FEDERAL COURT OF AUSTRALIA

Lin v Minister for Immigration and Multicultural Affairs [2001] FCA 991

HUI LIN  v  THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V582 of 1999

RYAN J

27 JULY 2001

MELBOURNE

THE COURT ORDERS THAT:

1.      The application be dismissed.

2.      The applicant pay the respondents costs, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

1                     The applicant is a Chinese national who arrived in Australia on 8 December 1997 and sought a protection visa under the Migration Act 1958 (Cth) (“the Act”) on 14 January 1998.  A delegate of the Minister refused his application on 23 April 1999.  The applicant then sought a review of the refusal by the Refugee Review Tribunal (“the Tribunal”), which affirmed the delegate’s decision on 24 September 1999.  On 14 October 1999 the applicant made his application to this Court.

2                     The applicant is a national of the Peoples Republic of China (“the PRC”) and is of Han ethnic background.  He describes himself as a devout Roman Catholic, and claims to have been baptised in 1981 at the age of four.  The applicant’s evidence is that, in 1995, the Catholic church which he and his family attended was shut down by government authorities on the ground that it was not a registered church.  The applicant then assisted his family to move the church to a warehouse in his father’s factory, where the members continued practising their religion.  During that time, the applicant said, he delivered brochures about Roman Catholicism to people in the area and encouraged his school friends to join that Church.  In 1997 members of the applicant’s church became concerned that officials of the Chinese Communist Party were corrupt, and produced and distributed brochures exposing and seeking to combat the corruption.  The applicant claims to have assisted in editing those brochures and in distributing them.  Later, the Chinese authorities arrested two of his friends who had printed the brochure, and he thus went into hiding for two months before obtaining an Indonesian passport.  Then, on 3 December 1997 the applicant left the PRC and flew to Indonesia to be with his grandfather, after his parents had told him it was not safe for him to remain in the PRC.  After staying in Indonesia for three days, he left to come to Australia because he perceived that the unrest and antagonism towards the Chinese in Indonesia made it unsafe for him to remain there.

3                     The applicant’s evidence before the Minister’s delegate was that, once the PRC authorities became aware of the brochure detailing the corruption in government;

“They were angry and prosecuted the editors and organisers of the brochure.  I was one of them.  They claimed that Roman Catholics was against law and the brochure was anti-revolutionary propaganda.  They accused us that our real purpose was to overthrow the socialist system under the leadership of Communist party.”

At the hearing before the Tribunal, the applicant stated that he could not go home as his name was on the arresting list because he “was doing things for the religious activity” in exposing the corruption as “in the pamphlets it says based on the Roman Catholic, the Bible told us how to behave, how to be a good person, but that official, he did the wrong thing.  So that’s the comparison.”

4                     The Tribunal, in its reasons for decision affirming the delegate’s decision not to grant a protection visa, doubted the applicant’s credibility in respect of several matters which were said to bring him within the definition of “refugee” in Art 1A of the Convention..  In particular, the Tribunal did not accept the applicant’s claim to be a practising Roman Catholic.  In this respect the Tribunal said;

“I do not accept that the Applicant is a practising member of the Roman Catholic Church, who has attended services regularly since he was four.  The answers the Applicant gave to both the Delegate and me, when questioned about his general religious knowledge showed only the most basic appreciation of Christianity, let alone Catholicism.  His knowledge of the bible appeared non-existent, but he did appear to have a limited understanding of the resurrection.  I cautioned myself, when considering his evidence, that I could not expect a high level of knowledge of Catholic teaching from a person of the Applicant’s background.  His statements that he had never eaten or drunk anything while at Mass, and his assertion that a female accountant was the Bishop of his Roman Catholic Church, led me to conclude that he was not, and had never been a practising Roman Catholic.  The celebration of the Mass involves the consumption of bread and wine, believed to be trans-substantiated into the body and blood of Christ.  Similarly, the Roman Catholic Church, worldwide, is stout in its resistance to women clergy.  The Applicants assertion that he has never eaten or drunk anything while at Church is utterly inconsistent with his assertion that he is a practising Catholic who regularly attended mass.  His statement that the Bishop of his Church was a female underlines the falsity of this assertion.”

5                     The Tribunal also questioned the consistency and accuracy of the applicant’s evidence, particularly in relation to the distribution and editing of the anti-corruption brochure, his accounts of the arrest of people for publishing and distributing the brochure and his introduction of new facts at the hearing.  The Tribunal concluded;

“All of these factors combined:  the inconsistencies, the previously unstated details, the errors attributed to mistakes in translation, the applicant’s apparent desire to change the emphasis away from religion, and my conclusions on the issue of the Applicant’s claim to be a dedicated Catholic, led me to conclude that the Applicant’s evidence could not be relied on.”

6                     As a result, the Tribunal found, given its finding that he was not and never had been a practising Catholic, that the applicant would not suffer from persecution on the ground of religion if returned to China.  In relation to the applicant’s claims of a well-founded fear of persecution by reason of his political opinion, the Tribunal stated;

“First, I should again make it clear that I do not accept the Applicant’s evidence that he gathered information for or distributed such a brochure and, on that basis alone, I am satisfied that the Applicant does not have a well-founded fear of persecution should he return to China on the basis of imputed political opinion.  Even if that were not the case, the country information available to the Tribunal indicated that the Chinese Government has embarked on a large anti-corruption drive, and is encouraging the reporting of and prosecution of corrupt officials.  The Applicant’s evidence is entirely inconsistent with this.  If the Applicant had distributed a brochure as he claims, given the anti-corruption movement in China, I am satisfied that the Applicant would not have a well-founded fear of persecution in the reasonably foreseeable [sic] should he return to China on the basis of a political opinion imputed to him.”

7                     The Tribunal also dismissed the applicant’s claim of a fear of persecution on the ground of his membership of a particular social group, being the group that distributed the brochures, stating that it rejected his evidence in relation to the brochures.

8                     Finally, the Tribunal considered whether the applicant had a well-founded fear of persecution by reason of the fact that he had left the PRC illegally, using a false Indonesian passport to travel to Indonesia and then to Australia.  The Tribunal acknowledged the existence of country information indicating a real chance that the applicant might be prosecuted and punished for illegally departing the PRC.  However, in the Tribunal’s view that would be a penalty imposed pursuant to a law of general application and not persecution for a Convention reason.  Moreover, it found;

“There is nothing in the information available and evidence before me which indicated that the Applicant’s profile is such that he is likely to attract the attention of the Chinese authorities.  He has not been involved in high profile political dissent either in China or Australia, and it appears the principal illegality he has participated in is receiving and using a false passport in order to leave China.  On the information available to the Tribunal he does not have the sort of political profile which would motivate the Chinese authorities to act harshly against him.

…

Even if I concluded that because of his illegal departure the Applicant would face punishment sufficiently serious to amount to persecution, I do not accept that it would be for a Convention reason.  There is no evidence before me that would indicate the Applicant is a member of any particular social group, or that there is another Convention reason, that would lead to him being differentially treated when being punished for illegally departing.”

Grounds of review

9                     At trial the applicant argued that the Tribunal had not followed a procedure required by the Act in that it had failed, contrary to s 430(1), to set out its findings on material questions of fact or to refer to the evidence upon which those findings were based.  That failure was said to be a reviewable error of the kind described in s 476(1)(a) of the Act, in that procedures that were required by the Act to be observed in connection with the making of the decision, had not been observed.  In support of this contention the applicant relied on the decision of the majority of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Yusuf (1999) 95 FCR 506.  However, since the applicant’s case was heard, the High Court of Australia has published its judgment on the appeal in that case, overturning the Full Court’s conclusions;  Minister for Immigration and Multicultural Affairs v Yusuf  (2001) 180 ALR 1.  The High Court held that s 430(1) does not impose a duty on the Tribunal to make findings on material questions of fact;  rather it requires only the recording of what was found;  Yusuf at 20.  The High Court also held that a failure to comply with s 430(1) does not constitute a breach of s 476(1)(a) as an “alleged failure to make a finding of fact on a material question is not a failure to observe a “procedure…required” by the Act.  If it is an error, it is an error of substance”;  Yusuf at 20.  Accordingly, the applicant’s submissions based on ss 476(1)(a) and 430(1) cannot be maintained.

10                  The applicant also submitted that the Tribunal had fallen into an error of law by incorrectly interpreting the applicable law or incorrectly applying the law to the facts.  In that context, the necessary analysis has been illuminated by the High Court in Yusuf.  In particular, McHugh, Gummow and Hayne JJ stated (at 19-20);

“If the tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error.  The error in such a case will most likely be either an error of law (being an erroneous understanding of what constitutes a well-founded fear of persecution) or a failure to take account of relevant considerations (whether acts of persecution have occurred in the past).”

Their Honours went on to say that if the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in a way that affects the exercise of power, that will constitute an error of law.  They also held that “if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it”;  Yusuf at 22.  The joint judgment goes on to make it clear that the exclusion by s 476(3)(d) and (3) of this Court’s jurisdiction to review a judicially-reviewable decision on the ground of the decision-maker’s taking an irrelevant consideration into account or failing to take a relevant consideration into account in the exercise of a power, applies only to a review on the ground afforded by s 476(1)(d) that the decision was an improper exercise of power.  Thus, the facility for  review for lack of jurisdiction (s 476(1)(b)) and error of law (s 476(1)(e)), is unaffected by the exclusion.  Gleeson CJ agreed with these observations in the joint judgment and suggested that a failure to make a finding on a material question of fact might give rise to a ground of review under a part of  s 476(1) other than par (a).  His Honour said (at [10]);

“By setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction, or error of a kind falling within a ground in s 476(1) other than s 476(1)(a), or may provide some other ground for judicial review.”

It is now convenient to consider the applicant’s contentions in light of these principles.

11                  The applicant claims that the Tribunal fell into error in assessing the level of religious knowledge to be expected of a Catholic in the situation in which the applicant claimed to have found himself.  The applicant contended that the Tribunal, while cautioning itself that it could not expect a high level of knowledge from someone of the applicant’s background, did not determine what level of knowledge could reasonably be expected of a Catholic in the applicant’s circumstances.  The applicant also contended that the Tribunal should, after noting his evidence that he had never eaten or drunk anything at Mass, have made a finding about whether he had ever been admitted to the sacrament of the Eucharist.  However, Yusuf makes clear that the Tribunal is not under a duty to make or set out findings on every material question of fact.  That is not to say that an omission may not be so significant as to reveal an error of law.  However, the alleged omission to which I have just referred is not of that character;  it went to a matter which weighed with the Tribunal in assessing the applicant’s credibility, which is pre-eminently a question of fact for the Tribunal (see eg Re Minister for Immigration and Multicultural Affairs;  Ex parte Durairajasingham (2000) 74 ALJR 405 at 417). 

12                  Counsel for the applicant next imputed to the Tribunal the error of law of not considering whether the Chinese authorities perceived the applicant to be a Roman Catholic.  Notwithstanding the Tribunal’s finding that the applicant is not a Catholic, if the Chinese authorities imputed to him an adherence to that faith and pursued him for that reason, that would be sufficient to give rise to a well-founded fear of persecution.  The question thus raised is whether the Tribunal fell into an error of law by identifying a wrong issue, namely, whether the applicant was a Catholic according to its own tests of membership of that Church rather than whether the Chinese authorities perceived him to be a Catholic.

13                  It is to be remembered that the reasons of the Tribunal are not to be dissected minutely “with an eye keenly attuned to the perception of error”;  see eg Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.  On a fair reading of its reasons in the present case, it can be concluded that the Tribunal’s emphatic rejection of the applicant’s claims to be a Catholic carried with it a dismissal of the possibility that the PRC authorities could ever have perceived him to be an adherent to that religion.  That reading is borne out by the Tribunal’s noting the applicant’s desire to “change the emphasis away from religion” and its examination of his alternative claim to fear persecution by reason of an imputed political opinion based on his distribution of the anti-corruption brochure.  That alternative claim was rejected because of the Tribunal’s finding, in the light of country information, that the Chinese Government had itself embarked on an anti-corruption drive.  That finding was as to a pure question of fact and is not reviewable by this Court.

14                  The applicant contended that another error of law had been committed in assessing the applicant’s claimed fear of persecution as a member of a social group, namely persecution for reason of his illegal departure from China.  Although it found that country information “indicates there is a real chance that the Applicant may be prosecuted and punished for illegally departing the country”, the Tribunal doubted that such a prosecution would amount to persecution for a Convention reason.  That doubt was founded on the conclusion of McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 where his Honour said, at 354;

“Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee.  A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens.  The enforcement of a generally applicable criminal law does not ordinarily constitute persecution.”

After noting that passage the Tribunal in the present case went on to say;

“There is nothing in the information available and the evidence before me which indicates that the Applicant’s profile is such that he is likely to attract the attention of the Chinese authorities.” [emphasis added]

15                  The applicant submits that the Tribunal made an error of law in that it applied the test of likelihood or balance of probabilities rather than the “real chance” test.  The High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 has made it clear that the test for determining whether an applicant has a “well founded fear” of persecution, is to ask whether there is a “real chance” of persecution.  Thus, the applicant contends, the Tribunal, in finding that the applicant was not “likely” to attract the attention of the Chinese authorities, misapplied the relevant law.  However, the passage just quoted from its reasons was not the only purported assessment of the risk of persecution faced by the applicant.  A few paragraphs later the Tribunal found that “the Applicant does not face a real chance of persecution for a Convention reason as a result of his illegal departure.”  Accordingly, I am satisfied on reading its reasons as a whole that the Tribunal applied the “real chance” test without error.

16                  In any event, the Tribunal considered that, if the applicant were to suffer any prosecution or punishment as a result of illegally departing from China, that would not be for any Convention reason.  The Tribunal made it clear that there was no evidence before it to indicate that the applicant was of a particular social group or attracted any other Convention reason that would lead to his being treated any differently if punished for departing illegally.  In this regard, the Tribunal had recourse to country information that contained no suggestion that asylum seekers are treated differently upon their return to China from other illegal emigrants.  Counsel for the applicant argued in this context that, as the Tribunal had failed to make a finding as to whether the Chinese authorities perceived the applicant to be a Catholic, it was not open to the Tribunal to conclude that there would be no Convention reason for any punishment which might be imposed on the applicant for his illegal departure.  However, as noted above, the Tribunal’s rejection of the applicant’s claim to be a Catholic carried with it a rejection of the possibility that he would be perceived by the authorities to adhere to that faith.  That finding entailed that the Tribunal excluded the existence of a real chance of persecution for reasons of religion within the meaning of the Convention.

17                  Finally, the applicant sought review on the ground afforded by s 476(1)(g) of the Act that there was no evidence or other material to justify the making of the Tribunal’s decision. By s 476(4)(a) this ground cannot be made out unless the Tribunal was required by law to reach its decision “only if a particular matter was established, and there was no evidence or other material” from which the Tribunal could reasonably be satisfied that the matter was established (s 476(4)(a)).  As developed by Counsel, the argument in the present case amounted to no more than saying that there was no evidence to support certain findings which the Tribunal made.  Those findings were not as to matters which had to be established before the Minister (or the Tribunal standing in his place) could reach a decision to refuse a protection visa.  As I observed in Pei Lan He v Minister for Immigration and Multicultural Affairs [2001] FCA 446 at [37];

“...... the Tribunal was not required by the Act to reach a decision refusing the application only if a particular matter was affirmatively established which, I consider, s 476(4) requires.  The Tribunal was entitled to make a decision refusing the application upon being satisfied that the applicant did not have a well-founded fear of persecution for a Convention reason.  The attainment of that state of satisfaction did not require the affirmative establishment of a particular matter.”

18                  For these reasons the application must be dismissed with costs.

Associate:

Dated:              27 July 2001