FEDERAL COURT OF AUSTRALIA

SZOHB v Minister for Immigration and Citizenship [2010] FCA 1394

THE COURT ORDERS THAT:

1.    Leave to rely on the additional grounds of appeal be refused.

2.    The appeal be dismissed with 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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

Background

1    The appellant, a citizen of China, initially arrived in Australia in 2007 having been granted a student visa. The appellant most recently arrived in Australia on 2 May 2008. Her student visa was cancelled in late 2008. On 24 June 2009 she lodged a protection visa application (PVA). The PVA was refused on 22 September 2009 by a delegate (the Delegate) of the Minister for Immigration and Citizenship (the Delegate Decision). An application for review was lodged with the Refugee Review Tribunal (the Tribunal) on 18 October 2009.

2    In summary, the appellant claimed to fear persecution in China by reason of her late father’s involvement with the Christian faith, which led to his persecution and detention. The appellant also claimed to fear persecution because of her own practice of Christianity since arriving in Australia. In support of her claims, the appellant produced a letter from the Padstow Chinese Congregational Church (the Church), a petition signed by parishioners of the Church and two certificates evidencing her father’s detention.

3    The Tribunal affirmed the Delegate Decision on 26 February 2010 (the Tribunal Decision). The appellant applied to the Federal Magistrates Court for review of the Tribunal Decision. Federal Magistrate Nicholls affirmed the Tribunal Decision (SZOHB v Minister for Immigration and Citizenship [2010] FMCA 651) (the Federal Magistrate Decision).

4    The appellant appeals from the Federal Magistrate Decision. The grounds as set out in the notice of appeal are:

1.    RRT had 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 my application. 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 persecutes underground house church members.

The Tribunal Decision

5    In its findings and reasons, the Tribunal said at [83] that there had been a number of significant inconsistencies in the appellant’s evidence. It then discussed those inconsistencies which were, in summary:

1.    The appellant had given three different times for when she became a Christian. At the hearing she explained this as being due to different interpretations as to when a person can be said to have become a Christian. She drew a distinction between when she first went to church in Australia and when she commenced going to church in Australia regularly. The Tribunal said that it was not satisfied that her explanation satisfactorily explained the inconsistencies. The Tribunal said that the alterations in her evidence about information significant to her claims led it to the view that she does not have a genuine commitment to the Christian religion and was altering her evidence to strengthen her claims.

2.    The appellant gave inconsistent evidence as to whether she lived with her father or her paternal grandparents after her parents divorced. The appellant’s explanation was that this was due to her father having her care as a result of a court order, but that she had actually lived with her grandparents. The Tribunal did not find this explanation convincing. It was of the view that the appellant said that she had lived with her father to strengthen her claims for protection, which were based on her father being a Christian and her becoming a Christian because of him.

3.    At the Tribunal hearing the appellant mentioned for the first time her claim that her cousin had been gaoled for 14 years because of his Christianity and that he had been arrested and detained on his return to China from Singapore. The Tribunal was not satisfied that she would fail to mention such significant information if the claims were genuine.

4.    The Tribunal considered documents which the appellant provided after the hearing, purportedly relating to her father. One of those documents referred to a female aged 44 and not to a male. The documents were uncertified photocopies and had not been mentioned earlier. Further, there was some inconsistency between the “illegal detaining” referred to in one of the documents and the “illegal gathering” the appellant had claimed in her evidence, as well as discrepancies in the dates. The Tribunal found that the documents did not support the appellant’s claims and therefore gave them no weight.

6    The Tribunal said at [93]:

Given all the above matters, the Tribunal is not satisfied that the [appellant] is a credible or truthful witness. It is therefore not prepared to rely on the [appellant’s] evidence alone in establishing whether her claims are genuine.

7    The Tribunal then said that it was not prepared to accept certain claims made by the appellant concerning her father. It found that the appellant’s father was not a Christian in China and that he had not experienced detention, harm or persecution because of his Christianity. The Tribunal also rejected other claims made by the appellant. It found that she had not attended a church gathering in China, nor was she involved in any way with Christianity in China before arriving in Australia.

8    The Tribunal referred to a letter from the Church that the appellant had been attending in Australia and noted a discrepancy between the statement in that letter that she had been worshipping at the Church for the past few months and the appellant’s claims to have attended it some 16 months earlier. The Tribunal was of the view that the letter was evidence only of her attending the Church for a relatively short period of a few months as at September 2009 and that it did not indicate the extent or pattern of her involvement. The Tribunal accepted a petition signed by members of the Church as showing that a number of people who claimed to attend the Church know and support the appellant. However, the Tribunal said that this did not provide details of her attendance or the extent of her involvement. The Tribunal concluded that by reason of s 91R(3) of the Migration Act 1958 (Cth) (the Act) it should disregard the evidence of her attendance at the Church in Australia, as it was not satisfied that she had attended the Church for any purpose other than to strengthen her claims.

9    The Tribunal then turned to the appellant’s claims to have been practising the Christian religion in Australia. The Tribunal referred to the fact that the appellant was unable to answer questions about Christian beliefs and practices in her interview with the Delegate and acknowledged her explanation that this was due to nervousness. The Tribunal accepted that she was nervous at the interview with the Delegate but was not satisfied that this alone would cause her to be unable to answer questions about her religion. The Tribunal noted that the appellant was able to answer questions at the Tribunal hearing about common biblical stories but said that her answers appeared “rehearsed”. The Tribunal was of the view that she had improved her knowledge of the Christian religion prior to the Tribunal hearing in order to strengthen her claims. It found that she ‘has only a basic and rehearsed knowledge of the Christian religion’.

10    The Tribunal also commented on the appellant’s delay in making a PVA which was made after her student visa was cancelled by the Department and after she had been living illegally in Australia for a period of nine months following that cancellation. The Tribunal said that the appellant’s stated belief that she could not apply for a visa until after her student visa expired did not adequately explain the delay.

11    The Tribunal said that it did not accept that the appellant would be motivated to practise the Christian religion if she returned to China. This followed from its conclusion that she was not involved in Christianity in China and that the sole purpose of her attendance at the Church was to support her PVA. The Tribunal said that it found nothing else before it to suggest that she had developed a genuine religious commitment in the meantime or had any other reason to pursue religious practices that might attract the adverse attention of the authorities in China. The Tribunal was therefore not satisfied that the appellant had a well-founded fear of persecution, now or in the reasonably foreseeable future, if she returned to China.

The Decision of the Federal Magistrate

12    Before Nicholls FM, the appellant relied on the following grounds:

1.    I was not considered fairly by RRT. They low assess my risk to go back to China.

2.    I am not good at speaking. I just told the goodness of god to others. I did not preach.

3.    RRT protected the person like me who suffered and feared to go back. But the member did not protect us. It’s unfair.

13    The Federal Magistrate considered each of the appellant’s grounds and complaints. His Honour noted that it was not for him to review the Delegate’s conduct or the Delegate Decision.

14    As to ground 1, his Honour said that there was no basis for finding that the Tribunal Decision was “unfair”. His Honour noted that the appellant did not put any evidence before the Court to challenge the Tribunal’s account of what had occurred at the hearing. His Honour concluded from that account that the Tribunal had complied with its statutory obligations. His Honour also observed that even if the principles of procedural fairness of the general law were applied, these were satisfied because the appellant knew what was put against her and had been given the opportunity to satisfy the Tribunal as to the truth of her account.

15    As to ground 2, his Honour said that this does nothing more than take issue with the Tribunal’s factual findings. His Honour found that it could not be said that the Tribunal expected the appellant to “prove” anything. His Honour said that the Tribunal gave the appellant the opportunity to explain her claims in evidence at the hearing and by providing further evidence in writing. His Honour saw no error on the part of the Tribunal to support ground 2.

16    As to ground 3, his Honour observed that the fact that other persons who were Christians in China were granted protection does not assist the appellant in showing jurisdictional error on the part of the Tribunal and that each case before the Tribunal must be considered on its own merits.

17    Federal Magistrate Nicholls considered additional issues outside the appellant’s grounds, namely:

    whether the Tribunal held as a matter of law that the absence of corroborative evidence meant that it was not open to the Tribunal to accept a part of the appellant’s factual account (at [30]); and

    the appellant’s perception of the Tribunal’s questioning of the appellant at the hearing (at [32]).

18    His Honour considered SZOCT v Minister for Immigration & Citizenship [2010] FMCA 425; Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548 and WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2. Each of those cases discussed the questioning of persons about their religious beliefs and degrees of understanding, commitment and knowledge of doctrinal matters for the purposes of deciding whether or not a person could be regarded as being, for example, a Christian. In WALT, the Full Court found that the Tribunal had merely explored the level of the appellant’s knowledge, understanding and commitment and had not set a level of knowledge of Christianity which the appellant was required to meet, which meant there was no jurisdictional error. On the other hand, Driver FM found in SZOCT that the Tribunal had approached the applicant’s claims on the basis that he had had to satisfy the Tribunal that he possessed a particular level of doctrinal knowledge to justify being regarded as a Christian, which he found to constitute jurisdictional error.

19    Federal Magistrate Nicholls concluded that he could not be satisfied that the circumstances were such as to lead to a conclusion of jurisdictional error as had been found in SZOCT. His Honour referred to the record of the hearing as set out in the Tribunal’s reasons and the fact that the Tribunal had asked the appellant about miracles performed by Jesus, who Lot’s wife was and who Goliath was. His Honour said at [41]–[42] that:

There are aspects of what is set out at [48] in the current case that appear to reduce the degree and understanding and commitment of the [appellant’s] adherence to Christianity to what I would describe as the “trivia night” or “pub quiz” approach.

The point is illustrated by the reference to Lot’s wife.

His Honour observed that nowhere in the Bible is Lot’s wife identified by name.

20    His Honour concluded, however, that on the evidence before the Court and when the Tribunal’s decision is read holistically, the circumstances were far closer to those in WALT than to those in SZOCT. His Honour could not see, on balance and when the reasons were read fairly, that the Tribunal had ascribed a required minimum standard of Christian practice or required a minimum understanding of Christian tenets. Rather, his Honour said, the Tribunal’s approach and reasoning was that notwithstanding the appellant’s claim to commitment to and practice of Christianity, it remained unpersuaded by her explanation as to why she had exhibited little knowledge of Christian beliefs and practices before the Delegate. His Honour said that the Tribunal’s ultimate lack of satisfaction as to the appellant’s credibility did not derive from an approach that required the appellant to satisfy a particular level of doctrinal knowledge about Christianity but rather from inconsistencies in her factual account, her unsatisfactory explanation for those inconsistencies, her failure to mention significant information at the relevant times and the contradiction between what was stated in some of the documents she had provided in support of her claims with what she herself had said. In addition, the Tribunal had expressed other reasons for rejecting the credibility of the appellant’s claim to fear persecution, such as her delay in making the PVA.

21    The second matter raised by Nicholls FM was the absence of corroborative evidence. His Honour raised this issue because of the statement made by the Tribunal in its analysis that ‘there is no information to support this claim by the [appellant]’ and the Tribunal’s repeated statements to the effect that it was ‘not prepared to rely on the [appellant’s] evidence alone in establishing whether her claims are genuine’. His Honour questioned at [66] whether that meant that the Tribunal had required corroboration from the appellant before it would accept the truth of what she said. Having raised that issue, his Honour said that he agreed with the Minister’s submission that while some of the Tribunal’s decision could be described as “clumsy” or “infelicitous”, there was no jurisdictional error. Rather, the Tribunal’s reasoning, when understood as a whole, mirrored to an acceptable extent the reasoning of the relevant Tribunal in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per McHugh and Gummow JJ at [49]. In S20, their Honours observed that it was not irrational for a Tribunal to find that it could not be satisfied with an alleged corroboration on the basis that a party cannot be believed. Their Honours said that the Tribunal was not obliged to weigh alleged corroborative evidence before its determination of the party’s credibility. Their Honours observed that it is not unknown for a party’s credibility to have been so weak in cross-examination that the finder of fact may well treat what is proffered as corroborative evidence as of no weight because ‘the well has been poisoned beyond redemption’. Federal Magistrate Nicholls accepted that when the Tribunal came to consider the corroborative evidence, it found the appellant’s credibility so weakened that no amount of corroborative documentation could retrieve her position.

22    Federal Magistrate Nicholls was of the view that the Tribunal had drawn a line between the way the appellant gave her evidence and the separate and specific factual matters raised later in the Tribunal reasons. His Honour concluded that, on a fair reading, the Tribunal rejected her claims relating to her father because of its conclusions about her credibility. The documents provided after the hearing were given no weight for the reasons given in the Tribunal Decision. Similar reasoning, his Honour said, could be discerned in relation to the appellant’s claims to have seen government officials on her father’s behalf, her claims relating to her cousin and the fact that she was not involved with Christianity before arriving in Australia.

23    After a detailed consideration of the Tribunal’s reasons, including those matters raised by the Federal Magistrate himself, his Honour concluded that the Tribunal Decision was not affected by jurisdictional error.

Consideration of the Notice of Appeal

Ground 1: alleged bias on the part of the Tribunal

24    Apart from the fact that this is not a ground raised before the Federal Magistrate, the appellant fails to identify any appellable error in the Federal Magistrate Decision or any jurisdictional error on the part of the Tribunal. No particulars or evidence are provided in support of an allegation of bias, actual or apprehended. Such allegations are serious and require evidence to be established (SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43]–[44]).

25    The appellant was asked at the hearing whether she had anything further to add on this particular aspect of her appeal and she said that she did not. Even if the appellant sought leave to raise this new ground of appeal, it has no prospect of success. Leave to rely on ground 1 should be refused.

Ground 2: fairness (as all points were clarified)

26    This ground is also devoid of particulars and fails to identify any appellable error in the Federal Magistrate Decision or any jurisdictional error on the part of the Tribunal. Again the appellant did not add any further particulars or submissions in support of this ground. To the extent that this ground raises merits review, it does not found jurisdictional error.

Ground 3: application not considered reasonably

27    The third ground of appeal alleges that the appellant’s application was not considered reasonably by the Federal Magistrate. On the contrary, Nicholls FM not only considered in detail the appellant’s grounds of review as pleaded in her application but also considered additional grounds that she did not raise. His Honour invited the parties to address him on those concerns at the hearing and granted the parties leave to file further written submissions, which he considered in detail.

28    As to his Honour’s consideration of the Tribunal’s questioning of the appellant’s religious beliefs, the appellant said that at the Tribunal hearing she had tried her best to answer the questions before the Delegate but that she was very nervous. She said that by the time of the Tribunal hearing she had more experience at being interviewed than she had had before the Delegate and that this was why she had answered the questions in a better way. It was not, she said, that she had learned more about Christianity between the hearing before the Delegate and the Tribunal hearing. These matters, together with others matters raised by the appellant, went to the merits of the Tribunal Decision and the finding of a lack of credibility based upon the Tribunal’s assessment of the merits of the case.

29    These conclusions of the Tribunal were open to it on the evidence. It was open to the Tribunal to find that the appellant had had the opportunity to acquire knowledge between the hearings before the Delegate and before the Tribunal. It was open to the Tribunal to make findings on credibility which, in turn, were brought to bear in considering her level of knowledge of Christianity.

30    In Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362, Kenny J discussed in some detail the authorities and circumstances concerning Tribunal questioning of knowledge of religious doctrine. Her Honour observed at [37]-[38] that:

[T]he question whether applying an “arbitrary standard” of knowledge of religious doctrine constitutes jurisdictional error is a complex one... 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....

[T]he tribunal’s reliance on other factors besides its evaluation of 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 emphasise, there is nothing objectionable in the tribunal questioning an applicant about his or her beliefs.

31    The questioning of the appellant in the detail of religious matters, namely Lot’s wife and Goliath, does not, in my view, reflect a reasonable means of determining whether somebody has religious beliefs. However, in the present case it is not necessary to consider in detail whether the Tribunal conducted a legitimate exploration rather than making a determination by reference to a pre-conceived minimum standard of knowledge. Prior to any consideration of the appellant’s beliefs, the Tribunal made findings against her credit, based upon her own recitation of her history. The Tribunal’s conclusion as to the appellant’s extent of religious knowledge did not form the basis for the Tribunal Decision. Rather, it went to the Tribunal’s conclusion that the evidence of her religious beliefs said by the appellant to have been based upon her study of Christianity and attendance at Church in Australia should not be considered in her favour but was subject to s 91R(3) of the Act.

32    I see no basis for this ground of appeal.

Additional matter at the hearing

33    One additional matter raised at the hearing of the appeal in this Court was the Tribunal’s consideration of the documents sent to the Tribunal after the hearing. The information was provided by the appellant after the Tribunal questioned the treatment of the appellant’s father in China. The information comes within s 424A(2)(a) of the Act.

34    The Tribunal stated its concerns about the documents at [90]:

The documents provided are photocopies. There is no certification of any person having sighted the originals and verified the accuracy of the copies. There is no indication of how or from whom the applicant received the documents. None of the documents had been mentioned or provided prior to the time they were sent to the Tribunal.

35    The Tribunal noted at [91] that some of the documents were inconsistent with the appellant’s oral evidence. Given those matters and the contradiction of the appellant’s own evidence, the Tribunal found that the documents did not support the appellant’s claims and therefore gave them no weight.

36    The Tribunal’s treatment of the documents was somewhat similar to that considered by the Full Court in Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427. The applicant in SZMOK claimed that there was a case pending against him in Bangladesh. In summary, the relevant Tribunal had considered that there was no such case against the applicant and found that there could be no genuine documents relating to such a case. The Full Court said at [68] that there is no general rule that the Tribunal cannot make a finding that a document is not genuine without specifically referring to its concerns about the document. In the present case, the Tribunal was not obliged to inform the appellant of its concerns about the documentation provided by the appellant or to provide the appellant with the opportunity to comment on its reasoning process. Its failure to do so did not constitute a failure to comply with ss 424A or 425 of the Act (SZMOK at [68]-[75]).

Conclusion

37    The appellant has neither demonstrated jurisdictional error on the part of the Tribunal nor error on the part of the Federal Magistrate. The appeal should be dismissed with costs.

Associate:

Dated:    17 December 2010