VBAT v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1528

FEDERAL COURT OF AUSTRALIA

VBAT v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1528

MIGRATION – protection visa – claim of well-founded fear of persecution for reason of religious belief – applicant claimed to be deputy director of underground church in China with responsibility for fund raising and recruiting members – whether Refugee Review Tribunal applied wrong test of commitment to religion and level of knowledge of religious principles and practices – whether Tribunal dealt with case put by applicant

Migration Act 1958 (Cth) ss 5(1), 36, 474
Migration Regulations 1994 (Cth) Sch 1 item 1119, Sch 2 item 805.21

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 – referred to

APPLICANT VBAT OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
V 124 of 2002

GRAY J
10 DECEMBER 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 124 of 2002

BETWEEN:	APPLICANT VBAT OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	10 DECEMBER 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the proceeding.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 124 of 2002

BETWEEN:	APPLICANT VBAT OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GRAY J
DATE:	10 DECEMBER 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The nature of the proceeding

1. The applicant in this proceeding seeks relief pursuant to s 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs, now the Minister for Immigration and Multicultural and Indigenous Affairs (in both cases, “the Minister”) who is the respondent to the proceeding. The delegate of the Minister had refused to grant to the applicant a protection visa, pursuant to the Migration Act 1958 (Cth) (“the Migration Act”).

2. The Migration Act makes provision for various types of visas, permitting people to travel to and enter Australia or to remain in Australia. One such type of visa is a protection visa, for which s 36 provides. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The term “Refugees Convention” is defined in s 5(1) of the Migration Act as meaning the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The term “Refugees Protocol” is defined in the same subsection as meaning the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call those two instruments, taken together, the “Convention”. For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to any person who:

   “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”.

3. The applicant is a citizen of the People’s Republic of China.  He arrived in Australia on 16 June 1998 with a visa entitling him to enter as a visitor.  On 29 January 1999, he lodged an application for a protection visa.  On 25 March 1999, the delegate gave her decision refusing to grant a protection visa.  The applicant sought a review of the delegate’s decision by the Tribunal.  The Tribunal conducted a hearing, at which the applicant gave oral evidence, on 12 August and 28 October 1999.  The member of the Tribunal who conducted that hearing then resigned from the Tribunal before making a decision.  Another member conducted a further hearing, at which the applicant gave oral evidence, on 13 April 2000.  On 11 January 2002, the Tribunal published its decision and its reasons for decision.  It is that decision of the Tribunal that is the subject of the present proceeding. 

   The applicant’s claims

4. The applicant claimed to fear persecution in China for the reason of religion.  He claimed to be a Christian, and a member of an underground church in Fujian province.  He claimed to have joined the church in September 1996 and to have been a deputy “chief” of it from March 1997.  According to him, he was successful in expanding this church rapidly.  The local authorities warned him that they would take action against him if he continued with his church activities, promoting democracy and commemorating the anniversary of the Tiananmen Square massacre.  As a consequence, his friends and relatives suggested he leave China and he came to Australia in September 1997.  Thereafter, he spent a total of five months in China.

5. On the day before the first hearing in the Tribunal, the applicant’s adviser submitted three documents.  They were a warning letter from the applicant’s local municipal government, a notice from the local public security bureau requiring him to present himself for interview, and a “wanted” circular from the local public security bureau.  The last two documents referred to specific provisions of Chinese law. 

6. The applicant also claimed that, as a consequence of his religious activities, steps had been taken to curtail his business activities.  As well as warnings to him, he spoke of a raid on the church and the confiscation of audio-visual equipment and kitchen utensils.  The director was arrested and the local authorities said that the applicant would be arrested too.  He spoke of further arrests of his church colleagues and of persecution of members of underground churches.

   The Tribunal’s reasons

7. The Tribunal found that the applicant was not a credible witness.  It was not satisfied that he was a member, let alone a leader, of an underground church in China.  It said:

   “While it would not be reasonable for the Tribunal to expect the applicant to have a sophisticated understanding of Christian principles and the practices of the Catholic Church, the applicant’s responses to questions asked of him about the beliefs and practices of his church by both the former Tribunal and the current Tribunal were so rudimentary, and incorrect in some instances, that the Tribunal is unable to be satisfied that the applicant did belong to an underground church in China as he has claimed.  At the first hearing, the applicant was unable to identify any specific Catholic ceremonies apart from the congregation praying together.  His responses to questions about the Bible were vague and evasive.  There was no religious element to his response as to why he could not worship in an approved Catholic church.  At the hearing on 13 April 2000 when asked questions about religion he referred to notes he had made, although he was specifically asked by the Tribunal not to do so.  He was vague and evasive when asked questions about what he had read in the Bible and had difficulty responding to follow-up questions.  He had an incorrect understanding of the position of the Pope, suggesting that he was responsible for the miracle of the loaves and the fishes and stating that the Pope lived in heaven.  On being asked what happened during Communion, he said that on Fridays people were not allowed to eat meat.  His response to
   the Tribunal’s question about why he had joined an underground church and not an approved church again contained no reference to religion.

   
   

   The applicant persistently referred to his church in China as if it were a company.  He spoke of being responsible for organisational matters and the finances of the church and for recruiting staff.  He referred to the priest as the Director of the church, and said that he had been appointed to be the Vice Director.  He did not reveal any commitment to his church based on his religious beliefs.

   The Tribunal accepts that churches require leaders who can undertake organisational duties as well as religious leaders.  However, the Tribunal considers it reasonable to expect an organiser for the church to be able to show a greater level of knowledge about the teachings of the church than the applicant was able to demonstrate.  Given the hardship the applicant claims that he suffered because of his commitment to the church, it is reasonable to expect him to be able to explain why the underground church was so important to him that he was prepared to risk persecution for it by returning to China on two occasions.”

8. In addition, the Tribunal noted that, in almost two years in Australia, the applicant had not found, or even made serious attempts to find, a church in which to worship.  It said that this gave the Tribunal cause to doubt that the applicant had the religious commitment he claimed.  The Tribunal rejected a claim of the applicant to have been detained and tortured in 1997, on the ground that the claim had not been raised at a time when ordinarily it would have been.  It rejected the evidence of a witness called on behalf of the applicant because he had not disclosed his business connections with the applicant until questioned by the Tribunal.

9. The Tribunal did not accept as genuine the three documents relied on by the applicant.  Although the documents had been submitted to experts who could not establish that they were not genuine, their contents suggested that the provisions of the law referred to did not bear upon the contents of the documents, or did not exist, and the applicant had not given a satisfactory explanation for delay in producing the documents. 

10. Finally, the Tribunal gave weight against the applicant’s claims to the fact that he had returned to China on several occasions between visits to Australia.  On those visits, he had not been in China long enough to play a significant leadership role in his church, in the Tribunal’s view.  His travel to China coincided with his Australian visa requirements, and the Tribunal did not accept that he was responding to calls for assistance from his church.  The Tribunal also took into account the period of time that elapsed between the applicant’s arrival in Australia and his application for a protection visa.

11. The Tribunal found:

    “that the applicant is not wanted by the Chinese authorities because of his religious activities in China and that the authorities have not caused problems for his business activities because of his leadership of an underground church.”

12. The Tribunal also found that, if the applicant had been involved in any religious activities in Australia, they had been low key and would not be of interest to the Chinese authorities.  It found that there was not a real chance that if the applicant returned to China he would be persecuted for reason of his religious activities or as a member of a particular social group involved in religious activities.

13. The Tribunal then considered the applicant’s original claim to have been involved in the pro-democracy movement.  The fact that he had a passport and an exit visa to leave China, and had returned to China on two occasions, indicated to the Tribunal that any political activities up to June 1998 were not of interest to the Chinese authorities.  It also found that his activities in Australia were not of interest to the Chinese authorities.

14. The Tribunal concluded that it was satisfied that the applicant was not a person to whom Australia has protection obligations under the Convention. Therefore he did not satisfy the criterion in s 36 of the Migration Act for a protection visa.

    The applicant’s case

15. In his original application, filed in the Court on 27 February 2002, the applicant relied on three grounds. The first was a suggestion of jurisdictional error, expressed in various ways, which was particularised as an allegation that the Tribunal had imposed a standard of understanding or knowledge of religion that failed to take account of cultural and historical factors. The second ground was that the Tribunal did not act in good faith and was biased. This was particularised by reference to the Tribunal’s treatment of the evidence of a particular witness. The third ground suggested that certain provisions of the Migration Act were unconstitutional and earlier provisions were left unamended, and relied on two grounds referred to in those earlier provisions.

16. In his amended application, filed on 19 April 2002, the applicant relied only on the jurisdictional error ground, which was particularised as follows:

    “(a)     In assessing whether the applicant held a religious belief which
    would form the foundation for a well-founded fear of persecution the
    Tribunal imposed a purely arbitrary standard of what constitutes
    acceptable religious knowledge in the Chinese context which failed
    to take account of cultural and historical factors and did not deal with
    the central premise on which the applicant’s claims were based.

    
    
    
    
    
    

    (b)      It failed to assess the applicant’s fears of persecution on the basis
    that he was involved as a leader in a financial/organisational capacity
    with an underground church in Fujian and thus perceived by the
    authorities as supporting this church despite his rudimentary
    knowledge of Catholic theology and practices.  It thereby
    misconceived and/or failed to deal with his claims as presented and
    his fear of persecution by reason of imputed religious belief.”

    
    
    
    
    
    
    

17. At the hearing, counsel for the applicant characterised the case as a failure by the Tribunal to deal with the applicant’s claim as it was put.  The applicant’s claim was not that his fears of persecution were on account of interference with his ability to worship itself, but rather that his involvement as an organiser and fundraiser gave rise to a view on the part of the authorities that he had a religious belief.  By focusing on the inadequacy of the applicant’s knowledge of Catholic doctrine and practices, the Tribunal did not deal with the claim that he had made.

18. Counsel for the applicant contended that the Tribunal had used the applicant’s lack of sophistication in religious matters to discredit him and then to use the terms of his own characterisation of his role as a further indicator of the untruthfulness of his claims.  In other words, it was demanding an acceptable level of understanding of religious beliefs, for which it applied an arbitrary standard.  It did not ask itself the question whether the applicant had the kind of involvement with the church that he claimed to have. 

19. Counsel for the applicant drew attention to a passage in the transcript of the hearing before the Tribunal on 13 April 2000, in which the Tribunal was questioning the applicant.  The Tribunal member put to the applicant that she had to satisfy herself that he really did have the religious beliefs he claimed.  The applicant responded that he was a leader of the church but a “very beginner” in religion.  He had been gathering people and looked after financial matters.

    The correctness of the Tribunal’s approach

20. An examination of the Tribunal’s reasons, particularly in the passage I have quoted above, reveals that the Tribunal did not make the error suggested.  It specifically said that it would not be reasonable to expect the applicant to have a sophisticated understanding of Christian principles and the practices of the Catholic Church.  It recognised that there was a role for leaders who could undertake organisational duties, as well as for religious leaders.  Against this background, the Tribunal took the view that it was reasonable to expect even someone who had the role claimed by the applicant to have a greater level of knowledge about the teaching of the church than the applicant was able to demonstrate.

21. It may be that a different Tribunal member might have taken a view of the evidence more generous to the applicant.  That possibility cannot entitle the applicant to succeed in a proceeding such as this.  It is plain that the Tribunal’s role is to be the fact-finder.  The Court cannot interfere with findings of fact on the basis that the Court might have taken a more favourable view.  The Tribunal’s reasons showed that it was very conscious of the nature of the case put by the applicant.  It dealt with that case.  Its view as to the level of knowledge and understanding of the applicant in religious matters was only one factor in its decision to reject his case.  The other factors appear from the summary of the Tribunal’s reasons above.

    Conclusion

22. For these reasons, the applicant has not established the ground on which he sought to overturn the Tribunal’s decision. It is unnecessary to deal with the question whether, if the applicant had made out that ground, it would have been sufficient to overcome the effect of s 474 of the Migration Act, in the light of the judgment of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228.

23. The application must be dismissed.  The usual rule that costs follow the event should apply and the applicant must be ordered to pay the Minister’s costs of the proceeding.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated:            10 December 2002

Counsel for the Applicant:	Mr J Gibson
Solicitor for the Applicant:	Fernandez Canda Gerkens
Counsel for the Respondent:	Mr C Horan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 September 2002
Date of Judgment:	10 December 2002