Federal Court of Australia

AAN17 v Minister for Immigration and Border Protection [2021] FCA 1541

ORDERS

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

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an appeal from a decision of the Federal Circuit Court dismissing the appellants’ application for constitutional writ relief in respect of the decision of the Administrative Appeals Tribunal given on 22 December 2016, affirming a decision of the Minister’s delegate not to grant the appellants a protection visa: AAN17 v Minister for Immigration and Border Protection [2021] FCCA 647.

Background

2    The appellants are husband and wife. The wife was the primary member of the family who made claims for protection, and the husband’s claims were derivative upon his wife’s. The appellants are citizens of the People’s Republic of China. They arrived on their own passports on 11 January 2014 and made claims for protection on 19 March 2014.

3    The wife made a statutory declaration in support of the protection visa application, in which she said that she had been in Australia for two months and had become heavily involved with a church in Melbourne. She claimed that she found that the environment in Australia was unlike in China, where church members took lots of risks in practising their religion, and that her church was still banned by Chinese authorities as an illegal sect. She claimed that her parents had always practised at their local family church in Fujian province and that she began attending at local church activities when she was a young child. She claimed that everyone in her family, including her husband and two children, were local church members. She claimed that her religious practices in China are very similar to those she experienced in Melbourne, although in China they had mostly met at night as church members had to attend work during the day.

4    The wife claimed that on 23 October 2013, while practising at a church gathering in her city, she was arrested and taken away by police officers, kept for questioning in a police station before being transferred to a custody centre where she was detained for eight days before being released after paying a fine and signing an undertaking. She said that while detained, she was interrogated, assaulted and threatened by Public Security Bureau (PSB) officers and, before her release, was warned not to have any further involvement with the local church. She said that she was told that the only place that she was allowed to practise her religious beliefs was at a government approved church.

5    She claimed that after her release, the local authorities revoked the business licence for her cosmetics business and closed it down so that she no longer had an opportunity to make a living. She claimed that she was reluctant to practise at the government church because its religious practices were contrary to the tenets of the Christian belief she espoused. She claimed that she had decided not to return to China after her two months’ experience of religious worship in Melbourne and hoped that she would be allowed to stay where she would be free to do so.

The process before the delegate

6    The appellants attended before the delegate for an interview. The delegate asked the wife about details of her religious practices and church attendance. The delegate found that the wife’s claim to have been a Christian in China was not credible, and was not satisfied that she had been detained in 2013 due to Christian activities. Having considered her claims, the delegate accepted that the wife had made contact with Christians in Australia, but did not accept that she practiced at an unregistered church in China or was detained by authorities there for attending mass at an underground church.

7    The delegate identified country information about religious freedom and practices in China. She found that because the appellants resided in Fujian, country information did not support a finding that the wife would suffer significant harm should she return to China, and that her claims to fear harm there were not well-founded. The delegate was not satisfied that the appellants had a real chance of being persecuted for a Convention reason, and was therefore not entitled to protection under s 36(2)(a) of the Migration Act 1958 (Cth). The delegate found, for the same reasons, that the appellants were not entitled to complementary protection under s 36(2)(aa).

The process before the Tribunal

8    The appellants attended a hearing in the Tribunal pursuant to an invitation under s 425 of the Act, and the wife gave evidence before the member. A transcript of the hearing is in evidence, and I will turn to that during the course of dealing with the arguments of the parties. The Tribunal noted that the appellants had been represented in relation to the review by their registered migration agent who also attended at the hearing. The Tribunal identified the issue before it as whether it should accept the appellants’ claims to fear persecution and significant harm if they returned to China because they were Christians. It noted that:

    the wife had claimed that over 3000 people lived in her village, about 100 belonged to her local church, and that usually about 16 people attended activities of the church on most days of the week.

    the wife claimed that her church had never been raided prior to the events of October 2013.

    the husband was also a member of the church, but rarely went with the wife to its meetings because he was very busy working on their farm had made no specific claims about past events or conduct in China and was not present at the time of the raid.

    the wife had claimed that the PSB officials had asked her during their interrogation about the name of the leader of the church group, but she had refused to answer.

    on the seventh day of her detention she had been given a warning about attending the local church, because it was anti-government.

    she claimed that, if she were caught for a second time attending the church, she would be arrested and sentenced to a term of imprisonment, and that she also had paid a fine.

    the wife had been given a release certificate that did not have any charges on it. It found that the husband had no comment on any of those matters.

    the wife claimed that after her release from custody the authorities revoked her business licence and caused the business to close.

9    The Tribunal then proceeded to assess the material before it under the heading “Credibility of Claims”. It found that the wife had given very general responses to its questions about the content of each of the church gatherings which happened on almost a daily basis in the village. It said in [15]–[16] (referring in its reasons to the wife as “the applicant”).

15. The applicant claims to have been a Christian from a very early age. She gave a very general response to the Tribunal's questions about the content of each of the gatherings which happened on an almost daily basis in the village. Beyond telling the Tribunal about praying, reading the Bible and sharing stories there was little or no detail about the services and how they were conducted and by whom. The applicant's evidence regarding her religious practice in China, although extensive, did not answer the questions put to her about the actual content of the services, beyond generalities. If the applicant was a long term practitioner from a Christian family, the Tribunal would have expected a greater degree of detail in her description and explanation of her activities, particularly with regard to hymn singing, prayers offered, for instance the Lord's Prayer or similar, or the content of any sermons or similar. The lack of detail casts doubt on her claims that she has been a practising Christian since she was young. The Tribunal accepts that the principal applicant has attended a house church gathering, sometimes in her own home, with a usual attendance of up to 16 people. The Tribunal does not accept that she had been a practising Christian in China for thirty years, and suddenly came to the attention of the authorities in a raid on a local church that had never been raided before. The Tribunal accepts that she has attended a local church in China and that her husband is a Christian but accepts that he rarely attends church as he is busy working on the family farm. The Tribunal accepts that both applicants will be members of the local church on return to China; that the primary applicant will attend church and the secondary applicant will attend rarely.

16. The release certificate given to the applicant on her release from the custody centre is an A4 sheet of white paper which appears to be very new. The translated version was also provided, but did not show any charges against her, or any details of her eight day detention. The Tribunal discussed with the applicant why the document was not the original, and why it did not show details of any charges. She had no comment to make about why these details were not shown. Country information (China: Country of Origin Information (COi) Report, UK Border Agency, Home Office, 12 October 2012) attests to the availability of a range of fraudulent documents from China. The Tribunal does not accept that the document is genuine or supports the applicant's claim that she was held in detention. Based on the reasons above, the Tribunal does not accept that the applicant was detained in 2013 due to her religious activities.

(emphasis added)

10    The Tribunal referred to a report on Fujian province prepared by the Department of Foreign Affairs and Trade (DFAT) on 16 December 2016 that stated that local authorities in Fujian tolerated the operations of unregistered churches that operated discretely, including by limiting the number of worshippers and meeting in inconspicuous locations. The report stated DFAT understood that congregations of up to about 50 persons could meet weekly in private houses without being closed down or repressed by local authorities, and that any repressive action was more likely to affect leaders of the church. The Tribunal noted that this DFAT report had come to hand after the Tribunal hearing and that it reinforced earlier country information which the Tribunal had put to the wife during her evidence, in response to which the wife had said that religious life was very difficult in her home area and she was lucky to have avoided repression.

11    The Tribunal discussed the wife’s evidence to it about her evangelising and parish work in Melbourne and her provision of documents and booklets in support of those claims. It found that the appellants had made contact with Christians in Australia and had attended the local church in Melbourne. The Tribunal had asked the husband whether he had been involved with those activities and he had nodded, but it found that he had very little verbal engagement with the Tribunal, albeit the appellants were assisted by an interpreter. The Tribunal found that the husband was a passive attendee at church gatherings and did not take an active role. It did not accept that he had been an active participant in church work, either in Australia or China, or would become so were he to return to China at the time of the decision or in the foreseeable future. It found:

19. The applicant was enthusiastic about church work at the Tribunal hearing. The Tribunal finds that the applicant has been very diligent and active in her church work in Melbourne to foster the acceptance by the Tribunal that she would continue the same level of activity in China and be subject to a real chance of serious harm in the reasonably foreseeable future. The Tribunal finds that if the applicants return to China that the principal applicant will return to the same pattern of small scale, low - level, non- political pattern of church going she has practised before, while the secondary applicant will attend church rarely, as he usually works on his farm, as before. As the secondary applicant has been attended church rarely in the past, according to the primary applicant, and as he is a passive contributor to church life in Australia, the Tribunal finds that he will continue this pattern on return to China and continue to work most of the time on his farm. The Tribunal finds that with his rare attendance at church, and a more liberal attitude to house church Christians in their home province of Fujian (see Country information below, paragraph 21) that there will not be a real chance that he will suffer serious harm, or a real risk that he will suffer significant harm, now or in the reasonably foreseeable future, if he returns to China The Tribunal considers that she will practise her faith in this way as she has always done; meeting discreetly in private houses without being closed down or repressed by local authorities, as is usual in Fujian for underground churches. Her fear is not a well-founded fear of persecution. Because the primary applicant practises her religion in the manner described above, there is no real chance of serious harm or a real risk of significant harm to the secondary applicant for his wife's religious activities.

(emphasis added)

12    The Tribunal found that the wife had not been able to give it the names of her church friends who had been arrested or detained with her during the raid on 23 October 2013, or establish that they were from the same village. It did not accept that she had any friends in the church who had been arrested or detained by the PSB because it found that her church had never been raided. It did not accept that the wife’s business licence had been revoked and her shop shut as a result of her detention. Because the appellants lived in Fujian province, it was not satisfied that there was a real chance or a real risk that they would suffer harm should they return to China, for reasons of their attendance at their underground church in the past that met discreetly in private homes and, moreover, which the husband rarely attended. It did not accept there was a real chance that the appellants would face persecution for reasons of religion, or any other Convention reason, were they to return to China then, or in the reasonably foreseeable future, and, therefore, they did not have a well-founded fear of persecution. It made a corresponding finding in relation to the absence of a real risk that the appellants would suffer significant harm under the complementary protection criterion in s 36(2)(aa) of the Act and, accordingly, affirmed the delegate’s decision.

The proceedings before the trial judge

13    The appellants raised three grounds of review before the trial judge, which his Honour rejected and that formed the basis for the three grounds of this appeal, namely, that his Honour erred by not finding that the Tribunal:

1.    was unreasonable, illogical and or irrational, in that it analysed the nature of the wife’s Christian practice subjectively, rather than based on the evidence before it, based on the expectation expressed in par 15 of its reasons;

2.    constructively had failed to exercise its jurisdiction by ignoring relevant evidence advanced by the wife in respect of the raid and her subsequent detention; and

3.    failed to afford the wife procedural fairness and or a meaningful hearing within the meaning of s 425 of the Act in respect of its finding at par 19 of its reasons that her involvement in the church work in Melbourne was “to foster acceptance by the Tribunal that she would continue the same level of activity in China and be subject to a real chance of serious harm in the reasonably foreseeable future”.

14    The trial judge dealt with ground 1 by observing that there was a high bar to a finding of unreasonableness or illogicality. He cited from the reasons of the Full Court in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 at 447–448 [47], where their Honours discussed the approach that a decision-maker ought take in assessing claims involving religious belief and practice.

15    His Honour found that, when the Tribunal’s decision and the transcript of the hearing before it were considered as a whole, it was apparent that it had approached the matter consistently with the Full Court’s statements of principle, including by reference to the wife’s demonstrated (apparently limited) knowledge and practice of Christianity. His Honour found that the initial part of the transcript revealed that the Tribunal had recorded accurately that, when questioned, the wife had provided limited detail about the nature of the services or prayers beyond reading the Bible or singing hymns. In answer to the wife’s argument that she was never asked directly about content of the services, his Honour found that she was asked what happened on each day, how often the church met and where and that she had provided general answers about those matters, including that there was Bible reading and hymns. He found that it was for the wife to provide detailed information to substantiate her claims, but she had not done so. He discussed par 15 of the Tribunal’s reasons, in which it observed that it would have expected the wife to:

…have “a greater degree of detail in her description and explanation for her activities, particularly with regard to hymn singing, prayers offered, for instance, the Lord’s prayer or similar, or the content of any sermons or similar.”

16    The trial judge found that, when all of the matters to which the Tribunal had adverted were considered, its finding was not unreasonable, illogical or irrational. Rather, he found that it engaged, consistently with MZZJO 239 FCR 436, in the assessment of the extent of the wife’s practice as a Christian. He also observed that, although the appellants had not contended that they had been denied procedural fairness in support of this ground, he would also have rejected such a claim, because of the appellants being on notice of the adverse credibility finding that the delegate had made, based on her general responses and lack of detail in the interview with her.

17    Finally, in disposing of ground 1, his Honour found that there was no jurisdictional error, because the Tribunal ultimately found in the appellants’ favour that the wife would be a member of the local church were she to return to China and would continue to practise her religion in the way it had found she had done beforehand.

18    The basis of the ground 2 was that the appellants alleged that the Tribunal had ignored, first, the wife’s evidence to it that she had been able to avoid previous police raids because she had advance warning of them from members who worked in the local government and, secondly, evidence as to the condition and contents of the release certificate referred to in [16] of its reasons.

19    The trial judge said ground 2 raised two issues about the Tribunal’s findings, namely that it had not accepted the wife’s claims first, in par 15, that she suddenly had come to the attention of the authorities in the raid (the appellants challenged this finding on the basis of the wife’s evidence to the Tribunal that usually members of the church received advance warning of a proposed raid, but there was none on 23 October 2013) and, secondly, in par 16, about the genuineness of the release certificate.

20    His Honour found that in par 15 of its reasons, the Tribunal was not concerned with assessing whether or not there was a raid on the church, because that paragraph was principally concerned with the Tribunal assessing the extent of the wife’s Christian practices. He found that the Tribunal had taken into account the wife’s claim that she had practised Christianity for 30 years, but it rejected it because it did not accept that she would not have come to the attention of the authorities. His Honour found that it was logical and rational for the Tribunal to have reasoned that, if she had been practising Christianity for 30 years, she and her church would not have been able to avoid detection for so long, and that that supported its finding that her claim was not plausible in that regard.

21    His Honour noted that the Tribunal did not have to accept an applicant’s explanation by referring to every piece of evidence and contention, relying on WAEE v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604 [46] and that, accordingly, the Tribunal had no obligation to refer specifically to the evidence on which the appellants founded this ground.

22    His Honour then turned to the way in which the Tribunal dealt with the release certificate in par 16. His Honour said that, in order to address that issue, it was necessary to have regard to the content of the certificate, which in translation recorded:

Detainee [AAN17], gender of female, born on … was determined by [the] Public Security Bureau for administrative/ juridical detention/ interrogation. Detection period started from October 23rd 2013 and ended on November 1st 2013.

Having served the full term is now released.

23    The trial judge found that the terms of the certificate made it apparent that it did not specify any charges against the wife, and so the Tribunal made no error in arriving at its conclusion. He found that the certificate provided no detail or insight into the reason why the wife was detained or the events that led to her detention, and therefore it could not be said that the Tribunal had ignored the content of the certificate or not engaged with it. He also found that the Tribunal had considered the country information set out in par 16 of its reasons about the prevalence of false documents in China, and that its conclusion that the certificate was not genuine was open to it on the evidence.

24    His Honour dealt with ground 3, noting that the issue raised in par 19 of the Tribunal’s reasons, that the wife had undertaken her activities in Melbourne with the church to foster acceptance by the Tribunal that she would continue the same level of activity were she to return to China, had not been raised by the delegate and that there had been no indication from the Tribunal or questions directed by it to her that it contemplated making such a finding. His Honour recorded that the appellants’ argument relied upon the reasoning in SZBEL v Minister for Immigration, Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 165–166 [47]. He found that it was important to have regard to the context that the finding was one about the wife’s motive for engaging in the activities in Australia relating to the church, as it bore on her credibility or reliability as a witness. The trial judge found that the Tribunal had previously made adverse credibility findings about her, including its non-acceptance of her claims to have practised Christianity for 30 years and being detained by the authorities due to her Christian beliefs and practice. He found that the Tribunal’s conclusion did not depend merely upon its assessment of the wife’s credibility but also relied upon a DFAT report referred to by the delegate in his reasons, that generally religion in China could be practised within State-sanctioned boundaries, as long as such practices did not challenge the interests or authority of the Chinese government, so as to put her on notice that the extent of her Christian practice upon return to China was in issue. His Honour referred to the Tribunal’s finding that, were they to be returned to China, the wife would resume the same pattern of small-scale, low-level churchgoing that she had practised before. He held that that finding was open to it based on her motivations for undertaking church work in China and country information.

25    His Honour was satisfied that the dispositive issue was whether the wife had a well-founded fear of persecution arising from her Christian practices and beliefs, about which the Tribunal had expressed serious reservations, and that its questioning of her motives for her activity in Australia, formed a basis, that was open to it, for its ultimate conclusion. His Honour said that the Tribunal was not required to give a running commentary on its thought processes as evidence was given, or encourage an applicant to elaborate on topics on which he or she chooses not to embark, referring to SZBEL 228 CLR at 166 [48]. Accordingly the trial judge rejected ground 3.

The appellants’ arguments

26    The appellants argued the trial judge erred in rejecting each of the three grounds of review. As to ground 1, they contended that by stating its expectation that the wife should have been able to describe the local church’s practices and activities by reference “for instance the Lord’s Prayer or similar” in par 15 of its reasons, it was impermissibly taking on a role as an arbiter of religion or doctrine. They submitted that the Tribunal’s questioning had not sought such detail and that its findings were not based on an assessment of the wife’s evidence in context but rather on the Tribunal’s unstated assumptions of what she ought to have said. They argued that its expectations affected the ultimate conclusion as to the nature of the wife’s claims about, particularly, her practice of religion in the past and as it would occur if they returned to China. They also submitted that that finding would or may have affected its assessment of the wife’s credibility in other areas, such as about the occurrence of the raid on 23 October 2013.

27    The appellants argued in support of ground 2, that the Tribunal had constructively failed to exercise its jurisdiction because it had not dealt adequately with the wife’s oral evidence. The appellants’ argued that the Tribunal had ignored the wife’s evidence to it that ordinarily members of the church received warnings about impending raids, so that they could avoid them, but that there was no warning of the 23 October 2013 raid. They contended that because the Tribunal made no finding about that evidence, it had failed to consider it.

28    The appellants pointed to the only material in the transcript of the Tribunal hearing which dealt with the certificate, that arose in the context of its questions about the wife’s alleged detention following the raid, being as follows:

INTERPRETER: They were warning me. They said that "If you promise not to attend such activities and write down a statement, and then pay a fine, I will get you released tomorrow".

MEMBER: How much was the fine?

INTERPRETER: Eight hundred.

MEMBER: Did you sign the statement?

INTERPRETER: Yes.

MEMBER: Yes, and - sorry, go on.

INTERPRETER: After a few days there I became really scared, because they said to me that "If you don’t tell me who's the leader I will treat you as the leader". She even had to sign her statement.

MEMBER: You've included in your papers a document which you say is a release certificate; is that correct?

INTERPRETER: Yes, they gave me that the - on the eighth day.

MEMBER: That is a copy, I take it? It's - - -

INTERPRETER: My daughter scanned the document for me.

MEMBER: Yes. So that's a copy of the original?

INTERPRETER: Yes.

(emphasis added)

29    The appellants submitted that in par 16 of its reasons the Tribunal ignored the wife’s evidence that the copy of the certificate that she had provided to the Tribunal had been scanned to her and printed off in Australia. They argued, as the extract from the transcript above showed, that the Tribunal had not challenged or explored with the wife any issues about the certificate, including the possibility that it might not be genuine.

30    In support of ground 3, the appellants argued, that nothing the Tribunal said put the wife on notice of the possibility that it might find, as it did in par 19, that what she had done in Melbourne was calculated to foster acceptance by the Tribunal that she would continue the same level of activity, including evangelising, were she to be returned to China and accordingly it had denied her procedural fairness.

Consideration

31    In MZZJO 239 FCR at 446–447 [47 –[48], North, Bromberg and Mortimer JJ said:

[47] The holding of a religious belief, or adherence to a particular religion (whether organised or not) is a fundamental aspect of individual identity. Although some might see religious adherence and belief as of a more profound nature than the holding of a particular political opinion, its character is no different for the purposes of the Convention, in the sense that it is an attribute held internally and manifested (or not) depending on choice, culture and custom. For the purposes of applying Art 1A of the Convention as implemented in s 36 of the Migration Act, a decision-maker must ascertain whether a person in fact holds a particular religious belief or adheres to a particular religion as she or he claims. In some cases this may be obvious, and the genuineness of the belief may be readily apparent. In others, less so. An evaluation of an internally held attribute — such as an opinion or a belief — is likely to involve questions about how the individual understands that belief, what it means to that individual, how she or he manifests that belief. Testing a claim to hold a particular political opinion may need to be undertaken in this way and the same is true of a claim to hold a religious belief. There is no immunity from scrutiny simply because the Convention ground is religious belief. What the authorities have pointed to, however, is a need for the questioning to be rationally capable of assisting a decision whether the person’s claim to hold the belief is genuine or not. Importantly, what must be undertaken is questioning of that particular individual’s belief rather than the application of some standardised or assumed level of knowledge: see SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [45]; WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [28]-[32]; Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at [37] per Kenny J; SZOCT [(2010) 189 FCR 577] at [41], [50] per Buchanan J; SZLSP v Minister for Immigration and Citizenship (2012) 127 ALD 495 at [34]-[36] per Bromberg J.

[48] In SZOCT 189 FCR 577, illustrating the reasoning process of a tribunal which failed to disclose the requisite rational basis, Jacobson J said:

The vice in the Tribunal’s reasons for failing to reach the necessary state of satisfaction is that there is, in my opinion, no rational or logical connection between an assessment of the visa applicant’s failure to reveal an encyclopaedic knowledge of verses from the Bible and what might be expected from a person who believed in and practiced Christianity in China between 2004 and 2008.

Nor, in my opinion, is the Tribunal’s finding based on any probative material in the sense referred to in the High Court authorities to which I have referred. This can be tested by asking whether there is any probative material disclosed in the Tribunal’s reasons to support its conclusion that it was not satisfied that he had a level of knowledge of the Bible that a person might reasonably be expected to have if they had been a believer in, or practitioner of Christianity in China during the period in question.

The approach taken by the Tribunal was not merely to make itself the arbiter of doctrine with respect to Christianity, but the arbiter of the level of knowledge to be expected by one who claimed to have practised Christianity in China from 2004 to 2008. There was no probative material put forward by the Tribunal to suggest any basis for its ability to fulfil that role.

    (emphasis added)

32    Their Honours held that a decision-maker has to ascertain whether a person, in fact, holds a particular religious belief or adheres to a particular religion as claimed, by questioning him or her in a way that is rationally capable of assisting a decision about whether the claim to hold the belief is genuine. They noted that questioning must be about belief and what the person understood, rather than attributing a particular standard or assumed level of knowledge to the person.

33    Here, the transcript revealed that the Tribunal asked the wife questions of a very general nature. The wife was on notice, from the delegate’s decision, that her whole account of being a Christian who had believed and practised her religion for over 30 years in the local church was in question, and that it was for her to establish her claim to the Tribunal’s satisfaction. The first question that the Tribunal asked her was why she was afraid of returning to China. She said then that she had been a Christian and gave a brief description of her arrest and detention. She asserted that she knew the Bible well, believed in God, and would not go to a registered church because it was the vehicle of the Communist Party. The member asked how often the church met, where it met inside the village, what happened on each day and how many people attended. The wife told the Tribunal about each daily meeting only in general terms, for instance, in this exchange:

INTERPRETER: So a small group gathered on Wednesdays. So there are six groups in the village and we met at my house or my neighbour’s house.

MEMBER: And what did you do there?

INTERPRETER: (indistinct) requests, so if people wants to read the Bible, then we would read the Bible. If they want to sing hymns, we’ll sing hymns. So there’s no fixed time or content of the group. It’s a small group gathering.

34    The Tribunal then moved on to ask about how everybody knew about the time or place where the church would meet on the different occasions. There was no attempt by the Tribunal to ask a question to discern further detail about the content of the meetings.

35    Of course, it was for the wife, as an applicant for review, to make out her case. As Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said in SZBEL 228 CLR at 164 [40]:

…proceedings in the Tribunal are not adversarial but inquisitorial in their general character. There is no joinder of issues between the parties, and it is for the applicant for a protection visa to establish the claims that are made.

(emphasis added)

36    The Tribunal appears to have begun its evaluation of the wife’s evidence about her religious beliefs by reference to an unstated expectation about what a person with a Christian belief would know at a particular time or an unstated assumption as to the person’s experiences, knowledge or degree of familiarity with particular matters. It is impossible to know exactly what the Tribunal had in mind as to its expectation about the wife’s ability to give a greater degree of detail in her description and explanation of her activities without her being specifically given an opportunity to expand upon the answer or answers that she gave. The Tribunal did not articulate a foundation for its expectation that a person in the wife’s position, in giving her evidence, would have had any particular level of knowledge; see also Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 581 [22]–[24] per Jacobson J dissenting but, on this issue, affirmed in MZZJO 239 FCR at 447 [48].

37    In my opinion, the trial judge did not err in his ultimate conclusion on ground 1. The appellants’ argument has some persuasive force but, at the end of the day, the Tribunal made a finding of fact as to the wife’s degree of participation and the time period of her practice of religion in China. This was a more favourable finding than the delegate’s. The ground asserts that the Tribunal’s reasoning was unreasonable, illogical or irrational, based on an assertion that it was setting itself up as an arbiter of doctrine. While such a conclusion may be open, I am mindful that the Tribunal’s reasons are of an administrative decision-maker and must not be examined with an eye finely attuned to error and need to be read fairly as a whole: Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at 195 [59]–[60] per French CJ, Bell, Keane and Gordon JJ. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ said:

… a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker (Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287). The Court continued (Pozzolanic 43 FCR at 287): "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (See McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616). In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.

(emphasis added)

38    At the end of the day, the Tribunal was expressing its finding about the overall credibility of the wife based on her claim to be a person who had practised Christianity for 30 years, virtually on a daily basis, and who had a great degree of familiarity with her religion. It was for the wife to make out her claim to the Tribunal’s satisfaction. The Tribunal’s phrasing in par 15 of its reasons about its expectation was expressed about the detail or the lack of it that the wife had given in support of her claim. I am of opinion that is better regarded as an elaboration of its overall credibility finding that the way in which the wife answered its questions lacked sufficient detail for it to be persuaded of the whole of her account based on the length, her asserted practice, of her asserted knowledge. I am not persuaded that the trial judge erred in rejecting ground 1.

39    Ground 2 is in a somewhat different category. First, the Tribunal included in its reasons that it had discussed with the wife why the certificate was not the original, but did not refer to her answer that it was scanned. It also then asserted that it had asked her why the certificate did not show details of any charges. However, there was no evidence in the transcript of the hearing to support that latter assertion. Moreover, there was no evidence before it that the certificate needed to have a statement of charges against the wife. The certificate did state that her detention was “for administrative/juridical detention/interrogation”, and that having served “the full term, [she] is now released”.

40    While, on its face, the certificate does not deal with the wife’s claim that the occasion or purpose of the detention stemmed from the raid, nor do its contents deny that claim. On its face, it shows that there was an administrative or juridical detention or interrogation of the wife but she did not reveal the purpose of that detention or interrogation. The delegate had noted the same country information about the availability of fraudulent documents as the Tribunal recounted in par 16 in its reasons. The delegate had said that she gave little weight to the document and did not accept that it supported the wife’s claim that she had been held in detention.

41    In City of Enfield v the Development Assessment Commission (2000) 199 CLR 135 at 154 [44], Gleeson CJ, Gummow, Kirby and Hayne JJ held that there was no error of law simply in an administrative decision-maker making a wrong finding of fact. They referred to the limited role of a court in reviewing the exercise of an administrative discretion, as had been stated in Wu Shan Liang (1996) 185 CLR at 272. While the Tribunal did not ask the wife detailed questions about the certificate, it came to the same conclusion about it that the delegate had, namely, that it did not support her claim to have been in detention.

42    As the appellants argued, if an administrative decision-maker ignores relevant material in a way that affects the exercise of a power may commit jurisdictional error; see, eg, Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at 451 [68] per Kenny, Griffiths and Mortimer JJ. However, in my opinion, while the Tribunal's approach to fact-finding was far from perfect, the errors that it made the subject of ground 2 did not amount to jurisdictional error, as opposed to wrong findings of facts. For these reasons, I am unable to see any error in the trial judge’s conclusion that ground 2 should be rejected.

43    In relation to ground 3, is common ground that the Tribunal did not put to the wife, as it stated in par 19 of its reasons, that she had engaged in her activities in Melbourne to foster acceptance by it that she would continue at the same level of activity were she to be returned to China and, therefore, be subject to a real chance of persecution or suffering significant harm in the reasonably foreseeable future.

44    The Tribunal accepted that what the wife had done in Melbourne was, in effect, an active, evangelical, pursuit of her Christian beliefs. However, it found that, if returned to China, the wife would return to the same pattern of small-scale, low-level, non-political churchgoing that she had practiced before and that her husband would attend church rarely, because he worked on the farm, as she had told the Tribunal. Relevantly, it did not disregard the evidence of the wife’s activities in Australia pursuant to the former s 91R(3) (the current analogue of what is in s 5J(6)). The Tribunal would have been required to disregard those activities in Australia if the wife had not satisfied it that she had engaged in them otherwise than for the purpose of promoting their claims to protection.

45    Rather, the Tribunal used those activities in Australia to arrive at its findings as to the level of activity in which the appellants would engage in the practice of their religion were they to return to China. This finding encapsulated the Tribunal’s ultimate conclusion that, albeit that the wife was genuinely a practising Christian, she would not engage in the same level of activity that she had in Australia were she to return to China, but rather would return to her old habits. The wife gave no evidence to the Tribunal to suggest that she intended to return to China and evangelise, which was the basis of its finding at par 19 that referred to her evidence about her activities here. She never claimed to have evangelised in China in the past, and it was open to the Tribunal to come to the view it did. For these reasons, I am of opinion that there is no error in the trial judge’s conclusion and that ground 3 ought be rejected.

Conclusion

46    It follows that the appeal must be dismissed with costs.

Associate:

Dated:    14 December 2021