FEDERAL COURT OF AUSTRALIA

SZSHJ v Minister for Immigration and Border Protection [2014] FCA 268

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) given on 15 November 2013, which dismissed an application for judicial review of a decision made on 5 November 2012 of the second respondent, the Refugee Review Tribunal (the Tribunal). The Tribunal’s decision was to affirm a decision of a delegate of the Minister for Immigration and Border Protection (the Minister), not to grant the appellant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

Background

2    The appellant is a citizen of the People’s Republic of China. He was born on 25 December 1967. The appellant and his wife applied for Sponsored Family Visitor (Subclass 679) visas on 16 February 2007 for the purpose of visiting the appellant’s sister-in-law. The visas were granted on 9 March 2007. The appellant and his wife arrived in Australia on 12 April 2007. The appellant’s visa was valid until 12 July 2007. It was subject to conditions, including 8101 (no work), 8503 (no further stay) and 8531 (must leave before visa expiry). A bond of $10,000 was required. The bond was paid on 9 March 2007.

3    The appellant remained in Australia unlawfully for a period of five years after his visa expired. The bond was forfeited on 16 November 2009. In July 2012, the appellant was discovered working and was taken into immigration detention. He applied for a protection visa on 16 July 2012.

Legislative background

4    Section 36(2)(a) of the Act provides:

A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;

5    Section 36(2)(aa) provides:

A criterion for a protection visa is that the applicant for the visa is:

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

6    Section 91R(3) provides:

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.

The Tribunal decision

7    The Tribunal provided the following summary of the appellant’s claims at [24]-[27] of its decision record:

The applicant said that he was seeking protection so that he would not have to return to China. He said that he left China because his family had been persecuted. He said that his father and he were “house church practitioners”. He himself had become a Christian in 1994. He said that, in 2006, his father had been “taken by force” by public security officers because of his involvement in the house church. He said his father had been forcibly detained and had been fatally injured, and “died from the gross injustice.”

He said that he and his family were farmers who also “operated gas production business for several years.” He said that he held a relevant business licence. Some time in 2005, the authorities came to know that his father was involved in a house church. Because of this, they revoked the applicant’s business licence and this severely impacted on the family’s capacity to subsist. People in the local community turned against the family and one of their vehicles was “torched.” His older brother was “seriously assaulted” and his younger brother was also assaulted, receiving a fracture to his arm. People threatened the applicant that he would be crippled and maimed.

Their house was ransacked and they made plans to “disperse” and hide. He came to Australia. He said the authorities did not protect the family and indeed sanctioned what had happened to them.

He said that he fear that, if he returned to China, the authorities would harass him or turn the local community against them. He would not be able to gain permanent employment and he said he may face a “re-education” in a labour camp. He would not be free to practise his religion. He said the Chinese authorities consider house churches to be legal entities or cults, and members of such churches are harassed, fined, have their property confiscated and are sentenced to terms of imprisonment or re-education through labour.

8    There is no challenge to the correctness or adequacy of this summary.

9    The appellant submitted certain documents in support of his claims. The Tribunal said (at [29]):

Among the documents enclosed with the application was a certificate of baptism indicating that the applicant was baptised 8 February 2009 in a Chinese Presbyterian church in a Sydney suburb. He also enclosed a letter written on the letterhead of a Christian church apparently affiliated with the Presbyterian Church. The writer of that letter identified himself as the Minister of the church that the applicant had attended since April 2007. The letter referred to the applicant’s baptism in February 2009. It stated that not many people in the church community were aware of the applicant’s status, apparently in reference to the applicant’s migration status. The applicant enclosed another letter, on the same letterhead as the first, written by a person identifying himself as the “Elder and Sessions Clerk” of the church. It also states that the applicant was baptised at the church.

10    The appellant appeared before the Tribunal over two days, on 11 October 2012 and 25 October 2012, to give evidence and present arguments. He was represented by a registered migration agent.

11    It is convenient to refer, at the outset, to one particular aspect of the evidence. On the first day of the hearing, the Tribunal asked the appellant why, if he had been a Christian in China, had he waited more than two years before being baptised in Australia? The Tribunal recorded the appellant’s response as follows:

… He said that one could not be baptised at any time. Baptisms had to be arranged in a group at a particular time. There were no baptism ceremonies for just a single person.

12    Between the first and second hearing days, the Tribunal caused inquiries to be made concerning baptisms at the church attended by the appellant (the Bonnyrigg church). The Tribunal recorded the outcome of these inquiries at [139]-[140] of its decision record:

On 23 October 2012, at the Tribunal’s request, an officer of the Tribunal contacted a representative of the church the applicant attended, namely the “Elder and Session Clerk” mentioned in paragraph 29 above. The officer asked whether the church conducted baptisms for individuals, or whether it normally waited until several people wished to be baptised and then conducted mass baptisms. The Session Clerk advised that individual baptisms are the norm in the church. He said that, sometimes particular groups will request baptism for a particular reason, but his would only happen once in a period of 1 to 2 years.

The Session Clerk advised that, as the church is a Presbyterian Church, it would encourage a person with no prior experience of Christianity to prepare himself or herself for baptism over a period of about six months. Those who come to the church with experience of Christianity may wait 1-2 months before being baptised. The church baptises people of all ages, from infants to those of advanced years.

13    The Tribunal raised this information with the appellant on the second hearing day. The Tribunal recorded the following matters at [118]-[119] of its decision record:

Based upon this information, and given the applicant’s claim to have been a member of a Christian church in China over a number of years, the Tribunal said it would have expected the applicant to have sought baptism in the first half of 2007. It might conclude from his failure to be baptised at that time, that he had no prior experience of Christianity, and that he was attending the church for the purpose of gaining knowledge about Christianity and strengthening his claims for protection in the event hat he were ever detained by the Department for overstaying his visa. It reminded the applicant of the discussion prior to the adjournment (see paragraph 93 above) regarding the provisions of s.91R(3) and said that, if the Tribunal were to reach such a conclusion, it might disregard his conduct in attending the church in Australia. The Tribunal asked for his comments.

In response, the applicant said that it was generally rare for a one person to be baptised individually in the church he attended in Sydney. He confirmed that the church he attended had a Presbyterian background, though he said it had since changed its name and was no longer an exclusively “Chinese” church. “Western” people now attend as well. The Tribunal said that its understanding of the Presbyterian approach to baptism was consistent with the information provided by the Session Clerk. The applicant insisted that the baptism of a single person at that time was generally quite rare in the church. He then said, “Since my baptism until now, it was only recently there was this group of people that had baptism together. So it was after so many years that there was this other group.”

14    Later in its findings and reasons, at [167]-[168], the Tribunal said:

It is well known that baptism is the process by which people are normally accepted into the Christian church. Had the applicant been involved in a Christian church in China for a number of years, as he claims to have been, the Tribunal would have had him to have sought baptism soon after joining a church in Australia. However, he waited almost 2 years before doing so. The Tribunal has considered his evidence to the effect that he was unable to be baptised before 2009 because he had to wait for a group of baptism candidates to be formed. It is implicit in this evidence that the applicant has wished to be baptised but that an opportunity did not arise until early 2009. The Tribunal has also considered the information about the church’s practices set out in paragraphs 139-140 above.

The Tribunal considers that there would be no reason for an officer of the church to try to mislead the Tribunal about the church’s approach to baptism. It therefore accepts the information provided by the church officer. It finds that there would have been no barrier to an experienced Christian being baptised within the first few months after him joining the church in Australia. It finds that the applicant would not have needed to wait until a group of people wished to be baptised. Against the background provided by the church, the Tribunal concludes that the applicant’s stated reason for his failure to be baptised soon after joining the church is inconsistent with that background information. It also concludes from the fact that the applicant was not baptised soon after joining the church that he was not an experienced Christian. It therefore finds that he applicant was not a member of any Christian church in China.

15    The Tribunal gave detailed consideration to other aspects of the evidence in respect of the appellant’s claims concerning events in China. It found that the appellant had given inconsistent evidence about the timing and details of alleged events, conflicting evidence about damage allegedly inflicted on his property, differing evidence about the period over which he allegedly operated a business in China (in respect of which the Tribunal found that the appellant was capable of obtaining documents containing fraudulent details) and conflicting evidence about the order of significant events which the appellant claimed had taken place. The Tribunal also found in this regard that there were contradictions between the appellant’s oral evidence and written submissions received by the Tribunal on 24 October 2012, the day before the second hearing. It is not necessary for me to detail or summarise those matters in these reasons.

16    At [169] of its decision record, the Tribunal reasoned:

Had the events in question had genuinely taken place in China, the Tribunal would have expected the applicant to have sought protection soon after his arrival in Australia. It has noted his comment that he only spoke to one person about his situation and that he accepted that persons advice that Protection visas were unavailable to him. However, it does not accept that a person in genuine fear of his life in China, and who had overstayed his visa, would accept a single instance of advice that he could not obtain such a visa.

17    At [170]-[171], the Tribunal concluded:

Given all the above considerations in paragraphs 153-169 above, finds that the applicant’s account of alleged adverse incidents in China has been fabricated. In particular, the Tribunal does not accept that the applicant was forced out of business by a business rival who was a government official. It does not accept that there was such a business rival. It does not accept that the applicant’s father was arrested, whether for reasons of alleged involvement in an underground Christian church or any other reason. It does not accept that his father died as a result of mistreatment while in detention. It does not accept that he applicant brothers were assaulted. It does not accept that he applicant’s family home, business premises or motor vehicle were damaged. It does not accept that that applicant was threatened in any way. The Tribunal believes that these conclusions severely undermine the applicant’s credibility.

It follows from this that the Tribunal does not accept that the applicant is or was adversely regarded by Chinese authorities, whether officially or otherwise, because of anything to do with his religion or that of his father, because of anything to do with any business owned by the applicant and his family. It does not accept that the applicant was harmed or threatened by any business rival (whether a government official or not), or people acting on behalf of such a rival. It does not accept that he would face harm in the future from such a rival or from people acting on behalf of such a rival.

18    The Tribunal then turned to consider the appellant’s activities in Australia, specifically in relation to his claimed church activities. The Tribunal made the following findings at [172]-[174]:

Turning now to the applicant’s activities in Australia, the Tribunal accepts the evidence before it which indicates that he has been a member of a Christian church in a Sydney suburb since 2007 and that he was baptised in the church in 2009. However, having concluded that the applicant was not a Christian when he was in China, it has reached the conclusion that the applicant’s involvement in the church in Sydney was for no reason other than to strengthen his claims for refugee status by learning something of Christianity.

In reaching this conclusion, the Tribunal has noted that, despite having attended the church for more than five years, the applicant was unable to demonstrate much knowledge of Christianity when asked at the Tribunal hearing. It accepts the evidence he presented to the delegate indicates some knowledge of Christianity. It also accepts that the fact of his baptism indicates that he was able to demonstrate a knowledge of Christianity to his church. However, at the hearing, he was not able to articulate anything more than a superficial knowledge of Christianity. Though he claims to have studied the Bible for a number of years, he did not know such as simple thing as the fifth book of the New Testament, the one immediately following the Gospels. The Tribunal would expect any person who studied the Bible regularly to know this.

The Tribunal is also of the belief that a person who was genuinely Christian would have been able to articulate such fundamental Christian beliefs, as the belief that Jesus is the Son of God, and significance of the crucifixion. The Tribunal therefore finds that the applicant’s demonstrated level of knowledge at the hearing is inconsistent with his claim to have studied the Bible in China and Australia and to be a committed Christian. Given this finding, and the Tribunal’s concerns about the applicants credibility, the Tribunal finds that the applicant’s sole purpose in attending church in Australia was to strengthen his claims for protection by lending credibility to his claim that he had been a Christian in China. It finds he is not a genuine Christian.

19    As a consequence, the Tribunal disregarded the appellant’s conduct in attending church in Australia when considering his application against s 36(2)(a) of the Act: see s 91R(3). Further, given its finding that the appellant was not a genuine Christian and did not practise Christianity in China, the Tribunal concluded that there was no reason to believe that the appellant would seek to practise Christianity in the future were he to return to China.

20    The Tribunal considered the appellant’s claims against s 36(2)(aa) of the Act, as follows:

The Tribunal now turns its attention to whether or not the applicant meets the “complementary protection” criterion in s.36(2)(aa) of the Act. In this context, the provisions of s.91R(3) of the Act are not applicable, and the Tribunal therefore must have regard to the applicant’s conduct in attending a Christian church in Australia and accepting baptism. However, the Tribunal’s findings regarding the motivation for that conduct, and its other findings remain relevant.

The Tribunal has found that the applicant is not a genuine Christian; that the events that he claims took place in China did not in fact take place; and that his only motivation for attending Christian services and being baptised was to strengthen his claims for protection. Given these findings, the Tribunal is satisfied that, once this application is settled, the applicant will not be motivated to associate himself with any underground Christian church in China.

21    It is important to understand that the Tribunal specifically noted that the appellant had made no claim that he would face harm in China simply because he had attended Christian church services in Australia and had been baptised in Australia. The appellant did not challenge the correctness of this statement in the Federal Circuit Court. He did not contend, for example, that the Tribunal misunderstood his claims in that regard or that it failed to consider an integer of his claims.

22    The Tribunal was not satisfied that the appellant met the criterion set out in s 36(2)(a) or, alternatively, the criterion set out in s 36(2)(aa) of the Act.

The Federal Circuit Court judgment

23    On 25 March 2013 the appellant filed, with leave, an amended application to show cause containing the grounds on which he sought judicial review of the Tribunal’s decision. By way of summary, those grounds were:

    The Tribunal made a legal error in its consideration of the complementary protection criterion in s 36(2)(aa) of the Act. Specifically, the Tribunal erroneously considered the appellant’s motivation in attending a Christian church in Australia and accepting baptism, and failed to consider the risk that the appellant would suffer cruel and inhuman treatment or punishment, and degrading treatment or punishment upon return to China due to his religious beliefs.

    The Tribunal made a legal error by basing its s 91R(3) finding on a mistaken conclusion.

    The Tribunal failed to take into account relevant considerations, namely the evidence in support of the appellant’s claims to be a genuine Christian. The Tribunal thus failed to consider the appellant’s claims that he feared persecution on the ground of religion.

    The Tribunal’s decision that the appellant was not a genuine Christian was irrational and illogical because it was not open to the Tribunal to find that the appellant was not a genuine Christian.

24    The primary judge dismissed each ground. In light of the matters agitated on appeal, it is only necessary for me to refer to certain parts of his Honour’s reasons. I should not pass without noting that his Honour gave detailed consideration to each ground.

25    In relation to the first ground, the primary judge concluded that the Tribunal was not in error in placing reliance on the appellant’s motives for attending church and being baptised, when considering the application of s 36(2)(aa) of the Act to his circumstances. His Honour noted the Tribunal’s finding that the appellant had attended church and had been baptised solely for the purposes of strengthening his claims for a protection visa. His Honour found that the Tribunal’s reason for considering the appellant’s motives was to determine what might happen to the appellant in the future, were he to be returned to China. As the primary judge noted, the Tribunal found that the only reason the appellant associated himself with the church was to advance his refugee claim. Once that motivation disappeared, he would no longer seek to do so.

26    The primary judge found that the Tribunal’s consideration went to a question of fact. This was directed to whether the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to China, there was a real risk that he would suffer significant harm.

27    After referring to a number of the Tribunal’s findings, the primary judge (at [37]-[38]) said:

It is against these findings that the Tribunal was to determine, in the circumstances of the applicant returning to China, what the “foreseeable consequences” would be for him. The participation in activities at the Bonnyrigg Christian Church is claimed to have been indicated by the applicant’s and his family’s involvement in a house church Christian religious practice in his village of “Long Gim” or “Longjian”, however, this claimed background involvement was rejected by the Tribunal which raises the significant doubt that the applicant would continue this practice of involvement with the Christian church upon his return to China.

This clearly is not an issue involving s.91R(3) but rather an assessment of what the likelihood of the applicant placing himself in a position of conflict with the Chinese authorities that was a “foreseeable consequence”. The Tribunal did not accept that this would be a course that the applicant would follow, resulting in the view that the provisions of s.36(2)(aa) were not engaged. Consequently, this ground cannot be sustained and should be dismissed.

28    With respect to the ground that the Tribunal’s decision was irrational and illogical, the primary judge noted the appellant’s contention that the Tribunal had before it evidence that supported his claim that he was a genuine Christian. The appellant contended that there was no discussion or consideration of the substance of that evidence. He contended that the Tribunal made its finding that he was not a genuine Christian on the basis of answers he gave on questions regarding the Christian religion, which indicated to the Tribunal that he had only a superficial knowledge of Christianity. The appellant also contended that the Tribunal gave significant weight to the fact that he did not seek to be baptised soon after joining the Bonnyrigg church in April 2007.

29    The appellant contended that this did not reveal a correct process of reasoning. According to the appellant, the Tribunal’s state of satisfaction concerning his religious beliefs revealed illogicality and irrationality amounting to jurisdictional error.

30    In considering these contentions, the primary judge noted the observations of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [123] and [130]-[131]. It is convenient to repeat those passages here:

Judicial review has commonly been relied on to set aside a discretionary decision which “is so unreasonable that no reasonable authority could ever have come to it” or decisions “which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful”. As remarked by Gaudron J in Abebe v The Commonwealth:

“[I]t is difficult to see why, if a statute which confers a decision-making power is silent on the topic of reasonableness, that statute should not be construed so that it is an essential condition of the exercise of that power that it be exercised reasonably, at least in the sense that it not be exercised in a way that no reasonable person could exercise it.”

This Court has observed with reference to s 75(v) of the Constitution and jurisdictional error that where a statutory power is conferred the legislature is taken to intend that the discretion is to be exercised reasonably and justly.

In the context of the Tribunal's decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

31    The primary judge undertook a detailed survey of the Tribunal’s reasons and findings. His Honour quoted and analysed a number of passages in the Tribunal’s decision record. His Honour found that, contrary to the appellant’s contention that there was no discussion or consideration of evidence provided by him, the Tribunal did address the appellant’s evidence about developing his beliefs in Christianity in China. In that connection, the primary judge specifically referred to the passages at [167]-[168] of the decision record, which I have reproduced at [14] above. In relation to the appellant’s evidence concerning his church activities since arriving in Australia, the primary judge specifically referred to the passages at [172]-[174] of the decision record which I have reproduced at [18] above, and other passages of the decision record, the effect of which I have summarised at [19] above. The primary judge then referred to, and quoted, the passages from the Tribunal’s decision record that I have reproduced at [20] above.

32    The primary judge noted that the Federal Circuit Court had been invited by the appellant to accept that the letters provided by Minister Park and Session Clerk Choi established that he was an adherent of the Christian religion. His Honour quoted the relevant parts of Minister Park’s letter, and concluded (at [103]):

Taking this passage, as it is the only reference as to the applicant’s belief in Minister Park’s letter, may be analysed as endorsement of the applicant’s faith; however, it does not contain anything that would be inconsistent with someone who is engaging in conduct for the purpose of strengthening a person’s claim to be a Christian and consequently fear persecution in China if the behaviour became known to the authorities.

33    The primary judge also quoted relevant parts of Session Clerk Choi’s letter, and concluded (at [104]):

Again, in isolation, this passage may establish that the applicant has adopted Christian beliefs, but it is in no way inconsistent with the behaviour of an individual endeavouring to strengthen a personal claim of future persecution because of a religious belief.

34    Overall, the primary judge concluded that, on a fair reading of the whole of the Tribunal’s decision record, the appellant’s contention – that the Tribunal’s finding that he was not a genuine Christian was not open, and was irrational and illogical – could not be sustained.

The appeal

35    In his amended notice of appeal filed in this Court on 8 January 2014, the appellant raised two grounds of appeal. By way of summary, the appellant contends that the primary judge committed two errors of law.

36    The first alleged error is that, with respect to the Tribunal’s application of s 36(2)(aa) of the Act, the primary judge erred in considering that the appellant’s motives in attending the Bonnyrigg church and in being baptised “went to the question of what might happen in the future”.

37    The second is that the primary judge treated the evidence of Minister Park and Session Clerk Choi, and the evidence of the appellant’s baptism, in isolation and not with other evidence supporting the appellant’s claim to be a Christian. In this connection the appellant contends that “if all aspects of the appellant’s conduct had been considered as a whole, the only finding that would have been available was that he was a genuine Christian”. Accordingly, the appellant contends that the primary judge’s reasoning was illogical and irrational.

The first ground of appeal

38    The essence of the appellant’s contention in relation to this ground of appeal is that, when considering for the purposes of s 36(2)(aa) whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to China, there is a real risk that the appellant will suffer significant harm, regard could not be had to the appellant’s motives for attending the Bonnyrigg church and for being baptised.

39    The appellant submits:

… Unlike the criterion in s 36(2)(a), which is subject to s 91R(3), there is no “bad faith” exception for the “complementary protection” criterion.

… the effect of s 36(2)(aa) is that even where the real risk of significant harm exists only because a person has deliberately engaged in conduct in Australia for the purpose of strengthening a claim for protection, the applicant will not be precluded from meeting the criterion for a protection visa in s 36(2) if he or she satisfies the test in s 36(2)(aa) and other relevant requirements.

40    The appellant submits that, in the present case, the appellant’s motivation was improperly taken into account by the Tribunal, and that the primary judge fell into the same error. He submits that the findings of the Tribunal in respect of his motivation clearly form the foundation for the adverse finding in respect of s 36(2)(aa), which is not permissible, and is an error of law.

41    I do not accept those submissions.

42    The injunction of s 91R(3) is that, in determining whether a person has a well-founded fear of persecution for a Convention reason, conduct in Australia engaged in by the person seeking protection is to be disregarded unless the person satisfies the Minister that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee. I agree that this injunction does not apply to the complementary protection criterion in s 36(2)(aa). It follows that, when considering that criterion, conduct in Australia engaged in by a person seeking to strengthen his or her claims for protection can be taken into account. When considering that conduct, however, there is no statutory basis for excluding the person’s motive or motives for engaging in that conduct. A person’s motives constitute an element of the relevant conduct and, plainly, may be relevant to assessing whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of that person being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

43    In this regard, the Tribunal correctly applied s 36(2)(aa) to the appellant’s circumstances. It was plainly relevant to take into account the appellant’s motives for attending the Bonnyrigg church and for being baptised. The Tribunal’s findings in that regard clearly informed the question of whether there was a real risk that the appellant would suffer significant harm if returned to China. Its findings, encapsulated in [178] of the decision record, were that:

    the appellant was not a genuine Christian;

    the events that he claimed took place in China did not take place;

    his only motivation for attending Christian services and being baptised was to strengthen his claims for protection;

    in light of these findings, the appellant, if returned to China, would not be motivated to associate himself with any underground Christian church.

44    The primary judge correctly analysed the Tribunal’s reasoning and correctly found that the Tribunal had properly applied the complementary protection criterion of s 36(2)(aa) to the appellant’s circumstances: see [34]-[38] of his Honour’s reasons.

45    The appellant points to a passage in the primary judge’s reasons where, at [30] his Honour said:

In carrying out this assessment under the complementary protection provisions, my view is that the Tribunal cannot have regard to the applicant’s motivation and whether or not he engaged in those activities and conduct in Australia solely to strengthen his claims to a Protection visa.

46    The appellant submits that, in this passage, the primary judge identified the correct test.

47    Read in isolation and taken literally, this passage cannot stand with the primary judge’s reasons at [34]-[38], and to his Honour’s ultimate conclusion that the Tribunal correctly applied the criterion of s 36(2)(aa) to the applicant’s circumstances. In [30] of the reasons, the primary judge was explaining that the provisions of s 91R(3) apply when considering the criterion of s 36(2)(a) but do not apply when considering the criterion of s 36(2)(aa). Seen in that context, it is likely that, in the passage quoted at [45] above, the primary judge was saying no more than that s 91R(3) does not apply when considering the criterion of s 36(2)(aa) of the Act.

The second ground of appeal

48    In relation to this ground, the appellant submits that the Tribunal failed to consider “material probative evidence” namely, the letters from Minister Park and Session Clerk Choi. He submits that the Tribunal’s finding that he was not a genuine practising Christian was based on its own investigations concerning the timing of the appellant’s baptism and its appraisal that the appellant demonstrated only a superficial knowledge of Christianity, without reference to “critical corroborative evidence”.

49    I understand the reference to “critical corroborative evidence” to be the letters from Minister Park and Session Clerk Choi. The appellant submits that the Tribunal failed to give any real consideration to “the corroborative evidence” prior to its conclusion as to the appellant’s credibility. He submits that the evidence of Minister Park and Session Clerk Choi was critical to his credibility and, ultimately, the finding that he was not a practising Christian. As a consequence, the appellant argues, the Tribunal’s reasoning process was “so impugned by the failure to take into account the substance of the corroborative evidence, that it can be said to be illogical and irrational”.

50    There is an immediate difficulty with these submissions. In the proceeding below, the primary judge rejected the appellant’s contention that the Tribunal had failed to take into account the evidence from Minister Park and Session Clerk Choi. At [72]-[73], the primary judge said:

In light of the contents of Mr Choi’s letter and the instruction to make inquiries concerning issues that only arose in that letter, I have formed the view that the applicant’s submission that the letter was not referred to in the Decision Record unsustainable. I acknowledge that the contents of the letters were not reproduced or summarised in the decision, but the existence of the letters and their contents is apparent. It is also difficult to accept that the contents of those letters established a knowledge and adherence to Christianity greater than the impression conveyed by the applicant’s response to questions during the hearing. The Decision Record discloses details of the subject of the applicant’s Christian beliefs being discussed during the hearing on 25 October 2012. This discussion canvassed many areas of the applicant’s proclaimed beliefs which the Tribunal may have focused on when forming its decision on those issues. These exchanges were more focused on what the applicant claimed to be his understanding of the teaching and beliefs of the subject, rather than the limited statements contained in the two letters.

In these circumstances I am satisfied that this ground cannot be sustained and should be dismissed.

51    There is no appeal from the primary judge’s rejection of that ground of review. But even if there were a formally articulated ground of appeal from that rejection, I can see no error in the primary judge’s reasoning or conclusion in relation to that matter. The Tribunal’s decision record refers to these letters at [29] and [139]. The fact that the Tribunal caused further inquiries to be made on the basis of them, shows that the Tribunal was cognisant of their contents. I am not persuaded, therefore, that when arriving at its conclusion about whether they appellant was a genuine practising Christian, the Tribunal, somehow, ignored what had been said in the letters. I would not arrive at that conclusion simply because the Tribunal did not reproduce the letters in its decision record or otherwise summarise their contents.

52    In this connection, the Minister points to the requirements of s 430(1) of the Act, which stipulate the matters which the Tribunal must set out in its reasons. Relevantly, s 430(1)(c) requires the Tribunal to set out the findings of fact which it has made. It does not require the Tribunal to make, and then set out, findings additional to those which it did make: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68]. Moreover, s 430(1)(d) requires the Tribunal to do no more than refer to the evidence or any other materials on which its findings of fact are based. It does not require the Tribunal to give reasons for rejecting or attaching no weight to evidence or other material which would tend to undermine findings which the Tribunal makes: Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 at [24] and [31], approved in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407. The mere fact that the letters from Minister Park and Session Clerk Choi were not given greater emphasis in the decision record does not mean that they or their contents were ignored and not evaluated by the Tribunal.

53    Moreover, as the Minister submits, the expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole: Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59.

54    In the present case, I am not persuaded that the Tribunal formed a view about the appellant’s religious beliefs without taking into account the contents of Minister Park’s and Session Clerk Choi’s letters.

55    The appellant submits, correspondingly, that the primary judge’s analysis of the Tribunal’s reasons was flawed because, when his Honour came to consider the evidence of the appellant’s baptism and, separately, the evidence provided by Minister Park’s and Session Clerk Choi’s letters, he commenced from the concluded position that the appellant had attended the Bonnyrigg church and had been baptised in order to strengthen his claims to a protection visa.

56    I do not accept that submission. That said, the Tribunal’s finding with respect to the appellant’s motives was certainly important and a necessary matter to which the primary judge was required to have regard.

57    On this aspect of his appeal, the appellant points in particular to the primary judge’s finding at [93] with respect to the appellant’s baptism that:

The paragraphs of the Decision Record relating to baptism practices of the Presbyterian Church and Bonnyrigg Christian Church in particular, which are found at [139]-[140] of the Decision Record, do nothing more than indicate what is the normal practice at that church. This information in itself does not provide any specific criteria to determine whether a person had adopted and become adherent to the faith. If somebody was participating in this procedure purely to strengthen a claim of adopting the beliefs of a Christian faith there would be nothing to prevent a person to follow this path. The mere participation in a baptism ceremony does not necessarily confirm the adoption of the belief.

58    I accept the Minister’s submission that these observations of the primary judge simply illustrate that the Tribunal could have formed more than one conclusion reasonably open to it on the basis of that evidence. Reasonable minds could differ on the interpretation of the documents.

59    The appellant also points to the primary judge’s findings at [103]-[104], which I have reproduced at [32]–[33] above. I accept the Minister’s submission that the primary judge’s observations were simply that the material did not contain anything that would be inconsistent with an individual attempting to strengthen his claims for protection by engaging in religious activities. Those observations do not reveal error on the part of the primary judge.

60    Although couched in terms of irrational or illogical decision-making, the appellant’s submissions really seek to cavil with the Tribunal’s findings of fact. The Tribunal’s finding that the appellant was not a genuine practising Christian was one that was open to it on the evidence. The evidence did not admit only one conclusion. It allowed different conclusions to be reasonably drawn. The conclusion drawn by the Tribunal was one adverse to the appellant’s claims. There was nothing irrational or illogical in the Tribunal’s decision in that regard. No error has been demonstrated in the primary judge’s conclusion that this challenge to the Tribunal’s decision could not be sustained and should be dismissed.

Disposition

61    The appeal should be dismissed with costs.

Associate:

Dated:    26 March 2014