FEDERAL COURT OF AUSTRALIA

Tang v Minister for Immigration & Multicultural Affairs [2000] FCA 985

MIGRATION – Migration Act 1958 (Cth) – error of law – well founded fear of persecution for reasons of religion – whether different treatment of worshipers at underground churches from those at registered churches is on the basis of religious differences – distinction between “the governance of a church” and “underlying religions faith”

Migration Act 1958 (Cth)

Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553, cited

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, cited

Minister for Immigration and Multicultural Affairs v Zheng (FC) [2000] FCA 50, cited

Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 511, cited

Lama v Minister for Immigration and Multicultural Affairs (FC) [1999] FCA 1620, cited

XIAO JING TANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 234 of 2000

BRANSON J

SYDNEY

26 JULY 2000

THE COURT ORDERS THAT:

1.         The decision of the Refugee Review Tribunal be affirmed.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     The applicant has sought review under s 476 of the Migration Act 1958 (Cth) (“the Act”) of a decision of the Refugee Review Tribunal (“the Tribunal”) whereby the Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant at hearing relied on only one ground of review, namely that the decision of the Tribunal involved an error of law, being an error involving an incorrect interpretation of the applicable law (s 476(1)(e)).

2                     In order for an application for a protection visa to succeed, the Minister, or on review the Tribunal, must be satisfied that the applicant is a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done on 31 January 1967 at New York (together “the Convention”) (ss 36(2) and 65 of the Act and cl 866.221 of Schedule 2 of the Migration Regulations 1994).  For present purposes Australia will have protection obligations to the applicant under the Convention if she is a person who has:

“… a 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 [her] nationality and is unable or, owing to such fear, is unwilling to avail [herself] of the protection of that country ….”  (Art 1A(2) of the Convention).

3                     The applicant claims to fear persecution in the People’s Republic of China (“PRC”) for reason of her religion.  She contended that the decision of the Tribunal involved an erroneous interpretation of the requirement that she have a fear of persecution “for reasons of … religion.”  I have concluded that the decision of the Tribunal must be affirmed for the reasons set out below.

Findings and Reasons of the Tribunal

4                     The Tribunal made the following findings.

5                     The applicant is a citizen of the PRC.  She travelled to Australia on a valid PRC passport.  She is a Christian adhering to the Roman Catholic Church.  In the PRC she attended an underground Catholic Church together with her family.  It appears that the Tribunal accepted the accuracy of independent country information before it that in the PRC:

“Unregistered religious activity is illegal and is a punishable offence.”

6                     During the Cultural Revolution the applicant’s grandfather, who was a servant of a priest of the German Catholic Church, was criticised and beaten to death in prison.  At this time her family worshipped and took mass secretly.  During her schooldays, the applicant was required to fill out a form which identified her as a Catholic but did not require her to state any political opinion or whether she was a member of the registered Catholic Church or not.

7                     The applicant was asked by her priest in 1992 to organise activities for the young people who attended her underground church.  She did this without event for a period of two years.  In 1994 she attended a training course which was organised by the Singapore Catholic Church.  She resigned from her employment voluntarily to attend this ten day course.  After the first three days of the course the Public Security Bureau (“PSB”) detained those who were attending the course having declared the meeting to be illegal.  The applicant was amongst those detained and she may have been treated harshly during her detention and interrogated as to the purpose of the meeting.  She was released on condition that she report weekly to the PSB.  This punishment was inflicted because the applicant attended an unauthorised meeting and not for reasons of her religion.

8                     The applicant’s religious group continued its activities unabated until 1996 although the applicant claimed that she was summonsed by the PSB on three occasions between 1994 and 1996.  She was not arrested or detained on these occasions.  She claimed that her religious group was forced by the PSB to stop its activities in 1996.  It appears that the Tribunal accepted the validity of these claims for the purpose of reaching its decision as to whether the applicant was entitled to a protection visa.

9                     The applicant did not experience any difficulties in leaving the PRC in 1997 as she was not at that time of any interest to the Chinese authorities.

10                  The Tribunal, with some hesitation, accepted that certain of the applicant’s associates were arrested in 1998.  However, it found that the applicant’s activities in China had been quite different from those of her associates who were arrested after she left China.  It accepted independent evidence before it that the type of person at risk of harm in China is an underground church leader who has repeatedly offended, someone who preaches at underground gatherings or someone perceived to be an activist.  The Tribunal found that the applicant does not fit this profile.

11                  The Tribunal found that there is no real chance that the applicant would face any difficulties should she return to China in the foreseeable future for reason of her connection with the youth committee or for reasons of her religious or political opinion.  As to the applicant’s ability to practice her religion, the Tribunal said:

“I find that the applicant is able to practice her Catholic religion in China as there is independent evidence before the Tribunal that states that the Chinese government allows Catholics to acknowledge the Pope as the spiritual head of the Church and he is prayed for at masses in official churches.  In addition although Bishops affiliated with the Catholic Patriotic Association are for the most part not consecrated by the Pope many have been recognised unofficially by the Vatican.”

12                  The Tribunal concluded that the applicant does not have a well founded fear of persecution in the PRC for reasons of her religion, political opinion, actual or imputed, or for any other Convention reason.  On that basis it found that she is not a person to whom Australia has protection obligations under the Convention.

Consideration

13                  The applicant argued that as the PRC treats people who belong to underground churches differently from people who belong to registered churches, the question of whether that different treatment amounts to persecution within the meaning of the Convention will depend on whether the different treatment is appropriate and adapted to achieving some legitimate object of the PRC (Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 at 560; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per McHugh J at 258).  As the Tribunal did not seek to answer this question, it was contended that the Tribunal erred in its interpretation of s 36(2) of the Act.

14                  The respondent contended that it was open to the Tribunal to find, as it did, that the applicant had not suffered persecution in China by reason of her religion.  He drew attention to the Tribunal’s finding that the applicant’s detention in 1994 was by reason of her attending an unauthorised meeting rather than for reason of her religion.  The respondent also contended that it was open on the material before it for the Tribunal to conclude that the applicant would not be prevented from practicing her religion if she returned to the PRC as she could worship in a registered Catholic Church (Minister for Immigration and Multicultural Affairs v Zheng (FC) [2000] FCA 50; and Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 511).

15                  In my view, it was open to the Tribunal to conclude on the evidence and other material before it, as it did, that nothing that the applicant had done in the PRC before her departure in 1997 gave rise to a well founded fear that she would suffer harm should she return to the PRC, for reasons of her religion or political opinion.

16                  The Tribunal is also to be understood, as I read its  reasons, to have concluded that, in view of the nature of the applicant’s involvement with her underground church, she would not be at risk of harm in the PRC should she return there and continue her involvement with the church.  That is because the Tribunal found that persons with the profile of the applicant were not at risk of harm in the PRC.  There was nothing before the Tribunal to suggest that, if the applicant were to return to China, she would act in a way which would change her profile.  That is, relevantly, by becoming an underground church leader who offended repeatedly, a preacher at underground gatherings or a perceived activist.  Subject to the issue considered below, it was therefore open to the Tribunal to conclude that the applicant would not be at risk of persecution were she to return to the PRC and continue to attend an unauthorised church.

17                  The reasons of the Tribunal do not make it entirely clear why it went on to make the finding that the applicant is able to practice her religion in China by, as I understand the Tribunal’s reasons, attending an official Catholic Church.  The Tribunal had given consideration to whether the applicant would experience persecution within the meaning of the Convention if she were to continue to attend an unofficial Catholic Church in China and, as I understand its reasons, had concluded that she would not.  It may be that the Tribunal acted on the basis that a legal prohibition on the practicing of one’s religion without more would amount to persecution on the ground of religion (cf Zheng’s case per Hill J, with whom Whitlam and Carr JJ agreed in this regard, at para 41).

18                  In reaching the conclusion that the applicant would be able to practice her religion in China in an official church, the Tribunal must be understood to have concluded that the religion practised in the PRC in underground Catholic Churches is, for the purpose of the Convention, the same religion as that practised in official Catholic Churches.  That is, that the underlying religious faith being practised in unofficial and official Catholic Churches in the PRC is the same.  The Tribunal referred specifically to the evidence before it that the PRC government allows Catholics to acknowledge the Pope as the spiritual head of the Church and that the Vatican has unofficially recognised many Chinese bishops.

19                  In Zheng’s case the Full Court concluded that it was open to the Tribunal in that case, on the evidence before it, to draw a distinction between “the governance of a church” and “underlying religious faith”.  There was similarly evidence before the Tribunal in this case upon which such a distinction, assuming it to be a legitimate distinction in the case of the Roman Catholic Church, could be drawn.

20                  Like Lindgren J (see Zheng’s case), I have doubts about the legitimacy of the distinction so far as all denominations of the Christian religion are concerned (see, for example, Matthew 18: 19-20).  However, like Lindgren J in Wang’s case, I consider that the decision of the Full Court in Zheng’s case authoritatively decides that the distinction between the governance of a church and religious faith is a valid one in the context of the Convention.  For this reason I conclude that it was open to the Tribunal to conclude, on the evidence and other material before it, that the applicant will be able to practice her religion in the PRC, should she return there, by attending an official Catholic Church.  It is therefore unnecessary for me to determine whether a legal prohibition of general application, whether enforced or not, which would prevent a person from lawfully practicing his or her religion, would amount to persecution within the meaning of the Convention (see Applicant A per McHugh J at 258; Lama v Minister of Immigration and Multicultural Affairs (FC) [1999] FCA 1620).

21                  The decision of the Tribunal will be affirmed.

Associate:

Dated:                                          26 July 2000