FEDERAL COURT OF AUSTRALIA

BUV18 by his Litigation Guardian v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2020] FCA 1058

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant’s litigation guardian pay the first respondent’s costs as assessed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia, dismissing an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to refuse the grant of a protection visa to the appellant.

2    The appellant, a citizen of China by reason of the citizenship of his parents, is an infant who was born in Australia. He brought his judicial review application and this appeal by his father as his litigation guardian. Both his parents and his brother (also born in Australia) failed in their quest to obtain protection visas. He was not a party to those prior applications, such that they have no part to play in the fate of his independent protection visa application.

3    The appellant’s claims for protection were based upon his status as a second child, in breach of birth control laws in China; and upon fears of religious persecution. Only the religious persecution claims were the subject of the judicial review proceeding before the primary judge and on appeal to this Court. All of the claims upon which the appellant’s protection visa application were based were advanced on his behalf by his father. The substance of the religious persecution claims, to be considered in more granular detail below, was that:

(1)    his parents are devout Roman Catholics;

(2)    he and his older brother had been baptised;

(3)    if he went to China he would be subject to persecution because of his parents’ religious beliefs and would not be able to practice his religion safely and freely;

(4)    if he went to China he would practice his religion in an underground church and would not ever attend the State-sanctioned Patriotic Church; and

(5)    he and his whole family would be persecuted.

4    When the appellant’s father was asked how the appellant would be persecuted, the response was that his parents may be arrested and he would be sent to an institution where he would be persecuted. During a prior interview with the Minister’s Department, the appellant’s father made a similar claim that he and his wife may be arrested because of their religious beliefs and the appellant would therefore be left without a carer. The Tribunal did not accept that, even if the appellant’s parents were arrested, he would be left without a carer because he had grandparents, aunts and uncles and other relatives in China who could take care of him.

Before the Tribunal and primary judge

5    The primary judge’s reasons asserted to evince error and the competing arguments about them raise questions not just about what was said and done, but about what was not said and not done by both the Tribunal and her Honour. The assessment of such asserted inadequacy and omission by the Tribunal and by the primary judge, including those assertions made on appeal, are best evaluated by first reproducing part of the Tribunal’s reasons. The relevant part assesses the appellant’s religious persecution claims, and the conclusion reached about them, in full, commencing with the country information (omitting footnotes):

[30]    The country information obtained by DFAT [(Department of Foreign Affairs and Trade)] indicates the following:

Article 36 of the Constitution of the People’s Republic of China states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. However, the establishment of government-affiliated organisations to regulate and monitor the five officially recognised religions (Buddhism, Taoism, Islam, Catholicism and Protestantism) has, in theory (and, in some circumstances, practice), restricted religious freedom in China.

Generally speaking, individuals in Fujian can practice religion within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese Communist Party. In practice, the Chinese Communist Party obstructs religious practice at an organisational level, and is largely indifferent to religious practice at the individual level, with the exception of Party members, who are not permitted to follow any officially recognised or other religion. Religious adherents can be subject to a range of restrictions that are inconsistent or lack transparency. An individual’s ability to practice religion can be influenced by whether the individual exercises their faith in registered or unregistered institutions, whether they practice openly or privately, and whether or not an individual’s religious expression is perceived by the Chinese Communist Party to be closely tied to other ethnic, political and security issues.

[31]    When the Tribunal discussed the above country information with the applicant’s father, he responded that he would practise Catholicism in the unregistered underground Church. Country information obtained by DFAT indicates the following in relation to unregistered Churches particularly in Fujian Province:

Unregistered churches (otherwise referred to as underground or house churches) are predominantly independent Protestant and Catholic congregations which refuse to acknowledge or associate with the officially sanctioned TSPM and CPA [(Three-Self Patriotic Movement and Chinese Patriotic Catholic Association)]. By definition, unregistered churches are clearly subject to less control by the state than TSPM- and CPA-linked churches but also operate at greater risk given their unregistered status. Some in-country contacts questioned the validity of the ‘registered’ and ‘unregistered’ dichotomy, pointing out that members of a congregation will often move between the two.

Asia Harvest estimates that in 2011 there were 1.57 million worshippers of Protestant-linked unregistered churches and one million worshippers of Catholic-linked unregistered churches in Fujian. Accurate data on the number of unregistered churches in Fujian is unavailable, however in-country contacts report that they are able to be identified and accessed, particularly by Protestants.

Given that legislative protections for freedom of religious belief extend only to government-affiliated organisations (such as the TSPM and the CPA), the operations of unregistered churches depend on the attitude of local authorities. Their treatment varies greatly across China, and within Fujian. Generally speaking, in-country contacts suggest that local authorities in Fujian tolerate the operations of unregistered churches who operate discreetly, including by limiting the number of worshippers and meeting in inconspicuous locations. DFAT understands that congregations of up to 50 people can meet weekly in private houses without being closed down / repressed by local authorities.

[32]    The Tribunal discussed the above country information with the applicant’s father. He responded that in 2017 President Xi signed the Regulations on Religious Affairs which will come into effect in February 2018. He stated that it states that Chinese religious organizations cannot be controlled by foreign powers and schools and colleges are not allowed to organize public religious activities. He stated that he believes that the situation for underground Churches will become stricter after the implementation of this legislation. He stated that presently there may not be a problem attending an underground Church but that does not mean that it may not become a problem in the future. He stated that the Chinese government is cracking down on unregistered Churches now and there is zero tolerance. This is not consistent with the country information particularly in relation to Fujian Province where the applicant will reside.

[33]    The country information obtained by DFAT indicates the following:

Broadly speaking, DFAT understands that should an unregistered church or an individual perceived to be associated with an unregistered church engage in active and public proselytising, or are perceived to openly criticise the Chinese Community Party or the framework that regulates religious practice, the church or individual would likely be exposed to harassment, raids and destruction of property, pressure to join or report to TSPM- and CPA-linked churches and occasional violence and criminal sanction. In practice, this is more likely to affect leaders of unregistered churches, rather than individual worshippers. Leaders who amass a large (undefined) and unregulated congregation or personal following can also attract negative attention from the authorities.

[34]    The Tribunal discussed the above country information with the applicant’s father. The Tribunal noted that there is no evidence before it to indicate that he or his wife are leaders in the Catholic Church and so it is unlikely that he or his wife, let alone the applicant, would come to the adverse attention of the Chinese authorities. He responded that he has lived in Australia for 14 years, has been attending Church here for 7 years and is used to the freedom of religion here. He stated that if he returns to China he would not attend a registered Church. He stated that he would explain to people that there is a real Church and what Church they should attend.

[35]    Father McGee gave evidence that he knows the applicant’s family since they first came to the Catholic community about 6 years ago. He provided the Tribunal with some country information which he stated was from a Catholic weekly paper called the Sunday Examiner which comes from Hong Kong. He stated that the country information is about the Catholic Church in China and that he is concerned about some of the things he has read in recent reports about the Church in China.

[36]    The Tribunal has had regard to the country information provided by Father McGee. It consists of five articles. The first is an article dated 8 October 2017 in the Sunday Examiner in relation to the ‘Sinicisation of religion’ in China. The second article is dated 8 October 2017 in the Sunday Examiner in relation to the banning of Church summer camps for children in parts of China and teachers being told to ask students’ parents whether they had sent their children to Church summer camps. The third article is dated 22 October 2017 in the Sunday Examiner and reports on the 19th National Congress of the Communist Party on 18 October 2017, the endorsement of President Xi for a second term and the implications of this including on religion.

[37]    The fourth article is dated 1 October 2017 in the Sunday Examiner and refers to the newly revised Religious Affairs Regulations and its possible implications. The fifth article is dated 4 May 2014 in the Sunday Examiner and refers to members of the Sanjiag Church in North Yonglia (Zhejiang Province) expressing dismay because they say they received permission to build a Gothic style Church from the local government but were being told that it would have to be destroyed. The article also refers to Churches in Hangzhou, Sheshang and Zhoushan (all in Zhejiang Province) being told not to light up the crosses at night and that some of these Churches had built structures beyond what they had permission to do, or where permission was obtained verbally but not in writing.

[38]    The Tribunal has had regard to the letters of support from members of the Catholic Church in Australia including members of the Western Sydney Catholic Chinese Community, Father McGee, Father Adler and the photographs provided to the Department and the Tribunal.

[39]    The Tribunal has also had regard to the country information provided by the applicant’s father after the hearing. The first is a Report published by the Child Rights International Network on 12 November 2013. It highlights areas in which children’s rights have been violated in China. Many of the areas of concern referred to in the Report, such as children with disabilities, forced abortions and sterilisations, sex selective abortions, education in minority languages, are not relevant to the applicant. The Report does not indicate the prevalence or location of the other areas of concern. The Tribunal is not satisfied that there is a real chance or a real risk that the applicant would be the victim of the type of violations referred to in this Report. The second Report is the DFAT Country Report on China dated 21 December 2017. This indicates the following:

In April 2017, President Xi Jinping called on CCP officials working in religious administration to reassert the Party’s ‘guiding’ role in religious affairs. Xi’s speech emphasised the need to ‘sinicise’ religion, to ensure religious rights did not impinge on CCP authority, and to enforce the prohibition on Party members to belong to any religion. In September 2017, the (government) State Council approved revisions to the 2005 Regulations on Religious Affairs, which devolve substantial powers and responsibility to local authorities to prevent illegal religious behaviour, including undue influence from foreign organisations. The new regulations, which come into force in February 2018, also impose large fines for organising illegal religious events or fundraising. They restrict religious education in schools, detailing procedures for approval and monitoring of religious training institutions. The regulations emphasise the need to prevent ‘extremism’, indicating they may target Uighur Muslims and Tibetan Buddhists; the devolution of enforcement to local government and Party authorities, however, means that unregistered Christian churches are also likely to be affected.

[40]    As the revised Regulations on Religious Affairs only came into force in February 2018, the Tribunal is unable to find any country information on its implementation. The impact, if any, it will have on the unregistered Catholic Churches (particularly in Fujian Province which has traditionally been very tolerant in relation to the practise of Christianity in unregistered Churches) is speculative.

…

[44]    The Tribunal does not accept that the applicant will not be able to practise Catholicism in an unregistered Church in Fujian Province if he wishes to do so. The Tribunal is not satisfied, on the evidence before it, that the revised Regulations on Religious Affairs that came into force in February 2018 will prevent him from practising Catholicism in an unregistered Church in Fujian Province if he wishes to do so. The Tribunal does not accept that his parents’ practise of Catholicism in an unregistered Church in Fujian Province will result in him being sent to an institution where he will be persecuted or being left without a carer.

6    The five grounds in the amended notice of appeal, the appellant’s submissions in support of them, and the Minister’s submissions in response, all direct attention to the way in which the primary judge addressed the above passages of the Tribunal’s reasons. The competing arguments turn on an assessment of the language her Honour used as a whole. Rather than consider her Honour’s reasons in a piecemeal fashion, it is best to reproduce the key passages in full before turning to what is said about them, both as pleaded grounds of appeal, and as supporting or opposing arguments. The relevant part of primary judge’s reasons are as follows:

Ground 1(a)

[18]    Ground 1(a) asserts that the Tribunal failed to consider whether being wholly or substantively deprived of being able to learn about a person’s religion is persecutory.

…

[24]    The Tribunal’s finding that the impact of the religious regulatory laws on unregistered Catholic churches was speculative, was a rejection of the applicant’s claim of religious persecution. That finding subsumes any purported claim concerning deprivation of the applicant’s ability to learn about his religion (see WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at [47]). The Tribunal found that the applicant would reside in Fujian Province which had traditionally been very tolerant in relation to the practice of Christianity in unregistered churches.

[25]    In the circumstances, it was open to the Tribunal to find that any adverse impact on the applicant arising from changes to religious laws in China, was speculative. That finding was based on rational grounds and arrived at after considering those factors that were logically probative of the applicant’s claim. That finding was made in a procedurally fair manner and was not without and intelligible foundation (see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[38] per McKerracher, Griffiths and Rangiah JJ; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry and Bromwich JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ).

…

Grounds 1(b) and (c)

[26]    Ground 1(b) asserts that the Tribunal’s rejection of the applicant’s claim that his parent’s practice of Catholicism in an unregistered church in Fujian Province would result in the applicant being sent to an institution where he would be persecuted or be left without a carer, leaves open the question of whether the applicant would have the care of relatives if his parents were arrested or whether they would be arrested in the first place. Counsel for the applicant submitted that if the parents were to be arrested for practicing their faith, would not the applicant be persecuted by the deprivation of his parents if the deprivation was carried out for the reason of their religion.

[27]    By Ground (1)(c), counsel for the applicant also contended that if the applicant’s parents were to be arrested by reason of proselytising their religion with the consequence that if the applicant was to adopt Catholicism he would also be at risk of having to restrict the practice of his religion.

[29]    … a fair reading of the Tribunal’s decision record must take account of the Tribunal’s reasons and analysis [as a whole]. This includes the Tribunal’s reference to the applicant’s father’s claim to the Delegate that he and his wife may be arrested because of their religious beliefs with the result that the applicant would be left without a carer.

[30]    The Tribunal considered that claim but rejected it. The Tribunal did not accept that the applicant would be placed in an institution or left without a carer because his parents would be arrested and that the likelihood of that happening was remote. The Tribunal found that based on country information before it proselytising was more likely to affect leaders of unregistered churches rather than worshippers and that there was no evidence before the Tribunal to indicate that the applicant’s parents were leaders in the Catholic church. The Tribunal found it unlikely that the parents or the applicant would therefore come to adverse attention of the authorities.

[31]    The findings referred to above supported the Tribunal’s conclusion that it did not accept that the applicant’s parent’s practice of Catholicism in an unregistered church in Fujian Province would result in the applicant being sent to an institution where he would be persecuted or left without a carer.

[32]    A fair reading of the Tribunal’s reasons, which take into account its detailed analysis of country information and the evidence before it, disclose that there was no issue left unconsidered by the Tribunal in respect of the applicant’s claims.

…

[38]    The Tribunal identified with particularity and assessed in detail the evidence and country information about the applicant’s claim that his parents would practice Catholicism in an unregistered church. The Tribunal also set out and fairly summarised the 5 articles submitted by Father McGee and had regard to country information provided by the applicant’s father after the hearing. In evaluating that evidence before it, the Tribunal found that, based on the country information and evidence it had previously set out, the “impact” of new regulated religious laws was “speculative”.

[39]    It was open to the Tribunal to prefer DFAT country information which indicated that Fujian Province had been traditionally very tolerant of unregulated Catholic churches. The Tribunal found that the applicant’s father’s statement that the Chinese government is cracking down on unregistered churches and there is zero tolerance not to be consistent with the country information in relation to Fujian Province where the Tribunal found the applicant will reside.

[40]    The Tribunal’s findings disclose that it considered all the evidence and country information before it but preferred some over the other. It is well established that the country information to which a tribunal has regard and the weight it gives that information is a matter for the tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] and [13]).

[41]    Otherwise, as stated above the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave. They were arrived at after a detailed analysis of all the material before the Tribunal, including post-hearing material. In the circumstances, the Tribunal discharged its obligations as a trier of fact and its findings were not without an intelligible justification.

Grounds of appeal and supporting arguments

7    The appellant relies upon five grounds of appeal, one with three sub-grounds. It is convenient first to summarise those grounds and the arguments the appellant advances in the three groups in which they were argued in written submissions and at the appeal hearing. As noted below, success on the second and third groups of appeal grounds depends upon success on the first group of appeal grounds.

Appeal grounds 4 and 5 – assertion primary judge erred in finding the Tribunal had properly assessed the evidence and country information concerning unregistered churches in China

8    Appeal grounds 4 and 5, relate to judicial review ground 2 before the primary judge. The issue on appeal concerns the adequacy of the Tribunal’s assessment of the evidence and country information before it that related to the claim made by the appellant’s father on the appellant’s behalf that he and his wife would practice Catholicism in an unregistered church in China. The appellant contends that her Honour erred in finding at paragraph 38 that this material had been assessed in detail, and should instead have found that the Tribunal failed to assess, in a “real and active way” as required to complete the exercise of its jurisdiction:

(1)    “evidence and submissions to the effect that there was a progressive tightening of restrictions affecting free religious worship and religious education”, with reference to the new laws due to come into effect in February 2018, a month before the Tribunal’s decision; and

(2)    evidence obtained under s 424 of the Migration Act 1958 (Cth).

9    The appellant submits that while the Tribunal (at [36]-[37]) referred to the articles furnished by Father McGee and their general content, and also referred to information submitted by the appellant’s father (at [38]) and to DFAT country information (at [39]) indicating that unregistered churches were likely to be affected by the new laws, it summarily dismissed the claims reliant upon those new laws to which Father McGee’s articles and the DFAT country information referred upon the basis that those laws only came into existence a month before the Tribunal’s decision was made and that their impact was therefore “speculative”.

10    The appellant argues that the assessment of whether or not a person faces a well-founded fear of persecution necessarily calls for consideration of what may happen in the future, which in turn requires speculation, citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277-8 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-5. The appellant points to:

(1)    information before the Tribunal that suggested a trend, backed by the new laws, which was intended to affect religious freedom; and

(2)    evidence as to the possible effect of those changes contained in the articles furnished by Father McGee and in DFAT country information which made specific reference to active and public proselytising by persons associated with unregistered churches being likely to be exposed to harassment and worse.

11    In those circumstances, the appellant contends that the Tribunal had a duty to consider Father McGee’s articles and the DFAT country information by way of an active intellectual process, in its assessment of what may happen in the future, and that this did not permit the Tribunal to find that the impact of the new laws in Fujian Province was merely “speculative”. The oral submissions developing this argument are considered in more detail below.

12    The key issue advanced before the Tribunal, in the Court below, and on appeal, concerned an asserted fear of restrictions on religious practice. In that context, the consideration by the Tribunal of earlier country information from the Department of Foreign Affairs and Trade (DFAT) assumes central importance. Because the appellant’s case turns on the adequacy of the consideration of his claims and the material advanced in support of them, it is necessary first to have regard to what was before the Tribunal and then to consider how that material was addressed.

13    At the Tribunal hearing on 9 January 2018, a Roman Catholic priest, Father McGee, gave evidence and produced five newspaper articles from the Sunday Examiner, a Hong Kong newspaper, published during October 2017. The appellant’s written appeal submissions describe the theme of the articles as being that the Chinese government was tightening controls on religious observance, instruction and institutions, that it was likely to continue to do so, and that it had passed laws to assist in that process. It is convenient to adopt the summary of four of those articles furnished in the appellant’s written submissions (omitting appeal book references), noting that the Court was taken to the content of each article in some detail at the appeal hearing:

There has been a push, instigated by government, for the “Sinicisation” of religion in China, which meant, “… making Christianity a specifically Chinese reality in every aspect, including doctrine, cultural custom, morality and culture”, and that currently evangelism amongst other things was being used to try to reshape Chinese culture and ideology.

Church summer camps are being banned in several parts of China, teachers are being told to ask students’ parents whether they sent their child to summer camps. In addition, Churches have been forced to stop faith formation classes, people are being forced to practice their religion in secret. The price of resistance can be very high. That price includes preventing children from studying at university or getting good jobs.

A China researcher for Amnesty International has commented that President Xi has emphasised religion as a conduit for Communist Party governance, the government’s right to tightly regulate religion and the “Sinicisation” of religion. He commented that the impulse to tighten control indicates a grim outlook for religious freedom in China for years to come.

New regulations tighten government control of religion including tighter control on unauthorised religious venues and heavy fines for unauthorised activities. Concerns were expressed that religious observance and religious education may be significantly inhibited or prevented.

14    The appellant’s father also gave evidence at the Tribunal hearing after Father McGee had given evidence. The appellant’s father had also participated in an earlier Departmental interview. The burden of that evidence was that official churches were not genuine Catholic churches because they were not answerable to the Pope, that the historic lack of difference between official and unregistered churches in Fujian Province adverted to by the Tribunal would be adversely affected by new laws to commence in February 2018, and that he would “certainly explain to the people there what is a real church and what church they should attend”. As set out in the extracts from the Tribunal reasons above, the Tribunal raised with the appellant’s father the effect of country information, key aspects of which were later summarised and in part reproduced in those reasons.

15    Experienced and able counsel for the appellant quite properly accepted that his primary argument on the Tribunal’s “speculation” finding, which was the same argument that failed before the primary judge, had to succeed for these and any of the other grounds of appeal to prevail. That primary argument attacks the Tribunal’s reasons at [40] and [44]. The argument may be summarised as follows:

(1)    While the Tribunal referred to the general content of the articles furnished by Father McGee, to information submitted by the appellant’s father, and to country information concerning the new laws which would affect unregistered Christian churches, to dismiss summarily the effect of those laws as being “speculative” did not fulfil the obligation to address the question of whether the appellant faced a well-founded fear of persecution, commonly known as the “real chance” test following Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407 and 429.

(2)    That is because the assessment of that asserted fear inherently involves looking into the future and engaging in speculation: Wu Shan Liang at 277-8.

(3)    That assessment process required the Tribunal to examine the available evidence: Guo at 574-5.

(4)    The information before the Tribunal suggested a trend towards adversely affecting religious freedom in China, backed by:

(a)    a change of legislation, in particular as referred to in the articles furnished by Father McGee; and

(b)    the DFAT report (quoted in the Tribunal’s reasons at [33] reproduced above), which specifically stated that active and public proselytising by people associated with unregistered churches would “likely” be exposed to harassment and worse.

(5)    The evidence of the appellant’s father was that he saw it as his religious duty to proselytise.

(6)    The Tribunal was required to apply an active intellectual process to the information before it in its assessment of what may happen in the future: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [36]-[46]. Unless that obligation was met, it was not open to the Tribunal to find that the impact of new laws was merely “speculative”.

(7)    In those circumstances, the primary judge erred in the findings made at [38]-[39] that the claims made had been addressed.

(8)    Rather, the necessary active intellectual process required the Tribunal to consider the predictions in the articles furnished by Father McGee, having particular regard to the intent or motivation behind the change in the laws and their likely effect, and “decide whether, on the basis of that information, the [appellant], upon return to China, would face a well-founded fear of persecution for reason of religion”.

(9)    The Tribunal fell short of what was required by reasoning, in effect, that there had been a large amount of tolerance in the past, and it was not known how the new laws were going to affect the situation, because that ignored the information about the intent and motivation behind those new laws.

16    Argued and reasoned as set out above, the appellant raises a proper case for consideration as to whether the Tribunal failed to fulfil its jurisdictional task. On any view, [40] of the Tribunal’s reasons, taken in isolation, is a sparse treatment of such an important issue. However, a closer consideration of the Tribunal’s reasons, and the applicable authority, is required.

17    Following Wu Shan Liang at 272, citing Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; and also WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46], it must be kept steadily in mind that:

(1)    the Tribunal is an administrative body, not a court, required to deal expeditiously with a high volume of merits review applications of this kind; and

(2)    although Tribunal decisions made may literally be life and death in their impact, the reasons given must be read fairly, and not in search of error.

18    As the High Court pointed out in Wu Shan Liang at 277, the use of the word “speculative” need not necessarily amount to a denial of the function of assessing the future chances of persecution. It might equally be used to refer to the probative force of the material that was being considered. What matters is that an issue clearly raised has been dealt with, either expressly, or as a necessary part of the overall decision-making process: WAEE at [47]. The live question on this appeal is therefore the sense in which the Tribunal was using the word “speculative”.

19    The Tribunal had dealt with a body of country information, both in relation to the religious persecution claim, and in relation to the claim relating to birth control laws in China that has not been pressed further by way of judicial review, as to the generally lenient approach of the authorities in Fujian Province. That material, quoted at some length by the Tribunal in the passages reproduced above, indicated that:

(1)    generally speaking, individuals in Fujian can practice religion within state-sanctioned boundaries, as long as this does not challenge the interests or authority of the Chinese Communist Party, and that while religious practice is obstructed at an organisational level, there is indifference to it at an individual level;

(2)    there was a large number of worshippers at unregistered churches which are tolerated as they operate discreetly, allowing for congregations of up to 50 to meet weekly in private homes without repression;

(3)    while active and public proselytising or open criticism of the Chinese Communist Party could expose an individual to harassment and more, in practice this was more likely to affect leaders;

(4)    there was nothing to suggest that the appellant’s parents were in that role, such that it was unlikely that he or his parents would come to the adverse attention of the Chinese authorities, noting his father’s intention to explain to people that they should attend a real church.

20    The Tribunal considered each of the articles furnished by Father McGee, and clearly enough was aware of what they contained. There was no obligation to address the content of them in any particular way.

21    Importantly, the DFAT country information about the new laws indicated that they would operate by devolving substantial powers and responsibility to local authorities to prevent illegal religious behaviour and undue foreign influence, which was likely to affect unregistered Christian churches, but this necessarily invited consideration of the approach of the authorities in Fujian Province. When [39], [40] and [44] of the Tribunal’s reasons are considered in the context of the [30] to [38], the criticisms advanced by the appellant cannot be sustained.

22    In context, the Tribunal was not using the word “speculative” to refer to the real chance test, but rather was referring to the probative force of the material in support of the suggestion that the new laws would cause the local authorities in Fujian to behave in a markedly different way to way that they had in the past. The Tribunal was entitled to regard as it being no more than speculative that these new laws, devolved to the province officials, would produce a different approach. The Tribunal clearly had regard to the articles furnished by Father McGee, and the DFAT information, as to how the new laws would be implemented.

23    It follows that the error asserted on the part of the primary judge cannot be sustained. Her Honour did not err in concluding that the Tribunal had identified and assessed the evidence before it, including the articles from Father McGee and the DFAT country information about the new laws. The Tribunal was entitled to conclude that this evidence as to the impact of the new laws was speculative and to prefer to rely upon prior DFAT country information indicating that Fujian Province had traditionally been tolerant of and lenient towards unregulated Catholic churches.

24    It follows that appeal grounds 4 and 5 must fail.

Appeal grounds 1 and 3(a) – assertion primary judge erred in relation to the Tribunal finding that the impact of the new laws in Fujian Province was “speculative”

25    Appeal grounds 1 and 3(a) relate to judicial review ground 1 in the amended application before the primary judge, and flow from appeal grounds 4 and 5 summarised above. While, strictly speaking, these grounds do not arise in light of the conclusion reached above as to appeal grounds 4 and 5, for completeness and in acknowledgement of the effort and care taken by counsel for the appellant, they should be concisely addressed.

26    The issue raised by these further appeal grounds concerns the impact of the new laws that the appellant contends, as summarised above, were inadequately considered by the Tribunal at [39], [40] and [44], and dealing with the consequences flowing from that asserted deficiency. Assuming that to be so, appeal ground 1 asserts that the primary judge erred in holding at paragraph 24 that the Tribunal’s finding at [40] that the impact of the new laws on unregistered churches was “speculative” was “a rejection of the applicant’s claim of religious persecution” and “subsumes any purported claim concerning deprivation of the applicant’s ability to learn about his religion”. Appeal ground 3(a) asserts that, as a consequence, and contrary to her Honour’s findings at paragraphs 30 and 32, the Tribunal failed to deal with the appellant’s claim that due to the implementation of the new laws regulating religion, he may be deprived or substantially deprived of being able to learn about his religion so as to be able to practice that religion, and if so whether that would be persecutory.

27    The appellant’s submissions build upon the arguments advanced in relation to appeal grounds 4 and 5 in relation to the Tribunal’s “speculation” finding at [40], and address the collateral question of whether the Tribunal, as a result of that finding (already found not to be erroneous by the primary judge and above in this appeal), failed to grapple with the claims made concerning him learning about his religion.

28    The appellant therefore takes issue with the primary judge’s application (at paragraph 24) of the reasoning in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 (French, Sackville and Hely JJ) at [47]:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

29    If the primary judge did err in finding that the Tribunal’s “speculation” finding was a rejection of the claim made on behalf of the appellant about being unable to learn about his religion, he contends that such claims plainly arose from the material that was before the Tribunal, especially the articles provided by Father McGee. He asserts that claim therefore had to be considered, citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 (Black CJ, French and Selway JJ) at [55]-63]. That is because, if not subsumed, the question of whether being deprived of the ability to learn about his religion could be persecutory had to be considered, relying upon the observations about indirect religious persecution by curtailment of religious activity in Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599; 105 FCR 548 (Wilcox, Gray and Merkel JJ) at [70]-[75], and the corresponding and consistent proposition that a person should not have to modify conduct to the extent of altering or concealing religious beliefs to avoid persecution as provided by s 5J(3)(c)(i) of the Migration Act, when read with the non-exhaustive instances of serious harm contained in s 5J(5) into which the potential treatment of the appellant could fall.

30    The short answer is that these appeal grounds might well have succeeded if the characterisation given to the Tribunal’s reasons by the primary judge had been wrong. That is because, while the claims could not succeed in light of the findings that were made without a finding that the new laws would be likely to change the approach that would be taken by the Fujian Province authorities, those claims plainly enough were not considered upon the contrary assumption that the evidence in relation to those new laws had been found to be probative enough to justify consideration of a material change in that approach taking place. However, without such a conclusion about the impact of the new laws, which the Tribunal was not obliged to make, these grounds cannot succeed. It follows that appeal grounds 1 and 3(a) must fail.

Appeal grounds 2, 3(b) and 3(c) – assertion primary judge erred in finding that the Tribunal lawfully found the appellant would not be placed in care because of the arrest of his parents or would otherwise be restricted in the practice of his religion in an underground church

31    Appeal grounds 2, 3(b) and 3(c) relate to judicial review grounds 1(b) and (c), which were dismissed upon the basis that the primary judge found (especially at paragraphs 24, 30 and 32) that the claims of a fear of persecution arising from:

(1)    the appellant being deprived or substantially deprived of the care of his parents in the event they were arrested or detained for following what they say was their religious obligations; or alternatively

(2)    the appellant being restricted in worship and proselytising if he adopted his parents’ religion in an underground church,

had been considered and rejected by the Tribunal.

32    These appeal grounds also flow from appeal grounds 4 and 5 summarised above. Again, while strictly speaking these grounds also do not arise in light of the conclusion reached above as to appeal grounds 4 and 5, for completeness they too should be concisely addressed.

33    The appellant asserts that the primary judge erred at paragraph 30 because the Tribunal made no finding that “based on country information before it proselytising was more likely to affect leaders of unregistered churches rather than worshippers and that there was no evidence before the Tribunal to indicate that the applicant’s parents were leaders in the Catholic church”. Rather, he submits, the Tribunal’s quote from DFAT country information at [33] contained information to the effect that should a person, not restricted to a church leader, engage in public proselytising, they may be exposed to harassment or worse, and the Tribunal did not address the claim that the appellant’s father would engage in such proselytising.

34    The difficulty with that submission is that it overlooks, or at least gives insufficient regard to, the part of the DFAT country information quoted by the Tribunal at [33] that, in practice, public proselytising is more likely to affect leaders rather than individual worshippers, and the characterisation of the evidence in [34] that there was nothing to indicate that the appellant’s parents were leaders in the Catholic Church, such that it was unlikely that they, let alone the appellant, would come to the attention of the authorities. That subsequent paragraph also refers to the oral evidence from the appellant’s father upon which the proselytising claim was made. This part of the Tribunal’s reasons can properly and fairly be read in the way that the primary judge interpreted them. Accordingly, there was no error by her Honour in this respect.

35    The appellant further submits that, while the Tribunal at [44] purports to address the appellant’s claim that, if his parents were to be arrested, he would be left without a carer, it failed to address the anterior question of whether his parents would be arrested because of their activities, including proselytisation. That in turn left open the question of persecutory psychological harm arising from the appellant being deprived of his parents because of their perceived anti-State activities. The problem with this argument is that the secondary effects only arise if the error in relation to [30] considered above is made out. The conclusion that the appellant’s parents would not come to the attention of authorities necessarily dispenses with the risk of arrest and what might flow from that. It also deals with the claim of restriction in religious practice arising from such an arrest. Thus, even if grounds 4 and 5 had succeeded, these grounds would not succeed.

Conclusion

36    The appeal must be dismissed with costs. Following the reasoning in Plaintiff B9/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 27 at [10] the costs order should be made against the appellant’s father, who brought this appeal on the appellant’s behalf as his litigation guardian.

Associate:

Dated:    24 July 2020