FEDERAL COURT OF AUSTRALIA

SZNLJ v Minister for Immigration and Citizenship [2009] FCA 1414

MIGRATION – appellant claimed to face persecution in China due to Christian beliefs and activities – Tribunal disregarded appellant’s attendance at a church in Sydney due to lack of knowledge about the church – Tribunal did not believe appellant was a Christian – whether the Tribunal failed to consider a claim to be a Christian who did not have detailed knowledge of the Scriptures

Migration Act 1958 (Cth) ss 91R, 420

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 applied

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 cited

Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 cited

SZMSS v Minister for Immigration and Citizenship [2009] FMCA 93 distinguished

SZNLJ v Minister for Immigration and Citizenship [2009] FMCA 606 affirmed

VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 cited

SZNLJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 736 of 2009

BENNETT J

2 DECEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant to pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1                          The appellant is a citizen of China, born in 1978, who arrived in Australia on 6 August 2008.  He claimed to fear persecution in China based on his Christian activities and beliefs and his involvement in anti-Three Gorges Dam activities.  The appellant applied for a protection visa, which a delegate of the Minister refused to grant.  The appellant applied to the Tribunal for review of the delegate’s decision.  He was invited to and did attend a hearing on 6 February 2009.  The appellant and a witness attended a further hearing on 12 March 2009.  The Tribunal made a decision affirming the decision of the delegate.  Federal Magistrate Driver dismissed the appellant’s application for review of the Tribunal decision (SZNLJ v Minister for Immigration and Citizenship [2009] FMCA 606).  This is an appeal from his Honour’s decision.

2                          Before the Tribunal, the appellant claimed that he had suffered persecution in China by reason of his involvement in Christian activities and anti-Three Gorges Dam activities.  He claimed to have become a Christian in May 2007 and to have distributed religious materials and the Bible.  He claimed to have been involved with protests by peasants who had migrated due to the Three Gorges Dam project.  He says that he was arrested, detained, tortured and subjected to physical and mental persecution as part of a process called “education through labour” between 1 November 2007 and 31 December 2007.  After this incident, he went into hiding, illegally obtained an Australian visa and fled China.  He claimed that he would be arrested if he returned to China because he had taken part in the underground movement of Christians and distributed religious materials and had helped the Three Gorges Dam peasants in their protests.  The appellant also claimed that after he arrived in Australia, he attended the Christian Assembly of Sydney church in Lidcombe and a Christian church in Auburn.

3                          In view of the matters raised in the appeal, it is relevant to give some further detail of the basis of the appellant’s claims, as recorded by the Tribunal in its decision which, in turn, included the appellant’s statement made in support of his application for a protection visa.

4                          In his application, the appellant stated that from the time he became a Christian in May 2007, he spent almost all of his spare time with Mr Liu, his friend who had spread the Christian Gospel to him, and attended religious gatherings including Bible studying and weekly worship.  Some months after that, he was baptised.  The gathering group of which he became a member which had started with only three people, including himself, was developed into 83 church brothers and sisters including six sub-groups.

5                          The appellant told the Tribunal that he wanted to spread the Gospel with Mr Liu.  He said that he spread the Gospel when they assembled and when they distributed leaflets and the Bible to various people.  The Tribunal questioned the appellant as to what he told people when he spread the gospel.  In response, he stated that he had seen a developer who did not pay construction workers on time and ‘if he had been Christian he would not have done this, they should adhere to the Bible teaching that is they should not steal’.  He also stated that he told residents of the Three Gorges area about stories in the Bible, mainly that God and Jesus had not forsaken them, as well as asking for religious freedom, respect for the constitution and help for the Three Gorges peasants. 

6                          He told the Tribunal that he had read the Bible and explained his understanding of what the Bible said and represented.  The Tribunal asked him if he read or studied anything other than the Bible and the appellant responded that he read Christian News and propaganda materials.  The appellant also stated that he bad been baptised and that other rituals included taking the ‘waiver’ [sic], the grape juice, singing, prayer on a Sunday and studying the Bible.  When asked by the Tribunal whether there were other important rituals during a Christian life, he said confession (or, by reason of translation, perhaps baptism), marriage, prayer in the morning and before meals and prayer and mass on Sundays.

7                          The Tribunal accepted that the appellant was a citizen of China but did not otherwise accept the appellant’s claims, finding that he was not a credible witness and did not appear to know much about Christianity in China.  The Tribunal considered the appellant’s evidence regarding how he came to Australia and his evidence regarding a person called Mr A Long who, he said, had provided assistance to him, as implausible.  The Tribunal also found that the appellant’s lack of knowledge of the church he attended in Sydney meant that it could not be satisfied that the appellant had attended that church other than for the purpose of strengthening his claim to be a refugee.  Accordingly, the Tribunal disregarded his conduct in Australia pursuant to s 91R(3) of the Migration Act 1958 (Cth)(the Act).

8                          The Tribunal concluded that, as to the appellant’s claim that he was a Christian:

·          the appellant’s responses at the hearing did not convince it that he knew much about Christianity in China;

·          the appellant was not able to articulate in any meaningful way why he converted to Christianity and how he himself spread the Gospel;

·          the appellant’s reasons for his own conversion were vague and therefore unconvincing;

·          his evidence in relation to his alleged efforts to spread the Gospel were not convincing;

·          it was not convinced that he was a practising Christian who converted Three Gorges migrants to Christianity or distributed Bibles or promotion pamphlets; and

·          it did not believe that he attended religious gatherings, including Bible study and weekly worship, or that he was baptised in China.

9                          The Tribunal concluded that, based upon the appellant’s overall lack of credibility, it was not satisfied that the appellant had suffered past harm as claimed.  The Tribunal found that the appellant did not hold any Christian convictions and that there was no real chance of the appellant being persecuted now or in the foreseeable future.

THE FEDERAL MAGISTRATE’S COURT

10                        The grounds of the appellant’s application to the Federal Magistrate’s Court were:

·          breach of s 425 of the Act;

·          that the Tribunal employed a reasoning process which was irrational/illogical/unreasonable; and

·          breach of s 424A(1) of the Act.

11                        Federal Magistrate Driver was satisfied on the material before him, including the Tribunal’s hearing record, that the hearing afforded the appellant was a real one and that there was no breach of s 425.  His Honour did not accept that the Tribunal’s decision was illogical or unreasonable.  Rather, his Honour concluded that the Tribunal had a made a reasoned assessment of the appellant’s claims and evidence and found a lack of credibility in them.  His Honour concluded at [8] that the adverse credibility findings made by the Tribunal were open to it on the material before it.

12                        Federal Magistrate Driver also found that the challenge based on s 424A of the Act had no substance.  Even though his Honour was of the view that the country information referred to by the Tribunal did not “figure” in the findings and reasons ultimately made by the Tribunal, his Honour observed that, in any event, there was no obligation on the Tribunal to disclose that information by reason of s 424A(3)(a) of the Act.  His Honour also expressed the opinion that the Tribunal probably exceeded its obligations pursuant to s 424AA of the Act.  That did not mean, his Honour observed, that the Tribunal exceeded its obligations such that there was any indication of error going to jurisdiction but merely that the Tribunal’s approach enhanced the fairness of the hearing opportunity.

13                        Two unpleaded grounds of review were raised during the hearing before Driver FM.  The first was that the appellant said that he was disadvantaged because he had not had the benefit of advice under the Minister’s Panel Advice Scheme.  While the appellant had asked to participate in the Scheme and a panel advisor had received the court book from the Minister’s solicitors, it appeared that the advice had not been given.  Federal Magistrate Driver noted that the appellant had told him from the bar table that, while he had received the letter from the Court concerning the advisor, he did not understand the contents of it and did not ask his migration agent or anyone else to explain the letter to him.  His Honour considered that in the circumstances as presented to him, the Court and the Minister had done all that they could to assist the appellant and that the non-receipt of advice was not a reason to delay the Court’s decision.

14                        The appellant also alleged bias on the part of the Tribunal during the hearing in the Federal Magistrate’s Court.  As noted by Driver FM, the appellant supported this contention by detailed disagreement with the Tribunal’s reasoning process.  His Honour explained to the appellant that even if the appellant’s claims before the Tribunal were true and the Tribunal made mistakes in rejecting those claims, that would not establish bias.  In any event, his Honour found no evidence of the Tribunal’s presiding member having a closed mind or even of a reasonable apprehension that the presiding member did not bring an unprejudiced mind to the review.  That is, Driver FM did not accept that the Tribunal was biased simply because the appellant disagreed with the Tribunal’s reasons.

THE NOTICE OF APPEAL

15                        The grounds in the notice of appeal are:

1.         The Federal Magistrate erred in law.

2.         The Federal Magistrate was wrong in finding that the Refugee Review Tribunal acted properly in its findings.

16                        The grounds are unparticularised.  However, the appellant has filed written submissions which set out grounds of appeal and particulars of those grounds.  They do not accord with the filed notice of appeal but the Minister takes no issue with that and has addressed the appellant’s written submissions.

THE APPEAL

Ground 1 – section 420

17                        The appellant submits that the Tribunal failed to comply with s 420 of the Act.  He submits that if the Tribunal did make a significant mistake and that if a differently constituted Tribunal might have reached a different decision, then it must be clear that the Tribunal failed to act in accordance with s 420.

18                        Section 420 of the Act is a facultative non-restrictive provision.  Its purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law and regarded as inappropriate to tribunals (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49] per Gleeson CJ and McHugh J).  Section 420 informs the grounds of review specified in s 476 of the Act but has only an indirect effect on review proceedings (Eshetu at [76] per Gaudron and Kirby JJ).  That is, the section does not impose procedures the breach of which gives rise to a ground of review (Eshetu at [77]) per Gaudron and Kirby JJ).

19                        In any event, even if the appellant were to establish that the Tribunal made a “significant mistake”, that does not necessarily establish jurisdictional error.  The fact that, theoretically, another Tribunal may have reached a different decision on the claims as presented by the appellant does not mean that the Tribunal failed to comply with s 420.

20                        The ground of appeal based on a contravention of s 420 is not made out.

Ground 2 – access to legal advice

21                        The appellant submits that the Federal Magistrate failed ‘to create a fair chance for [him] to seek [his] judicial review for the Tribunal’s decision’.

22                        This ground concerns access to legal advice through the Panel Advice Scheme.  It is apparent from the Federal Magistrate’s decision that the appellant had asked to participate in the Panel Advice Scheme.  A panel advisor had been provided and the Minister had sent the requisite material to him. The advisor was contacted by the court on 8 May 2009.  He advised that he had thought himself able to provide advice by 9 June 2009 and that he would send back an “Advice Given Form” to the Registry once advice had been given.  It did not appear that the form had been returned prior to the hearing on 26 June 2009.  His Honour said that while in his view it was unfortunate that the appellant had apparently not received the advice pursuant to the Scheme, the Court and the Minister’s solicitors had done what they could do to facilitate the provision of the advice. 

23                        As recorded in his Honour’s reasons, the appellant accepted that he had received the letter from the Court concerning the allocation of a panel advisor but said that he did not understand the contents of it.  His Honour said that for reasons best known to the appellant he did not ask his migration agent or someone else to explain the letter to him.  On the hearing of the appeal, the appellant said that he had talked about the letter with his migration agent who said that counsel would contact him and that he did not know how to make contact himself.  These two versions are obviously inconsistent but it is not necessary to resolve the inconsistency.

24                        It is not the duty of the Federal Magistrates Court to ensure that those appearing before it obtain legal advice.  The appellant was represented by a migration agent, including at the time of receipt of the letter concerning the Panel Advice Scheme.  The letter stated that if the applicant had not heard from counsel within three weeks after the receipt of the green book from the Court, the applicant should contact counsel.  The appellant did not do so.

25                        The appellant does not challenge the fact that the Federal Magistrates Court and the Minister’s solicitors had done what they could in relation to the provision of the advice.  However, I considered that a short time should be allowed to enable the panel advisor to provide the advice and for the appellant to provide any further written submissions based upon that advice.

26                        The Court has received confirmation by the panel advisor that he met with the appellant on 9 November 2009 and provided written advice to the appellant on 12 November 2009.  Further written submissions have been received from the appellant and written submissions in reply have been received from the Minister.

27                        That disposes of this ground of appeal.

Ground 3 – Bias / apprehended bias

28                        The appellant submits that the Tribunal member had a closed mind or that there was a reasonable apprehension that she did not bring an unprejudiced mind to the review.  The particulars and submissions given in support of this ground contained in the appellant’s first set of submissions all raise factual matters concerning the appellant’s claims.  In his further written submissions, the appellant submits that the Tribunal failed to provide him with a genuine opportunity to speak generally about his faith at the Tribunal hearing and that it had already formed a firm view before he was questioned about his faith because it was affected by incorrect independent country information.  He refers to SZMSS v Minister for Immigration and Citizenship [2009] FMCA 93 in support of this submission.

29                        It is apparent that the appellant disagrees with the factual findings of the Tribunal.  That does not provide a basis for the serious allegation of actual bias, nor does it indicate that the Tribunal had a mind ‘incapable of alteration’ or that ‘a fair minded lay observer might reasonably apprehend that the judge [or Tribunal] might not bring an impartial mind to the resolution of the question to be decided’ (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]; VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [25] citing Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425).

30                        Contrary to the appellant’s submission, the Tribunal’s reasons at [29] to [33] indicate that the appellant was given the opportunity to speak generally about his faith at the Tribunal hearing (cf SZMSS at [12]).  For example, the appellant recounted his conversion to and practice of Christianity and explained his understanding of the Bible.

31                        The Tribunal asked the appellant why he converted to Christianity and what he told people when he spread the gospel.  These questions were largely responsive to the matters raised by the appellant.  Other questions asked by the Tribunal concerned the appellant’s own practice of Christianity in China and whether he had read or studied anything other than the Bible.  Otherwise, the Tribunal asked the appellant a question about each of the second coming and the appellant’s view of creation.  The appellant answered each question.  There is no indication in the Tribunal’s reasons that it asked these questions in a manner that suggested pre-judgment or a closed mind (cf SZMSS at [15]).  Questions exploring the appellant’s knowledge of his claimed faith, on which he relied as a basis for a well-founded fear of persecution, do not of themselves indicate bias or a closed mind or a failure to consider the appellant’s claims.

32                        The Tribunal then turned to the appellant’s knowledge of the Church he attended in Sydney.  It put a number of questions concerning the beliefs and practices of the Church to the appellant and to Mr Ng, known as Brother Wu, who had accompanied the appellant to the hearing.  The Tribunal said that it had done some reading about the Church and it appears that such reading may have informed the Tribunal’s questions to the appellant and Mr Ng.  However, this does not indicate bias or a closed mind.

33                        The ground of appeal based on an allegation of bias or apprehended bias by the Tribunal is not made out.

Did the Tribunal fail properly to consider the appellant’s claim?

34                        The appellant raised a further matter at the hearing.  He noted that the Tribunal made its finding that he was not a Christian based on his lack of detailed knowledge of the Bible and of the Church he had attended in Sydney.  He said that he only converted to Christianity recently, in 2007, and never claimed to have in depth knowledge of the Bible. He said that he was not a Christian who based his faith on detailed knowledge of the Scriptures but that he was simply a follower of Christ.  He said, in effect, that the Tribunal failed to consider his claim to be such a Christian.

35                        While this ground raises interesting questions of philosophy, it does not accord with the appellant’s claims as made to the Tribunal.  The appellant told the Tribunal that he had studied the Bible and that Bible study was one of the tenets of Christianity that he followed.  The Tribunal tested those assertions.  The Tribunal considered whether it was satisfied that the appellant was a Christian in China.  The Tribunal’s conclusions were not based only or primarily on a failure on the part of the appellant to answer detailed questions about Christian beliefs and practices.  If they had been, there would be some merit in the appellant’s ground of appeal that the Tribunal failed to consider his claim that he was a recent convert to Christianity and that being a Christian or a follower of Christ, as the appellant claimed, did not necessitate a detailed knowledge of the Scriptures. 

36                        The Tribunal considered the appellant’s Christian faith in two contexts: in China and in Australia.  The transcript of the Tribunal hearing is not in evidence and the course of the hearing can be taken from the Tribunal’s reasons.  The nature of the discussion at the hearing regarding the appellant’s Christian beliefs and practices in China and more generally has already been set out earlier in these reasons (e.g. at [4]–[6], [30] and [31]).

37                        The Tribunal also questioned the appellant regarding the Church he attended in Sydney.  It inquired whether it was different from other Christian Churches and why he had chosen that Church.  The appellant stated that his Church in Sydney had similar beliefs to what he believed in China but did not know whether this Church was different to other churches in Australia because he had never been to another church.  He also said that he was led to the Church by a person he lived with.  The Tribunal then questioned Mr Ng, who was a leader of the Church.  Mr Ng explained how the Church was different from other Christian churches but also said that while they had Watchman Nee, about whom they talked and whose books they studied, the young people did not know who Watchman Nee was.  The appellant did not know about him and said he did not know who founded the Church.  The Tribunal then put to the appellant its concerns that he did not appear to know much about his present Church.

38                        The Tribunal found the appellant not to be a credible witness.  This was not because of his knowledge of Christianity but because of the account that he gave about how he came to Sydney and the involvement of Mr A Long.  The Tribunal then considered the appellant’s evidence of his knowledge of the Christian Assembly of Sydney.  The Tribunal found that the appellant lacked knowledge and had a very poor understanding of his Church.  That lack of knowledge of itself did not cause the Tribunal to reject the appellant’s claim that he was a Christian.  The Tribunal did not accept that a person who has purportedly been prepared to risk detention for his religion, as the appellant claimed, would continue with the organisation without asking questions about the very specific practices of the church, which included Watchman Nee’s book, the non-celebration of Christmas and its stance against the system of priests.  The Tribunal was concerned that the appellant displayed a lack of understanding of this “basic tenet” of this Church’s teaching when he referred to Mr Ng as a priest.

39                        The Tribunal concluded that, even though the appellant had attended the Christian Assembly of Sydney since his arrival in Australia and may have assembled with Christians in Auburn and read Christian News, he had not done so other than for the purposes of strengthening his claim to be a refugee.  The Tribunal said that it disregarded this conduct, in accordance with its understanding of s 91R(3) of the Act.

40                        As to the appellant’s claim that he became a Christian in China, the Tribunal took into account that the appellant did not know much about Christianity in China.  However, the basis for the Tribunal’s finding that the appellant does not hold Christian convictions was not based so much on his lack of knowledge as it was based upon the finding of overall lack of credibility (based on the account concerning Mr A Long) and his inability to articulate meaningfully why he converted to Christianity and how he himself spread Christianity. 

41                        The Tribunal did consider the appellant’s claim to be a Christian based on the activities he claimed to have engaged in, without presuming that a genuine Christian must have detailed knowledge of the Bible or Christian practices.  The Tribunal did not reject the appellant’s claims for lack of knowledge but because of its findings as to the appellant’s own account of his conversion and activities in China and its assessment of his credibility.

42                        The Tribunal did not fail to consider the appellant’s claims, as made to it.

43                        For the sake of completeness, although not raised by the appellant in the appeal, I agree with Driver FM that, in referring to independent country information not put to the appellant, the Tribunal did not contravene s 424A(1) by reason of s 424A(3)(a) of the Act.

Conclusion

44                        It follows that the appellant has not demonstrated any error that would lead to the conclusion that the Tribunal failed to exercise or exceeded its jurisdiction.  No error has been identified in the reasons of the Federal Magistrate nor can any other error of law be discerned from the decision of the Tribunal.  The Tribunal identified with particularity all of the appellant’s claims and the supporting material before it.  The Tribunal explored his claims with him at the hearing.  It raised with the appellant the inconsistencies in his evidence and doubts over his claims.  The Tribunal made findings based on the evidence and material before it and applied the correct law to its findings in reaching its conclusion that it was not satisfied that the appellant was a person to whom Australia has protection obligations under the Convention.

45                        The appeal should be dismissed with costs.

Associate:

Dated:         2 December 2009