Zhang v Minister for Immigration and Multicultural Affairs
[2000] FCA 1682
•6 OCTOBER 2000
FEDERAL COURT OF AUSTRALIA
Zhang v Minister for Immigration & Multicultural Affairs
[2000] FCA 1682ZAI JIE ZHANG V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 233 OF 2000
NORTH J
6 OCTOBER 2000
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 233 OF 2000
BETWEEN:
ZAI JIE ZHANG
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
NORTH J
DATE OF ORDER:
6 OCTOBER 2000
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the respondent's costs of and incidental to the application.
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 233 OF 2000
BETWEEN:
ZAI JIE ZHANG
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
NORTH J
DATE:
6 OCTOBER 2000
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
INTRODUCTION
This is an application by Zai Jie Zhang, the applicant, to review a decision of the Refugee Review Tribunal (the Tribunal) made on 15 March 2000. In that decision, the Tribunal affirmed the decision of the delegate of the respondent, the Minister for Immigration and Multicultural Affairs, to refuse to grant the applicant a protection visa.
BACKGROUND AND CLAIMS
The applicant, who is a citizen of the People's Republic of China, arrived in Australia on 24 June 1998. The Tribunal set out the claims and evidence in its decision. In light of the limited grounds of review argued, it is only necessary to give a brief outline of this part of the Tribunal's decision.
The applicant claimed that he and his family suffered during the Cultural Revolution on account of his parents' religion and status as landlords. His parents owned property and were Christian.
The major focus of his claims related to a claimed fear of persecution as a result of China's one-child policy and on account of his religious beliefs. The applicant and his wife had more than one child, contrary to the policy of the Chinese government. They were fined heavily after the birth of their second and third children. The applicant claimed that if he returned to China, he would face punishment and restriction of access to government services because he had openly opposed the one-child policy. He feared that he might even be jailed. It was submitted that the applicant's father had been detained as a result of the applicant violating the one-child policy.
The other major basis for the applicant's claimed fear of persecution was his membership of an underground church in China and the fact that he claimed the government restricted the operation of unregistered churches. The applicant claimed that he belonged to a church called the Church of Hope. He was not, however, able in the Tribunal hearing to recall the address in Australia of the church.
TRIBUNAL DECISION – ONE CHILD POLICY
I turn now to the decision of the Tribunal. Under the heading “Findings and Reasons”, the Tribunal dealt with the one‑child policy under a specific subheading. This part of these reasons is restricted to the decision of the Tribunal concerning the one‑child policy.
The Tribunal noted that the non‑discriminatory enforcement of a generally applicable criminal law or law designed to protect the general welfare of society does not constitute persecution for the purposes of the Convention.
The Tribunal cited Applicant A v Minister for Immigration and Ethnic Affairs (1996-7) 190 CLR 225 as authority for this proposition in the context of the one‑child policy in China. The Tribunal dealt with the effect of the application of laws of general application by reference to the following passage in the judgment of Brennan CJ at 233:
“The persecution must be ‘for reasons of’ one of those categories … The qualification […] excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of ‘refugee’.”
The Tribunal then referred to further authorities which supported the proposition that:
“The one‑child policy were laws of general application to the general population. Their origins had no application to any specific person or group of persons; they did not at the time of their introduction, attack any person who could be said to be a member of a particular social group; nor did they say that a future identifiable social group would be the subject of some measure of discriminatory conduct that would amount to persecution. Rather the laws extended to the general populace.”
The Tribunal then concluded this section of its decision as follows:
“The Tribunal is satisfied that the conduct complained of relates to the enforcement of a law that is applied generally and not in a way that is discriminatory. The applicant's evidence claims that this policy contravenes ‘human rights’. The applicant does not claim and there is no information to suggest that the law was applied differently to the applicant for reasons of his race, religion, nationality, membership of a particular social group or political opinion. The applicant's claim that he fears persecution on the ground of his religion is dealt with separately.
The Tribunal finds that the claims related to the ‘one‑child policy’ are not Convention related.
There are several aspects of the applicant's particular claims that appear unsatisfactory, such as his father continuing to be in detention, the applicant being in hiding for three to four years on account and still being sought by the authorities because of the applicant's contravention of this policy. The applicant may have been fined a number of times, his home looted and his wife sterilised, but as discussed above, this was not persecution in the sense of the Convention in that it was not for reasons of his political opinion or religion. Nor does the Tribunal accept that the applicant would face a real chance of persecution now or in the reasonably foreseeable future for contravention of the family planning policies of China, based on the above.”
In relation to the one‑child policy aspect of the Tribunal's decision, the applicant relied in this review on ss 476(1)(a) and (e) of the Migration Act 1958 (Cth) (the Act) which provide as follows:
“(1)Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
…
(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;”
The procedures which the applicant alleged were not observed by the Tribunal were those procedures set out in s 430(1)(b), (c) and (d) which provide as follows:
“(1)Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
…
(b)sets out the reasons for the decision; and
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based.”
In essence, the applicant's argument in relation to the one‑child policy aspect of the decision was that the Tribunal did not deal with the issue as an allegation of persecution for the reason of the applicant's religious belief. The Tribunal, it was contended, failed to make any finding about the applicant's religious belief concerning the one‑child policy and failed to refer to any evidence on the issue. In this sense, it was said that the Tribunal failed to comply with the procedures required to be observed under s 430.
Put in a slightly different way, the argument under s 476(1)(e) was that the Tribunal committed an error of law by failing to address the substance of the case put by the applicant in that it did not address the question whether the treatment of the applicant, resulting from his views concerning the one‑child policy, amounted to persecution for reason of his religious beliefs.
CONSIDERATION – ONE CHILD POLICY
There is, in my view, no doubt that the Tribunal did consider the one‑child policy matter in the context of the claim of feared persecution for reasons of religion. In the concluding part of the findings on the question, the Tribunal expressly said:
“The Tribunal finds that the claims related to the ‘one‑child policy’ are not Convention related.”
There is express reference in the concluding three paragraphs of the Tribunal’s decision (extracted in par 10 of these reasons) to the ground of persecution for reasons of religion. The Tribunal did determine the substantive case put by the applicant that the alleged persecution concerning his opposition to the one‑child policy was persecution for reasons of his religion.
The next question is whether the Tribunal came to that conclusion in a way which satisfied the requirements of s 430.
Again in my view, the Tribunal made no error in this respect. It comprehensively discussed the nature of the one‑child policy and the several authorities that have considered the nature of this policy and its enforcement. There is no difficulty in understanding the reasoning adopted by the Tribunal on the question. It found that the policy was enforced by non‑discriminatory means generally applicable which were designed to protect the general welfare of Chinese society. That reasoning process was the basis of the conclusion that the consequences which might be visited upon the applicant as a result of his views were not "for reasons of" his religion.
Mr Krohn, who appeared as counsel for the applicant, contended that the enforcement of a law of general application may still amount to persecution if, because of the religious beliefs of a particular person, that law bears down more heavily upon the particular person. However in Applicant A, McHugh J said at 258:
“Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion, nationality or social group.”
It was therefore open to the Tribunal to find in this case that the enforcement of the one-child policy was not persecutory, even though it may have had a differential impact on the applicant because of his own religious beliefs.
TRIBUNAL DECISION - CLAIM OF RELIGIOUS PERSECUTION
I now turn to the question of the claims by the applicant of persecution feared for reasons of religion. Under a separate heading “Religion” in the Findings and Evidence section of the Tribunal's decision, the Tribunal dealt comprehensively with the claims of the applicant concerning persecution feared for reasons of religion. The Tribunal commenced with some observations demonstrating that it was not particularly impressed with the evidence of the applicant. It said:
“The Tribunal finds his evidence about the existence and therefore his involvement in the ‘Church of Hope’ in China to be contradictory and implausible, a fact part explained by his witness in terms of the applicant utilising the name Church of Hope to describe the church he belongs to in China because ‘the principle is the same’. In addition, in his evidence to the Tribunal he states that he only ‘officially joined’ this church after his arrival and was unable to give the address of the church he attends here. The applicant, however, provided sufficient information on his beliefs and activities for it to be feasible that he has a rudimentary knowledge of the Christian faith and that he spent some time as a member of an unregistered congregation which itself was part of the Protestant church.”
Having set out findings which assessed the level of commitment and knowledge of the applicant to his religion, the Tribunal turned to an analysis of the practice of religion in China. It referred to the fact that religion was becoming increasingly important in China and that the government itself acknowledged that at least 100 million people participate in religious beliefs and practices. The Tribunal noted that underground churches which the applicant supported were not secret but rather unregistered.
The Tribunal recorded the applicant's claim that the authorities restricted his church and found that:
“[T]his may have occurred but there is no evidence of adverse consequences, despite his claim that several other followers were arrested following a house raid in February 1998.”
The Tribunal then said:
“In some local areas, the government has enacted its control as old-style repression and prohibition. However, that is not government policy: the distinction is important. The government tolerates religions and religious groups if they acknowledge government regulations."
The Tribunal then set out the extent of government control of churches by reference to page 344 of a report by Human Rights Watch Asia as follows:
“Government control is exercised primarily through a registration process administered by the State Council's Religious Affairs Bureau through which the government monitors membership in religious organisations, locations of meetings, selection of clergy, publication of religious materials, and funding for religious activities. The government also now undertakes annual inspections of registered religious organisations. Failure to register can result in the imposition of fines, seizure of property, razing of ‘illegal’ religious structures, forcible dispersal of religious gatherings, and, occasionally, short term detention.
…
While long-term imprisonment, violence and physical abuse by security forces against religious activists still occur, they appear to be less frequent than they were at the time of the first Human Rights Watch study of religion in China in 1992. In 1997, we found isolated cases but no evidence of wide-spread or systematic brutality. When reports of these harsher measures do surface they are increasingly denounced by the central government officials as examples of the excesses of local officials and their failure to implement policy directives correctly.”
CONSIDERATION – CLAIM OF RELIGIOUS PERSECUTION
The applicant contended that under s 476(1)(a) of the Act the Tribunal failed to refer to the evidence upon which a finding on a material fact was based, in breach of the requirements of s 430(1)(d). The material question of fact was said to be that the applicant did not hold any significant belief which would prevent him from participating in worship services in registered churches. Mr Krohn relied upon the majority judgment in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 at par 46 where the majority said:
“[I]f one of the reasons which actually induced the RRT to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclosure of that element of the RRT's reasoning process.”
The decision in Singh emphasises that the purpose of s 430(1) is to expose the reasoning of the Tribunal. To concentrate upon one sentence alone in a comprehensive set of reasons may deflect from proper evaluation of compliance with the section. Thus in the present case, the finding that the applicant did not hold any significant belief preventing him from participating in worship services in registered churches cannot be taken alone. The Tribunal's reference to the applicant's belief follows after the recounting and assessment of the beliefs which the applicant said he held and an analysis and assessment of the availability and conditions of religious practice in China.
The sentence which is criticised is a conclusion which flows from a quite elaborate process of reasoning. Elements of that process were that the Tribunal assessed the applicant's beliefs as rudimentary, and perhaps lacking in commitment and specificity, and an evaluation of the scope for a person with those beliefs to conduct religious practice in China.
In my view, the Tribunal did expose its reasoning process carefully. In order to appreciate that fact it is necessary, however, to view the sentence under present scrutiny in the context of the decision as a whole.
Much the same argument was said to establish an error of law on the part of the Tribunal under s 476(1)(e) of the Act flowing from the alleged failure of the Tribunal to consider the substantive case put by the applicant. For the same reasons, I do not accept this argument.
A further error of law alleged by the applicant was said to reside in the final sentence of the section of the findings concerning religion. The Tribunal said:
“Given that the Church of Hope does not yet exist in China and the applicant was not involved in proselytising / evangelising in the past the Tribunal does not accept that he would be involved in such activity in the future.”
It was suggested that this passage, together with the immediately preceding paragraph concerning the beliefs of the applicant which would not prevent him from participating in worship services in registered churches, were the only part of religious observances considered by the Tribunal, and that, consequently, the Tribunal did not go far enough in its consideration. In other words, persecution for reasons of religion may have existed quite apart from questions only of the ability to worship and to become involved in proselytising and evangelising.
Again, such a reading of the decision is to take several elements of the decision out of the whole context and isolate them as if they were the complete decision of the Tribunal. In truth, the scope of the Tribunal's decision is much wider. For instance, a few lines above the criticised passage appears the sentence:
“The Tribunal is satisfied by the above reports that the applicant could practise as a Protestant Christian in China.”
Doubtless the Tribunal concentrated on those elements of restriction which the applicant himself had emphasised in the case, namely, the restriction on worship and evangelising and proselytising activities. However, the Tribunal did consider and make findings about the exercise of religious beliefs in all its aspects by the applicant. The alleged error is not made out.
Finally, the applicant contended that the Tribunal erred in the following passage:
“In some local areas, the government has enacted its control as old-style repression and prohibition. However, that is not government policy: the distinction is important. The government tolerates religions and religious groups if they acknowledge government regulations.”
The applicant contended that the distinction drawn by the Tribunal was irrelevant in that persecution by local government remained persecution even if contrary to central government policy.
In my view, such an approach again elevates the reference by the Tribunal to a level which it does not bear in the context of the decision as a whole. The passage does not concern a material question of fact to which s 430 applies. Nor does it address the substance of the applicant's case. It is generally descriptive of the Chinese social system. The role of local government as described was one aspect of the total Chinese social and political system which the Tribunal took into account. No reviewable error emerges from this part of the decision.
In the result, the application must be dismissed with costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.
Associate:
Dated: 24 November 2000
Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: MSC Legal Services Counsel for the Respondent: Mr W Mosley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 October 2000 Date of Judgment: 6 October 2000
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