SZVHX v Minister for Immigration
[2016] FCCA 3376
•22 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVHX & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3376 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) affirming decision of a delegate of the first respondent not to grant applicants protection visas – whether the Tribunal assessed the first applicant’s claims that she was a Christian by reference to unstated or unsupported assumptions about what a genuine practising Christian would or should know about Christianity and about how such genuine practising Christian would or should answer certain questions about his or her faith – whether by assessing the first applicant’s claim to be a Christian on the basis of such unstated or unsupported assumptions the Tribunal’s decision affirming the delegate’s decision was not based on an intelligible justification – jurisdictional error found. |
| Cases cited: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 SZOUO & Ors v Minister for Immigration & Anor [2015] FCCA 1430; (2015) 297 FLR 190 |
| First Applicant: | SZVHX |
| Second Applicant: | SZVHY |
| Third Applicant: | SZVHZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2915 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 3 December 2015 |
| Date of Last Submission: | 21 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2016 |
REPRESENTATION
| First applicant in person assisted by an interpreter. |
| Solicitors for the Respondents: | Ms S Burnett of Clayton Utz |
ORDERS
The decision of the Refugee Review Tribunal made on 26 September 2014 affirming the decision of the delegate of the first respondent made on 25 July 2013 not to grant the applicants Protection (Class XA) visas (Protection visa) is quashed.
The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.
Pursuant to Item 15AG of Schedule 9 to the Tribunals Amalgamation Act 2015 (Cth) the Administrative Appeals Tribunal determine according to law the application made to the Refugee Review Tribunal to review the decision of a delegate of the first respondent made on 25 July 2013 not to grant the applicants Protection visas.
The first respondent pay such of the first and second applicants’ costs to which they may be entitled as unrepresented litigants.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2915 of 2014
| SZVHX |
First Applicant
| SZVHY |
Second Applicant
| SZVHZ |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants, who are nationals of the People’s Republic of China (China), apply for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent not to grant the applicants Protection (class XA) visas (Protection visa).
The first and second applicants are de facto partners, and the third applicant is their child. It is only the first applicant (applicant) who made a substantive claim for protection. The second applicant applied for protection as a member of the applicant’s family unit. The third applicant was born after the first and second applicants applied for Protection visas.
Applicant’s claims for protection
The applicant claimed protection on two grounds. One was based on her religious beliefs. The applicant claimed she is a believer of the Local Church. She claimed she grew up in a Christian family where her father is a minister at the church, and her uncle is a church elder. She claimed that in 2000 her father and uncle were arrested as cult members of the “shouters” and sentenced to six months labour.[1] The applicant also claimed that during Easter of her second year of middle school, missionaries from Taiwan and the United States came to preach to them at the applicant’s village, but during a bread splitting ceremony, the village security stormed the ceremony and interrogated those present at the meeting. The adults were taken to the police station, and the students were taken to the education authorities of the village government where their teachers bailed them out.[2] The applicant and the second applicant (who was also present at the meeting) were suspended for two days, and were criticised at parent teacher meetings.
[1] CB36-37, CB124, [14]
[2] CB124, [16]
The applicant came to Australia in 2007 on a student visa. The second applicant also came to Australia at around the same time. While in Australia, the applicant stayed in touch with her church in China. She claimed that whenever an important political activity occurred, authorities sealed the church.[3] The applicant’s father and uncle were forcibly taken for brainwashing programs, especially during the Olympics and the Expo.[4] The government has been asking the applicant’s local church to register with them and fall under the management of the Patriotic Church, but the applicant’s church refused.[5] The government then joined forces with the Industrial and Commercial Tax Office to cause trouble with her family.[6] That led to the applicant’s family bankruptcy. That meant the applicant’s family could no longer financially support the applicant’s studies.[7] Before the Tribunal, the applicant claimed she feared religious persecution in China, and not being able to attend the Local Church. [8]
[3] CB37
[4] CB37
[5] CB37
[6] CB37
[7] CB37
[8] CB127, [34]
In 2013 the third applicant was born. The applicant and second applicant were not and are not married. Before the Tribunal, the applicant claimed she would be fined in China because she had a child outside wedlock. She also claimed the second applicant’s family does not accept her relationship with the second applicant; that because the second applicant did not complete high school he would not be able to get a good job; and there would be big problems for the third applicant because the child is not registered.[9]
[9] CB127, [34]
The second applicant also gave evidence before the Tribunal. He said he was a secondary applicant. After initially stating he did not attend a Local Church when in China, he said that he did attend every week for five or six years before he came to Australia.[10] He said he was present when he was picked up at the meeting together with the applicant in 2004, but it was not serious.[11] The second applicant said he was concerned he may have to do education through labour because he is a member of a Local Church.[12] He also said that he does not have a high school certificate, and even factory workers in China required such certificates.[13]
[10] CB131, [63]
[11] CB131-132, [63]
[12] CB132, [64]
[13] CB132, [65]
Tribunal’s decision
The Tribunal did not accept the applicant went to a Local Church in China, or that she was detained, or that her father and uncle had been detained, or that any members of the applicant’s family were or are Christians.[14] The Tribunal relied on a number of reasons for these findings.
a)First, the Tribunal was of the view that a “genuine practicing [sic] Christian would be expected to be able to explain, correctly and spontaneously, without hesitation, why Christianity is important to her and why she became a Christian”.[15] The Tribunal found, however, that when the applicant was asked about “the importance of Christianity to her spiritually”, and what it “means to her to be a Christian”, the applicant’s “testimony, her manner was hesitant, she paused at length, and while she was able to recite memorised information from the Bible, when asked to respond to questions testing the strength of her religious convictions and motivation, her evidence was unpersuasive, hesitant, lacked spontaneity or any reflection of deep religious convictions”, and that the applicant’s evidence about “how becoming a Christian has changed her life was superficial”.[16]
b)Second, the Tribunal found the applicant displayed “a very basic knowledge of Christianity at best” and “made numerous errors, did not know commonly known facts about Christianity”, she “was hesitant in giving evidence” and she “did not present as a genuine practicing [sic] Christian”.[17]
c)Third, the Tribunal found that the applicant’s limited knowledge “was rehearsed for the purposes of establishing a claim to international protection”, and it found the applicant’s evidence “to have been memorised”, lacking in “spontaneity and detail”, and “not to be demonstrative of genuine faith in Christianity”.[18]
[14] CB139-140, [85]
[15] CB140, [86]
[16] CB139, [82]
[17] CB139, [81]
[18] CB139, [84]
The Tribunal also found the second applicant was not a practising Christian. The Tribunal noted the second applicant had never faced serious harm in China because of his claimed attendance at the Local Church; he did not advance any claims for protection in his own right; and, given its finding the applicant is not a genuine practising Christian, the Tribunal did not accept that her partner, the second applicant, became and is as a result of the applicant’s “evangelism” a genuine practising Christian in his own right.[19]
[19] CB141, [96]
As to the applicant’s claim based on her having had a child out of wedlock, the Tribunal found that, if the applicant and second applicant were to be found liable to pay a social compensation fee for having a child out of wedlock, they would be in a position to pay that fee, given their qualifications and experience, family income, and the ability to pay the fee by instalments.[20]
[20] CB142, [100]
Grounds of application
The applicants are not legally represented. At the hearing before me, the applicant made submissions on behalf of all applicants. There is one submission, which I will identify later, which the applicant made which is not reflected in the application. I propose, therefore, first to deal with the grounds set out in the application.
Under the heading “Orders Sought by Applicant” set out in an attachment to the application, the following is stated:
1. I could not agree with DIBP and RRT’s decision because the decision made merely based on my bible knowledge which is unfair, unreasonable and improper. As committed Christian, I firmly believe judgment of faith depend on bible knowledge is incomplete, unrealistic and metaphysical and easy fall into a wrong or innocent conclusion. I have great concern and challenge this kind of bookish test and assessment.
2. The tribunal member ignored the fact that I am a young oversees student from rural county of China, joining house church – Local Church featuring with mostly sharing the spiritual experience in our own particular ways which vary from other churches.
3. I don’t think tribunal has carefully and reasonably considered my Christian family background, my parents are all devoted in Christian faith and harshly experienced due to their religion.
4. RTT [sic] offered me no chance to demonstrate my understating of Local Church which is significant ground for my protection.
5. RRT wrongly described that I have unborn child and this is no the fact (item 106 on page 22)
6. RRT provided less consideration to our child’s fate having no access to lodging her residency in origin due to breach of family planning laws on the basis of having a child out of wedlock, as an unmarried couple, as well as our lack of ability to deal with the social compensation, the potential discrimination on “Black Child Family”.
7. RRT failed to give me chance to make a commitment on faith and concern in relation to the harm, risk and danger we will suffer if we are forced to return to origin
Under the heading “The Grounds of Application” set out in the same attachment, the following is stated:
1. I am a Chinese student with strong committed of Local Church which is forcibly undergrounded, repressed and outlawed in China. My religious background and parent’s hard experience due to religious persecution made me feared to return to origin.
2. With family church background, I believe I will experience hardship and persecution if return to origin as I have commitment and vision to preach gospel wherever I go.
3. I have great concern my child’s faith due to our breach of China’s family planning law and I have no fair access to child’s registration of residency in origin due to our current financial ability. It is impossible for us to gain necessary support from family in origin and will end up into a vulnerable and helpless situation if return to origin.
On a fair reading of this part of the application, the applicants raise two grounds. The first is the Tribunal made a jurisdictional error in that it assessed the applicant’s Christian faith solely, or at least substantially by reference to the Tribunal member’s assessment of the applicant’s knowledge of the Bible, rather than by assessing whether the applicant was a member of the Local Church in China, as she claimed she was by, for example, questioning the applicant about her knowledge of the Local Church and her experiences in that church. The second is that the Tribunal did not properly consider the applicants’ claims based on the third applicant being born out of wedlock. The applicants particularly rely on the Tribunal having incorrectly referred to the applicant’s “child and unborn child”.[21] At the hearing before me, the applicant submitted, on the basis of this error, that she was “suspicious maybe the member copied the decision from somewhere else”, and that the Tribunal member “didn’t look into my case seriously”.[22]
[21] CB143, [106]
[22] T8.15
In addition to the grounds set out in the application, the applicant submitted to me that, at the end of the second hearing before the Tribunal, the applicant asked the Tribunal member what he thought of the applicant’s case, and the Tribunal member replied it was very good. The applicant further submitted that, on the basis of the Tribunal member’s answer, she provided no further evidence. In response to this submission, I informed Ms Burnett, who appeared for the Minister, that, subject to any objections the Minister might have, I proposed to hear the relevant portion of the audio recording for the purpose of assessing the applicant’s submission. Ms Burnett did not object, and I accordingly directed that the Minister provide to my associate, and to the applicant, an audio recording of the hearing before the Tribunal. The Minister did provide my associate with an audio recording of the hearing before the Tribunal, and I listened to the relevant portion of it. The audio recording was provided as an attached file to an email sent to my associate on 23 December 2015. For the purpose of identification, I have marked that email as exhibit “A”.
There is one final matter to note. During the hearing before me, I indicated to Ms Burnett that the approach of the Tribunal member in this case when testing the applicant’s asserted Christian faith might give rise to some of the issues I considered in SZOUO & Ors v Minister for Immigration & Anor.[23] I made directions permitting both the Minister and the applicants to file written submissions about whether the Tribunal’s decision is liable to be set aside on the ground of apprehended bias. The Minister, but not the applicants, elected to file submissions on that issue. For reasons that will become apparent, it is not necessary that I consider whether the Tribunal conducted the hearing in a manner that gave rise to a reasonable apprehension of bias.
[23] [2015] FCCA 1430; (2015) 297 FLR 190
First ground – Tribunal’s assessment of applicant’s faith
The legitimacy and limits of a Tribunal’s asking questions about an applicant’s beliefs were considered by Kenny J in Minister for Immigration and Citizenship v SZLSP:[24]
As the authorities emphasize, there is nothing objectionable in the Tribunal questioning an applicant about his or her beliefs. When the Tribunal does so, it is not prohibited from evaluating the applicant’s answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal.
If the Tribunal is to avoid jurisdictional error, however, certain qualifications must be added to the preceding statements. Where the Tribunal rejects an applicant’s claim based on perceived deficiencies in the applicant’s knowledge of religious doctrine, there must be a basis for concluding that the particular elements of doctrine in question are elements that an adherent to the religion in the applicant’s position might be reasonably expected to know. If this condition is satisfied, and the applicant is wholly ignorant of the relevant doctrinal elements, it will be a short step to infer that the applicant is not a follower of the religion as he or she claims. Where the Tribunal’s material and the applicant’s answers differ in matters of expression, emphasis or detail, however, the issue becomes more complex. In these circumstances, the perceived variations between the Tribunal’s material and the applicant’s answers must be such that there is a logical connection between those variations and the conclusion that the applicant is not an adherent of the religion. Depending on the facts of a particular case, trivial variations in detail or superficial differences in expression may not rationally justify the conclusion that an applicant’s knowledge is less than would be expected of a genuine adherent. Under such circumstances, jurisdictional error is a possibility.
[24] [2010] FCAFC 108 at [38]-[39]
As this passage recognises, and as the Minister submitted,[25] it is open to the Tribunal to test an applicant’s asserted faith by asking the applicant questions about the applicant’s knowledge of that faith. The Tribunal, however, will make a jurisdictional error if it asks questions about an applicant’s faith (asserted faith) without any apparent reference to some probative material that identifies the elements of the asserted faith an adherent of that faith might reasonably be expected to know. In my opinion, that is what the Tribunal did in the case before me.
[25] First Respondent’s Outline Submissions, [29]
The Tribunal assessed the applicant’s knowledge of her Christian faith, and the answers she gave about her faith, on the basis of an unstated and unidentified standard or standards of what a person who is a Christian might reasonably be expected to know about Christianity. That this is what the Tribunal did is evident from the Tribunal’s finding that the applicant displayed “a very basic knowledge of Christianity at best” and “made numerous errors, did not know commonly known facts about Christianity” and “she did not present as a genuine practicing [sic] Christian”.[26] This finding implicitly assumes that a genuine practising Christian would have more than a “very basic knowledge of Christianity” (whatever the Tribunal meant by that expression), and that such person would not make the mistakes, or at least, most of the mistakes the Tribunal found the applicant made in answering questions by which the Tribunal intended to test her knowledge. The Tribunal also appeared to have assumed there is a set of “commonly known facts” which genuine practising Christians should or would know.
[26] CB139, [81]
That the Tribunal assessed the applicant’s knowledge of her Christian faith, and the answers she gave about her faith, on the basis of an unstated and unidentified standard or standards of what a person who is a Christian might reasonably be expected to know about Christianity is also evident from the questions the Tribunal asked the applicant:[27] what is the difference between the Old Testament and the New Testament? Who was Lazarus? What did Jesus do “at the wedding at Canna” [sic]? Why was Jesus sentenced to die on the cross? Of what crime or offence was Jesus accused? Who claimed the body of Jesus? Which two of his disciples did Jesus meet “on the road”? How long was Jesus on earth before going to heaven after the resurrection? What was Jesus’ final instruction before being taken to heaven? Who was the brother of Aaron in the Old Testament? Was the applicant aware of the parables of Jesus? Did the applicant know the parable of the persistent widow? Did the applicant know the parable of the Pharisee and the tax collector? Did the applicant know the parable of the rich fool?
[27] CB138, [77]; CB139, [80]
These questions imply not only that the Tribunal was of the view that a genuine practising Christian would be able to answer at least most of these questions; they also imply the Tribunal was of the view that genuine members of the Local Church in China would be able to answer most of these questions. There is nothing in the Tribunal’s reasons to suggest, however, that it based these views on any material, other than the Tribunal’s own unstated and unsupported assumptions. It may be that the Tribunal had in mind knowledge that persons who had been practising as long as the applicant claimed she had been practising in the Local Church might be expected to have. Even if the Tribunal had in mind such persons, the knowledge the Tribunal considered such persons should or would have is based on unarticulated and unstated assumptions.
The Tribunal did not only rely on unstated and unsupported assumptions about what a genuine practising Christian should know about Christianity. The Tribunal also relied on unsupported assumptions about how a genuine practising Christian would answer certain questions about his or her faith. That is evident in the Tribunal’s findings that a “genuine practicing [sic] Christian would be expected to be able to explain, correctly and spontaneously, without hesitation, why Christianity is important to her and why she became a Christian”.[28] This finding is based on an unsupported assumption that genuine practising Christians would answer spontaneously and without hesitation why Christianity is important to that person. It is also evident in the Tribunal’s findings that, when the applicant was asked about “the importance of Christianity to her spiritually”, and what it “means to her to be a Christian”, the applicant’s “testimony, her manner was hesitant, she paused at length, and while she was able to recite memorised information from the Bible, when asked to respond to questions testing the strength of her religious convictions and motivation, her evidence was unpersuasive, hesitant, lacked spontaneity or any reflection of deep religious convictions”, and that the applicant’s evidence about “how becoming a Christian has changed her life was superficial”.[29] These findings are based on unsupported assumptions about how a genuine practising Christian would answer questions about the importance of Christianity to his or her spirituality, and what it means for such person to be a Christian.
[28] CB140, [86]
[29] CB139, [82]
In my opinion, by assessing the applicant’s claim she had been a member of a Local Church in China and a Christian by reference to unstated or unsupported assumptions about what a genuine practising Christian might be expected to know, and about how a genuine practising Christian should answer certain questions about his or her faith, the Tribunal made a jurisdictional error. The jurisdictional error may be characterised in terms of legal unreasonableness. A decision that is supported by reasons will be unreasonable if it lacks an intelligible justification; and the intelligible justification “must lie within the reasons the decision-maker gave for the exercise of the power”.[30]
[30] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [47]
The Tribunal relied on other matters for not accepting the applicants’ claims were credible. As submitted by the Minister, the Tribunal relied on the applicant’s arriving in Australia in November 2007 and not applying for the protection visa until December 2012, and that the first and second applicants remained in Australia unlawfully for a protracted period, during which time they both risked being returned to China (presumably by being deported). The Tribunal found these matters were inconsistent with a subjective fear of persecution for reasons of religion. In my opinion, however, the Tribunal extensively relied on the unstated or unsupported assumptions I have identified in concluding the applicants were not genuinely practising Christians; and the Tribunal’s reliance on these matters cannot be separated from the other reasons on which the Tribunal also relied for so concluding. In those circumstances, I am satisfied the Tribunal’s finding the applicant was not a genuine practising Christian does not have an intelligible justification and, consequently, the Tribunal’s affirming the delegate’s decision in relation to the applicant’s claim based on her being a Christian also has no intelligible justification.
The first ground, therefore, succeeds.
Other grounds
Given my conclusion on the first ground, I do not propose to consider what I have identified as the second ground, namely, that the Tribunal did not properly consider the applicants’ claims based on the third applicant being born out of wedlock. Nor do I propose to consider whether the Tribunal conducted the hearing in a way that gave rise to a reasonable apprehension of bias, a question in relation to which the Minister submitted supplementary submissions. Whether or not the Tribunal’s questioning of the applicant’s religious beliefs gave rise to a reasonable apprehension of bias is a different question to whether the Tribunal assessed the applicants’ religious beliefs on the basis of unstated or unsubstantiated assumptions.
I have, however, listened to the audio recording near the point where the second hearing concluded. After the second applicant concluded giving evidence, I heard the Tribunal member ask the applicant whether she had anything further to say. She said she did not. The Tribunal member informed the applicant that if there was anything further she wished to say, she could communicate that to the Tribunal during the course of the day. I did not hear in this portion of the audio recording words to the effect the applicant, at the hearing before me, claimed were said towards the end of the second hearing before the Tribunal.
Disposition
I propose to quash the decision of the Refugee Review Tribunal. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent, and that the applicants’ application for review be considered by that Tribunal according to law. Finally, I will order that the Minister pay such of the first and second applicants’ costs to which they may be entitled as unrepresented litigants.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 22 December 2016
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