FEDERAL COURT OF AUSTRALIA

Tang v Minister for Immigration & Multicultural Affairs [2000] FCA 1746

XIAO JING TANG  v  MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 929 of 2000

RYAN, SUNDBERG and STONE JJ

SYDNEY

1 DECEMBER 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs of the appeal, to be taxed in default of agreement.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT

1                     This is an appeal from a judgment of a single Judge of the Court affirming a decision of the Refugee Review Tribunal (“the Tribunal”) which, in turn, affirmed a decision of the respondent Minister not to grant the appellant a protection visa.  The appellant is a citizen of the People’s Republic of China (“PRC”).  She claimed, according to the Tribunal, to have “participated in underground activities in the Roman Catholic Church.”  On the basis of “country information”, the distinction between officially recognised religions and “underground” or unregistered religious activity was acknowledged by the Tribunal in the following passage from its reasons:

“Each of the five religions officially recognised by the Chinese government, being Catholicism, Protestantism, Buddhism, Daoism and Islam must register with and is monitored by its respective “patriotic organisation” which in turn reports to the Government Religious Affairs Bureau.  Unregistered religious activity is illegal and is a punishable offence.

.....

It is clear from the evidence before the Tribunal that since the reforms began in 1979 in China that the Government does not harass or prevent believers from any of the authorised churches including the Catholic church from privately worshipping or attending an official designated place of worship.”

2                     In respect of the appellant’s religious activity from 1992 until she left the PRC in 1997 and the circumstances in which she left, the Tribunal made these findings:

“I accept that the applicant was asked in 1992 by her priest to organise activities for the young people who attended the underground gatherings.  According to her evidence she acted as a liaison between the priest and the young people and organised activities once every week and according to her evidence this continued uneventfully for a period of two years.

I accept that the applicant resigned from her work voluntarily to attend a ten day course in Fujian organised by the Singapore Catholic Church.  I find that her resignation from her job was so that she would not disturb the company and was a matter of personal choice.

I accept that the applicant attended the course and that after three days the PSB [Public Security Bureau] detained those attending, having declared the meeting illegal.  I accept that the applicant was detained and may have been treated harshly during her detention and interrogated as to the purpose of the meeting.  I accept that she was released on the condition that she report weekly to the PSB in Qing Tao in Shandong province.  Although this incident would have been distressing I consider that the applicant was punished for attending an unauthorised meeting and not for reasons of her religion.  Accordingly, I find that punishment suffered was not for a Convention reason.

I am fortified in this view by the fact that upon the applicant's return to Qing Tao, despite being required to regularly report to the PSB in Qing Tao, according to her evidence the applicant's religious group's activities continued unabated until 1996.  Presumably the PSB in Qing Tao would have known the reason she was regularly reporting and according to her evidence did not show any interest in preventing her from continuing them.

The applicant claimed that in 1996 the group was forced to stop by the PSB because someone informed on their activities but little or no action was taken against the applicant other than being summonsed to go to the PSB.  In fact the applicant said that she was summonsed by the PSB in Qing Tao on three occasions between 1994 and 1996 but she was not detained nor arrested again.  Furthermore, she was able to obtain an exit permit and passport and leave China to join her husband in Singapore.  All these matters cumulatively indicate to me that the applicant was not of any adverse interest to the Chinese authorities at the time of her departure.

I note the applicant's claim that her exit permit was facilitated by a friend in the "Discipline Checking Commission", thereby suggesting that she was only able to obtain it through this contact.  However I do not accept this evidence as truthful.  This evidence emerged at the second hearing after the applicant was questioned at the first hearing about obtaining her exit permit.  At the first hearing the applicant's evidence was that "her leaving China was irrelevant to her requirement to report to the PSB" and "that she was not subject to any warrant".  During the first hearing there was no evidence from the applicant that she had faced any problems obtaining either an exit permit or a passport.  I formed the view that the applicant's claim in the second hearing that she needed someone to help her obtain the exit permit was an attempt on her part to embellish her evidence to address a concern raised by the Tribunal.

I find that the applicant did not experience any difficulties leaving China for Singapore in 1997 and I find that the reason she did not experience any difficulties was that she was of no adverse interest to the Chinese authorities at that time.”

3                     The Tribunal then referred to the appellant’s claim that two of her associates, Ruan He and Father Wang, had been arrested in 1998.  In the course of its discussion of that claim, the Tribunal observed:

“The independent evidence before the Tribunal which I accept states that "religious groups are strictly forbidden to engage in any form of political activity and are kept under surveillance for activities that may be regarded as a threat to the political or social order".  While it may be that the committee engaged in rallies and meetings and that these activities led to the arrest of He Ruan [sic] and Father Wang, it is clear that the activities the applicant was engaged in, as the committee leader, were not in any sense political.  Her own evidence was that she organised meetings to help young people understand the real meaning of God.  The applicant did not experience any difficulties in this position from 1992 until at least 1996, despite having come to the attention of the PSB through the incident in Fujian in 1994.”

4                     The Tribunal then contrasted the “profile” of the applicant with that of Ruan He and Father Wang saying:

“The independent evidence before the Tribunal which I accept indicates that the type of person at risk of harm in China is an underground church leader who has repeatedly offended and someone who preaches at an underground gathering or someone perceived to be an activist.  I find that the applicant does not fit this profile.”

5                     If that passage be read as containing a finding as to the “profile” which would be attributed to the appellant if she were to return to the PRC and resume her activity as an adherent of the “underground” Catholic Church at the same level as before, it would support a conclusion that she does not presently have a well-founded fear of persecution for reason of her religion even if that were identified as “underground” Catholicism.  However, the Tribunal, in a passage immediately following that last quoted, went on to say:

“In addition the applicant had been living in Singapore for about one year by the time of the first arrest and 18 months by the time of the second arrest.  I find that there is no real chance that the applicant would face any difficulties should she return to China in the foreseeable future for reasons of her connection with the youth committee organised by Father Wang or for reasons of her religious or political opinion.

I find that the applicant is able to practise 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.  I find that the applicant would not be at risk of serious harm for reason of her religion should she return to China in the foreseeable future.

I find that the applicant does not have a well-founded [fear of persecution] for reasons of her religion, political opinion, imputed or actual or for any other convention reason should she return to China now or in the foreseeable future.”

6                     The analysis of the Tribunal’s reasons which Counsel for the appellant has pressed on the hearing of this appeal is that the conclusion reached in the passage quoted at para 4 above was confined to the risk of persecution by reason of the “profile” to be imputed to the appellant as a result of her activities in the past.  In rejecting the existence of a well-founded fear of persecution arising from future activity were the appellant to return to the PRC, so the argument went, the Tribunal contented itself with observing that the applicant could practise “her” religion by adhering to the official authorised Catholic Church.  That analysis led the appellant to confine her notice of appeal to this single ground:

“Her Honour erred in law by not holding that the decision of the Refugee Review Tribunal involved an error of law pursuant to paragraph 476(1)(e) of the Migration Act 1958.

Particulars

 Her Honour erred in law by not holding that the decision of the Refugee Review Tribunal involved an error of law pursuant to paragraph 476(1)(e) of the Migration Act 1958, in that Her Honour did not hold that the Refugee Review Tribunal erred in applying a wrong test of “for reasons of ... religion” as provided for in sub-article 1A(2) of the Refugees Convention as amended by the Refugees Protocol as is applicable to the appellant pursuant to subsection 36(2) of the Migration Act 1958.”

7                     The understanding of the Tribunal’s reasons to which we have just referred was not shared by the learned primary Judge.  Her Honour said, at paras 15 and 16 of her reasons:

“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.

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.”

8                     The learned primary Judge regarded the Tribunal’s discussion of the availability to the applicant of adherence to the official Catholic Church as inessential to its conclusion that the appellant did not have a well-founded fear of persecution by reason of her religion, because her Honour went on to say, at para 17 of her reasons:

“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 practise 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 practising 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).”

9                     Although regarding it as unnecessary for the resolution of the appellant’s claim, her Honour went on to uphold the Tribunal’s second conclusion based on the appellant’s imputed ability to practise her religion by adhering to the official Catholic Church.  Her Honour said at paras 18-20 of her reasons:

“In reaching the conclusion that the applicant would be able to practise 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.

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.

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 practise 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 practising 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).”

Did the primary Judge misunderstand the Tribunal’s findings?

10                  The first issue to be resolved on this appeal is whether the learned primary Judge was correct in attributing to the Tribunal a finding that, if the appellant were to return to the PRC and resume her activities in the “underground” Catholic Church with the same profile as she had previously acquired, she would not attract persecutory attention from the authorities. 

11                  In our view, the learned primary Judge did not misconstrue the Tribunal’s reasons on this aspect of the case.  It is to be borne in mind that the appellant’s central claim before the Tribunal was that she had been a member of the underground Catholic Church and had been harassed because of that membership.  The appellant’s evidence was that she had acted as a liaison officer between Father Wang and younger members of her Church and had participated in the meeting at Fujian in 1994.  It was the latter activity which had attracted to her the adverse attention of the PSB.  It was no part of the appellant’s case before the Tribunal that she would intensify her activity on behalf of the underground Church if she returned to the PRC.  Accordingly, the Tribunal, we consider, assumed that her level of religious activity and her resultant “profile” would remain unchanged. 

12                  It is to be remembered that the Tribunal in the passage quoted at para 4 above found that those at risk of persecution for reasons of religion were “an underground Church leader who has repeatedly offended and someone who preaches at an underground gathering or someone perceived to be an activist.”  Although she claimed to be a “major leader of ‘Roman Catholic Youth Committee,’” there was no suggestion that the appellant had been a repeat offender or had otherwise answered any of those descriptions by the Tribunal by reason of her past activities, or would do so because of some formed intention to adopt a higher profile in the future.  The Tribunal, given the assumption which we have just imputed to it, was therefore able to make its central finding “that there is no real chance that the applicant would face any difficulties should she return to China in the foreseeable future for reasons of her connection with the youth committee organised by Father Wang or for reasons of her religious or political opinions.”

13                  It follows from our understanding of that passage as embodying the Tribunal’s central finding that the ensuing remarks about the position of the official Catholic Church in the PRC, read as a whole and in their context, were no more than a gratuitous aside.  It is true that the introductory words of that passage suggest a further finding that the applicant would be able to practise “her Catholic religion in China” but we are unable, for the reasons just explained, to regard that finding as equivalent to saying that the appellant could avoid persecution by joining the official Catholic Church.

Was it open as a matter of law for the Tribunal to conclude that the appellant’s past punishment had been inflicted for attendance at an unauthorised meeting and not for reasons of religion?

14                  Ms Bateman of Counsel for the appellant put at the forefront of her submissions the statement of the Tribunal in the third paragraph of the extract from its reasons reproduced at para 2 above, that “the applicant was punished for attending an unauthorised meeting and not for reasons of her religion.”  We are not persuaded, on the evidence, that the meeting in Fujian was so inextricably bound up with the appellant’s religion that the Tribunal was precluded, as a matter of law, from making a finding in those terms. 

15                  When it was in its third day, the meeting, which was a training session and not a religious observance, was declared illegal by the PSB (not a Religious Affairs Bureau, the body charged with registering places of worship and approving religious activities).  Thereafter, the PSB detained those attending the meeting, including the appellant who was interrogated as to its purpose.  That suggests that the religious purpose of the meeting was not apparent to the PSB when it first took action.  The finding of the Tribunal also derives support from the fact that the meeting had a large attendance, more than 60 persons, and was being addressed by foreigners from Singapore.  It is also significant, as the Tribunal found in the fourth paragraph of the extract from its reasons quoted at para 2 above, that, after the PSB had subjected the appellant to reporting conditions, presumably with knowledge of the religious purpose of the Fujian meeting, it did not attempt to curtail her continuing religious activities.

Should the appellant be granted leave to amend her notice of appeal to add a fresh ground?

16                  In the course of her initial submissions in support of the appeal, Counsel for the appellant foreshadowed an application to amend her notice of appeal to include an additional ground.  The proposed fresh ground was not formulated in writing.  However, as we understood it, it was to the effect that the Tribunal had failed to make a material finding of fact either as to whether the appellant, if she were to return to the PRC, would continue her adherence to the underground Catholic Church or whether participation in the activities of the official Catholic Church would be a sufficient expression of her religious beliefs.  The application for leave to amend was not pressed in submissions in reply after it had been opposed by Counsel for the respondent.  In any event, as explained in paras 11 and 12 of these reasons, we consider that the Tribunal assumed that, if the appellant were to return to the PRC, her level of religious activity, as an adherent of the underground Catholic Church, would remain unchanged.

17                  In the second place, as we have characterised the Tribunal’s remarks about the position of the official Catholic Church in the PRC as a gratuitous aside, it follows that it was not essential to the Tribunal’s determinative conclusion for it to make a finding as to whether participation in the activities of the official Church would be a sufficient expression for the applicant of her Catholic religion.  Accordingly, on either formulation of the proposed fresh ground of appeal, leave to add it should be refused.

Conclusion

18                  For the reasons outlined above, the appeal must be dismissed with costs.

Associate:

Dated:              1 December 2000