FEDERAL COURT OF AUSTRALIA

SZOAC v Minister for Immigration and Citizenship [2010] FCA 1255

THE COURT ORDERS THAT:

1    The appeal be dismissed.

2    The appellants pay the costs of the first respondent.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    The question in this case is whether a decision made by the Refugee Review Tribunal denying the present appellants a protection visa should be set aside. The Federal Magistrates Court concluded that it should not and from that decision the present appellants now appeal (SZOAC and Anor v Minister for Immigration and Anor [2010] FMCA 527). In my opinion, the appeal should be dismissed with costs.

2    The appellants are a 42 year old father and his 19 year old daughter from Fujian which is a coastal province of the People’s Republic of China. Having arrived in this country on a different visa the father subsequently sought a protection visa on the basis that he had a well-founded fear of being persecuted because of his Catholic faith if he were returned to China. The departmental official handling the father’s application was disinclined to accept that the father was a Catholic on a number of grounds which included his unfamiliarity with the Easter and Christmas festivals and his ignorance of the identity of Mary and Joseph or their relevance to the Catholic faith. However, the operative basis for his determination that a visa should not be issued was his conclusion that even if the father had engaged in Fujian in the religious activities which he alleged (which consisted of attending the meetings of an underground church) his profile within that church was, in any event, a low one. This mattered because material available to the departmental official rather suggested that the authorities in Fujian tended “to be liberal in their treatment of underground Christians”. Consequently, the departmental official did not consider that the father had anything “more than a remote chance of facing persecution should he return to China”.

3    The father and daughter sought a review of that decision before the Refugee Review Tribunal. Its conclusions were similar to, although not entirely identical with, those of the departmental official. The Tribunal did not accept that the father was a member of an underground Catholic church at all and it rejected the key factual elements of the acts of persecution upon which the father had relied (which were said to consist of his having been detained by police at a meeting of the underground church, then being incarcerated for 15 days and tortured). It is tolerably clear that the Tribunal took this course because it regarded the father’s account of important elements of Catholic dogma as unacceptably deficient. For example, the Tribunal recorded in the reasons for its decision that during the hearing conducted by it the father had been unable to name the Pope as the world-wide leader of the Catholic Church, or the name of Mary’s husband. Further, the father believed that the ascension of Jesus into heaven was not connected to the events of Easter. The father did make the point to the Tribunal that he was illiterate and poorly educated but the Tribunal did not think that this could sufficiently excuse ignorance of such fundamental items of faith. The failure of the father to have undergone the rite of baptism was also seen as a significant obstacle to the ready acceptance of his account. Like the departmental official the Tribunal noted the existence of material which was apt to suggest that the treatment of underground religious groups in Fujian province was more liberal than in other provinces. Unlike the departmental official the Tribunal used that material as a further reason justifying the conclusion that the father’s account was confabulated. The departmental official, by contrast, had used the material to draw the conclusion that even if the father were a member of an underground church the risk of persecution was low because of the liberal attitude of the Fujian authorities.

4    Despite those similarities the reasons of the Tribunal differed from those of the departmental official in one key respect and this concerned the father’s weekly attendance at a Catholic church in Sydney following his arrival in Australia. Evidence was produced of his presence at that church which included a photograph of him with the parish priest. There was other material too which suggested at least the outward signs of Catholic devotion. The departmental official had understood the significance of that evidence to be directed towards providing circumstantial support for the father’s professed membership of the underground Catholic church in Fujian. The department official thought the photographs at the Australian church appeared staged with the consequence that she did not consider the photographs to be “reliable evidence of [the father’s] attendance at an underground church”.

5    The Tribunal took a different tack with this material. The Tribunal was willing to accept that the father “had had some contact with” the church in Sydney. This raised the possibility that by reason of the father’s conduct since he arrived in Australia he might have had a reasonable fear of persecution on his return to China even if it were the case that he had not been a member of the underground church in Fujian as he claimed. The Tribunal acknowledged that it was “generally accepted that a person can acquire refugee status sur place where he or she has a well-founded fear of persecution as a consequence of events that have happened since he or she left his or her country”. However, it thought that conclusion subject to s 91R(3) of the Migration Act 1958 (Cth). That provision requires the Tribunal “to disregard any conduct engaged in by the person in Australia unless…the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol”. The Tribunal (standing in the shoes of the Minister) did not accept the father was a Christian when he arrived in Australia and concluded that his involvement with the church here was but “superficial”. It followed, in the Tribunal’s opinion, that his involvement with the church in Sydney had not occurred “for any reason other than to strengthen his claim to be a refugee”. Consequently, so the Tribunal reasoned, s 91R(3) required it to disregard the material concerning his involvement with the church in this country.

6    In the upshot, the Tribunal concluded that the father did not consider himself to be a Christian, would not participate in underground church meetings if returned to China and was not, in those circumstances, harbouring a well-founded fear of persecution by reason of religion. As to the daughter, the Tribunal concluded – in much the same way that the departmental official had – that her application was made merely as part of his family and that its fate necessarily tracked the success or otherwise of her father’s application. His having failed so too did hers.

7    It was against that backdrop that the appellants appealed to the Federal Magistrates Court. Review in that Court was statutorily delimited by the provisions of s 476 of the Migration Act 1958. That provision conferred upon it the same jurisdiction as the High Court had under s 75(v) of the Constitution, that is, jurisdiction to entertain suits in which a writ of mandamus or prohibition was sought against an officer of the Commonwealth. Section 474 erects a generously appointed privative clause around, inter alia, decisions made by the Tribunal and nominates such decisions as “privative clause decisions”. The provision seeks absolutely to limit any form of judicial review by stipulating (by s 474(1)) that such a decision:

(a)    is final and conclusive; and

(b)    must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)    is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”

8    The High Court held in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 that that clause, if literally construed, would be beyond the power of Parliament because it would entrench upon the High Court’s constitutional authority under s 75(v) of the Constitution to determine the limits of the law. However, the Court declined to read it literally and noted that the definition of a privative clause decision in s 474(2) was in each case made referable to some species of activity “under this Act” (211 CLR at 505 [74]). Observing the necessity of reading the provision as valid if possible the Court went on to conclude that those words had to “be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act” (211 CLR at 506 [76]). Decisions of the Tribunal afflicted by jurisdictional error are not, therefore, protected by the privative clause and can be reviewed in the High Court. Consequently, they can also be reviewed by the Federal Magistrates Court under s 476(1).

9    It follows that the jurisdiction of the Federal Magistrates Court was limited to the correction of jurisdictional error. Only one matter was suggested by the appellants to constitute a jurisdictional error and that was the manner in which the Tribunal had approached the operation of s 91R(3). It is apparent from the Tribunal’s decision that it understood material which suggested the father had been attending a Catholic church in Sydney to be material which was capable, if accepted, of forming an element in an argument that he had acquired a well-founded fear of persecution on the basis of religion following his arrival in this country (or sur place as it put it). That observation shows that the use to which the material was directed was one which had as its endpoint an argument favourable to the father. That matters when one comes to the text of s 91R(3) which is as follows:

For the purposes of the application of this Act and the regulations to a particular person:

(a)    in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless:

(b)    the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

10    The learned Federal Magistrate applied the High Court’s decision in Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 to conclude that s 91R(3) operated to prevent the use of such material “only to the extent that it would otherwise [support] the visa Applicant’s claim to have a well founded fear of persecution” ([2010] FMCA 527 at [21]). Since that was precisely what the material was to be used for his Honour concluded that the effect of the Tribunal’s determination that the father had only become involved with the church in Australia “to strengthen his claim to be a refugee” meant inevitably that s 91R(3) applied. During the hearing before the Federal Magistrate the father advanced an argument that the Tribunal should have made inquiries of the priest at the church in question. However, the learned Federal Magistrate concluded that the Tribunal was under no duty to make such an inquiry. In the circumstances, his Honour dismissed the application for judicial review of the Tribunal’s decision.

11    From that decision the appellants now appeal. Three errors are identified. The first is that the Federal Magistrate failed to take into consideration all of the appellants’ evidence. However, the appellants do not provide any detail as to what part of the evidence was not taken into consideration or, more seriously, what kind of error was thereby committed. The Federal Magistrate decided the precise legal question raised on the proceeding before him – the s 91R(3) question – however this did not involve any real questions of fact but, instead, just the application of the provision. The additional matter raised at the hearing before the Federal Magistrate – the suggestion that the Tribunal should inquire of the priest itself – likewise did not raise any particular factual matters beyond those which were in fact examined. The Tribunal’s obligation to conduct a review may give rise, on occasion, to the need to make some kind of inquiry: “It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review”: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 [25] per Heydon J. However, in this case the posited inquiry of the priest does not approach the necessary level of criticality. The priest’s evidence would have been, at best, corroborative but there is no reason to think that such corroboration would have had much of an impact on the Tribunal’s approach still less that it could be described as critical. So much must be so in light of the Tribunal’s disbelief of the father on the basis of his ignorance of critical tenets of Catholicism. In those circumstances, there is no substance to this ground.

12    The second matter relied upon is the suggestion that the Federal Magistrate committed an error of law. Again, the error is not identified. However, the Federal Magistrate reached only two conclusions on matters of law and these concerned the operation of s 91R(3) and the extent of any obligation on the Tribunal to inquire of the priest. As to the first, I have no doubt that the Federal Magistrate was correct to conclude that s 91R(3) operated to prevent the Tribunal taking account of the father’s attendance at church in Australia once it had concluded that he had attended only to strengthen his application. That operation is plainly established by the High Court’s decision in Minister for Immigration and Citizenship v SZJGV 238 CLR 642 at 623 [12] per French CJ and Bell J, 669 [64]-[65] per Crennan and Kiefel JJ.

13    The third matter is an allegation that the decision of the Federal Magistrate involved bias. This allegation is not particularised and it is unclear how the argument operates. The reasons of the Federal Magistrate are, however, carefully considered and temperately expressed. Of themselves, I do not begin to perceive even the rudimentary beginnings of such an argument in them. The transcript of the hearing before the Federal Magistrate was not put before me by the appellants so I am unable to determine whether some remark made by him during the course of the hearing may have given rise to an apprehension of bias. However, the appellants bear the responsibility of proving this serious suggestion and it has not been discharged.

Other matters

14    As has already been mentioned the departmental official approached the matter on the basis that, even assuming the father was Catholic, there was only a remote risk of his persecution if repatriated to Fujian. The Tribunal, by contrast, did not approach the matter on the basis of asking what the risk of persecution to the father might be if its conclusion that the father was not Catholic transpired to be wrong. It is true that when the Tribunal is in some doubt about the correctness of its own findings of past facts it must take those doubts into account in determining whether an applicant has a well-founded fear of persecution: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. But the same reference shows this does not apply when the Tribunal was, in fact, clear about its factual conclusions. That was the case here.

15    Finally I should mention the appellants’ submission to me that they really were Catholic, that it was not right that the Tribunal had not believed them and that they were afraid of what might happen should they be returned. This Court’s role, however, is not to second-guess the Tribunal but instead only to superintend the review of jurisdictional error. That being so this Court’s view, of whether the appellants were or are Catholics is irrelevant.

16    In those circumstances, all the arguments advanced in this Court fail. The appeal must be dismissed with costs.

Associate:

Dated:    18 November 2010