FEDERAL COURT OF AUSTRALIA

MZYFS v Minister for Immigration and Citizenship [2010] FCA 1325

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

the appeal

1    This is an appeal from a judgment of the Federal Magistrates Court, which was delivered on 18 December 2009, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).

2    The grounds of appeal were stated as:

1.    RRT has bias against me and did not make fair decision for my application

2.    I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge refused application on my hearing date. It is not fair.

3.    I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. I fear to go back to China. Chinese Government does not have religious freedom.

3    In an affidavit filed in support of his appeal, the appellant said:

1.     My application for a protection visa was refused by DIAC and RRT. I lodged my application to be reviewed at Federal Magistrate Court. The judge did not consider all information provided fairly.

2.    After I was refused, I waited for the order from the court. I also need find someone to translate for me. So I delayed to lodge application to the court.

3.    The judge did not consider my risk to return to China. I am a Christian. My case was dismissed. It is not fair.

4    The appellant did not file any written submissions in support of the appeal. At the hearing of the appeal, he was unrepresented, although he had the assistance of an interpreter. The first respondent appeared by counsel, who relied on written submissions dated 23 November 2010. The second respondent entered a submitting appearance.

5    For the reasons stated below, I would dismiss the appeal.

BACKGROUND

6    The appellant is a citizen of the Peoples Republic of China. He arrived in Australia on 30 August 2007 on a sponsored family visitor visa. On 12 October 2007 he applied for a protection visa.

7    The appellant claimed refugee status on the basis that he would be persecuted in China on account of his Christian beliefs and religious activities. In his visa application, he stated amongst other things that:

I came to Australia to visit my sister’s family.

I will definitely continue with the involvement with our local family church and I can be arrested and tortured again by Chinese Public Security Bureau officers.

…

[T]he authority will not protect me instead they will persecute me. The authority is trying to root out our local family church in China.

8    The appellant’s visa application was supported by a statement dated 9 October 2007, in which the appellant described, amongst other things, his church group in China. In this statement the appellant said that he was a member of the “Local Family Church”, or “Local Church”, the members of which were also sometimes known as “Shouters”. The appellant claimed, amongst other things, that he “had started to attend our local family church gatherings since [he] was [a] very young boy” and that he “learned how to pray, how to sing hymns ... at [a] young age”. He described being baptized at twelve years of age. He also claimed that, while attending church meetings, he had been arrested by the Public Security Bureau officers and detained for some weeks in September 2002 and in July 2006 and mistreated whilst in detention. On the first occasion, he claimed that he was released after being required to make a statement in which he agreed to keep away from the Local Church. On the second occasion, he claimed that he was released with a fine. He said that, if he returned to China, he would continue with underground church activities and feared further persecution.

9     On 19 November 2008 a delegate of the first respondent refused to grant the appellant a protection visa, on the basis that the appellant was not a person to whom Australia owed protection obligations under the Refugees Convention. The appellant applied to the Tribunal for a review of the delegate’s decision. The Tribunal affirmed the delegate’s decision on 17 July 2009. On 19 August 2009 the appellant filed an application for judicial review in the Federal Magistrates Court. This application was heard on 18 December 2009, and it was dismissed on that date: see [2009] FMCA 1302.

TRIBUNAL DECISION

10    On 17 July 2009, the Tribunal affirmed the delegate’s decision. The Tribunal concluded that the appellant did not have a well-founded fear of persecution for a Convention reason. In summary:

1.    The Tribunal did not accept that the appellant or his family were members of the Local Church in China or that the appellant had practised as a Shouter in China. It did not accept that the appellant was raised in a Christian household. The Tribunal found that he had fabricated his claims for the purposes of his protection visa application.

2.    The Tribunal noted that the appellant showed little and superficial knowledge about the Local Church and Christianity; that his knowledge was “patchy and unforthcoming when the questions required anything more than very basic information”; and that he showed “very scant knowledge of the fundamental teachings of the Local Church”. Since the Tribunal did not accept the appellant’s claims of involvement with the Local Church, he did not accept that he was “ever arrested and detained or tortured for reasons of illegal religious activity in China”.

3.    The Tribunal referred to “significant difference or inconsistencies in the information he provided in his written statement submitted with the protection visa application and that which he provided during an interview with the Department”. The Tribunal did not accept the appellant’s explanation that he had been drinking on the previous night and was still under the influence of alcohol or that his nervousness relevantly affected him. The Tribunal also found the appellant’s responses to the Tribunal’s letter of 2 March 2009 (pursuant to s 424A of the Migration Act 1958 (Cth)) “similarly implausible” and did not accept them “as resolving the significant inconsistencies … identified both during the hearing and in the 2 March 2009 letter”.

4.    The Tribunal accepted that the appellant may have attended the Local Church in Melbourne and, by so doing, had familiarised himself “with aspects of the Christian faith and the teachings of the Local Church”. In conformity with s 91R(3) of the Migration Act, however, the Tribunal disregarded this conduct, noting that it considered this to be conduct in which the appellant had engaged for the purpose of strengthening his claim to be a refugee.

5.    The Tribunal did not accept that the documents provided in support of the appellant’s claims of arrest and detention were reliable, taking into account a report from the Department of Foreign Affairs and Trade, inconsistencies between the address as stated in the documents and the relevant address as disclosed in his evidence, and “different and inconsistent” accounts about when he was arrested and how he obtained the documents.

6.    The Tribunal also noted that the appellant had obtained a passport and departed China without incident, referring to country information that a person who had been detained for any period or was the subject of other administrative penalties would have a police record; that a person who was considered harmful to state security was likely to be denied a passport; and that illegally obtaining a passport would be highly risky and expensive.

7.    While the Tribunal accepted that the appellant had paid a fine for having a second child, it did not accept that he was treated differently from others in Fujian Province because of his religious beliefs. The Tribunal found that there was no indication that there would be any further consequences to the appellant in respect of having a second child. The Tribunal was satisfied that the appellant did not face a real chance of further harm in the reasonably foreseeable future for reasons of his second child and, as a result, being a member of a particular social group. In respect of the appellant’s claim that he would suffer further persecution if his wife breached China’s family planning policy by becoming pregnant again, the Tribunal was not satisfied that any such fear was Convention-related.

11    On 19 August 2009, the appellant applied to the Federal Magistrates Court for review of the Tribunal’s decision.

FEDERAL MAGISTRATES COURT

12    In his review application, the appellant asserted:

1.    I have told the truth regarding my predicament. RRT failed to consider my statement fairly.

2.    RRT refusal decision is not fair. They use more negative cases to refuse my application.

3.    RRT failed to assess my risk to return to China. I am Christian. I will be put in jail if I return.

13    In a supporting affidavit, the appellant said:

1.    I was born in China. I refused to go back to China as Chinese [law] forbids me to keep my religious. I need religion freedom.

2.    I am Christian, [and] I will be put in jail again if I return to China. Chinese government doesn’t want people to believe [in] God. They are Godless.

14    At the hearing before the Federal Magistrate, the appellant, though unrepresented, orally explained his grounds of review (through an interpreter).

15    First, the appellant complained that the Tribunal’s decision was not fair because he was a genuine member of a religion, and some fellow members had received visas while he had not. The learned Federal Magistrate addressed this submission in her reasons, when her Honour said, “it is by no means clear to the court that there was any error in the Tribunal’s decision in this case, simply because some other people in somewhat similar circumstances might have been granted a visa”.

16    The appellant also claimed that he was very nervous during the Tribunal hearing. The Federal Magistrate accepted that this may have been so:

However, the applicant did have the benefit of the assistance of a migration agent, and he was given two opportunities to seek an adjournment, and was given an opportunity to suspend the hearing while he conferred with his migration agent. The Tribunal decision summarises the applicant’s evidence. It does not indicate that the applicant was unable to respond reasonably to the questions that were put to him. The applicant has not provided a transcript or any other material on which the court could find that the applicant had been so nervous at the interview that it seriously undermined the opportunity he had been given to have a hearing.

17    The Federal Magistrate rejected the appellant’s submission that he had not received the Tribunal’s reasons, because the reasons were attached to his affidavit. The Tribunal also put to one side his submissions about the persecution that he might face if he returned to China, because this invited an impermissible inquiry into the merits review.

18    The Federal Magistrate rejected the appellant’s argument that he was “forced quite badly” during the Tribunal hearing, holding that there was nothing “before the court which would tend to suggest that the Tribunal’s hearing was so oppressive as to have undermined the applicant’s right to a hearing”. The Federal Magistrate also rejected the appellant’s claim that the Tribunal ignored his arguments regarding China’s one child policy.

19    In regard to the appellant’s claim that he had “told the truth”, her Honour declined to interfere with the Tribunal’s credibility findings, upon the well-accepted basis that it was not for a reviewing court to interfere with a credibility finding, except in limited circumstances, none of which applied in the appellant’s case. In relation to the appellant’s claim that the Tribunal “use[d] more negative cases”, the Federal Magistrate noted that the Tribunal had properly referred to various authorities and explained that the Tribunal was correct to refer to relevant authorities whether they were helpful to the appellant’s claim or not.

20    The Federal Magistrate concluded that the Tribunal’s decision was careful, thorough and considered. Her Honour observed that, as the Tribunal found that the appellant was not a Christian, he could not be subject to persecution in China for that reason. The Federal Magistrate made it clear that the appellant’s status as a Christian or otherwise was a matter for the Tribunal.

21    The Federal Magistrate concluded that the appellant’s submissions did not show that the Tribunal had made any jurisdictional error, and therefore her Honour dismissed the application with costs.

APPEAL TO THIS COURT

Grounds raised by the appellant

22    For the reasons set out below, the notice of appeal, the appellant’s supporting affidavit and his submissions at the hearing of the appeal did not disclose any error on the Federal Magistrate’s part. Nor did they disclose any jurisdictional error on the Tribunal’s part.

23    There was nothing before this court to support the allegation that the Tribunal was biased against the appellant and did not make a fair decision. In this regard, it is sufficient to refer to the matters set out in the reasons for judgment of the Federal Magistrate. As her Honour noted, a migration agent assisted the appellant; and the Tribunal gave him two opportunities to seek an adjournment as well as an opportunity to suspend the hearing to allow him to confer with his migration agent.

24    At the hearing of the appeal, the appellant reiterated that other visa applicants in a similar position to him had been granted protection visas. However, this proposition is difficult to assess. Those other cases were not before the Federal Magistrate or this court. It is possible that the dates upon which any such applications were made and accepted differed from the present case; or that those other cases concerned different parts of China. These matters might be relevant to the outcome of an application, bearing in mind changing country information. There may well have been other relevant differences; and that the cases to which the appellant referred were decided on bases that were inapplicable in his case. It has not been established that the evidence and other material on which the Tribunal relied in this case was comparable to that relied on by the Tribunal in other cases. Nor that the findings made in other cases were comparable to those made by the Tribunal in this case. The appellant’s complaint that he has not been dealt with in the same way as the other applicants to which he referred is not made out; and, even if it were, it cannot be assumed that there would be jurisdictional error established.

25    Before me as before the Federal Magistrate, the appellant claimed that he was nervous before the Tribunal and, in effect, that his nervousness had affected the evidence he had given to the Tribunal. For the reasons stated by the Federal Magistrate, this claim must also fail: see [2009] FMCA 1302 at [14], set out at [16] above.

26    Bearing in mind the above considerations, the reasons for judgment of the Federal Magistrate demonstrate that her Honour considered all that the appellant said carefully and conscientiously. The proper application of the law required her Honour to reject his submission that the Tribunal was biased against him and did not treat him fairly.

27    Before the Federal Magistrate and before me, the appellant also stated that he feared to go back to China because he would be denied religious freedom and be persecuted for his religious beliefs and activities. To evaluate this proposition, I would need to examine the merits, including the evidence and other material upon which the appellant relied in support of his claim. I am unable to do this. As both the Federal Magistrate and I sought to explain orally to the appellant, a reviewing court is unable to inquire into the merits of a protection visa application. Similarly, on an appeal from the Federal Magistrates Court, this Court cannot inquire into the merits. A reviewing court can intervene only if jurisdictional error is shown on the Tribunal’s part. Nothing before the Federal Magistrate indicated that there had been any such jurisdictional error in the appellant’s case. There is thus no basis disclosed in this connection for the appellant’s claim that the Federal Magistrate did not treat him reasonably and according to law.

28    On the hearing of the appeal, the appellant also submitted that he had in his possession documents evidencing his arrest and detention and that the Tribunal had been wrong to disbelieve him. Further, the appellant contended that he had only obtained his passport because he had relatives who were able to fix this up for him. As I sought to explain to the appellant orally at the hearing, factual and evidentiary matters such as these were for the Tribunal to determine. The Tribunal considered the documents said to relate to his arrest and detention, as well as matters connected with the issue of his passport and departure from China. It formed a view on these matters adverse to the appellant; and it was not open to the Federal Magistrate to disturb the Tribunal’s findings in this regard. Nor is such a course open to this court on an appeal from the Federal Magistrate.

29    Also at the hearing of the appeal, the appellant maintained that the Tribunal had not properly dealt with the issue of the one child policy. Again, as I sought to explain to the appellant at the hearing, there is no discernible error in the way in which the Tribunal dealt with this issue, which was in conformity with the decision of the High Court in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225.

An additional matter

30    The appellant did not refer to the decision in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 (‘SZLSP’). Nor did any of his submissions touch on the matters considered in that case. Notwithstanding this, as the first respondent properly noted in written submissions and at the hearing of the appeal, the appeal had previously been adjourned by the Appeals Registrar pending the decision in SZLSP.

31    In SZLSP the Court was asked to consider a case in which the only reason stated by the Tribunal for disbelieving a claim that an applicant for a protection visa practised Falun Gong in China was that it considered that the applicant’s answers to its questions about “basic elements of Falun Gong belief” to be not “correct”. In that case, the Tribunal’s reasons did not advert to any particular questions and answers and did not disclose the source of the Tribunal’s understanding of Falun Gong doctrine. Nor did those reasons reveal why the Tribunal considered the answers given by the applicant to be deficient. See SZLSP at [9]. As stated in my reasons for judgment in that case, in the circumstances, “[o]n the face of the Tribunal’s written statement, the Tribunal’s conclusion that the … answers were not correct was not grounded in probative material and logical grounds”: see SZLSP at [72]. As I explained there the Tribunal’s reasons did not disclose:

… any material by reference to which a rational decision-maker could have evaluated the … answers; no such material can be found in the record; and no other logical basis justifies the Tribunal’s finding. In these the circumstances, it is appropriate to infer that the Tribunal’s decision-making was arbitrary and irrational such as to constitute jurisdictional error.

See also Justice Rares at [87]-[88], [98].

32    In SZLSP I stated, at [37]-[38], that:

[The] authorities indicate that the question whether applying an “arbitrary standard” of knowledge of religious doctrine constitutes jurisdictional error is a complex one. I accept that a Tribunal which relies on the premise that “every believer or follower of [a religion] must have certain knowledge or provide certain answers concerning aspects of that religion” may well fail to engage with the question whether the particular applicant before it is in fact a follower of the religion, and so fall into jurisdictional error. There is, however, a difference between: (a) operating from the premise that all believers will have certain specific knowledge; and (b) concluding, after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant’s lack of knowledge indicates that he is not a genuine adherent of a religion. Further, it must be remembered that the Tribunal’s written reasons typically represent a Tribunal’s concluded view after considering all the evidence. If a Tribunal ultimately finds that an applicant’s lack of particular knowledge is a reason to reject his claim, this finding does not necessarily mean that the Tribunal approached the matter from the outset on the a priori basis that the applicant was required to demonstrate that knowledge.

Absent an explicit statement in the Tribunal’s reasons that an applicant must meet a particular standard of knowledge to establish that he is a follower of his claimed religion, it may not always be possible to distinguish a potentially illegitimate a priori approach from a legitimate exploration of an applicant’s knowledge. As the analysis in WALT [v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2] and SBCC [v Minister for Immigration & Multicultural Affairs [2006] FCA 270; [2006] FCAFC 129] demonstrates, the Tribunal’s reliance on other factors besides its evaluation of an applicant’s knowledge will typically be a strong indicator that the Tribunal has conducted a legitimate exploration rather than made a determination by reference to a preconceived minimum standard of knowledge. Even where the Tribunal relies primarily on its evaluation of the applicant’s answers, however, it will not necessarily run into jurisdictional error. As the authorities emphasize, there is nothing objectionable in the Tribunal questioning an applicant about his or her beliefs. When the Tribunal does so, it is not prohibited from evaluating the applicant’s answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal.

33    In the present case, the Tribunal did not reject the appellant’s claim solely because of perceived deficiencies in his knowledge of religious doctrine. The Tribunal’s reasons disclosed additional factors for rejecting the appellant’s claim, including:

(1)    significant differences or inconsistencies in the information in his written statement submitted with his visa application and that which he gave in an interview with the Department;

(2)    implausible responses to the issues raised in the Tribunal’s letter of 2 March 2009;

(3)    documents and information in support of his arrest and detention claims failing to conform to the description of the same or similar types of documents from the relevant authority;

(4)    inconsistencies relating to the address appearing in these documents and that relevantly given in his oral evidence;

(5)    different and inconsistent accounts about when and how many times the appellant was arrested and how he obtained the documents in support of his arrest and detention claims; and

(6)    obtaining a passport and departing China essentially without incident.

As I noted in SZLSP at [38], reliance on other factors besides an evaluation of an applicant’s knowledge will typically be a strong indicator that the Tribunal has conducted a legitimate exploration rather than made a determination by reference to a preconceived minimum standard of knowledge.

34    Furthermore, in this case, the Tribunal identified the questions and the appellant’s answers that it regarded as material to its decision. The Tribunal’s questions were directed to matters that the appellant might reasonably be expected to be able readily to answer given his evidence as to his relationship with the Local Church, including questions about the frequency of church gatherings and about what happened at those gatherings. It was evidently open to the Tribunal to form the view that the appellant showed “little and superficial” knowledge of the Local Church in China based on these questions and answers. In contrast to SZLSP, the Tribunal in the present case also referred to country information about the Local Church, upon which it based some of its questions and by reference to which it assessed some of the appellant’s answers. Thus, one cannot say that the Tribunal’s finding that the appellant in this case showed “very scant knowledge of the fundamental teachings of the Local Church” was not “grounded in probative material and logical grounds”: see [31] above.

35    As I said in SZLSP (see [32] above), there is a difference between: (a) operating from the premise that all believers will have certain specific knowledge; and (b) concluding, after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant’s lack of knowledge indicates that he is not a genuine adherent of a religion. In this case, the Tribunal explored the appellant’s knowledge about the beliefs and practices of the Local Church and, having done so, formed the view that his lack of knowledge indicated that he had not practised as a member of the Local Church in China. That is, this is not a case in which the Tribunal set an “a priori minimum level or standard of knowledge that the appellant was required to meet” in order for the Tribunal to accept that he had been a Shouter in China and raised in a Christian household.

36    For these reasons, the jurisdictional error in SZLSP was not established in this case.

CONCLUSION

37    For the reasons stated, I would dismiss the appeal with costs.

Associate:

Dated:    1 December 2010