circumstances which gave rise to a well-founded fear of persecution. The Tribunal, without making any findings about the genuineness of the documents, found that the letters did not overcome problems which the Tribunal had with the applicant’s evidence. Based on its perception of these difficulties, and the Tribunal’s noting the possibility (but without finding) that the documents could have been fabricated by the applicant or by her sister, the Tribunal disregarded the documents.
By a majority (Lee and Moore JJ), the Full Court of the Federal Court held that the Tribunal’s disregarding of the documents amounted to jurisdictional error:[78]
The reasons provided by the tribunal in relation to its rejection of the documents revealed that the tribunal failed to act judicially in respect of that material. The tribunal appears to have considered that it could disregard documents that it was otherwise bound to consider if it surmised that it was possible that the documents could have been fabricated. That was not a course open to a tribunal acting judicially. There was no material before the tribunal that permitted it to so dispose of the documents, and, thus, of the tendency of the documents to corroborate the appellant’s account.
It is a denial of a fair process to purport to dismiss documents from consideration where the material therein supports an applicant’s case in substantive respects and no ground for such a course is provided by the documents on their face or by other facts.
[78] At 580 [52] and [53]
In the course of their reasons for judgment, their Honours noted that in certain limited circumstances, the Tribunal may entirely disregard apparently corroborative documents:[79]
Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material: see S20/2002 at [49] per McHugh and Gummow JJ. Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by the applicant occurred.
[79] At 574-575 [27]
In my opinion, what the Tribunal did in the case before me is not analogous to what the Tribunal was held to have done in WAIJ. Unlike in WAIJ, where the Tribunal disregarded corroborative material, the Tribunal in the case before me did consider the corroborative evidence, namely, the written references and evidence of witnesses to which I refer in paragraphs 5 and 6 of these reasons (corroborative material). Not only did the Tribunal consider the corroborative material; it largely accepted it. What the Tribunal did not accept were “the observations of others” contained in the corroborative material “as to the genuineness of [the applicant’s] belief”. Nor was it prepared to conclude from the fact that the applicant regularly attended church that the applicant was a genuine follower of the Catholic faith.
Further, unlike in WAIJ, the Tribunal in the case before me comprehensively found that the applicant was not a credible witness, and that the Tribunal did not accept that the applicant’s evidence was truthful.

Did the Tribunal’s finding lack “an evident and intelligible justification”?

As I note above, the relevant finding was that the Tribunal was not satisfied the applicant was a genuine follower of the Catholic faith. That finding was based on the Tribunal’s conclusions that the applicant is not a credible witness and the Tribunal not accepting that the applicant’s evidence is truthful. The question is whether that constitutes an evident and intelligible justification for the finding, given that the Tribunal accepted the applicant regularly attended church in Australia and had a knowledge of the Christian faith.
This question may be approached by first considering what rational inferences may be drawn about whether a person is or is not a genuine follower of a church from the fact that the person regularly attends the church. In the absence of any other evidence, the fact a person regularly attends a church would naturally ground the inference that the person is a genuine follower of the church. But with additional evidence, that inference may not be drawn with as much confidence, or may not be drawn at all. For example, if there is evidence the person has expressed opinions critical of church doctrine, or that the person attends church simply to catch up with his friends who happen to follow the church, it might be rational not to infer from his regularly going to church that the person is a genuine follower of the church. The question, therefore, is whether the Tribunal’s conclusion that it did not accept as truthful anything the applicant said or claimed about his religious practices in China afforded a rational basis for it not to conclude, on the basis of the applicant’s regular attendance of church, that the applicant was a genuine follower of the church. In my opinion, it did.
The Tribunal’s non acceptance of the applicant as a truthful witness was a rational ground for concluding two things: first, that there may be an explanation or explanations, other than the applicant’s being a genuine follower of the Catholic Church, that accounted for the applicant’s regularly attending the church; and, second, that it was not satisfied that such other explanation should not be accepted. The other explanation which the Tribunal identified, and which it was not prepared to discount as an explanation of the applicant’s regular church attendance, was the applicant’s desire to strengthen his claim for a protection visa. In my opinion, it was open to the Tribunal to so conclude. Stated in positive terms, it is rational to infer from the fact that a person is prepared to make untruthful claims about his religious practices in order to obtain a protection visa, that the person would also be prepared to regularly attend church, even though not a genuine follower of the church, in order to strengthen his prospects of obtaining a protection visa.

Did the Tribunal otherwise make a jurisdictional error in making the finding?

In his supplementary written submissions, the applicant appears to make three submissions:
a)The Tribunal will commit jurisdictional error if it decides to give no or little weight to corroborative material after it makes a credit finding adverse to the applicant, and that is what the Tribunal did here.[80]
b)Alternatively, to the extent it is permissible for the Tribunal to give no or only limited weight to corroborative material after it makes an adverse credit finding, it can only do so where the Tribunal finds there are clear inconsistencies or fabrications in the applicant’s account.[81]
c)In any event, to avoid a jurisdictional error when making a credit finding, the Tribunal must consider “the whole of the evidence” before “a determination can be made of credibility”, and the Tribunal did not do that here.[82]
[80] Applicant’s supplementary written submissions, [8] – [11]
[81] Applicant’s supplementary written submissions, [11]
[82] Applicant’s supplementary written submissions, [11]
The first and second of these submissions is contrary to the following observations of North and Lander JJ in Minister for Immigration and Citizenship v SZNSP:[83]
Several further observations should be made concerning the type of situation addressed in Applicant S20/2002 77 ALJR 1165; 198 ALR 59. The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.
The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002 77 ALJR 1165; 198 ALR 59 does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence.
[83] (2010) 184 FCR 485 at 492 ([37] and [38]); Katzmann J agreeing at [50]
In my opinion, the Tribunal did assess and weigh the corroborative material with all the other evidence before it concluded that it did not accept that the applicant was a genuine follower of the Catholic Church. That is what in paragraph 193 of its reasons the Tribunal in effect says it did.
The applicant submitted that the facts in SZNSP are distinguishable because in SZNSP the evidence that was claimed to be corroborative was not in truth corroborative and in any event was treated by the Tribunal as a fabrication. Two points may be made about this submission. The first is that the observations of North and Lander JJ are stated in general terms. Secondly, in SZNSP the Court considered the Tribunal’s treatment of the evidence which was claimed to be corroborative for the purpose of assessing whether it was rational for the Tribunal to have not given the material any weight, given that the Tribunal had formed an adverse view of the credibility of the applicant. The Court concluded it was rational. In my opinion, just as in SZNSP, so here it was open to the Tribunal, given its finding that the applicant was not a credible witness about matters pertaining to his asserted Christian beliefs and practices in China, not to infer from the corroborative material that the applicant was a genuine follower of the Catholic Church.
As to the third of the applicant’s submissions, I do not accept the Tribunal made the findings without first considering all of the evidence. In my opinion, the Tribunal made the finding after it considered all of the evidence. The finding is contained in paragraph 193 of the Tribunal’s reasons which is situated after the Tribunal referred to the corroborative material and to the applicant’s evidence about his church activities in Australia.[84]
[84] CB156-157 [143] [144]

Conclusion

In my opinion, for these reasons, ground 2 fails.

Ground 3 – Tribunal’s finding under s 91R(3)

The applicant’s third ground of review is:
The second respondent committed an error of law or applied the wrong test under section 91R(3) of the Migration Act 1958 (“the Act”) in deciding that the applicant’s church attendance in Australia was engaged in solely for the purpose of strengthening his claim for protection and thus had to be disregarded from consideration of whether he had a well-founded fear of persecution under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees.
This ground appears to relate to the following findings contained in paragraphs 193, 194 and 195 of the Tribunal’s reasons:[85]
[193] The Tribunal takes into account the evidence of the references and witnesses about the applicant’s practice of and commitment to the Roman Catholic faith and accepts that he has been attending various places of worship and various activities associated with that faith in Australia since about April or May 2008. . .
[194] The Tribunal does not accept that the applicant engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee within the meaning of the Convention. In coming to that conclusion, the Tribunal has taken into account his claim that he did not attend church for the protection visa application, but because it does not accept that he is a credible witness it does not accept that claim.
[195] For these reasons, the Tribunal disregards his conduct in relation to the Roman Catholic faith in Australia pursuant to s 91R(3) of the Act.
[85] CB164
Ground 3 of the further amended application misstates the findings made in these paragraphs. The Tribunal did not decide that the applicant’s church attendance in Australia was engaged in solely for the purpose of strengthening his claim for protection; the Tribunal found it did not accept that he engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee.
In oral address, counsel for the applicant submitted that the Tribunal’s finding manifested jurisdictional error because it was baseless and irrational. I cannot accept that submission. Given the Tribunal found it could not accept that the applicant’s evidence was truthful, it was open to the Tribunal to not accept the applicant’s evidence that he did not attend church for the purpose of the protection visa application. It was also open to the Tribunal not to accept that the applicant’s regularly attending church showed he attended the church otherwise than for the purpose of enhancing his application for a protection visa.
In his written submissions, the applicant made more specific submissions. The first is that the Tribunal failed to consider all of the applicant’s conduct.[86] The point here is that the Tribunal, in paragraph 193 of its reasons, incorrectly stated that the applicant had been attending church since April or May 2008 when in fact he had been attending since September 2007. In my opinion, that was an immaterial error. Earlier in its reasons the Tribunal did refer to the applicant attending church as from September 2007.[87] There is nothing in the Tribunal’s reasons to indicate that the Tribunal relied on the applicant’s beginning to attend church in April or May 2008 as opposed to September 2007 in any finding it made. And I must remind myself that a mere factual error made within jurisdiction – which is what this error is – does not constitute jurisdictional error.
[86] Applicant’s written submissions, [34]
[87] CB157 [147] “He started to attend church in 2007 just when he arrived in Australia”.
The second submission made in the applicant’s written submissions is that in erroneously founding that the applicant’s church attendance in Australia was not “related to the URCC”, the Tribunal did not properly address the applicant’s conduct which it considered to be subject to its finding under s.91R(3) of the Act and thus it misapplied the statutory test.[88] In my opinion, there is no merit in this submission. The Tribunal did identify the relevant conduct. Further, the Tribunal’s finding that the conduct was not related to the URCC is not said to be incorrect.
[88] Applicant’s written submissions, [35]
The third submission is that the Tribunal applied an onerous standard of proof[89]. This constitutes a separate ground in the further amended application, which I consider below.
[89] Applicant’s written submissions, [37]
The fourth submission is that there is an inconsistency between, on the one hand, the Tribunal having found that the applicant attended church for over four years in order to strengthen his claim for a protection visa, and, on the other hand, the Tribunal drawing an adverse inference from the applicant’s delay in applying for a protection visa. In my opinion, I do not see any inconsistency or, at any rate, none that manifests irrationality of the sort that would attract judicial review.
In my opinion, therefore, ground 3 fails.
Before I leave this ground of review, I must say something about whether any consequences would flow if, as the applicant submits, the Tribunal’s finding that it would not take into account the applicant’s attendances at church is infected by jurisdictional error. In my opinion, it would have made no difference. As noted by the applicant himself, the Tribunal did not accept the applicant was a genuine follower of the Catholic Church, and the Tribunal, therefore, did not have to make a finding relying on s.91R(3) of the Act. Further, the Tribunal did consider whether the applicant’s regular attendance at church, irrespective of the genuineness or otherwise of the applicant’s religious belief, would be a ground for his having a genuine ground for fearing persecution if he were to return to China. The Tribunal found that it would not be a ground because the Chinese authorities were unlikely to acquire knowledge of the applicant’s activities and (as I have interpreted the Tribunal’s reasons) if the Chinese authorities were to acquire knowledge of his activities, no adverse consequences would follow because the activities did not relate to the URCC.

Ground 4 – Tribunal applied onerous standard of proof

The fourth jurisdictional error the applicant claims the Tribunal made is that it applied “an onerous standard of proof to the applicant, despite there being no “onus of proof” in inquisitorial proceedings”. This ground is not developed in the applicant’s written submissions. The applicant, in paragraph 37 of its written submissions, only refers to the Tribunal’s statement in paragraph 198 of its reasons that the applicant’s claims “are not supported by reliable corroborative evidence”.[90]
[90] CB165 [198]
In oral address, the claim was developed a little further. The submission seems to be that the Tribunal’s credibility finding is unusual or not warranted by the material that was before it, and that this indicates that the Tribunal must have applied an onerous standard of proof. That is how I understand the following submission made by the applicant’s counsel in address:
This is an unusual case in that there isn’t some element that can be pointed to of inconsistency in the story, or in the circumstances described, that is put to the applicant that can’t be explained away, as it were. That’s the point, in effect, about the unusualness of the credibility findings in this case. And one way to perceive it is, simply, that the tribunal is not only implicitly but in some places explicitly requiring a standard of proof that is not the standard of proof that applies in merits review inquisitorial fact-finding.
Although it may be true that there is no onus of proof as such in proceedings before the Tribunal, the Tribunal can set aside or vary a delegate’s decision under review only if it is “satisfied” that the applicant for a protection visa is a person to whom protection obligations are owed. If the Tribunal is not so satisfied, s.65 of the Act “requires a visa to be rejected in the absence of a positive finding of satisfaction”.[91] Further:[92]
The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
[91] Minister for Immigration & Multicultural & Indigenous Affairs v VSAF [2005] FCAFC 73 at [17] (Black CJ, Sunberg and Bennett JJ)
[92] Abebe v The Commonwealth (1999) 197 CLR 510 at 576 [187] (Gummow and Hayne JJ)
In my opinion, there is nothing in the Tribunal’s reasons which suggest that it required satisfaction to some unwarranted level, or that it proceeded on the basis that it required the applicant to discharge some onus of proof, or some unwarranted onus of proof. In my opinion, the evidence which I have set out in paragraphs 7 to 12 of these reasons show that the Tribunal disclosed to the applicant, and provided to the applicant an opportunity to explain, concerns the Tribunal had with the evidence and explanations of that evidence the applicant provided to the Tribunal. It was open to a rational decision maker in the position of the Tribunal to entertain the concerns about the applicant’s evidence and explanations which the Tribunal expressed to the applicant. The Tribunal also gave rational reasons for not accepting the evidence and the explanations the applicant gave.
Nor does the statement in paragraph 198 of the Tribunal’s reasons that the “applicant’s claims are not supported by reliable corroborative evidence” indicate the Tribunal applied some unwarranted standard of satisfaction or proof. The Tribunal made the statement in a paragraph which dealt with evidence which it considered may be corroborative; the statement was directed to that evidence. The Tribunal’s use of these words certainly is no basis for inferring that the Tribunal conducted its review on the basis that it would not be satisfied of the applicant’s claims unless there was corroborative material.
Ground four, therefore, fails.

Conclusion and disposition

The Tribunal considered and understood the applicant’s claims. Its finding that it was not satisfied that the applicant was a genuine follower of the Catholic Church, notwithstanding his having regularly attended church since he arrived in Australia, was one which it was reasonably open to the Tribunal to make. So too was the Tribunal’s finding that it was not satisfied that the applicant attended church otherwise than for the purpose of strengthening his claim for a protection visa. And the Tribunal did not require satisfaction or proof to some unwarranted standard.
The applicant’s claim for judicial review, therefore fails. I propose to dismiss the application and order that applicant pay the respondent’s costs.
I will also order that the Minister’s name as recorded in the application be amended to “Minister for Immigration and Border Protection”.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate:

Date: 27 September 2013